Evidence - Barbri Flashcards

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1
Q

Is a party allowed to attack the credibility of a witness using evidence of a prior conviction?

A

Yes.

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2
Q

When is evidence of a conviction permissible?

A

If the conviction is within the 10-year limit and for a crime involving dishonesty or false statement, it is permissible to use evidence of the conviction to impeach the witness as a matter of right.

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3
Q

When may character evidence be used and for what purpose (substantive v. impeachment)?

A

Character evidence may be offered as substantive, NOT impeachment evidence to prove:

  1. Character (only where it is the ultimate issue in the case) [RARE];
  2. As circumstantial evidence of how a person probably acted.
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4
Q

What are the means of proving character?

A
  1. Evidence of Specific Acts as demonstrating character;
  2. Opinion Testimony; and
  3. Testimony as to a person’s general reputation in the community
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5
Q

Is character evidence generally admissible/not admissible in civil cases?

A

Evidence of character to prove the conduct of a person in the litigated event is generally NOT admissible in a civil case.

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6
Q

What is the exception for using character evidence in a civil case?

A

When proof of a person’s character, as a matter of substantive law, is an essential element of a claim or defense in a civil action (i.e. directly in issue)[very rare]

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7
Q

FRE 406: Habit evidence

A

Evidence of a person’s habit may be admitted to prove that on a particular occasion, the person acted in accordance with the habit.

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8
Q

What is “habit”?

A

One’s regular response to a specific set of circumstances.

  • more specific and particularized than character.
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9
Q

Can the prosecution initiate evidence of the bad character of the D?

A

No.

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10
Q

May the accused in a criminal case introduce evidence of her good character?

A

Yes, to show her innocence of the alleged crime.

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11
Q

How can the defendant prove character in a criminal case?

A

Reputation and Personal Opinion Testimony (NOT specific acts of conduct)

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12
Q

After the D brings up evidence of good character in a criminal case, what may the P do?

A
  1. Test the character witness by X-exam regarding the basis for his opinion or knowledge
  2. Call another witness as to the defendant’s bad character by reputation or opinion
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13
Q

What can the prosecution do once D brings up the bad character of the victim?

A

P has the choice of:

  1. Bringing in evidence of the victim’s good character for the same trait, or
  2. the defendant’s bad character for the same trait
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14
Q

FRE 302: Erie doctrine

A

This rule follows the Erie doctrine requiring the application of substantive state law, and provides that application of state law is appropriate ONLY when the presumption operates on a substantive element of a claim or defense (i.e. prima facie case-→substantive in nature)

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15
Q

Hearsay exception: statements of present state of mind

A

Declarations of existing state of mind are admissible as circumstantial evidence to show subsequent acts of the declarant in conformity with that intent.

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16
Q

When are leading questions allowed on direct examination?

A

Allowed in the case of a hostile witness.

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17
Q

Is a misdemeanor conviction hearsay?

A

YES! It is not admissible under any exception.

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18
Q

Is a prior inconsistent statement admissible to impeach a witness?

A

Yes. Where the witness is subject to cross-examination and the statement was made under penalty of perjury, it is nonhearsay and may be admissible as substantive evidence of the facts asserted

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19
Q

Do the Federal Rules permit inquiry on cross-examination of a witness into a specific instance of that witness’s conduct that is probative of the witness’s character for truthfulness?

A

YES.

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20
Q

Are communications between an attorney and client, made during professional consultation, privileged from disclosure?

A

Yes.

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21
Q

Would a business report prepared as a communication from client to attorney be privileged?

A

Yes.

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22
Q

What is the burden of persuasion?

A

The burden of persuasion is the burden of a party to persuade the jury to decide an issue in its favor.

23
Q

Does the burden of persuasion shift from party to party during the course of a trial?

A

No.

24
Q

What is the burden of going forward with the evidence?

A

The burden of going forward with the evidence is the burden of producing sufficient evidence to create a fact question of the issue involved.

25
Q

What does FRE 301 provide?

A

It provides that a presumption imposes on the party against whom it was directed the burden of going forward with the evidence to rebut the presumption.

26
Q

What is circumstantial evidence?

A

Evidence of a subsidiary or collateral fact from which, alone or in conjunction with a cluster of other facts, the existence of a material issue can be inferred.

27
Q

When is circumstantial evidence in the form of opinion testimony by a lay witness admissible?

A

When it is:

  1. Rationally based on the perception of the witness;
  2. Helpful to a clear understanding of his testimony or to the determination of a fact in issue, and
  3. Not based on scientific, technical, or other specialized knowledge
28
Q

Can a prior inconsistent statement NOT made under penalty of perjury be used as substantive evidence?

