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Evidence Intro Cards Flashcards

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1
Q

What is “laying a foundation” for evidence?

A

A party introduce evidence must include preliminary facts needed to establish that the evidence is authentic and relevant in order to be admitted.

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2
Q

What types of witnesses must have personal knowledge in order to testify?

A

A lay witness.

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3
Q

What types of witnesses need not have personal knowledge in order to testify?

A

An expert witness.

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4
Q

How can a witness rely on evidence during testimony?

A

If a witness has trouble remembering a fact or prior statement, the witness can view the evidence to refresh his memory.

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5
Q

How does a party request the court to disallow evidence?

A

By objecting. A party may ask for an offer of proof.

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6
Q

What is lay testimony?

A

Testimony by an individual what is not qualified as an expert on that subject

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7
Q

What sort of opinion testimony is proper? Three types: (i) when opinion testimony is _______ - _________ on the witness’s perception; (ii) when opinion testimony is _________ - ____ - _______________ the witness’s testimony and; and (iii) when opinion testimony does not offer any _______, _________, or other __________ ___________.

A

(i) rationally-based; (ii) helpful in understanding; and (iii) scientific, technical, or other specialized knowledge.

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8
Q

What are the characteristics of a competent witness?

A

A competent witness must be able to testify truthfully and accurately. A witness is presumed competent until proven otherwise.

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9
Q

What is Judicial Notice as evidence?

A

The court may take recognition of a commonly known and certain fact not reasonable to dispute without the need for either party to prove it.

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10
Q

What is the role of the Judge in managing deviance?

A

A judge makes all legal rules on the legal matters.

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11
Q

What is limited admissibility of evidence?

A

Evidence may be admitted specifically for one purpose (but not another) or against one party (but not another); the Court (upon a timely request) must instruct the jury to the limited use of the evidence.

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12
Q

What is a legal presumption?

A

An inference/assumption that a fact exists because another fact is known, or has been proven. A presumption may be conclusive or rebuttable.

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13
Q

What is conclusive presumption of fact?

A

An inference that cannot be overcome by evidence.

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14
Q

What is a rebuttable presumption of fact?

A

An inference that can be overcome by contrary evidence.

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15
Q

What is the standard of review for the trial court’s admission of evidence?

A

Abuse-of-Discretion.

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16
Q

What is the normal scope of witness examination (what are the three steps in the witness exam process)?

A

(i) direct examination (a party questioning its own witness); (ii) cross-examination (a party examining an adverse party’s witness after direct examination); and (iii) redirect examination (a party’s second chance to question its own witness).

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17
Q

In what phase of questioning are leading questions (questions which suggest an answer) allowed?

A

During Cross-Examination.

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18
Q

What is a leading question?

A

A question that suggests an answer.

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19
Q

What sort of questions are barred, in general, from a witness?

A

Misleading, confusing, inflammatory, compound, narrative-response-request, speculation, and asked and answered.

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20
Q

What does it mean to exclude a witness?

A

The Court must, upon request, or may, by its own motion, order a witness to leave the courtroom so that the witness does not hear the testimony of the other witnesses.

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21
Q

Who cannot be excluded from the courtroom as a witness?

A

(i) parties to the matter; (ii) a party’s designated representative (if the party is not a natural person); (ii) a person’s who’s presence is essential to the case; or (iv) a person authorized by statute to be present.

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22
Q

What is witness impeachment?

A

The discrediting of a witness veracity or reliability.

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23
Q

Who can impeach a witness?

A

Any party.

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24
Q

What does it mean to rehabilitate a witness?

A

To improve the witness’s credibility following impeachment.

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25
Q

What is the difference between intrinsic and extrinsic evidence, in the context of witness impeachment?

A

Intrinsic evidence is the witness’s own testimony. Extrinsic evidence is evidence other than the witnesses’s testimony. Both forms are permissible (some exception to extrinsic evidence) to impeach a witness.

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26
Q

How does a party properly impeach a witness based on inconsistency?

