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MBE ISA > EVIDENCE MBE > Flashcards

EVIDENCE MBE Flashcards

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1
Q

Lay Witness

A

Anyone can be a witness as long as they have personal knowledge of what they are testifying about

  • Can also testify about perception
  • Cannot come to legal conclusions
  • Can require witness to take oath or affirmation
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2
Q

Who can not be a witness?

A

judge presiding over the case and jury

unless it is to testify about improper issues in court room

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3
Q

Can child be witnesses - if so what do they have to show?

A

Yes, as long as they can tell the difference between truth and a lie
CAN BE ANY AGE

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4
Q

Expert Witness

A

Must prove that person is an expert
Do this by laying a foundation
Show skills, publication, resume, awards to prove they are expert in certain area

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5
Q

What can an expert testify about/ use when testifying?

A
  • Can give expert opinion from outside material (books, studies, experiments)
  • Can give legal conclusions on case
  • **In criminal cases: cannot give opinion as to mental state of D about an element of a crime or defense **
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6
Q

what is the standard on expert based opninion?

A

Must prove by a preponderance of the evidence that the expert based her opinion on sufficient facts and methodology
- cannot leave stuff out that is clearly relevant to the issue (studies or experiments)

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7
Q

Witness on the Stand: court control

A

Court has to be in reasonable control on what’s going to make sure witnesses are telling the truth
Make sure they are not wasting time and that they are not embarrassed

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8
Q

Leading Questions - when are they allowed/ exceptions?

A

Not allowed on direct examination usually only on cross-examination

Exceptions:
Cross examination
Hostile witness (you are testifying against the party who called you to testify)
Adverse party
Shy witness/child
Jog memory
Lay foundation

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9
Q

Refreshing Witness Memory

A

Witness doesn’t remember so you show them document, photo or other stuff to get them to remember
- It is NOT read into evidence

Does not actually go into the evidence
Just helps them testify

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10
Q

Excluding Witnesses

A
  • Generally one witness cannot be in the courtroom while another witness is testifying

Exception:
- If they are a party to the case
- Statute allows them
- Needed to properly present the case

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11
Q

what does Judge and Jury decide in cases?

A

Judge: questions about rules of law + admissibility
Jury: weight of evidence + questions about facts

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12
Q

Objections

A

Something is admitted and other side is objecting
Timely - must be made right after the question is asked or after witness answers CANNOT BE AFTER THE WITNESS IS DISMISSED
Grounds for why it is being objected

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13
Q

Offer of Proof

A

evidence is excluded + you are mad
make an “offer of proof” on why it should have come in & can be appealed later

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14
Q

Burden to Prove - plaintiff/prosecution

A
  • Plaintiff or prosecution has the burden to prove each element of crime or claim
  • Once they have proved everything -> then it shifts to the D to come back with their own evidence
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15
Q

Burden of Persuasion ( Civil & Criminal)

A

Civil case: P has to prove by a preponderance of the evidence

Criminal: P has to prove each element beyond a reasonable doubt

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16
Q

Presumption

A

Once they meet burden -> judge had to conclude that there is a presumption but it is rebuttable
- Now D has to come back with evidence for contrary

if they do come back -> judge MAY but not require jury to draw a conclusion of a presumption

If they don’t -> judge MUST require the presumption of guilt

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17
Q

Conclusive Presumption

A

No rebuttal evidence may be offered
Usually happens when there is law that can’t be challenged

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18
Q

Impeachment is about who is on the stand?

A

WITNESS

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19
Q

Witness: Regular Impeachment

A

Testify about something and then they say you said something else -> statements are contradicting - usually about conflict, contradiction or

ADMISSIBLE

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20
Q

Attacking Credibility of Witness Impeachment: CRIMES

A

Attacking a witness about a prior conviction:

(1) If felony -> not admissible
unless occurred in the last 10 years + judge determines it balances the balancing test

(2) If crime (felony or misdemeanor) for honesty or truthfulness -> admissible
Can prove it by reputation, opinion, and extrinsic evidence (acts)

ABOUT WITNESS!!

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21
Q

Attacking Credibility of Witness Impeachment: PRIOR BAD ACTS

A

(1) Prior Bad Act: NEVER WAS CONVICTED
- weren’t you accused of or on trial for XYZ? -> not admissible!!!

