Evidence (All Bar Topics) Flashcards

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1
Q

Evidence of an offer to settle a claim, and any statements or conduct accompanying the offer, is not admissible to prove:

A

Liability or the amount of the claim if disputed as to liability or amount. Such evidence may not be used for impeachment through a prior inconsistent statement either.

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2
Q

An offer to compromise cannot qualify as such until:

A

The other party has made a claim so that a dispute exists.

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3
Q

Evidence of offering or promising to pay medical, hospital, or similar expenses caused by an injury is not admissible to prove:

A

Liability for the injury.

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4
Q

An offer to plea bargain and statements made in connection therewith are not admissible at:

A

A subsequent trial.

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5
Q

Discuss the rule of admissibility pertaining to Evidence of an offer to settle a claim under 408: Compare with admissibility of Offers to pay Medical Expenses under Rule 409:

A

FRE 408- Settlement Offer–

Offers to settle claims not in “dispute” are admissible. Admissions are NOT Severed (inadmissible).

FRE 409- Offer to Pay Medical Expense–

Offers to pay medical expenses of another are inadmissible Admissions ARE Severed (admissible).

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6
Q

In a criminal case, the prosecution may introduce circumstantial evidence of other crimes, wrongs or acts for the very narrow purpose of proving:

A

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (“MIMIC” evidence).

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7
Q

To approach any Evidence Question, perform the following three steps:

A

Underline the Cause of Action–

Civil or Criminal?

Situate the Proceeding–

Direct or Redirect
Party or Witness

Purpose for Evidence–

Substantive use
Impeachment use
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8
Q

Evidence of the habit of a person, or the routine practice of an organization, is admissible to show:

A

that conduct on a particular occasion was in conformity with the habit.

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9
Q

Habit evidence refers to a narrow range of highly probative traits, namely:

A

Automatic, invariable patterns of behavior that could be characterized by the words “always” or “invariably.” Actions performed “frequently” or “often” do not constitute habit. A habit is a regular response to a given situation that is done without a high degree of forethought. Habit evidence does not need to be corroborated.

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10
Q

Define relevant evidence:

A

Relevant evidence means evidence tending to make the existence of any fact more probable or less probable than it would be without the evidence.

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11
Q

Define the Balancing Test Rule:

A

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

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12
Q

In any civil or criminal proceeding involving alleged sexual misconduct, evidence is generally inadmissible to show:

A

that an alleged victim engaged in other sexual behavior or any alleged victim’s sexual predisposition.

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13
Q

In a criminal case, however, such evidence of sexual misconduct or behavior is admissible for three reasons:

A

To prove specific instances of sexual behavior by the alleged victim, if offered to prove that a person other than the accused was the source of physical evidence; to prove specific instances of sexual behavior by the alleged victim with the person accused of the sexual misconduct, if offered by the accused to prove consent or by the prosecution; if the exclusion of the evidence would violate the constitutional rights of the defendant.

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14
Q

Evidence of remedial measures may only be admitted for:

A

Ownership
Control
Feasibility of Precautionary Measures, if controverted
Impeachment

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15
Q

List the four exceptions to Evidence of Subsequent Remedial Measures being inadmissible to prove guilt.

A

Another purpose, such as negligence, culpable conduct, product defect, or need for warning.

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16
Q

Describe the general rule of character evidence:

A

The general rule is that evidence of a person’s character is inadmissible to prove that he has acted in conformity with that character.

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17
Q

In a criminal case, while the prosecution may not initially show the defendant’s bad character traits to make an inference that he is more likely to have committed the crime charged, the accused may introduce evidence of:

A

Character traits inconsistent with the crime charged (i.e., honesty, peacefulness). However, once the door to character evidence has been opened by the defendant, the prosecution may rebut evidence that has been admitted.

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18
Q

When the accused presents testimony of the victim’s character trait(s), the prosecutor may:

A

cross-examine the reputation or opinion witness and may present witnesses of his own.

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19
Q

Specific acts may also be admitted to show character if:

A

character is an essential element of a charge, claim or defense.

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20
Q

A layperson can testify in the form of opinion on matters which are:

A

rationally based on the perception of the witness, helpful to a clear understanding of his testimony or to the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge.

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21
Q

The proper scope of non-expert opinion includes:

A

such perceptions as speed and other measurements; physical states such as intoxication or injury; personal emotions of others (fear, sorrow); sensory descriptions (taste, sound, smell); value of one’s own land; and sanity of the testator (where the opinion is given by a subscribing witness of the will.

