Evidence (MBE) Flashcards
1
Q
Who decides the weight and credibility of admitted evidence
A
The jury decides the weight and creditibly of evidence that has been admitted
2
Q
When must a hearing be conducted outside the presence of the jury
A
Hearings on preliminary matters much be conducted outside the presence of the jury when:
1. the hearing involves the admissibility of confessions
2. a defendant in a criminal case is a witness and so requests
3. justice requires it
3
Q
What are 3 examples of what the judge - not the jury- decides?
A
- preliminary questions re: the admissibility of evidence
- whether a privilege exists
- compentency of a witness
4
Q
The judge is the trier of ____.
The jury is the trier of _____.
A
The judge is the trier of LAW
The jury is the trier of FACT
5
Q
When do the Federal Rules of Evidence NOT apply?
A
Federal Rules of Evidence applies to most US civil and criminal proceedings except:
1. preliminary adjudicatory quesitons
2. grand jury proceedings
3. issue of search warrant, bail and sentencing
6
Q
In determining whether an expert witness is qualified, is the court bound by the Rules of Evidence?
A
No, the court is not boudh by federal rules of evidence in determining whether an expert witness is qualified.
Therefore, the court can consider otherwise inadmissible evidence (such as hearsay) in determining whether a witness is qualified
7
Q
Who decides whether a witness is qualified to offer expert option testimony
A
Whether a witness is qualified to offer expert opinion testimony is a preliminary question for the COURT, not a question of fact for the jury
8
Q
What are the two ways to call an erroneous evidence admission to the court’s attention?
A
Objection and Offer of Proof
9
Q
When may a party challenge an evidentiary rulling as wrongful?
A
A party may challenge an evidentiary ruling a wrongful only if:
1. The ruling affects a SUBSTANTIAL RIGHT of a party - and-
2. The party notifies the judge of the error.
10
Q
When is a witness qualified to provide expert option testimony?
A
A witness is qualified to provide expert option testimony if the witness has specialized knowledge, skill, experience, education or training in a subject that pertains to the case.
11
Q
What is the prosecution’s notice requirement for specific acts in criminal cases?
A
The prosecution must provide reasonable pre-trial notice of their intent to offer evidence of specific acts. The prosecution must also articulate the permitted (MIMIC) purpose for which the evidence is being offered.
12
Q
True or False?
The court may allow broader inquiries for cross-examination at its discretion. True or False?
A
TRUE
Although typically limited to the scope of the direct, the court can broaden the scope.
13
Q
What is the “calls for conclusion” improper question objection?
A
A question is not permitted when it requires the witness to draw a conclusion or state and opinion they are not qualified to make.
14
Q
What are the 5 types of improper questions?
A
- Compound question
- Assumes facts not in evidence
- Argumentative
- Calls for a conclusion
- Repetitive
15
Q
What is the rule re: a judge calling or interrogating witnesses?
A
Judges may call witnesses or quesiton them directly.
Objections to the judge’s actions can be made after the jury is gone/not present in the room.
All parties can question judge-called witnesses.
16
Q
What is a case-in-chief?
A
The portion of the trial where the party with the burden of proof in the case presents the evidence.
17
Q
What is the general order of presenting evidence at trial?
A
Trial begins with the plaintiff’s or prosecutor’s case-in-chief, followed by the defendant’s case, then rebuttal.
18
Q
What is the scope of cross examination?
A
Cross examination is limited in scope to the subject matter of direct examination and cannot exceed that scope.
19
Q
What are legislative facts?
A
Legislative facts are backgrand facts that help the court understand laws and their application, such as societal effects.
20
Q
What are the TWO exceptions for when a leading quesiton is allowed on direct examination?
A
Leading questions are allowed on direct examination when:
1. The witness struggles to communicate (due to infancy or disability)
2. Hostile witness refuses to answer.
21
Q
Are leading questions allowed during cross examination?
A
Yes, leading questions are allowed during cross examination.
22
Q
What is a leading question and when is it NOT allowed?