(2) prior bad act related to honesty and truthfulness -> admissible
“Cheating on law school exam”
Can only ask while on stand!!! -> if they deny it -> cannot prove it via extrinsic evidence (can’t call law school to verify)

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22
Q

Impeach Witness on Collateral Matter (irrelevant info)

A

NOT ALLOWED - has to do with the case

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23
Q

What do you pick when the answer says “Admissible to impeach + substantive evidence”?

A

You pick the two when the statement is a hearsay exception

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24
Q

Relevancy + exceptions

A

Relevancy: any tendency to make a fact more or less probable
Generally admissible

Exceptions
Unfair prejudice (lie detector test)
Confusion
Delay
Wasting Time

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25
Q

Authentication

A

Evidence is what it says it is - or what it purports to be
Writing, photos, documents, charts, photographs, voice recording

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26
Q

How do you authenticate? (3 ways)

A

(1) Testimony with personal knowledge who is familiar
- Doesn’t matter how long ago (second grade
teacher is ok)
(2) Special marking
(3) Direct testimony

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27
Q

Signatures

A

If there is an authenticated specimen -> the jury can compare the two with non authenticated specimen

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28
Q

Self Authenticating Documents

A

Don’t need additional testimony to bring in b/c it is self authenticating
Official
Notarized
Newspaper
Seal

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29
Q

Character Evidence

A

Bad things the DEFENDANT did in the past -> NOT ADMISSIBLE!!!!!!!

Answers will say “too prejudicial” or “improper character evidence”

John is on trial for robbery -> prosecution tries to put his friend bob on the stand to talk about how they used to steal phones in high school -> IMPROPER CHARACTER EVIDENCE

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30
Q

Character Evidence Exceptions (Civil)

A

Civil case:
Character is admissible when it is an issue in the case:

  • Defamation (slander or liable)
  • Child custody
  • Negligent entrustment
  • Misrepresentation/Fraud

Can be proven by reputation, opinion and specific acts

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31
Q

When is character evidence allowed?

A

Character is not admissible UNLESS
D “OPENS TO DOOR” with evidence of his good character

D introduce evidence of good character (honest OR peaceful) - based on the trait of crime you are on trial for

NO SPECIFIC ACTS

Ex: can’t bring proof of truthfulness for battery, robbery and assault b/c its not relevant

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32
Q

What can prosecution do once D opens the door for character evidence? (2)

A

prosecution can bring evidence that you are not peaceful or truthful by (1) calling own witness to testify about your reputation and opinion and (2) on cross-examination, by asking the reputation witness if he has heard of particular instances of the defendant’s misconduct pertinent to the trait in question.

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33
Q

MIMIC

A

Evidence to prove motive, intent, absence of mistake or accident, ID, and common plan or scheme is admissible

Not to show that you did the crime but to show that they had a motive

ONLY APPLIES IF THEY ARE TALKING AB IT IN THE FACTS

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34
Q

Self Defense

A

Defendant can show plaintiff was initial aggressor

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35
Q

Child Molestation

A

Evidence of other child molestation is admissible

36
Q

Habit Evidence/Routine Practice

A

If can show that it happens all the time -> admissible
Can’t happen a few times a year

37
Q

When do privileges apply?

A

ALL STAGES OF A CASE INCLUDING GRAND JURY PROCEEDINGS*

38
Q

Attorney/Client Privilege (6)

A

(1) There must be a relationship
(2) Client Holds the privilege
(3) Extends to paralegals, junior associates
(4) Nature of communication has to be confidential
(5) last 4ever even if fired by client
(6) can be waived must be voluntary

39
Q

Work Product & What is the standard if need it?

A

Generally speaking is protected and not admissivle

exception: must show substantial need and undue hardship in getting it another way

40
Q

Attorney/Client Privilege (Exceptions 2)

A

(1) Go to your lawyer to get advice on how to commit a crime
(2) Dispute between lawyer and client

41
Q

Doctor/Patient Privilege

A

Statements about treatment + diagnoses -> all privileged

Statements not related to the treatment -> not privileged
ex: “I got hit by a ball during a robbery at the baseball field”

Other people can be present as long as its people helping the doc or the patient

42
Q

Doctor/Patient Privilege Exceptions

A

When patient puts condition at issue
Dispute between doc and patient

43
Q

physician or psychiatric patient privilege?