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22
Q

A layperson may not give:

A

legal conclusions (i.e., labeling a schizophrenic, or an alcoholic, or testifying that an accident victim fractured his spine). Opinions as to truthfulness are also not allowed.

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23
Q

A witness’s testimony in the form of an opinion or inference as to an ultimate issue to be decided by the trier of fact is not objectionable merely because:

A

the testimony touches on an ultimate issue. However, ultimate issue is usually never a proper objection.

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24
Q

An expert witness need not testify from personal knowledge, but instead may draw inferences from:

A

facts or dates perceived by or made known to him at or before the hearing.

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25
Q

An expert may be properly cross-examined as to:

A

specific instances in his background that bear on his qualification as an expert.

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26
Q

Cross-examination should be limited to:

A

the subject matter of the direct examination and matters affecting the credibility of the witness. The court may permit inquiry into additional matters. (FRE Only)

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27
Q

Leading questions should not be used on the direct examination of a witness except:

A

as may be necessary to develop the witness’s testimony (i.e., to jog a witness’s memory). Leading questions are permissible on cross-examination.

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28
Q

At the request of a party or at its discretion, the court shall order witnesses excluded so that they cannot (Invoking The Rule):

A

hear the testimony of other witnesses

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29
Q

A person formally convicted of a crime may testify, but the opposing party may bring up the witness’s past crimes to:

A

undermine his credibility

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30
Q

When can a court admit a criminal conviction against a witness?

A

A conviction for a crime involving dishonesty or false statements against any witness is always admissible as long as the conviction is within 10 years.

A conviction within 10 years for a crime not involving dishonesty or false statements is not admissible if for a misdemeanor. If the conviction is for a felony, it is admissible if the probative value of the conviction on the issue of veracity outweighs the risk of unfair prejudice to a party.

For a conviction older than 10 years, for a crime involving dishonesty or false statements, the court may admit the conviction only if it determines that the probative value substantially outweighs its prejudicial effect.

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31
Q

The court may admit a recent conviction of the criminal defendant for a crime punishable by death or at least one year imprisonment only if:

A

the impeaching party first shows that the probative value of the conviction outweighs its prejudicial effect.

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32
Q

The court must admit a recent conviction of a witness (other than the accused) for a non-fraud crime punishable by death or at least one year imprisonment unless:

A

the objecting party shows that the prejudicial effect of the impeachment substantially outweighs the probative value of the evidence.

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33
Q

If more than 10 years has elapsed since the later date of the conviction or the release from confinement, the conviction may only be admitted if:

A

the court determines that the probative value substantially outweighs its prejudicial effect.

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34
Q

Evidence of bad acts which show fraudulent conduct may be inquired into on cross-examination concerning:

A

the witness’s character for truthfulness or untruthfulness, but must be done in good faith. Extrinsic evidence of such conduct though cannot be introduced.

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35
Q

A witness’s credibility may be attacked by opinion or reputation evidence bearing on:

A

the witness’s credibility for untruthfulness.

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36
Q

Opinion or reputation evidence of the witness’s character for truthfulness be introduced, if and only if:

A

the witness’s credibility for truthfulness is attacked.

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37
Q

List seven (7) ways to impeach a witness:

A

Prior Inconsistent Statement
Bias, Interest, or Motive to Misrepresent
Sensory Deficiencies

Bad Character for Truthfulness:

Bad Reputation or Opinion about Witness’s Truthfulness
Criminal Convictions
Bad Acts (without conviction) about Witness’s Truthfulness (FRE only)
Contradiction

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38
Q

The party seeking admission of evidence has the burden to establish:

A

preliminary facts such as competency, qualification of witnesses, unavailability, or privilege by a preponderance of the evidence.

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39
Q

A prior inconsistent statement is admissible only to impeach unless:

A

it comes within an exception to the hearsay rule or it was given under oath, in which case it is admissible to prove the matter asserted.

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40
Q

In examining a witness concerning his prior statement, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request must be:

A

shown or disclosed to opposing counsel.

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41
Q

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless:

A

the witness is afforded an opportunity to explain or deny the evidence and the opposing party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require.