A

Demonstration of inconsistencies in the witness’s testimony, including inconsistencies with prior statement

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27
Q

Before a party can impeach a witness for bias, it must ______ a _________ and then introduce _________ __________ of bias

A

Lay a foundation; introduce extrinsic evidence of bias

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28
Q

Criminal Conviction can be asked in cross-examination if (i) the crime was punishable by _____ or _____________ or if (ii) the crime involved a ________ ____ ____ _______ _________.

A

(i) death or imprisonment (>1= 1 year) or (ii) a dishonest act or false statement

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29
Q

When can a party inquire into a witness’s prior bad acts not resulting in a conviction, in order to test the witness’s character and truthfulness?

A

When the party has a plausible, good faith basis for doing so.

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30
Q

What is the permissible method to question a witnesses’ character for truthfulness? (three responses).

A

Call another witness to testify about the witnesses’s reputation for untruthfulness or opinion about the witness’s bad character for truthfulness. A party can also ask a witness in cross-examination about specific instances of conduct indicative of her bad character for truthfulness. A party can also ask a witness about their prior criminal convictions.

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31
Q

What sort of action is prohibited in questioning a witness’s character for truthfulness?

A

No extrinsic evidence can be used to prove prior bad acts.

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32
Q

What is impeachment based on the ability to observe, remember, or relate accurately?

A

A party may impeach a witness with examination or extrinsic evidence based on the witness’s inability to observe, real, ore relate facts accurately

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33
Q

When can a party rehabilitate a witness’s credibility?

A

Generally only after it has been attacked. In general, evidence used to rehabilitate must directly answer the impeachment evidence.

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34
Q

What is impeachment by contradiction?

A

Showing the witness is unreliable based on specific contradictions in the witness’s present testimony and other prior statements.

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35
Q

What is the prosecutor’s duty on evidence that might impeach a government witness?

A

The prosecutor must disclose evidence in a criminal case that might impeach a prosecution witness whose testimony relates to the defendant’s culpability. This is materially exculpatory evidence

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36
Q

What is the relevancy requirement for evidence?

A

Evidence must be relevant and no exclusion rule can apply. Irrelevant evidence is not admissible.

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37
Q

What is the probative value of evidence?

A

The degree to which evidence makes a material fact more or less likely.

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38
Q

What is the test for relevancy of evidence?

A

Evidence is relevant if it has the tendency to make the existence of any material fact more or less probable than it would be without the evidence.

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39
Q

When can a court still exclude relevant evidence?

A

When (under FRE 403) the evidence’s probative value is substantially outweighed by the risk of unfair prejudice, confusing the issues, misleading the jury, undue delay, waste of time, our needless presenting cumulative evidence.

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40
Q

What is evidence authentication?

A

The process of proving that the evidence is what the party claims it is. Evidence must be proven to be admissible.

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41
Q

What is character evidence?

A

Character evidence is evidence regarding a person’s mental and moral qualities. It is generally not admissible, but is available in specific circumstances.

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42
Q

What are the methods for proving character?

A

(a) Direct Examination – character may be proven on direct examination by testimony about the person’s reputation or testimony in the form of an opinion; (b) Cross-Examination – in ross, a party may ask a witness about specific instances of the person’s conduct; (c) Essential Element catchall – if character is an essential element of the claim, any legal method can be used to prove the evidence.

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43
Q

Is a witness presumed competent to testify?

A

Yes. If otherwise, their lack of competence must be demonstrated.

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44
Q

The recognition of a commonly known and certain fact which does not require either side to prove it is called ________ ___________.

A

Judicial Notice

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45
Q

Can a party to the matter be excluded from the courtroom?

A

No.

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46
Q

Can a party’s designated representative (if the party is not a natural person) be excluded from the courtroom?

A

No.

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47
Q

Can a person’s who’s presence is essential to the case be excluded from the courtroom?

A

No.

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48
Q

Can a person’s who is authorized by statute to be present be excluded from the courtroom?

A

No.

