Evidence (from GOAT) Flashcards
offers of proof is basically telling the judge (1) what the evidence is, (2) an explination of how the evi relates to case itself, and (3) args supporting its ___
admissibility
Sometimes the court takes judicial notice of facts generally known in the jurisdiction or facts that NO ONE is arguing about from accurate, ____ sources
unquestionable
ei., farmers almanac, historical facts, geographic facts
are mandatory presumpmtions allowed in criminal cases?
NOPE
b/ in crim case you are PRESUMED innocent. So the prosecution must prove each and every little baby element of this crime
juducial notice in crim cases = jury CANNTO ACCEPT
judicial notice in civil case = ___
mandatory
can a judget let in circumstancial evidence?
sure
judge determines admissibility of evi, juries determine credibility and ___ of witness testimony
reliability
can juries testify about the deliberation?
NO - not in crim or civil cases. Jurors cannot testify about the delibrations that took place to get a verdict or idictment
the ___ has the burden of proving every element of the offense
state
So if one side shows the damn mail was properly addressed, stamped, and sent out… it is then presumed to be ___ by the other side.
recieved
Remember: The Appellate court will NOT overturn a judge on abuse of discretion grounds unless he acted ____ or irrationally.
arbitrarily
Let’s talk about the basics of cross examination and some things that may come up on F24:
for teh SCOPE of cross - you can only ask about matters _______ of the direct examination OR things that test the witness’s credibiliby (bias, perception, ____)
within the scope
memory
It doesn’t matter. ____ is always relevant and can always be brought up, even if it’s not within the scope of the earlier questioning.
imepachment
Goat-Note: Remember, a party themselves (like the defendant) doesn’t have the right to be present for ___ parts of the trial (like when the lawyers go back and argue a quick in limine motion)… just the important parts in front of the jury.
ALL
Impeachment is simply casting an adverse reflection on the ___ of a witness
VERACITY
can you impeach a witness by extrinsic evidence?
YES
like calling on other witnesses or brining in docs to show witness is lying
in a civil trial, they can use your prior silence to imepach you and the jusry can draw adveerse inferences based on your pre-trial silence
BUT in crim cases, you have the right to remain silent, so POST-MIRANDA, post-arrest silence ____ be commented on or used to impeach
CANNOT
Anyway, you can impeach with prior convictions
But whether or not we can impeach depends on three things:
- The amount of time passed
- ____
- And whether our witness is the defendant or not
What type of crime it is
Final-Note: Federal law governs issues of privilege in federal court. But in diversity cases, they use the ___ privilege laws =)
state
Mindfuck Concept #2: Normally, as we said before, prior inconsistent statements are only brought in to impeach. However, when they are from an opposing party they can also be brought in _____ and be considered for their truth.
substantively
Mindfuck Concept #1: Normally the prior inconsistent statement is just allowed in for impeachment… however it can be allowed in substantively (meaning the jury can consider it for it’s truth as well, not just for it’s ability to show the witness a liar) when it is given __at a prior formal hearing, proceeding, trial or deposition.
under oath
There are two times when the prior inconsistent statement can be brought in both to impeach and as substantive evidence.
- when the statement was made udner oath of some sort
- deposition
- formal hearing
- trial - if it is from the opposing party it can be brought in substantilly and be consdiered for its truth
over 10 years old crime = ____
under 10 Defendant’s non-dishonest crime =
under 10 year non-dishonest crime of Witness = don’t waste juries time
substantial
probative
But what about… bad stuff people weren’t arrested for? Can we impeach with prior bad acts?
That’s a good question.
You can bring in specific bad acts which involve untruthfulness (things like lying and deceit, NOT prior arrests) as kind of a “shots fired” question on cross only
But you can’t go into it after you fire your shot
I could say to a witness on cross-examination who was talking shit “Isn’t is true that you… lied on your college application?”
SHOTS FIRED.
If the witness says “no” … I can’t then bring in EXTRINSIC evidence to prove he did lie (like documents or witnesses)
Because then we’d have a goddamn TRIAL within a TRIAL
Okay so if a witness has a bias or interest in the case… they can be impeached on that at any time. The most common bias or interest situations the MBE highlights are having a ____ interest at play, or a personal vendetta against someone they are testifying about, or they are afraid of abuse from their husband, etc.
financial
for prior inconsistent statements, they are usually NOT available as substantive evidence because they are almost always OOC statement and thus hearsay
BUT if we want to impeach someone with extrinisic evidence of a prior inconsistent statement,
the witness MUST be given an opp to _____ or ___ that statement
explain or deny
Mindfuck exception #1: You can impeach a hearsay declarant with a prior inconsistent statement without giving them a ____
chance to explain or deny
Mindfuck Exception #2: If a prior inconsistent statement is from an opposing party, no opportunity to explain or deny is needed. It will get in as an ___automatically.
opposing party admission
Mindfuck Exception #3: If the court finds in the _____ that the prior inconsistent statement should get in without an opportunity to explain or deny from the witness, it gets in.