A
A leading question suggest the answer within the question.
Leading quesions are not allowed on DIRECT examination except for witnesses who struggle to communicate due to infancy or disabiity or hostile witnesses.
23
Q
If an improper question is asked what motion should counsel make?
A
Counsel should object and move to strike the answer.
24
Q
If a defendant testifies on preliminary matters, does this open the door for the prosecution to ask any quesiton?
A
NO
If a defendant testifies on preliminary matters, this does NOT open the door to cross examination on other issues.
25
What amendment protects defendants from self-incrimination?
Fifth Amendment
26
A witness is testifying relying on a writing, but the subject of the testimony is a collateral matter. Does the Best Evidence Rule apply?
NO
The BER only applies when the writing is closely related to a CONTROLLING issue.
27
Under FER 1004(d), the Best Evidence Rule is inapplicable where the writing _______.
The Best Evidence Rule is inapplicable where the writing is not closely related to a controlling issue.
28
The Best Evidence Rule applies only to ____ terms.
BER applies only to MATERIAL terms.
29
What are the TWO situations in which the Best Evidence Rule requires that the ORIGINAL document, if available, be introduced?
1. The terms of the writing are being proven
2. The witness is testifying relying on the writing
30
When can a crimianl defendant introduce evidence of a vicitm's bad character?
A criminal defendant can introduce reputation and opinion evidence of a victim's bad character when relevant to a defense asserted.
E.g. Evidence of a victim's violent character to support D's claim of self-defense.
31
In a CRIMINAL case, the jury ____ accept judicially noticed facts as conclusive.
In a criminal case, the jury MAY, but is not required, to accept judicially noticed facts as conclusive.
32
What happens if a defendant 'opens the door' to character evidence? How does the door open?
If a defendant introduces evidence of his good character, this opens the door. The prosecution can now rebut it with evidence of D's bad character to attack D.
If D introduces eevidence of a victim's bad character, this also opens the door. The prosecution can rebut with evidence of D's bad character.
33
In a CIVIL case, the jury ____ accept the judicially noticed facts as conclusive.
In a CIVIL case, the jury MUST accept the judicially noticed facts as conclusive.
34
Can a defendant introduce evidence of thier good character in a criminal trial?
Yes, under the mercy rule a defendant may introduce evidence of their good character if relevant to the crime charged.
35
D is charged with brutally murdering his brother. Can the prosecution present evidence of D's violent nature?
No
36
Can the prosecution introduce evidence of a defendnat's bad character in a criminal case?
No! The prosecution cannot introduce bad character evidence to prove propensity to commit a crime.
37
When can the court take judicial notice?
A court may take judicial notice at ANY STAGE of the proceeding, even on appeal.
38
In a civil case, if there is a dispute as to who was the initial aggressor, what can either/both parties do?
Either party may introduce evidence of their own peaceful character OR the other's violent character.
39
A party makes a timely request for the court to take judicial notice. What must the judge do?
When a party makes a timely request for the court to take judicial notice, the judge MUST give them the chance to be heard on the appropriateness of judicial notice.
40
Character evidence is admissible when it is an _____ _____ of a claim or defense.
Character evidence is admissible when it is an **essential element** of a claim or defense.
41
What are the exceptions to the inadmissiblity of character evidence in civil cases?
**(1) Sexual Misconduct Cases
**Evidence of D's past sexual assault or molestation is admissible if they're being charged with a similar act.
**(2) Self-Defense Cases
**D may introduce evidence of P's violent character if relevant to the reasonableness of D's actions
42
Can judges take judicial notice based on their personal knowlege?
No, this is not allowed. The fact must be generally known or readily determinable.
43
Is character evidence admissible in civil cases to prove conforming conduct?
No, evidence of a persons' character is inadmissible to show that they acted in conformity with that character on a particular occassion.
44
What does "accurately and readily determinable" mean for judicial notice?
A fact need not be generally known if it can be determined based on authoritative, accurate sources.
45
What is the rule regarding the admissiblity of character evidence?