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49
Q

Does FRE 403 allow a Court to exclude evidence that can cause unfair prejudice?

A

Yes, if the excluded evidence’s probative value is substantially outweighed by the harm.

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50
Q

Does FRE 403 allow a Court to exclude evidence that can confuse the issues?

A

Yes, if the excluded evidence’s probative value is substantially outweighed by the harm.

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51
Q

Does FRE 403 allow a Court to exclude evidence that can mislead the jury?

A

Yes, if the excluded evidence’s probative value is substantially outweighed by the harm.

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52
Q

Does FRE 403 allow a Court to exclude evidence that can cause undue delay?

A

Yes, if the excluded evidence’s probative value is substantially outweighed by the harm.

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53
Q

Does FRE 403 allow a Court to exclude evidence that can cause a waste of time?

A

Yes, if the excluded evidence’s probative value is substantially outweighed by the harm.

54
Q

Does FRE 403 allow a Court to exclude evidence that needlessly presents cumulative evidence?

A

Yes.

55
Q

______ is evidence of a person’s customs or standard response in a given, recurring situation

A

Habit

56
Q

Habit evidence is offered to show that a person _______ ___ _________ with that habit on a particular occasion

A

Acted in conformity

57
Q

Habit evidence applies to persons and _________

A

Organizations

58
Q

Evidence of a past crime or wrong is not admissible to prove habit (conformity of character). But crimes and past wrongs may be used to demonstrate what? (I) _________; (II) Opportunity; (IIII) __________; (IV) Preparation; (V) ___________, (VI) Knowledge; (VII) _____________ ; (VIII) Absence of mistake; or (IX) ________ ___ _________

A

(i) motive; (ii) opportunity; (iii) intent, (iv) preparation (v) plan; (vi) knowledge; (vii) identity; (viii) absence of mistake; (ix) absence of accident

59
Q

When is evidence of prior sexual assault committed by the defendant admissible?

A

In cases directly involving sexual assault.

60
Q

When is evidence of prior acts of child molestation committed by the defendant admissible?

A

In cases directly involving child molestation.

61
Q

A qualified witness with expert knowledge, skill, experience, training, or education may provide expert testimony if: (1) the expert’s ________ _________ will help the trier of fact understand the case; (2) the expert testimony is based on ________ ________ ___ ________; (3) the expert testimony is the produce of ___________ _________ ___ __________; and (4) the expert has ________ ________ the principles and methods to the case.

A

(1) specialized knowledge; (2) sufficient facts or data; (3) reliable principles and methods; (4) reliably applied

62
Q

What are the two marital privileges for evidence?

A

(i) spousal immunity and (ii) marital communications.

63
Q

What is the spousal immunity privilege?

A

A person claiming the spousal-immunity privilege cannot be required to testify against his/her spouse in a criminal case

64
Q

What is the marital communications privilege?

A

A person claiming the marital communications privilege cannot be required to testify about confidential communications with their spouse that took place while they were married. This applies to both civil and criminal cases.

65
Q

On marital privileges: ________ ________ applies to both civil and criminal cases, whereas ______ ________ only applies to criminal cases.

A

marital communications applies to criminal and civil; but spousal immunity only applies to criminal cases.

66
Q

Attorney-Client privilege protects communications between:

A

clients and their lawyers in all legal settings to promote full disclosure and effective representation.

67
Q

The ______ - _________ doctrine protects materials prepared in anticipation of litigation or trial, and protects the mental processes of lawyers and promotes a fair adversarial system.

A

Work-Product

68
Q

Do federal courts generally recognize a physician - patient privilege?

A

No.

69
Q

State laws generally apply to physician - patient privileges that apply to ________ _________ between a physician and a patient that occur while the patient is ________ ____________.

A

confidential communications; seeking treatment

70
Q

Do federal courts generally recognize a psychotherapist - patient privilege for confidential communications?

A

Yes.

71
Q

When are psychotherapist - patient communications privileged?

A

When they related to obtaining treatment for a psychological, mental, or emotional condition.

