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My MBE MEE > Evidence MBE > Flashcards

Evidence MBE Flashcards

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1
Q

Lay Witness

A

Anyone can be a witness • Testify as to knowledge/perception • Must take oath/affirmation • Judge/juror may not be a witness • Child may be a witness, Lay witness cannot testify to legal conclusions

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2
Q

Expert Witness

A

1) Lay foundation/qualify the expert 2) Can use outside evidence 3) Can give opinion on conclusion 4) CANNOT give opinion on mental state of defendant if element of crime

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3
Q

Control of Witnesses

A

The Court can take steps to keep “Reasonable Control”

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4
Q

Leading Questions Not Allowed on Direct Exceptions

A

Cross-examination • Hostile witness • Adverse party • Shy witness/child • Jog memory • Lay foundation

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5
Q

Refreshing Memory/Recollection

A

1) May show anything to witness 2) But NOT read into evidence

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6
Q

Witnesses Must Not be Present in Courtroom Exceptions

A

If they are a party • Statute allows • Needed

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7
Q

Judge

A

Rules of Law + Admissibility

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8
Q

Jury

A

Questions of Fact + Weight

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9
Q

Objection to Admission

A

1) Timely 2) Grounds

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10
Q

Offer of Proof

A

1) Evidence was excluded 2) Preserves for appeal

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11
Q

Burden of Production

A

The plaintiff/prosecution must prove each element

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12
Q

Burden of Persuasion Civil

A

Preponderance of the evidence (51%+)

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13
Q

Burden of Persuasion Criminal

A

Beyond a reasonable doubt

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14
Q

Definition - Presumption

A

Conclusion the judge must come to once a party meets its burden

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15
Q

Rebuttable Presumption

A

If the presumption is rebutted with evidence - the jury MAY conclude • If the presumption is NOT rebutted - the jury MUST conclude

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16
Q

Conclusive Presumption

A

No rebuttal evidence may be offered

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17
Q

Impeachment

A

Attacking witness credibility • Generally admissible, Look for two statements in impeachment questions

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18
Q

Prior Felony Convictions

A

1) Felony within 10 years 2) Passes balancing test

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19
Q

Prior Convictions Regarding Honesty/ Truthfulness

A

1) Felony or Misdemeanor 2)Proved by reputation, opinion, or acts

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20
Q

Prior Bad Acts (Not Convictions)

A

In general - Not Admissible • Regarding honesty/truthfulness - Admissible • No extrinsic evidence

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21
Q

Collateral Matter

A

Not relevant to the case • Cannot be used to impeach

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22
Q

Relevant Evidence

A

Any tendency to make a fact more or less probable • Generally ADMISSIBLE

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23
Q

Relevant Evidence is EXCLUDED if

A

Unfairly Prejudicial • Misleads or Confuses the Jury • Causes Delay

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24
Q

Authentication

A

Must show “the evidence is what it purports to be”

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25
Q

How to Authenticate

A

Direct Testimony • Special Markings • Testimony with PERSONAL KNOWLEDGE

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26
Q

Self-Authenticating

A

Look for an Official/Notarized Document • Does NOT require additional testimony

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27
Q

Character Evidence

A

Bad things the DEFENDANT did in the past • NOT Admissible • Too prejudicial

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28
Q

Character ADMISSIBLE in CIVIL cases when at Issue

A

Defamation • Child Custody • Negligent Entrustment • Misrepresentation/Fraud

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29
Q

When Character is at Issue

A

Can be proven by reputation, opinion, and specific acts

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30
Q

Character ADMISSIBLE in CRIMINAL cases

A

Defendant OPENS THE DOOR • Defendant introduces evidence of pertinent trait • Prosecution can rebut evidence of same trait

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31
Q

Character to show MIMIC is ADMISSIBLE

A

Motive • Intent • Mistake (absence of) • Identification • Common Plan or Scheme

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32
Q

Self-Defense Claim

A

Defendant CAN show plaintiff was initial aggressor

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33
Q

Prior Acts of Child Molestation

A

Other instances of child molestation are ADMISSIBLE

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34
Q

Habit Evidence

A

Routine Practice • ADMISSIBLE if habit is done all the time

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35
Q

Attorney/Client Privilege

A

1) There must be a RELATIONSHIP 2) Applies to ANYONE who works for the attorney 3) Lasts FOREVER 4) Communication must be CONFIDENTIAL Privilege is Held by the CLIENT

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36
Q

Work Product

A

Generally protected by Attorney/Client Privilege

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37
Q

Exceptions to Attorney/Client Privilege

A

Getting advice on how to commit a crime • Dispute between Attorney & Client

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38
Q

DOCTOR/PATIENT PRIVILEGE

A

Statements about treatment or diagnosis • Others can be present to assist doctor/patient

39
Q

Exceptions to doctor/patient privilege

A

1) Patient puts his condition at issue 2) Dispute between Doctor & Patient

40
Q

Spousal Communication Privilege

A

Protects confidential information disclosed during marriage

41
Q

Communication Privilege Applies

A

Civil or Criminal • Survives divorce • Either spouse may exert privilege • Both spouses must waive

42
Q

Spousal Testimonial Privilege

A

Prevents a spouse from testifying

43
Q

Testimonial Privilege Applies

A

CRIMINAL case only • Must be legally married at trial • Covers events before/during marriage • ENDS with divorce • Witness-spouse holds the privilege