A

Federal courts do NOT recognize!!!!!!

44
Q

Husband/Wife Privilege - two types

A

(1) Spousal Communication Privilege

(2) Spousal Testimonial Privilege

45
Q

Spousal Communication Privilege

A

(1) Protects confidential information disclosed
during marriage
(2) Applies to criminal or civil cases !!!
(3) Couple must be legally married at time of
communication
(4) Privilege survives divorce
(5) Either spouse can refuse to disclose or prevent
the other from disclosing
(6) If choose to waive -> both spouses must waive
the privilege together

46
Q

Spousal Testimonial Privilege

A
  • Only applies in criminal case!!!!
  • One spouse is called to testify against the other (could be about anything including unrelated to hubby guilt such as color of shirt or time he came home)
  • At time of the trial -> must be legally married
  • Covers any discussion before + during the marriage but ends at divorce
  • The one who is going on the stand is the one who decides if they are going to testify
47
Q

Spousal Testimonial Privilege Exceptions

A

No privilege for:
- Future crimes
- Any statements made about child or spousal
abuse

48
Q

Judicial Notice

A

Judge can take judicial notice about any topic not subject to dispute

Can take JN without any permission from parties

If requested by one of the parties -> must take if not in dispute

must take JN of federal/state law
may take JN of foreign or municipal ordinance

49
Q

Instructing the jury about JN

A

Civil case: the jury must accept it as conclusive
Criminal case: the jury may accept the fact as conclusive

50
Q

Subsequent Remedial Measure + Exception

A

Evidence that I fixed something or repaired it -> not admissible
Violates public policy

Exception
Admissible to show control or ownership
To show that this is isa’s property or her car

51
Q

Liability Insurance

A

Not admissible to show negligence
May come in to show bias

52
Q

Offer to Settle or Compromise

A

Communications made in settlements are not admissible
Violate public policy
There has to be a dispute
Disputes have lawyers and trials ect

Instant statement after accidents -> admissible unless there was a dispute

53
Q

Offer to settle + an admission

A

“I will give you 10k it was all my fault” -> entire statement is inadmissible

54
Q

Offer to pay medical expenses

A

Not admissible for public policy

Exception:
Medical expenses + an admission = may be severed and admission is admissible

Ex: “here is 10k for the doctor bills it was my fault”
Can remove the 10k part and include the “it was my fault”

55
Q

Plea Deals

A

Statements that were made negotiating a plea for criminal or civil cases -> not admissible

Exception:
If it is coupled with an admissible statement and it would be fair -> can be admissible

56
Q

Past Sexual Conduct of Victim

A

Bringing up victims sexual past conduct or other sexual behavior is -> not admissible

Exceptions
Depends on the type of case:

Criminal:
Goes to show consent
Protects D’s constitutional right
Physical evidence can come from another source

Civil:
Only admissible if passed the balancing test

57
Q

Best Evidence Rule

A

should have the actual item but if it is
Lost/ Stolen:
You can use a copy if it is authenticated as long as no evidence of tampering

58
Q

When does best evidence rule apply (2)?

A

(1) trying to prove contents of the document itself
- If you need the document to prove your argument then you need the original or an authenticated copy
Ex: warranty deed breach or employment agreement for termination

(2) testifying about something and need document to prove what i’m saying is true
- If there is another way to prove (witnesses,
camera footage, ect) -> best evidence rule does
not apply
Only when its the only way to prove where
someone was or what they were doing
Parking ticket at airport to prove you weren’t at
murder scene

59
Q

Completeness Rules

A

If you are only showing one part of a document or contract -> other party bring in the other half if it for fairness

60
Q

Hearsay

A

Out of court statement offered to prove the truth of the matter asserted

61
Q

Examples of when it is not offered to prove the truth of the matter asserted: (3)

A
  1. words of offer & acceptance
  2. libel or slander
  3. verbal acts that show motive/notice
62
Q

Hearsay Exception: Present Sense Impression

A

Statement made while observing fact
Has to be while you are looking at it
Non-emotional observation

63
Q

Hearsay Exception: Excited Utterance

A

Statement made while excited
Usually says “yelled” “meeped” “shouted” and has a “!”