Character evidence is generally inadmissible unless:
(1) Character is an **essential element** of a claim or defense
(2) It is used for **impeachment** purposes
46
What is character evidence?
Character evidence is evidence offered to show a person's general personality traits or propensities.
47
What does general knowledge mean for judicial notice?
General knowledge = the fact does not have to be universally known but it must be well-known within the jurisdiction.
48
When is a curative admission appropriate?
A curative admission is appropriate when:
(1) A motion to strike or a curative jury instruction is insufficient
(2) The opposing party failed to object to the initial inadmissbile evidence.
49
What is a curative admission?
A curative admission is when a court permits additional inadmissible evidence to rebut previously admitted inadmissible evidnece.
The goal is to remove unfair prejudice or advantage.
50
Judicial notice may be taken of facts that are either ____ or ____.
Judicial notice may be taken of facts that are either GENERALLY KNOWN or READILY DETERMINABLE.
51
Can evidence be admitted even if the danger outweighs its probative value?
Yes, evidence may be admitted unless the danger **substantially** outweighs its probative value.
52
What is unfair prejudice under Rule 403?
Unfair prejudice refers to the risk that evidence will prompt the jury to decide the case on improper grounds - e.g. emotion or bias.
53
The Federal Rules of Evidence address judicial notice only for what types of facts?
Adjudicative Facts -
facts that are relevant to the legal outcome of the case.
54
What should courts consider when assessing probative value?
Courts shoudl consider whether other, less prejudicial, alternatives exist to establish the same fact.
55
When may relevant evidence be excluded under Rule 403?
Relevant evidence may be excluded if its probative value is substantially outweighed by risks of:
(1) Unfair prejudice
(2) Confusing the issues
(3) Misleading the jury
(4) Undue delay
(5) Wasting time
(6) Needlessly cumulative evidence
56
Who holds the spousal immunity privilege under the majority rule? The minority rule?
Majority - the witness spouse is the holder of the privilege, so they can testify if they WANT to testify, but cannot be compelled to testify.
Minority - the defendant spouse holds the privilege
57
Can a defendant be convicted solely on circumstantial evidence?
Yes, a defendant can be convicted solely on circumstantial evidence.
There is no rule requiring direct evidence for a conviction.
58
Is irrelevant evidence admissible?
No, irrelevant evidence is generally inadmissible.
59
What does it mean for evidence to be probative?
Probative means it tends to make a fact more or less probable.
60
Evidence is relevant if it is ___.
Evidence is relevant if it is:
- Probative
- Material
61
What are the two types of spousal privilege?
1. Spousal Immunity - protects one spouse from being compelled to testify against the other in criminal case
2. Confidental Marital Communication - protects private communications made during marriage.
62
What must the proponent of the destroyed evidence establish to raise a rebuttable presumption?
The proponent must establish:
(1) The destruction was intentional
(2) The destroyed evidence was relevant to the issue at hand
(3) The propnent acted with due diligence
63
What is the general rule regarding the intentional destruction of evidence?
It raises a rebuttable presumption that the evidence would have been unfavorable to the party who destroyed it
64
How can privilege be waived?
Privilege is waived if the privilege holder:
1. Fails to assert it in a timely manner
2. Voluntarily discloses the confidential communication to someone else
3. Contractual waiver.
65
What is the bubble-bursting theory?
A rebuttable presumption 'bursts' and loses its effect when sufficient contrary evidence is introduced.
66
What is a presumption and what are the two types?
A presumption is a conclusion that the factfinder must draw based on proof of underlying facts.
Can either be reubttable or conclusive.
67
What is required for a communication to qualify for a privilege?
The communication must be CONFIDENTIAL.
68
What is the burden of persuasion?
The burden refers to a party's obligation to convince the factfinder to believe their side
69
What is a privilege?
Privileges protect certain communications from compelled disclosure.
70
What is the criminal standard for the burden of persuasion?
Beyond a reasonable doubt
71
What is the civil standard for the burden of persuasion?