72
Q

The ________ - ________ privilege protects private communications between a _______ seeking moral or spiritual advice and a member of the __________

A

Clergy-Penitent

73
Q

The ______ - ________ privilege allows the US to prevent the disclosure of information if there is a reasonable danger that the disclosure would expose military matters that should not be disclosed for _________ _______ reasons

A

states-secrets; national security

74
Q

The __________ - ___________ privilege protects the disclosure of documents create din the furtherance of the formulation of government policy

A

Deliberative - Process.

75
Q

The __________ - __________ privilege protects disclosure of documents reflecting ___________ decision-making and confidential discussion

A

Presidential-Privilege; presidential

76
Q

The law-enforcement privilege protects against disclosure of the what three subject matters?

A

(i) the identity of confidential informants; (ii) undercover investigations; and (iii) investigatory files.

77
Q

Do courts recognize a journalist’s privilege to withhold a source’s identity?

A

Some do, some don’t. Some federal courts have acknowledged qualified privilege based on the balancing of interests.

78
Q

Is evidence of liability insurance admissible to prove a person’s negligence or wrongfulness?

A

No, it is not.

79
Q

Is evidence of liability insurance admissible to show a defendant’s ability to pay a civil judgment?

A

No, it is not.

80
Q

Is evidence of subsequent remedial measures admissible to prove negligence, culpable conduct, or a product design defect, or a need for warning or instruction?

A

No, it is not.

81
Q

What are the two reasons for which settlement offers are not admissible:

A

They cannot be used to (i) prove of disprove the validity or amount of a claim; or (ii) to impeach a witness by prior inconsistent statement or contradiction.

82
Q

Offers to pay _______ expenses related to an injury are not admissible to prove liability for the injury.

A

Medical

83
Q

Past alleged sexual misconduct (( is or is not )) generally admissible.

A

Is not generally admissible.

84
Q

For writings, recordings, or photographs, the best-evidence rule requires that the writing, recording, or photograph be an ________ in order to ______ its contents.

A

original in order to prove its contents; some exceptions to the original/best-evidence rule apply

85
Q

When can a summary of a writing, recording, or photograph be submitted?

A

A summary, chart, or calculation may be used if the evidence is so voluminous that it cannot be conveniently examined in courts.

86
Q

Summaries of a writing, recording, or photograph must (i) be based on ________ __________; (ii) accurately reflect the ________ __________; and (iii) correct the underlying information in a way that is neither ___________ nor ____________

A

(i) admissible evidence; (ii) underlying originals; (iii) prejudicial nor misleading

87
Q

What is the Rule of Completeness for writings, recordings, and photographs?

A

If one party introduces a writing or a recorded statement, the opposing party may require the introduction at the same time the complete file, if the judge determines that in fairness, the evidence ought to be considered at the same time.

88
Q

What is hearsay?

A

An out-of-court statement that is offered to prove the truth of the matter asserted.

89
Q

Hearsay is ________ inadmissible.

A

Presumptively

90
Q

Hearsay can be admitted if (i) it is not offered for _________________; (ii) it falls under an exemption or exclusion from the definition of hearsay; or (iii) it falls under an enumerated hearsay exception.

A

(i) the truth of the matter asserted

91
Q

Is an out-of-court statement offered to prove that a statement was made hearsay?

A

No, because it is not being introduced for the truth of the matter asserted.

92
Q

Is an out-of-court statement offered to impeach a witness hearsay?

A

No, because it is not being introduced for the truth of the matter asserted.

93
Q

Is an out-of-court statement offered because the statement has some independent legal significant hearsay?

A

No, because it is not being introduced for the truth of the matter asserted.

94
Q

Is an out-of-court statement offered to show that the statement had some effect on the hearer or reader hearsay?

A

No, because it is not being introduced for the truth of the matter asserted.

95
Q

Is an out-of-court statement offered to show the declarant’s state of mind hearsay?

A

No, because it is not being introduced for the truth of the matter asserted.