44
Q

Exceptions to spousal pivilege

A

1) Statements about future crimes 2) Statements about child or spousal abuse

45
Q

JUDICIAL NOTICE

A

Any evidence not subject to dispute • No opinions

46
Q

When to Take Judicial Notice

A

Judge MAY - whether requested or not • Judge MUST - if requested by a party

47
Q

Judicial Notice of Law

A

MUST - federal or state law • MAY - foreign law or municipal ordinance

48
Q

Jury Instructions for Judicial Notice

A

Civil Case - Jury MUST accept as conclusive vs. • Criminal Case - Jury MAY accept as conclusive

49
Q

Subsequent Remedial Measures

A

Evidence that something was fixed after an accident • NOT ADMISSIBLE to show negligence • Public policy rule

50
Q

Exception - Subsequent Remedial Measures

A

ADMISSIBLE to show ownership/control

51
Q

Liability Insurance

A

NOT admissible to show negligence • MAY be admissible to show bias

52
Q

Offer to Compromise/Settle

A

NOT admissible for public policy • Must be a dispute between parties

53
Q

Offer to Compromise + Admission

A

The WHOLE statement is NOT admissible

54
Q

Offer to Pay Medical Expenses

A

NOT admissible for public policy

55
Q

Offer to Pay Medical Expenses + Admission

A

Only the ADMISSION is admissible

56
Q

Plea Negotiations

A

NOT admissible • ADMISSIBLE with an admissible statement + FAIR

57
Q

Past Sexual Conduct of Victim

A

NOT admissible to show other sexual behavior or sexual predisposition

58
Q

Exception - Past Sexual Conduct of Victim

A

In a CRIMINAL Case: 1) Shows consent 2) Protects defendant’s constitutional rights 3) The source of any physical evidence In a CIVIL Case: ONLY if the probative value outweighs the prejudicial effect

59
Q

BEST EVIDENCE General Rule

A

The Best Evidence is considered the original • The Best Evidence Rule does not apply to objects

60
Q

Best Evidence Exception

A

If the original item is lost or destroyed, you may use a copy if it is authenticated

61
Q

Definition - Authentic

A

Authentic means no evidence of tampering • Start with the premise the document is authentic

62
Q

Best Evidence Rule Applies in Two Scenarios

A

1) To prove the contents of the document 2) To prove the testimony being given

63
Q

COMPLETENESS RULE

A

When admitting a portion, the whole document may be admitted for fairness

64
Q

HEARSAY

A

Generally Inadmissible

65
Q

Definition - Hearsay

A

is an out-of-court statement offered to prove the truth of the matter asserted

66
Q

Statements NOT Offered for Truth

A

Words of Offer & Acceptance • Libel or Slander • Verbal Acts to show motive/notice

67
Q

Present Sense Impression

A

Statement made while observing fact • Non-emotional observation

68
Q

Excited Utterance

A

Statement made while excited • Look for “!”

69
Q

Then Existing Mental, Emotional, Physical State of Mind

A

Statements of intent, emotion, or physical state

70
Q

Business Record

A

Record made in the ordinary course of the business

71
Q

Statement for Medical Diagnosis or Treatment

A

Statement related to past or present symptoms • About the treatment or diagnosis

72
Q

Recorded Recollection

A

1) Witness on the stand cannot remember 2) Document made/adopted by witness 3) CAN be read into evidence

73
Q

Public Record

A

Record or statement of a public office/ agency • Observations by someone with a duty to report

74
Q

Absence of Business Record or Public Record

A

Look for facts to indicate there was NO record

75
Q

Learned Treatise

A

Admissible when an expert witness is relying on the treatise

76
Q

Ancient Document

A

1) Authentication: document must be more than 20 years old 2) FRE hearsay exception: document must have been prepared before 1998

77
Q

Catch-All Hearsay Exception

A

1) Material 2) Trustworthy 3) In the interest of justice

78
Q

Definition - Unavailable

A

Unavailable witness means not currently at the trial Does not necessarily mean the witness is deceased

79
Q

Dying Declaration

A

1) Unavailability 2) Belief of impending death 3) About cause of death 4) Homicide or civil case

80
Q

Statement Against Interest

A

1) Unavailability 2) Makes declarant look liable/guilty 3) Generally made by non-party

81
Q

Former Testimony

A

1) Unavailability 2) Opponent was a party to former case 3) Former case about same subject 4) Made under oath 5) Opportunity to cross-examine

82
Q

Definition - Non-Hearsay

A

Not an exception • Admissible substantively

83
Q

Admissions

A

Statement made by a party • Admissible as NON-HEARSAY

84
Q

Vicarious Admissions

A

Statements made by employees about company

85
Q

Adoptive Admissions

A

Party does not respond when a reasonable person would object

86
Q

Prior Consistent Statement

A

1) Prior statement by declarant 2) The same as current testimony 3) To refute charge of fabrication or motive

87
Q

Prior Sworn Inconsistent Statement

A

1) Prior statement by declarant 2) Made under oath 3) INCONSISTENT with current testimony

88
Q

Prior Identification

A

Declarant testifying about an earlier identification

89
Q

Right to Confrontation

A

Right to confront a witness concerning an out-of-court statement depends on if the statement is TESTIMONIAL

90
Q

Definition - Non-Testimonial

A

Statement made to police during an emergency • Admissible

91
Q

Definition - Testimonial

A

Statement not made during an emergency • Not Admissible

92
Q

Physical & Demonstrative Evidence

A

Generally admissible

93
Q

Double Hearsay

A

TWO different statements • NOT Admissible unless both meet an exception or exemption to the rule

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