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Bar Exam Del Law > Evidence > Flashcards

Evidence Flashcards

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1
Q

RELEVANCE (logical)

A

That which has any tendency to make a fact of consequence in determining the action more or less probable than it would be without the evidence

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2
Q

RELEVANCE (legal: Rule 403) - Balancing test / Exclusion

A

Excluded if
- probative value substantially outweighed by risk of
> unfair prejudice ~or~
> confusion, misleading, undue delay, wasting time, or needlessly cumulative

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3
Q

Attorney-Client Privilege

A
  • Confidential
  • Communications
  • between client and attorney for the
  • purpose of seeking legal advice are protected
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4
Q

Attorney-Client Privilege: Exceptions

A
  • Aiding the commission of a crime or fraud
  • Relevant to dispute between attorney and client
  • FORMER Co-clients now adverse to each other
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5
Q

SPOUSAL PRIVILEGE: Spousal Immunity

A

No MARRIED person may be compelled to testify against their spouse in
ANY CRIMINAL proceeding
(covers events BEOFRE the marriage)

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6
Q

PRIVILEGE:

Confidential Marital Communications

A

Confidential communication made between spouses WHILE MARRIED is privileged
(both spouses hold; civil and criminal; survives termination of marriage)

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7
Q

COMPROMISE OFFERS AND NEGOTIATIONS (Rule 408)

A

Not admissible to prove
validity or amount of a disputed claim
~OR~
for impeachment by prior inconsistent statement
(Hey, you said something else in negotiations - can’t do)

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8
Q

SUBSEQUENT REMEDIAL MEASURES (Rule 407)

A

Not admissible to prove

  • Negligence, culpable conduct,
  • defective product or design,
  • need for warning
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9
Q

LIABILITY INSURANCE (Rule 411)

A

Not admissible to prove negligence, culpable conduct, defective product or design, OR need for warning

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10
Q

OFFER TO PAY MEDICAL EXPENSES (Rule 409)

A

Not admissible to prove liability for the injury

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11
Q

Present Recollection Refreshed

A

May refresh with document (or anything!) to help them remember.

  • Not into evidence
  • other party may see it
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12
Q

Objections

A

Compound questions, fact not in evidence, argumentative, calling for conclusions, repetitive

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13
Q

Relevant Evidence

A

Makes a fact more or less likely than it would be without the evidence
- all relevant evidence is admissible

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14
Q

Character Evidence - Propensity

A

Prohibited evidence that the person acted in conformity with their character

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15
Q

Character Evidence - can be proven by

A

Reputation and Opinion

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16
Q

Character Evidence - Criminal Trials ; def character

A

Prosecution = can’t introduce evidence of Bad Character
Def = Can introduce Good character of himself / reputation + opinion only
~but (Opened the Door!) ~ then Prosecution can use SPECIFIC ACTS of bad character on CROSS

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17
Q

Character Evidence - Criminal Trials ; victim character

A

Def can introduce for Self defense / reputation + opinion only
- but-
Prosecution can rebut w/ good character of Vic and bad character of Def // reputation + opinion only

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18
Q

Character Evidence - Other Purposes ..sneaky ways

A

MIMIC
> Motive
> Intent
> Mistake (crime was not likely a mistake bc it happened 3 times before. Absence of Mistake)
> Identity- MO / signature crimes (wet bandits)
> Common Plan - scheme (series of similar crimes)

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19
Q

Habit Evidence

A

Allowed to prove acted in conformity w/ habit
Must be - routine, regular, automatic
(can be a business too - opening and stamping mail)

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20
Q

Judicial Notice

A

When there is no reasonable dispute about a fact

Trenton is the capital of NJ / Pro Sports game time + place

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21
Q

Impeachment - 5 ways

A

B-I-C-C-C

  1. Bias
  2. Inconsistent Statements
  3. Capacity
  4. Character
  5. Contradiction
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22
Q

How can you Impeach by Character

A

Reputation or Opinion

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23
Q

When can you use Specific Acts to Impeach Character?