64
Q

Hearsay Exception: Then existing mental, physical or emotional state of mind

A

Go to motive or intent or emotion
Love, hate, pain
Planning to go somewhere
Statement made to anyone

65
Q

Hearsay Exception: Business Records

A

Document that is in the regular ordinary course of business
Happens all the time !!!

66
Q

Hearsay Exception: Statement From Medical Diagnosis/Treatment

A

Statements made about being treated to medical person
You make this statement to your medical professional

DOES NOT INCLUDE STATEMENTS ABOUT FAULT OR IDENTIFYING WHO DID SOMETHING

67
Q

Hearsay Exception: Recorded Recollection

A

Witness once knew about document but cannot remember
Wrote document or adopted it
MAY BE READ INTO EVIDENCE

68
Q

Hearsay Exception: Public Record

A

Record from public office or agency or someone under a duty to report

****IN CRIMINAL CASES A POLICE REPORT IS TYPICALLY INADMISSIBLE B/C IT HAS MULTIPLE WITNESS STATEMENTS *** FIRE MARSHAL TYPICALLY OK

69
Q

Hearsay Exception: Absence of Public Record or Business Record

A

Look for facts that indicate that there was no record

70
Q

Hearsay Exception: Learned Treatises

A

arises with expert testimony only

Learned treatises are accepted authority in a given field
Established as reliable and accepted authority by testimony, admission, or judicial notice

Experts can rely on learned treatises on direct exam or can be impeached with information from treatises on cross-exam
If admissible, statements from learned treatises

may only be read into evidence

71
Q

Hearsay Exception: Ancient Document & Family History

A

20 years old + authenticated
Prepared before 1998

statements of fact found in family keepsakes, e.g., jewelry engravings, genealogies

72
Q

Hearsay Exception: Catch All

A

Any other statement that is material, trustworthy, and in the interest of justice -> can be let in

73
Q

What are the hearsay exceptions that person is unavailable?

A

Former testimony*
Statements against interest*
Dying declarations*
Statements of personal or family history

74
Q

Dying Declaration

A

UNAVAILABLE
Declarant has to believe they are dying
Statement is about cause of death or why you are dying
Homicide or civil case!!!!!!

75
Q

Statement against interest

A

UNAVAILABLE
Declarant makes a statement that makes them look guilty about something
Generally are made by a non-party

76
Q

Former Testimony

A

UNAVAILABLE
Opponent was a party to a former case
Former case was about the same subject
Made under oath
Had opportunity or motive to exam or cross exam witness

77
Q

Forfeiture of Hearsay and Confrontation Objection

A

In order to forfeit either objection -> D must have had to engage in wrongful conduct to prevent declarant from testifying

78
Q

Non-Hearsay

A

Admissible as non-hearsay, admissible or admissible as substantive evidence
Not exceptions

79
Q

Non-Hearsay: Admissions

A

If a party makes a statement admitting something and makes them look guilty

80
Q

Two Types of Admissions:

A

(1) Vicarious admission: employees made statements about the job or company -> they will come in
“We all drink on the job”
“Nobody ever replaces the breaks”

(2) Adoptive Admission
Someone says something to you and you don’t reply -> silent when a reasonable person would defend themselves
Silence comes in as an adoptive admission
A joke doesn’t apply

81
Q

Non-Hearsay: Prior Consistent Statement

A

Prior statement to refute any charge to clear up motive or that they are lying

82
Q

Non-Hearsay: Prior Sworn Inconsistent Statement

A

Prior statement
Made under oath
That is inconsistent

83
Q

Non-Hearsay: Prior ID

A

testimony that the witness previously made a statement under oath identifying the perpetrator is not hearsay

This is commonly used if a witness identifies a suspect at a lineup but his appearance has changed by the time the case goes to trial

84
Q

Right to Confront Witnesses

A

Out of court statement accusing someone of something
Admissibility applies if it was testimonial or not

85
Q

Testimonial vs Non Testimonial

A

Made to police during emergency - not testimonial -> admissible
Statement not during an emergency - testimonial -> not admissible

86
Q

Demonstrative Evidence

A

Scars, limp, walk -> admissible

87
Q

Hearsay On Hearsay

A

2 different statements
Isa told robby who told mik
Not admissible if two diff statements

MBE ISA (3 decks)

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