Preponderce of the evidence (more likely than not)
72
When does the presence of a third party destroy privilege?
Privilege is destroyed by the presence of a third party unless:
1. The parties don't know the third party is present (eavesdropper)
2. The third party is necessary to the communication (translater).
73
The party with the burden of production must produce evidence to what standard?
Must produce **legally sufficient** evidence for each element of a claim or defense
74
The party with the burden of production falls short. What is the result of this failure?
Failure to meet the burden of production - directed verdict against them.
75
Who can identify a voice?
Anyone who has heard the voice before, either firsthand or through recordings.
76
What is the burden of produciton?
The burden of production refers to a party's obligation to provide sufficient evidence to support a proposition of fact.
77
How does handwriting verification differ from voice identification?
Handwriting verification prohibits familiarity gained during litigation while voice ID allows it.
78
What are the two burdens of proof?
The burden of production and the burden of persuasion
79
What is the rule for excluding a witness from the courtroom?
At a party's request, the court MUST exclude a witness from the courtroom so they do not hear the testimony of other witnesses.
80
Can a lay witness become familiar with handwriting DURING litigation for authentication?
NO
Familiarity with handwriting for the purpose of litigation is not admissible for verification.
81
Why do we allow exclusion of witnesses from the courtroom?
To prevent contamination of witness testimony
82
When can a witness not be excluded from court, even if the other side requests their exclusion?
The following witnesses cannot be excluded:
(1) Parties to a case
(2) Designated representatives of non-natural parties
(3) Witnesses esssential to the cases' presentation
(4) Statutorily protected witnesses
83
What are the two methods for handwriting verification?
1. Comparison by an expert witness or the trier of fact (judge or jury)
2. Non-expert opinion from someone familiar with the handwriting.
84
What is the 'completeness rule'?
When a party introduces part of a statement, the opposing side can request release of the entire statement.
85
WHO can provide a non-expert opinion on handwriting?
A lay witness with personal knowledge of the claimed author's handwriting.
Note: Their knowledge cannot have been acquired for the purpose of the current litigation.
86
# True or false
Evidence may be admissible against one party but not against another.
True
87
What rules govern interpreters in court?
An interpreter is treated as an expert witness and must take an oath to provide TRUE translation.
88
Can evidence be admissible for one purpose but not another?
Yes! For example, impeachment but not as substantive evidence.
89
What are the rules for paying witnesses?
A lawyer cannot:
1. Pay more than reasonable expenses and time for testimony (except for experts, who may get a fee)
2. Offer contingent payment for testimomy based on the substance of what they say or on the outcome.
90
A plain error is foudn by the appellate court. What is the impact?
A finding of a plain error is a ground for reversal to avoid a mischarriage of justice.
91
What is the plain error rule?
The appeallate court can review evidence, even if there is no objection, for plain errors.
Plain error = obvious mistake that affects a party's substantial rights and the fairness of the proceedings
92
What is the role of the court appointed experts?
A court appointed expert must:
1. Advise each party of finding
2. Be available for deposition, testimony and cross exam
3. Be paid by the court in criminal cases or by the parties in civil cases.
93
What are the exceptions to spousal privilege?
Spousal privilege does not apply when:
1. One spouse sues the other
2. One spouse is charged with a crime against the other spouse or their children.
94
Who holds the confidential marital communication privilege under the majority rule?
Both spouses hold the privilege, meaning either can:
Refuse to testify
Prevent the other from testifying
95
Does the confidential marital communications privilege apply after marriage ends?
YES
Marital communications privilege survives the termination of the marriage
96
When does spousal immunity privilege end?
Spousal immunity privilege ends when the marriage ends.
97
Does spousal immunity apply to events that occurred before marriage?
YES
Spousal immunity applies to events both before and during marriage.
98
What does an offer of proof do?
An offer of proof PRESERVES the evidence for appellate review.
99
What is an offer of proof?
An offer of proof is an oral or written explanation of the RELEVANCE and admissiblity of evidence.