A

On Cross

  • Must accept the answer - no mini trial w/ evidence that they lied
  • No extrinsic evidence
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24
Q

Impeachment - Character w/ Criminal Convictions

A

– Against the Witness:
1. Crimes involving Dishonesty / false statements
Ex: perjury, fraud, embezzlement
2. Felonies - Punishable by death or over a year prison Unless - the risk of Prejudice SUBSTANTIALLY outweighs the Probative value

– Against the Crim Defendant:
1. Crimes involving Dishonesty / false statements
Ex: perjury, fraud, embezzlement
2. Felonies - Punishable by death or over a year prison Only If - the Probative Value Outweighs the risk of Prejudice

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25
Q

Impeachment - Prior Inconsistent Statements

A

Any + Can use Extrinsic Evidence - allow witness to explain it. (Show Police Rept - then W- “I was shaken by the accident”)

26
Q

Rehabilitate - Impeached witness

A
  • Prior Consistent Statement
  • Clarify + Explain
  • Reputation / Opinion of Character for Truthfulness
27
Q

Lay Witnesses vs. Expert

A

Lay = Facts + Opinions
Expert = Facts + Opinions + Opinion on Ultimate Issue
(May say that the vehicle was defectively designed)
BUT — NO Mental State Opinions of Criminal

28
Q

Witness - Who may testify / Competent to Testify ?

A

Anyone , any age, w/ personal knowledge, swear to tell truth and appreciate obligation to be truthful

29
Q

Authentication of Evidence - Is it what we claim it is?

A
  1. Personal Knowledge
  2. Distinctive Markings / Serial Numbers / etc.
  3. Chain of Custody
  4. Stipulate to it
  5. Self Authenticating Docs - gov’t docs
30
Q

Best Evidence Rule

A

Can’t Describe the Document - when you can just show us
- Saw video of robbery but wasn’t there - must produce the video BUT if there and video - may testify to what they actually saw
Exceptions ;
Unavailable - lost , destroyed / Public Record = copy OK / Too voluminous = summary / Admission by party

31
Q

Parole Evidence Rule -

A

Extrinsic Evidence for a Contract that Changes a Term
- Complete Integration = Excluded
Partial Integration = Allowed if Adds to Terms NOT if Contradicts
» Can be admitted to = Clarify, show custom, fraud, duress, mistake, illegal

32
Q

Attorney - Client Privilege (elements)

A
  • Confidential
  • Communication
  • Legal Advice
33
Q

Attorney - Client Privilege : 3 Exceptions

A
  1. To Future Crime or Fraud
  2. Disputes between - Lawyer v. Client
  3. Disputes between FORMER CO-Clients
34
Q

Attorney - Client Privilege = Corp.

A

Employee w/in the Scope of Employment

35
Q

Attorney - Client Privilege: Work Product

A

Can’t get Mental Impressions

Anything in prep for litigation unless Substantial need + Undue Hardship to get

36
Q

Spousal Privilege

A

Confidential Communications

  • Communication during marriage
  • Held by both + Can prevent the other from testifying
  • Survives after marriage

Spousal Immunity
- Criminal - right to refuse to testify
- currently married
- covers anything before or during marriage
- Only Married couples
> Exceptions - 1 sues other // crimes where 1 = actor vs other victim

37
Q

Proof of Insurance only for

A

Ownership NOT negligence or fault

38
Q

Subsequent Remedial Measures for

A

Ownership or Feasibility of a modification

NOT negligence or fault

39
Q

Settlement Negotiations statements for

A

Can to Show BIAS - NOT Validity or Value of a Claim or Prior inconsistent statement

40
Q

Past Sexual Conduct of Victim only for 3 things

A
  1. Source of physical evidence - semen
  2. Consent
  3. Too unfair / unconstitutional restriction on defendant
41
Q

Past Sexual Conduct of Defendant

A

Can use - propensity to act from prior Bad Acts

42
Q

Hearsay - def

A

An Out of Court statement offered for the truth of the matter asserted

43
Q

Other Uses that are Not Hearsay

A
  • Prove the statement was said (def made a statement)
  • Effect on the Listener (the ins co had notice)
  • State of Mind (speech in French - he’s fluent )
44
Q

Not Hearsay - TESTIFYING Available Witness (3)

A
  1. Prior Inconsistent Statements under Oath
  2. Prior Consistent Statements
  3. Prior ID Statements (line up)
45
Q