interest of justice
an expert may NOT state an opinion as to whether the accused did or did not have the _____ at issue in a CRIMINAL CASE
BUT in a CIVIL CASE a psychiatrist can testify about a mental state as long as the expert is qualified and its based on specialized knowledge and sufficent data + helpful to trier of fact
mental state
are there any constituional prohibitions against testimony obtained under hypnosis?
no
under FRE 1101(c) rules on privilege apply to ALL STAGES of a case, including grand jury proceedings
Someone is charged with arson of their own house… is evidence that they fully insured it beforehand relevant?
oh yeah
spousal privilege is about testifying. Marial communications is about ____ communications
private
spousal immunity applies in _____ ONLY and says that a witness-souse cannot be forced to testify against a defendant spouse in a criminal case to any communications made between the two DURING or BEFORE their marriage
criminal cases
the spousal immunity privlege ends upon ___
the spousal immunity covers all information learned DURING and BEFORE the marriage
divorce
the spousal testimonial privlege is the “faithful lover” privlege.Remeber that the spouse CAN testify if they want to, but if they are a FAITHFUL LOVER they do ___ have to
not
the marital communications privilege applies in _____cases and says that one spouse may NOT, even if they want to testify to any CONFIDENTIAL COMMUNICATIONS between the couple during a valid marriage unelss the other spouse WAIVES it
criminal and civil
does the marital communciations privlege say alive even after the marriage ends?
yes!!
the marital communication must be CONFIDENTIAL + made DURING MARRIAGE.
befor or after marriage = __
NO
pillow talk preventio ___
privilege
you can PREVENT your spouse from talking about confidential
PILLOW TALK
v. the faithful lover exception where if your lover is faithful, they
won’t testify
work product is documents prepared in ______
anticipation of litigation
work product is NOT protected by the attorney client privilege. Instead, it is protected by the ___
work product rule
However… and this was tested rec -, I mean… it could be tested… if you have two or more clients with a common interest consulting an attorney together… they still have a privilege against third parties… but they do NOT have a privilege against ___ if they get into litigation down the road.
each other
IF THE GOVERNMENT CALLS AN ATTORNEY IN FRONT OF THE GRAND JURY TO IDENTIFY A CLIENT OF THEIRS… THEY ____
But there is one small exception:
HAVE TO IDENTIFY THEM
It is called the last link doctrine: If the attorney is the last link connecting the client to the crime, then they do NOT have to give up the client name.
ACCIDENTAL DISCLOSURE TO OTHER SIDE = NOT WAIVED
ACCIDENTAL DISCLOSURE YOU ARE AWARE ABOUT THEN YOUR LAZY ASS DIDN’T DO ANYTHING TO CORRECT IT?!?!? = __
waived
It is important to note at the outset that federal courts do NOT recognize a doctor-patient privilege, and it is NOT in the FRE. It will ONLY be applied in _____if a state has the privilege.
diversity cases
Tarasoff says that therapists owe a duty to SPECIFIC, _____ who their patient is making threats about. This is some torts shit, but you should know it.
identifiable people
But if he said “I’m beating up Karen on Thursday” … they need to report his crazy ass.
oh ok
There’s ___ privilege if a criminal case is later brought against you pertaining to something you said as well.
NO
Do journalists have the ability to protect their sources?
Nope. No federal privilege exists for this, they are taking your ass in front of the grand jury Deep Throat.
Is there a patient-child privilege not to incriminate your own children in a crime?
nope not federally
Priests or Clergy?
Yes, confidential spiritual communication is protected.
But you need to be doing a confession or like some secret spiritual talk or some shit…
You can’t just be talking to a priest at a party and then reveal to him you killed people.
Now let’s talk about the big one - the privilege against self-incrimination
A witness can’t be forced to testify against themselves.
does the privilege against self incrimination apply in civil proveedings too?
yes!!
Evidence that someone has insurance is not admissible to prove ____ or somehow show that because they had insurance…. they knew they were liable to fuck-up in the future… and it also can’t be used to show that a victim is already getting a shitload of money from Blue Cross Blue Shield so they don’t need a verdict in their favor
negligence
But the MBE is WILDLY sexual when it comes to people using insurance to show other things, such as:
OWNERSHIP or CONTROL
And you can use insurance to impeach… ___
obviously
I mean if the question says “can you impeach with this?” … the answer is yes on the February 2024 MBE. Let’s be fucking real.
Subsequent remedial measures are just fixes or repairs or changes you do after someone got injured by a product or condition
Key-word: These subsequent remedial measures are done ____ someone gets injured. Not after you bought the product… so don’t get confused on the MBE. A true subsequent remedial measure only happens after someone gets injured.
AFTER
Ownership & if they open up the door -> ___ is coming in.
SRM
Settlement discussions in civil cases are not admissible to show someone is at fault or liable or to prove how much damages they caused in (1) the current case, and (2) ____(remember this, they test it sometimes)
subsequent criminal prosecutions
to have a real and protected settlement discussion you need two things:
(1) a REAL ____ about how much money is owed. NOT two peopel agreeing with each other
(2) a REAL CLAIM. Doesn’t have to be a lawsuit
dispute
Key-word: ARGUING.