100
Why make an objection if a party believes the court improperly admitted evidence?
If a party believes the court admitted evidence erroneously, the MUST make a TIMELY objection to PRESERVE TEH ISSUE FOR APPEAL.
101
When can inadmissible facts underlying an expert's opinion be disclosed to the jury?
These facts may be disclosed if their probative value sustantially outweighs their prejudicial effect.
102
What can an expert base their opinion on?
An expert can base their opinion on:
1. Facts and data personally oberserved
2. Facts made aware of at trial
3. Facts reasonably relied upon by experts in the field even if inadmissible.
103
Can an expert's opinion address the ultimate issue in a case?
YES, but an expert CANNOT opine about a CRIMINAL defendant's mental state if it is an element of a crime or defense. That assessment is exclusively for the trier of fact.
104
What is the STANDARD for admitting expert testimony?
The proponent must demonstrate that is is more likelky that not that:
1. The testimony is based on sufficient facts or data
2. The testimoy uses reliable principles and methods
3. The expert reliably applied them to the facts of the case.
105
What must a propenent show/prove before an expert witness may testify?
The proponent must show that the testimony:
1. Is RELIABLE (ie: involves scientific or technical knowledge)
2. Is RELEVANT (it will help the trier of fact).
106
Who qualifies as an expert witness?
An expert is a person with scientific, technical or specialized knowledge BEYOND that of a layperson.
107
Can a lay witness testify about niche or specialized matters they are familiar with?
YES, if their familiarity is gained from PERSONAL EXPERIENCE and does not require specialized training.
For ex - a frequent heroin user can identify the substance but cannot testify about the chemical composition.
108
What are some examples of lay witness opinion testimony?
Examples include:
Appearance
Emotion
Intoxication
Speed of a vehicle
109
Under what circumstances can a lay witness give opinion testimony?
A lay witness can give opinion testimony if:
1. It is RATIONALLY BASED on their perception
2. It is helpful to understanding other testimony or determining a fact in issue.
3. It is NOT based on scientific, technical or specialized knowledge.
110
What is opinion testimony?
Opinion testimony is based on a witness's beliefs, thoughts or inferences.
Admissiblity depends on whether the witness is a lay person or expert.
111
What are a party's options when cross examining an expert?
A party may:
1. Challenge the adequacy of the expert's knowledge
2. Question the general and specific knowledge underlying the expert's testimony
3. Use hypothetical questions to explore the expert's conclusion.
112
What is judicial notice?
Judicial notice is the court's acceptance of a fact as true without requiring formal proof.
113
Under the "completeness rule" when can the opposing side compel full disclosure?
The opposing party can choose to compel full disclosure IMMEDIATELY or they can WAIT FOR CROSS EXAMINATION.
114
Under the "completeness rule" when will admission of the omitted parts be compelled?
Admission of the omitted parts may be compelled if, in the interests of justice, the rest of the statement with help EXPLAIN or CLARIFY the admitted portion.
115
Under the parole evidence rule, extrinsi evidence may always be admitted for what purposes?
1. Clarify an ambiguity in the terms of the writing
2. Prove a trade custom or course of dealing
3. To show fraud, duress, mistake, or illegality
4. To show that consideration has or has not been paid.
116
What is the Best Evidence Rule for voluminous writing?
Charts or summaries of voluminous writings may be presented if the originals cannot conveniently be presented as long as the originals are made available for inspection.
117
What is the Best Evidence Rule when the original is unavailable?
If the original is unavailable, the party may produce OTHER evidence of the contents IF:
1. The original has been lost/destroyed, unless done in bad faith
2. The original cannot be obtained by judicial process.
118
What is the Best Evidence Rule for duplicates?
A duplicate is allowed UNLESS:
1. The authenticity of the original is questioned
2. Admitting the duplicate would be unfair.
119
What are the 5 exceptions to the Best Evidence Rule
1. Duplicates
2. Original Unavailable
3. Public Records
4. Voluminous writings
5. Admissions by a party
120
Does the Best Evidence Rule require the "best" or most persuasive evidence?