96
Q

Is a statement offered to prove that the declarant and the recipient are related in some way hearsay?

A

No, because it is not being introduced for the truth of the matter asserted.

97
Q

A declarant-witness’s prior, out-of-court statement is not hearsay and is* admissible to prove the truth of the matter asserted if: (i) the witness _______ and is ________ - _________ regarding the statement; (ii) the statement is ___________ with the witness’s present testimony; and (iii) the statement was made under * _______ __ ____* in a prior proceeding or deposition. A prior _________ statement that does not meet these criteria may still be admissible for (iv) ___________ purposes.

A

(i) testifies and is cross-examined; (ii) inconsistent; (iii) penalty of perjury; (iv) impeachment.

98
Q

A declarant-witnesses prior, out-of-court statement is not hearsay and is admissible to prove the truth of the matter if (i) the declarant-witness testifies and is now ________-________ regarding the statement; (ii) the statement is ____________ with the declarant-witness’s prior testimony; (iii) the statement was made before ___ ______ ______ to fabricate arose; and (iv) the statement is offered to ______ ___ ________ of recent fabrication or improper influence or motive, or to rehabilitation the declarant-witness’s credibility.

A

(i) cross-examinable; (ii) consistent; (iii) the alleged motive; (iv) to rebut an allegation.

99
Q

A statement is not hearsay if the statement is offered ________ the party who made the statement.

A

Against.

100
Q

What is the Present-Sense hearsay exception?

A

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it, is admissible.

101
Q

What is the Excited Utterance hearsay exception?

A

A statement made relating to an exciting or startling event or condition, made under stress, is admissible.

102
Q

What is the state-of-mind exception to the hearsay rule?

A

A declarant’s statement regarding his current (at the time of the statement) motive, intent, plan pain, sensation, mental health, or physical health is admissible under the state-of-mind exception to hearsay.

103
Q

What is the Medical Treatment exception to hearsay?

A

Statements made for the purpose of receiving a medical diagnosis or treatment are admissible if they describe: (i) medical history; (ii) past or present symptoms; (iii) the symptom’s inception; or (iv) the symptom’s general cause

104
Q

When can a witness read into evidence a recollection recorded in hearsay writing?

A

When (i) the witness once knew the recorded information, but lacks present recollection at trial; (ii) the record was made by the witness while the matter was fresh in their mind; (iii) the record accurately reflects the personal knowledge the witness had at the time the record was made.

105
Q

When is a business record admissible (against hearsay prohibitions)?

A

When the business record (i) was made at or near the time of the event; (ii) was made by someone with knowledge acting in the the normal course of business; (iii) was kept in the course of regular activity; (iv) was created as a regular business practice.

106
Q

Can the absence of a business record be admitted to evidence?

A

Yes. If record were normally kept and there is no record of the event described, the opponent of the business records must show that there’s a possible source of information to indicate a lack of trustworthiness of the record.

107
Q

Are activities of a public office admissible as hearsay?

A

Yes.

108
Q

Are matters observed by a public official while under a duty to report admissible as hearsay?

A

Yes, excluding matters observed by law-enforcement officers if being offered in a criminal case.

109
Q

Are investigatory findings of government admissible in as hearsay evidence?

A

Yes, If the investigation was legally authorized.

110
Q

Are vital statistics records admissible?

A

Yes, if reported to the public office in accordance with a legal duty.

111
Q

Is the absence of a public record admissible as evidence?

A

Yes, if a diligent search failed to disclose a record, that may be admitted to prove (1) that the record does not exist or (2) that the matter did not occur.

112
Q

Are familial and religious records admissible as hearsay?

A

Yes, in some cases. Regularly kept religious records (birth, marriage, etc); statements of facts contained in certificates from ceremonies; and statements of fact contained in a family record.

113
Q

Are documents and statements that affect an interest in a real property admissible?

A

Yes, if (i) the record is admitted to prove the original document; (ii) if the record is kept in a public office; and (iii) if the recording statute authorizes the recording of that kind of record in the office.