Not Hearsay - Party Opponent Statement (3)

A
  1. Party Admission - introduced against party (anything they said )
  2. Adoptive Admission - by statement (Did you rob the bank? Yes) ~or~
    Silence (reasonable Person would have denied said something and denied)
  3. Vicarious Admission - other people authorized to speak on their behalf = lawyer, employee in the scope, co-conspirator, (must be evidence of employment or conspiracy)
46
Q

Unavailable Declarant - (5)

A
  1. Exempted by a Privilege - spousal / attorney client
  2. Refuses
  3. Lacks Memory
  4. Dead or too Ill
  5. Can’t be subpoenaed or found
  6. NOT where the party made them unavailable ..DUH!
47
Q

Unavailable Declarant - Hearsay Exceptions (5)

A
  1. Former Testimony - IF - Other party had opportunity and similar motive to examine at previous trial
  2. Dying Declaration - believe dying, death impenitent, statement relates to the cause of death,
  3. Statement Against Interest - Reasonable person wouldn’t have made the statement (exonerating must have other evidence - suspicious ..my dead friend did it )
  4. Family History - he’s dad
  5. Made Unavailable by the party - anything in
48
Q

Hearsay Exceptions - People (5)

A
  1. Present Sense Impression
  2. Excited Utterance
  3. State of Mind - emotional, physical, mental ~ Can be used to show action in conformance with the intent to do something (I’m going to grandma’s ..intent to go + went)
  4. Medical Diagnosis / Treatment statements
  5. Past Recollection Recorded - can’t remember , wrote when fresh, personal knowledge ~ can be read, not given to jury, Opp party can introduce
49
Q

Hearsay Exceptions - Records (5)

A
  1. Business Records
  2. Public Records
  3. Learned Treatises - scientific stuff by experts, etc
  4. Other legit records, marriage, vital stats, ancient docs
50
Q

Confrontation Clause -

A

Out of Court “TESTIMONIAL” Statement
- NOT ALLOWED
- Unless Either =
Made available for Cross ~or~ Prior Opportunity to Cross

51
Q

Impeachment of Witness - collateral Issue

A

Cannot use extrinsic evidence

- including another person testifying about that person being untruthful-

52
Q

Confrontation Clause

A

To Admit an out-of-court testimonial statement of a declarant against a criminal Def:
1) declarant must be UNAVAILABLE
~ and ~
2) D must have had opportunity to cross-examine declarant

testimonial stmt: requires objective analysis of the circumstances, rather than the subjective purpose of the participants

53
Q

Writing to refresh witness - Inspection by other party

Before Testimony vs Testifying

A

Used Before = May allow

Used While = Must allow

54
Q

Defendant claims he did something Accidentally

- Witness testifies to rebut that several times he did something close (Character) …yes or no ?

A

Yes - Shows he did it INTENTIONALLY –
-Absence of Mistake
MIMIC = Motive, Intent, Mistake (absence), Identity (MO) , Common Plan

55
Q

Past Recollection Recorded -

A
  • CAN be Played if Tape or Read if Document
  • Only admit by other party
  • Personal Knowledge, Made Fresh, Forgets, Accurate,
56
Q

Impeach by asking WITESS about His Own Untruthful Act

A
  • Allowed b/c INTRINSIC ~ from his own mouth
  • Asking someone else about the same act would be EXTRINSIC ..not allowed ~ only allowed extrinsic by reputation or opinion
57
Q

Impeachment by Bias - Witness or the out of court Declarant

A
  • Always allowed to Show Bias -
    “Didn’t the Declarant beat up the Defendant the other day?”
    > shows that friend / declarant might not like the Defendant and would lie about him
58
Q

Specific Acts for Character - when essential Element of a Crime or ..Defense (Self Defense)

A

By Specific Instances of Conduct.- the character or trait may also be proved by relevant specific instances of the person’s conduct.

59
Q

Testimony Evidence of Character - Defamation

A

When a person’s character is in issue, character evidence is admissible in all forms

60
Q

Document Evidence - Summary

A

May use a summary to prove the content as long as they are made available

Bar Exam Del Law (21 decks)

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