NO, it simply means we should prioritize primary sources.
121
When are the contents of a document at issue?
The contents of a document at issue when:
1. The document is used as proof that an event happened
2. The document has legal effect - eg, a will or contract
3. Witness is testifying based on facted learned from the document and not personal knowledge
4.
122
The BER applies only when:
The contents of a document are at issue or a witness is relying on the content of the document while testifying.
123
What is the Best Evidence Rule?
The BER requires that the original document (or a reliable duplicate) be produced instead of having a witness describe the contents.
124
How can a telephone conversation be authenticated?
A speaker can be authenticated if:
1. The voice is recognized
2. The speaker knows specific facts onliy he/she would know
3. The caller dials the number and the speaker identifies themselves.
4. A business is called and the call relates to regular operations.
125
How can an oral statement be authenticated?
1. voice identification
2. under the special rules for phone conversations
126
What are self-authenticating documents?
Self-authenticating documents do not require extrinsic evidence of authenticity.
Common examples:
* certified public records
* notarized documents
* business records
* trade inscriptions
127
What is the "reply letter doctrine"?
A document is authenticated if its contents shows it was written in response to a prior communication and likey written by the recipient of the first communication.
128
What are "ancient documents" and how are they authenticated?
Documents must be
1. At least 20 years old
2. In a condition unlikely to arouse suspicion
3. Found in a proper location
4.
129
What are 3 common methods to authenticate documentary evidence?
1. Stipulation - agreement by parties
2. Eyewitness Testimony - someone with personal knowledge
3. Handwriting Verification - by expert comparison or lay witness
130
How can physical objects by authenticated?
1. Personal Knowledge - eg, "this stolen watch is mine"
2. Distinctive characteristics (unique features)
3. Chain of Custody - required for easily tampered items
4. Reproductions - verified as accurate depictions by witness
5. X-Rays/ECG - must show accurate process, functional machine and qualified operator
131
What is the impact of satisfying the authentification standard?
Authentication does not conclusively establish the item's authenticity.
Opponents can still challenge authenticity through evidence.
132
Does the physician-patient privilege apply if an attorney requests that a physician consults with the attorney's client?
Yes, but only if treatment is contemplated during the consultation.
133
What is required ot authenticate evidence?
Authentication requires sufficient evidence to support a finding that the item is as claimed.
This is a lesser standard than a proponderance of the evidence.
134
The physician-patient privilege does not exist if... (5 situations)
(1) Information was communicated for a non-medical purpose
(2) The patient's medical condition is at issue
(3) The confidential communication was made as a part of a tort or crime (e.g. fraud)
(4) Dispute between the patient and physician
(5) Patient waives the privilege
135
All tangible evidence must be ____ to prove it is what the proponent claims.
Authenticated
136
What is the physician-patient privilege?
Who holds it?
Protects communications made for the purpose of obtaining medical treatment.
The privilege is held by the patient.
137
What is tangible evidence and what does it include?
Tangible evidence is evidence not presented through witness testimony.
It includes:
* documentary evidence
* physical evidence
138
Is the physician-patient privilege recognized in federal law?
No, but most states protect it by statute.
139
Are an attorney's document compilations protected under the work-product doctrine?
Yes! Selecting documents reflects the attorney's mental impressions and legal strategy.
140
Can a document introduced under teh past recollection recorded exception be admitted as an exhibit?
A document introduced under this exception may be read into evidence but is only admitted as an exhibit if offered by the ADVERSE party.
141
What is the crime-fraud exception to the work product doctrine?
If the communication or work product is used to further a crime or unlawful act, there is no work product protection (not even for opinions).
142
What is opinion work product? When is it discoverable?
Opinion work product = a lawyer's mental impressions, conclusions, and trial tactics.
Almost alwasy protected from disclosure, even if the opposing side has a substatial need.
143
What is past recollection recorded?