A

NO! But, it may still be offered to impeach the credibility of the witness.

  • the statement may only be proved by EE if the witness is given an opportunity to explain or deny the inconsistency at some point during the proceeding (either before or after the EE is introduced)
29
Q

Are settlement offers & statements made during settlement negotiations admissible or inadmissible?

A

Inadmissible. Public policy favors the voluntary settlement of disputes.

30
Q

When is evidence of other crimes admissible against an accused in a criminal case?

A

If it is relevant to some issue other than the defendant’s character or disposition to commit the crime charged

31
Q

What evidence can an expert base his opinion on?

A

An expert’s opinion may be based upon the evidence introduced at the trial.

  • The expert may listen to testimony at trial or counsel may relate the facts in the form of a hypothetical question
32
Q

What facts may judicial notice be taken of?

A

Judicial notice may be taken of facts that are not subject to reasonable dispute because they are generally known within the territorial jurisdiction of the trial court.

33
Q

What should the jury be instructed in a criminal case regarding judicially noticed facts?

A

The jury should be instructed that it may but is not required to accept as conclusive any fact that is judicially noticed.

34
Q

Describe a typical Dead Man Act.

A

It provides that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased.

35
Q

Can extrinsic evidence be used to establish specific instances of conduct of a witness for the purpose of attacking the witness’s credibility (other than conviction of a crime)?

A

NO!!!

36
Q

May a party inquire into a witness’s character for truthfulness on X-exam?

A

Yes BUT the party is bound by the answer given by the witness and may not up-prove by EE.

37
Q

What is foundation for receipt of a prior recorded recollection?

A
  1. the witness had personal knowledge of the facts in the writing;
  2. the writing was made by the witness or under her direction, or adopted by the witness;
  3. the writing was timely made when the matter was fresh in the mind of the witness;
  4. the writing is accurate; and
  5. the witness has insufficient recollection to testify fully and accurately
38
Q

Can a prior recollection recorded be received as an exhibit?

A

If admitted, the writing may be read into evidence and heard by the jury, but the document itself is not received as an exhibit unless offered by the adverse party

39
Q

When one party has control over a witness and the witness does not testify, can an inference be drawn that the testimony of that witness is unfavorable to the party with control?

A

Yes!

40
Q

When is opinion testimony by lay witnesses admissible?

A

When:

  1. It is rationally based on the perception of the witness;
  2. it is helpful to a clear understanding of her testimony or to the determination of a fact in issue; and
  3. it is NOT based on scientific technical, or other specialized knowledge
41
Q

To admit an excited utterance, does the person need to be unavailable to testify?

A

Not necessarily…the hearsay rule for excited utterances does NOT require the declarant to be unavailable to testify

42
Q

When the D in a criminal case introduces evidence of a character trait, does it have to be a pertinent character trait?

A

Yes!

43
Q

Is evidence of conviction of a crime involving dishonesty or false statement allowed as a matter of right to impeach a witness?

A

Yes, no distinction is made between felony and misdemeanor in these types of cases, and no discretion is given to the judge to exclude evidence of such convictions that are within the 10-year limit.

44
Q

Does the judge have discretion to exclude convictions for crimes involving dishonesty or false statements?

A

Only if they are too remote in time.

45
Q

What rule allows the admissibility of the deposition testimony of a now unavailable witness?

A

The former testimony exception to the hearsay rule

46
Q

What is the former testimony exception to the hearsay rule?

A

The testimony of a now unavailable witness given at another hearing or in a deposition taken in accordance with the law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing or deposition was meaningful

47
Q

May the jury consider statements from an authoritative text as substantive evidence?

A

Yes.

48
Q

May an expert base his opinion on facts supplied to him outside the courtroom?

A

Yes, including authoritative texts and treatises

49
Q

Can evidence of a party’s insurance coverage be admissible to prove liability?

A

No, but it may be admitted for other purposes, such as impeachment

50
Q

What is the effect of judicially noticed facts in a criminal case?

A

The jury is not required to accept the fact that has been judicially noticed.

51
Q

What is the effect of judicially noticed facts in a civil case?

A

The jury would be required to accept that the fact has been conclusively established.

52
Q

What can/must the court do if a witness has refreshed his memory before trial by looking at a writing?

A

It is within the court’s discretion to require production of the document and to permit inspection, cross-examination and introduction of pertinent excerpts. (even if it is attorney’s work product).

53
Q

Who can testify to the authenticity of another’s signature?

A

Any person, so long as that witness has seen the person’s signature and can express an opinion regarding its authenticity.

54
Q

Who determines the qualification of an expert?

A

This is a preliminary question of fact for the trial judge