114
Q

Are market reports and similar publications admissible?

A

Yes if they are generally riled upon by the public or people in that particular field

115
Q

Is a statement from a treatise admissible?

A

Yes, if the statement is relied upon by an expert witness on direct examination, or called to the expert’s attention on cross-examination, and the publication is established as a reliable authority.

116
Q

Can a person’s reputation among his family and associates be admissible to prove the herons’s family history?

A

Yes.

117
Q

A person’s reputation that has reached a general consensus in the community that arose before the controversy is admissible if it relates to (i) ____________ or (ii) ______________

A

(i) land boundaries or uses; or (ii) historical events important to that community

118
Q

Is one’s character reputation among his associates admissible?

A

Yes.

119
Q

Evidence of a previous criminal conviction is admissible if (i) the judgment was entered after a ________ or ________ but not after ___________; if the conviction was a crime punishment by ________ or ________; (iii) if the past conviction is admitted to prove a current fact that was __________ to the prior conviction; and (iv) if used in a criminal prosecution for any purpose other than impeachment, the judgment may only be offered by the prosecutor if it ____________.

A

(i) after a trial or a guilty plea, but not after a plea of nolo contendere; (ii) punishable by death or imprisonment (>= 1 yr); (iii) essential; (iv) was against the defendant.

120
Q

Are prior judgments about personal, family, general history, or boundaries admissible?

A

Yes, if the matter was essential to the prior judgment and could be proved by reputation evidence.

121
Q

Former testimony of an unavailable declarant (e.g., deceased) is admissible if: (i) the former testimony was given at a _________, ________, or lawful __________; (ii) if the testimony was offered against a party who had an ________ and ________ to develop it by examination.

A

(i) trial, hearing, or lawful deposition; (ii) party who had an opportunity and similar motive

122
Q

When is the dying statement of a declarant admissible:

A

(i) when the declarant believes his death is imminent and (ii) the statement relates to the cause or circumstance of the declarant’s death.

123
Q

On what sorts of cases can a dying statement be admissible?

A

In a homicide case or a civil case.

124
Q

Are an unavailable declarant’s statements about his own personal or family history admissible?

A

Yes. So too are his statements about another person’s family history if he was intimately associated with that individual.

125
Q

Is an unavailable declarant’s statement admissible against the party who caused his unavailability?

A

Yes, if the party wrongfully and intentionally caused or acquiesced to the event that caused the declarant’s unavailability.

126
Q

The residual exceptions (catchall) for admissible hearsay require: (i) equivalent ______ ________ of trustworthiness as statements permitted in FRE 803 and 804; (ii) be offered as evidence of ________ ______; (iii) be a party’s ____ _____ ________ on the point; and (iv) serve the _______ ________ of the FRE and the interests of justice.

A

(i) circumstantial guarantees; (ii) material fact; (iii) best available evidence; (iv) general purposes

127
Q

The ________ _________ of the Sixth Amendment guarantees a criminal defendant the right to be __________ with the witness testifying against him.

A

Confrontation Clause; Confronted

128
Q

When is a hearsay statement testimonial?

A

When its primary purpose is to prove past events for use in a criminal investigation or prosecution.

129
Q

Testimonial hearsay statements are not admissible, even if they meet a general hearsay exception, unless (i) the declarant is __________; and (ii) the defendant had a previous opportunity to ________ - _________ the declarant about the statement.

A

(i) unavailable; (ii) cross-examine

130
Q

The prosecution may not us a testimonial out-of-court statement from a codefendant that implicates another defendant if (i) both defendants are _______ ________ and (ii) the codefendant does not _________.

A

(i) tried together; (ii) testify

131
Q

What is the process for impeaching an admitted hearsay statement?

A

The same as any witness impeachment.

132
Q

Is multiple / compound hearsay admissible?

A

Believe it or not, yes, if each part of the combined statement is admissible under a hearsay exemption or exception.

Bar Review (15 decks)

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