IF NO ONE IS ARGUING AND THEY ARE BOTH AGREEING… THAT ISN’T A DAMN SETTLEMENT DISCUSSION, THAT IS AN OPPOSING PARTY ADMISSION OF GUILT
F THE CLAIM IS NOT DISPUTED, IT’S COMING IN AS AN ____
OPPOSING PARTY ADMISSION.
If it is a CIVIL CASE, and they start the damn problem by saying “A plumber sued a carpenter” or “in a civil case”… just whisper to yourself ____
opposing party fucking admission.”
CDMN
Compromises (Disputed), Medical (Not Disputed)
Cold days
Misty nights
compromise discussions have to be DISPUTED and medical expense offer3s do NOT
offer to pay medical expnses NEVER come in, but FACTUAL ADMISSIONS attached to them are ___
coming in
You can bring in the victim’s past sexual behavior to show that the victim ___ to the sexual behavior at issue. Essentially you can be like “we were hooking up all the time, so it was consensual this time”
consented
under the FRE, in order to ___ a hearsay or confrontation objection, a defendant must have engaged in wrongful conduct for the purpose of preventing the declarant from testifying.
forfeit
the business record exception to the hearsay rule is ADMISSIBLE when it is a record of an act, event, condition, opinion, or diagnosis that was made AT or NEAR the time, or from info transmitted by, a person with KNOWLEDGE, kept in the course of ______, and it was the regular practice to make such record
business
what are the three ways you can authenticate handwriting?
(1) a handwriting expert
(2) a laywitness opinion
(3) visual comparison bv ____
a jury
how do you authenticate phoen calls?
So a voice can be identified based on the opinion testimony of any person who is familiar with the speaker’s voice… and this familiarity may be acquired at ____
any time
Character evidence can only be brought into civil cases where character is an ____ of the claim or defense
essential element
examples of essential elements of claims:
(1) negligent hiring
(2) defamation
(3) child custody hearings
(4) ___
negligent entrustment
So anytime character is an essential element of a claim or defense in a civil case, you can bring in ANY of our three ways to prove character (1) opinion, (2) reputation, AND (3) ___
prior bad acts
Prosecution can NEVER start by talking shit about the defendant (unless it’s a ___, sexual assault, or child molestation case)
rape
The defendant can only open the door with a pertinent character trait to the crime at issue.
ONE THAT IS ___
RELATED TO THE CRIME WE ARE THERE FOR!!!!!
However, in a battery case… honesty is ___ a relevant character trait.
NOT
So evidence of a habit of a person or the routine practice of a business is admissible to prove that on a particular occasion, the person or business acted in ____ with their habit or routine
conformity
you need what three things to establish HABIT evidence?
(1) regularity
(2) specificity
(3) must be an involuntary or semiautomatic response
If a business has a routine practice like always sending off letters they leave at the end of the day in the outgoing mailbox… they can use that as routine evidence to show that they mailed the letter as part of their___
standard operating practice
MIMIC includes stuff to show ____
consciousness of guilt
A trial judge has broad discretion to control the mode and order of examining wiwtnesses and presenting evidence.
But the ___ typically determine the ORDER in which their evidence will be presented at trial.
parties
that rule about the presumption that a properly mailed envelope is recieved only creates a PRESUMPTion which is then rebuttable. Then this takes the issue to the fact finder = _____ must determine whether the insurance company recieved the payment
jury
a federal court sitting in diversity shuold look to the _____ choice of law rules when deciding which state’s privilege law applies
host state
a federal court sitting in diversity applies ______ according to the host state’s COL rules
STATE LAW
a court MUST take judicial notice of a fact if the court is supplied with the necessary information that the fact is not subejct to reasonable dispute, which is the case here with the bank as a FDIC insured
BUT in a criminal case, the jury should be instructed that it ____ but is _____ take the noticed fact as conclusie
MAY
not required to
For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are _______ with some material part of her present testimony
inconsistent
under FRE, an inconsistent statement may be proved by either examination fo the witness or by___
extrinsic evidence
how can you prove a prior inconsistent statement by extrinsic evidence?
(1) witness generaly must be given a chance to explain or deny the inconsistency + (2) it must be relevant
when a prior inconsistent statement was made under penalty of perjury at a prior trial, hearing, or other proceeding, or in a deposition, this is admissible as ___
nonhearsy
although character evidence is generalyl inadmissble to prove that a person acted in conformity that a particular character trair, a criminal defendant may introduce evidnece of a ________ to show his innocence
relevant character trair
a witness may testify to the D’s good reputation (or that he had heard nothing bad) or may give his _____ concerning the trait of the defendant
personal opinion
under the best evidence rule, the woman cannot testify to the contents of the letter unless the original is LOST, and she did not lose it in _____
here, the woman did not show that the letter is unavailable, so her testimony is _____
bad faith
inadmissible
every person is competent to be a witness as long as the person meets the requirements of having _____ and taking the oath to ____
personal knowledge
testify truthfully