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42
Q

Unless otherwise provided in the Rules, every person is competent to be a witness except for the following five categories of persons:

A

a witness who would be incompetent under state law if state law controls;

a witness who lacks personal knowledge, except for an expert witness;

a witness who cannot understand that he must tell the truth;

the trial judge;

a juror.

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43
Q

Present memory refreshed occurs when:

A

the witness has some knowledge of the purported testimony, but whose memory is incomplete. The witness then testifies to what he remembers without having the refreshing evidence present. The rules regarding hearsay and admissibility of writings are inapplicable.

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44
Q

List the three instances where a Prior Inconsistent Statement is admissible substantively:

A

When under oath AND during a formal hearing;
As an admission under FRE 801 (d)(2); or
If a Hearsay Exception applies.

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45
Q

Describe the Rule of Completeness.

A

If one party introduces a writing or recorded statement, or part thereof, the adverse party may require the introduction at that time of any other part or any other writing or recorded statement that ought, in fairness, to be considered contemporaneously with it.

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46
Q

A lay witness may only testify to matters about which:

A

he has personal knowledge AND

helpful to jury in deciding a fact

47
Q

In general, a juror may not testify as to the manner in which the jury reached its decision. However, a juror may testify as to:

A

whether extraneous prejudicial information was improperly brought to the jury’s attention.

48
Q

If a hearsay statement, or a statement as an exception to hearsay, has been admitted in evidence, the credibility of the declarant may be attacked, and, if attacked, may be supported by any evidence which would:

A

be admissible for those purposes if declarant had testified as a witness.

49
Q

Define the “Confrontation Clause.”

A

The Confrontation Clause requires that:

In a criminal case,
Where the declarant is unavailable,

“Testimonial” evidence is inadmissible unless the defendant is given a prior opportunity to cross-examine the declarant.

50
Q

Detail the 4-step approach to answering a Hearsay question

A

Isolate the statement.
Determine who is the declarant.
Purpose for which the evidence is being offered:
For its truth = hearsay; not for its truth = not hearsay.
Apply the hearsay exceptions.

51
Q

Define Hearsay.

A

Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

52
Q

Define Assertion.

A

A statement is an oral or written assertion, or nonverbal conduct of a person, if it is intended by the person as an assertion. Examples of assertive conduct include gestures (such as pointing a finger, nodding the head, “thumbs up”), silence where it is intended to communicate, and sign language.

53
Q

The Federal Rules specifically exempt the four following out-of court statements, even though they are offered for their truth:

A

Admissions
Prior sworn inconsistent statements
Prior consistent statements
Prior identifications

54
Q

Out-of-court statements which are offered for some other non-truth purpose are not hearsay. Four common examples are:

A

Words of legal significance (tortious words such as slander or libel, or transactional words such as words of offer and acceptance)

Verbal acts tending to show notice, knowledge, motive or good faith

Statements offered to prove a relevant attitude, belief, or intent of either the declarant or the listener

Statements of the witness offered merely to challenge credibility or show perjury.

55
Q

Records kept in the routine course of business are admissible despite the fact that:

A

the declarant is available.

56
Q

The person who kept a business record is not required to have personal knowledge of the event, but someone with personal knowledge must have:

A

transmitted the information in the usual course of business.

57
Q

The business record exception is not applicable to:

A

a business record made in preparation of litigation.

58
Q

Evidence that a matter is not included in a business record is admissible to prove the nonoccurrence or non-existence of the matter, if:

A

the matter was of a kind of which a record was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

59
Q

Describe the “Former Testimony” exception to hearsay:

A

The “former testimony” exception to hearsay applies to a now unavailable declarant’s former testimony given as a witness, or in a deposition, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct-, cross-, or re-direct examination.

60
Q

A memorandum or record is admissible if:

A

it concerns a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately.

61
Q

For a past recollection recorded to be admissible, the declarant must:

A

be on the witness stand.

62
Q

Distinguish between a Present Sense Impression and an Excited Utterance:

A

A present sense impression requires spontaneity, given the fact that the statement must be made while the declarant perceived the event or immediately thereafter. On the other hand, an excited utterance does not require spontaneity, as long as the statement was made under the stress of excitement.

63
Q

Records, reports, statements or data compilations, in any form, of public offices or agencies, are admissible if:

A

they set forth the activities of the office or agency or matters observed pursuant to duty imposed by law.