Past Recollection Recorded is a hearsay exception that allows a memo or record to be read into evidence if:
1. The witness had knowledge of the matter once
2. But now has insufficient recollection to testify fully
144
In civil cases, when is work product discoverable?
Only discoverable if the other side can show:
(1) A substantial need for the material
(2) An inability to obtain the information by other means without undue hardship
145
What happens if the prosecution refuses to produce a writing used to refresh a witness's memory in a CRIMINAL case? For a CIVIL case?
CRIMINAL CASE
The court must either (1) strike the witness testimony OR (2) declare a mistrial
CIVIL CASE
The court may issue any appropriate order.
146
When does the work product doctrine apply?
Applies to confidential communications that are:
(1) Made for legal assistance
(2) Prepared in anctiicpation of ligitaiton
147
What is the work product doctrine?
Protects materials prepared by or for a party (or their attorney) in anticipation of litigation.
148
Does an **intentional** disclosure of privileged material waive attorney-cainet priviilege?
Yes
149
What happens when a witness's memory is refreshed BEFORE testifying?
If the memory is refreshed before testifying, the court may allow the adverse party to:
1. Inspect document
2. Cross examine - and-
3. Introduce relevant portions into evidence but only if JUSTICE REQUIRES
150
Does an inadvertant disclosure waive attorney-client privilege?
No, if:
(1) Reasonable steps were taken to avoid the disclosure
(2) Prompt action was takne to rectify the error
151
Federal Rule 502 differentiates between _ and ____ disclosures of confidential information
intentional and inadvertant
152
Can the adverse party introduce a refreshing document into evidence for substantive purposes?
Generally, the document is admissible only to IMPEACH the witness's credibility
It is admissible for substantive purposes only if it satisfies the rules independently.
153
The attorney-client privilege does not protect the following confidential communications (there are 2).
(1) Communication enabling or aiding a crime or fraud
(2) Disputes betweeen an attorney and client
154
Does the attorney-client privilege survive the termination of the relationship?
Yes! It survives both the end of the attorney-client relationship and also the death of the client.
155
How does the court handle unrelated portions of a writing used to refresh recollection?
The court may:
1. Examine the document in camera
2. Delete the unrelated portions before delivering the rest to the adverse party
3. Preserve deleted portions in the record if the adverse party objects.
156
What is the scope of the attorney-client privilege for corporate citizens?
Federal Law: applies to any employeee communication made for the purpose of securing legal advice for the company.
States: in some states, attorney-client privilege is limited to members of the company's control group (i.e. high-level staff)
157
What rights does the adverse party have when a writing is used to refresh a witness's recollection?
The adverse party is entitled to:
1. Have the document produced
2. Inspect the document
3. Cross examine the witness about it
4. Introduce any relevant portion into evidence.
158
Who holds the attorney-client privilege?
The client holds the privilege, but the attorney MUST assert it on their behalf to protect their interests.
159
Does the attorney client privilege apply to communications not intended for legal advice?
No
160
Can a witness read directly from the document used to refresh their recollection?
NO
A witness cannot read from the refreshing document. Their testimony must be based on their own refreshed memory.
161
Does the presence of a third-party destroy attorney client privilege?
Generall yes, unless:
- Eavesdropper
- Trepasser
162
What is "present recollection refreshed"?
Present Recollection Refreshed allows a witness to examine any item (eg, a writing or photo) to jog their memory.
From their newly refreshed memory, the witness can testify.
163
What is attorney client privilege?
Protects confidential communications between a client and an attorney made for the purpose of obtaining legal advice
164
Can a party impeach a witness on a collateral issue?
The Federal Rules do not explicitly prohibit it, but a court may refuse to admit evidence on a collateral matter under the 403 balancing test.
165
What are the key timing differences between spousal immunity and marital communications?
**Spousal Immunity:** applies before AND during marriage. Ends after marriage ends.
**Confidential Marital Communications:** applies only during marriage, but survives even after marriage
166
How can contradictory evidence be used to impeach a witness?
By showing that their testimony conflicts with other evidence.