64
Q

Note when a learned treatise can be used on direct and cross-examination:

A

The learned treatise may only be used after an expert witness has relied on the document, or it has been called to his attention on cross-examination. If used on cross-examination, the opposing expert need not admit the authority of the treatise, but some expert must establish its qualifications.

65
Q

A statement is admissible as a “Statement Against Interest” if:

A

the declarant is now unavailable and the statement was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true.

66
Q

A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless:

A

corroborating circumstances clearly indicate the trustworthiness of the statement.

67
Q

In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death, is admissible as an exception to hearsay if:

A

the declarant is unavailable.

68
Q

“Testimonial” statements include sworn testimonial:

A

At a grand jury,
Prior trial, or
Preliminary hearing; and
Responses made during police questioning, whether sworn or unsworn

69
Q

A statement for medical treatment is admissible if:

A

it’s made for the purposes of medical diagnoses; treatment; description of medical history, past or present symptoms, pain, or sensation; or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to diagnosis or treatment.

70
Q

The wording of the Federal Rule is broad enough to admit statements made to a physician consulted for the purpose of:

A

enabling him to testify even if no treatment is contemplated.

71
Q

A statement of the declarant’s then existing state of mind, emotion, sensation or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) is admissible if

A

offered to prove that condition.

72
Q

The present mental state exception can be used to prove:

A

actions in accordance with that mental state.

73
Q

Note the admissibility of statements of present physical conditions and statements of past physical conditions:

A

Statements of present physical condition are admissible if made to anyone. Statements of past physical condition are admissible only if made to a doctor or the like for purposes of medical diagnosis

74
Q

A statement of then existing state of mind or physical condition is an exception to Hearsay. However, it is not Hearsay when that same state is offered as circumstantial evidence to show any of the following of the declarant listener:

A

Knowledge
Intent
Attitude
Belief

75
Q

The following four categories to the Hearsay Exception require that the declarant be unavailable:

A

Former Testimony,
Dying Declaration - Statements under Belief of Impending Death,
Statements Against Interest; and
Statements of Personal or Family History.

76
Q

Also an exception to the hearsay rule, is a statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did procure the unavailability of:

A

of the witness.

77
Q

A witness is unavailable if the witness is available but persists in refusing to testify about the subject matter of a statement despite:

A

an order of the court to do so, or is exempted from testifying by ruling of the court on the ground of privilege about the subject matter of a statement.

78
Q

Hearsay is not admissible except as provided by the Federal Rules of Evidence, or by other rules prescribed by:

A

the Supreme Court pursuant to statutory authority of or by Act of Congress.

79
Q

A statement of a party offered by his opponent is admissible, even if

A

the statement was not against the party’s interest when he made it.

80
Q

Define Adoptive Admissions:

A

Statements made by others which a party has adopted through his actions are admissions. This most commonly occurs when a party remains silent when a statement is made in his presence which he would deny if it were false.

81
Q

Note whether Post-Arrest Silence and Pre-Arrest Silence may be used as a basis for an Adoptive Admission:

A

Post-arrest silence may not be used as a basis for an adoptive admission, whereas pre-arrest silence may.

82
Q

Prior consistent statements are admissible as substantive evidence to:

A

rebut charges against the declarant of recent fabrication or improper influence or motive.

83
Q

An out-of-court statement consistent with testimony on the witness stand is admissible for its truth to rebut an inference of bias if:

A

the consistent statement was made prior to the time the reason for the bias occurred.

84
Q

A prior identification will be admissible non-hearsay only where:

A

the declarant (eyewitness) is presently testifying at the trial.

85
Q

Define Prior Inconsistent Statements and distinguish between those that are sworn versus those not made under oath:

A

Prior sworn inconsistent statements are non-hearsay and are admissible as substantive evidence. “Sworn” means subject to penalty of perjury and includes depositions and grand jury testimony, but not an affidavit. It must be under oath and subject to cross examination.

86
Q

The statement of an employee made during employment and concerning a matter within the scope of employment is:

A

an admission against his employer; no authority to speak is required.

87
Q

Admissions made by one co-conspirator are only admissible against another co-conspirator if:

A

made to a third party in furtherance of the conspiracy to commit a crime or civil wrong when participating in the conspiracy.

88
Q

Family records and reputation concerning family history are admissible to prove:

A

family relationships. If the declarant is unavailable, his own statement concerning his personal history is admissible.

89
Q

A statement in a document in existence 20 years or more, the authenticity of which is established, comes within the:

A

ancient document exception to the hearsay rule.

90
Q

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of:

A

facilitating the rendition of professional legal services to the client.

91
Q

A communication is confidential if:

A

it is not intended to be disclosed to third persons.

92
Q

The privilege applies even if the individual consulted is not an attorney, if:

A

the client reasonably believed that he was.

93
Q

The privilege also extends to representatives of a lawyer. A representative of a lawyer is:

A

one employed by the lawyer to assist the lawyer in the rendition of professional legal services.

94
Q

There is no privilege if the services of the lawyer were sought or obtained to:

A

enable or aid anyone to commit or plan to commit what the client knew or reasonably should have known to be a crime or fraud.

95
Q

There is no privilege for pre-existing written documents (contracts, leases, memos) merely because:

A

they are given to an attorney.

96
Q

A police officer may testify at a criminal trial as to statements made, so long as:

A

the statement does not violate the party’s privilege against self-incrimination.

97
Q

The results of breath, urine and blood tests administered pursuant to an accident are:

A

not confidential and may be admissible at trial.

98
Q

The inter-spousal privilege has two separate and distinct parts:

A

the spousal testimony privilege, which, in criminal cases, encompasses the right of a witness-spouse not to be forced to testify against their current spouse; and the marital communications privilege, which protects confidential communications made during a legally valid marriage.

99
Q

Federal courts follow the rule that the witness spouse holds the spousal privilege and can choose whether to:

A

testify against the defendant spouse.

100
Q

Define both Spousal Privilege and Marital Communications Privilege and note the holder(s) of each privilege.

A

Spousal Privilege - Protects communications before AND during marriage; Privilege lost at divorce; Criminal cases ONLY
Holder: Federal Courts (Majority); Witness spouse

Marital Communications Privilege - Protects communications ONLY during marriage; Privilege survives divorce; Both Civil and Criminal cases
Holder: Both Spouses

101
Q

Other privileges recognized in some jurisdictions include:

A

a priest-penitent privilege, a social worker-client privilege, and privileges not to disclose one’s vote, a news person’s sources, and government secrets.

102
Q

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of:

A

diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction.

103
Q

The presence of third parties will not destroy the confidential nature of the communication so long as:

A

those persons are present to further the interest of the patient in the consultation, examination, or interview; are reasonably necessary for the transmission of the communication; or are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient’s family.

104
Q

The physician-psychotherapist privilege is waived if the patient, in any proceeding:

A

puts his physical, mental and/or emotional condition at issue.

105
Q

In criminal cases, any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or that result in a plea of guilty later withdrawn is:

A

excluded. Withdrawn guilty pleas are also excluded.

106
Q

The privilege against self-incrimination applies only to evidence that is:

A

testimonial in nature. Presentation of real and demonstrative forms of evidence are not protected (i.e., an accused can be compelled to give writing, hair and blood samples, fingerprints, and to stand in a lineup).

107
Q

Testimony given at a preliminary hearing does not waive:

A

the privilege of the accused not to take the stand at trial. Furthermore, evidence given at a preliminary hearing is inadmissible at trial, and the prosecution may not comment on it.

108
Q

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by:

A

evidence sufficient to support a finding that the matter in question is what its proponent claims.

109
Q

Explain the Best Evidence Rule.

A

To prove the content of a writing, recording or photograph, the original writing, recording or photograph is required, except as otherwise provided in these rules or by Act of Congress. This is known as the “Best Evidence Rule” and it applies only where the contents of a writing are at issue.

110
Q

The Best Evidence Rule does not apply when:

A

first-hand testimony, rather than the record of the event, is used to prove the content of the record.

111
Q

A duplicate is admissible to the same extent as an original unless:

A

a genuine question is raised as to the authenticity of the original, or it would be unfair to admit the duplicate in lieu of the original.

112
Q

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

A
  1. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith;
  2. No original can be obtained by any available judicial process or procedure;
  3. At a time when an original was under the control of the party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or
  4. The writing, recording, or photograph is not closely related to a controlling issue.
113
Q

The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by:

A

copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy that complies with the foregoing cannot be obtained by the exercise of reasonable diligence, other evidence of the contents may be admitted.

114
Q

Grounds for Unavailability.

A

Death, illness, or imprisonment; 2) Absence from jurisdiction; 3) Privilege; 4) Stubborn refusal to testify; and 5) Lack of memory