167
Can a witness's religious beliefs be used to impeach or support credibility?
NO
Religious beliefs are inadmissible for either attacking or supporting credibility. However, religious beliefs may be admissible to show bias.
168
How can a witness be impeached based on sensory competence?
A witness may be impeached by showing deficiences in their ability to:
(1) Perceive (e.g. poor vision or hearing)
(2) Recall (e.g. memory issues)
(3) Relate (e.g. communication impairment)
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How can a witness be rehabiliated after impeachment?
A witness may be rehabilitated by:
1. Explanation or clarification during redirect
2. Reputation or opinion evidence of truthfulness (if their character for truthfulness was attacked)
3. A prior CONSISTENT statement to rebut charges of lying due to improper motive/influence.
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Must a hearsay declarant be given an opportunity to explain or deny inconsistent statements?
NO
The declarant does not need to be given that chance.
171
Must a party question a witness about bias before introducing extrinsic evidence of it?
While the Federal Rules don't require it, many courts mandate laying a foundation before introducing extrinsic evidence.
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What is a hearsay declarant?
The person who makes the out of court statement that is later introduced into evidence.
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Can a hearsay declarant be impeached?
YES, a hearsay declarant's credibility may be attacked - or supported - by any evidence that would be admissible if they had testified as a witness.
174
Is bias always relevant to a witness' credibility?
Yes, bias is always relevant and can be grounds for impeachment.
175
What are common factors indicating bias or interest in a witness?
A witness may show bias or interest due to:
(1) Their relationship to a party
(2) Their interest in testifying (e.g. avoiding prosecution)
(3) Their interest in the outcome of the case (e.g. inheritance)
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What types of evidence may demonstrate sensory incompetence?
Evidence such as physical or mental impairments or external interference (eg, darkness or loud noise)
177
Can prior inconsistent statements be used for impeachment?
Can extrinsic evidence be introduced?
Yes! Prior inconsistent statements can be used to impeach.
Extrinisic evidence can also be admitted if the witness is first given the chance to explain or deny the statement.
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What limitations exist on questioning a witness about specific instances of conduct?
1. Rule 403: The probative value must not be substantially outweighed by unfair prejudice
2. Rule 601: The court may restrict questioning to protect the witness from harassment/embarassment
3. The examiner must have a good faith basis for believing the conduct occurred.
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Can a conviction still be used for impeachment if it is under appeal?
Yes!
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Are juvenile adjudications admissible for impeachment?
Juvinile adjudications are inadmissible for impeaching criminal defendants, but they may be used against other witnesses if:
(1) Offered in a criminal case
(2) An adult conviction for the same offense would be admissible
(3) Its admission is necessary to fairly determine guilt or innocence
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Can SPECIFIC instances of conduct be used to attack a witness's character for truthfulness?
Specific instances of conduct may be inquired about during cross examination if they are PROBATIVE of truthfulness, but extrinsic evidence cannot be used/admitted to prove such conduct.
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How do pardons affect the admissibility of convictions for impeachment?
A conviction is inadmissible for a conviction if it has been:
(1) Pardoned, annulled, or subject to another action based on a finding of innocence
(2) Pardoned for rehabilitation
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When are convictions older than 10 years admissible for impeachment?
Convictions for crimes that are over 10 years old are admissible only if:
(1) The probative value substnatially outweighs their prejudicial effect
(2) The proponent provides reasonalbe notice to the opposing party before trail of their intent to use the evidence
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How are **felony** convictions treated differently for criminal defendants and other witnesses?
Criminal Ds: admissible **only if **the probative value outweighs the prejudicial value.
Other witnesses: admissible **unless** prejudicial effect substantially outweighs
Extra protection is given to the criminal defendants.
185
Are all crimes for dishonesty and false statements admissible for impeachment?
Yes, crimes involving dishonesty or false statements are admissible regardless of punishment or prejudicial effect.
186
When can evidence of a witness's TRUTHFUL character be introduced?
Only after a witness's character for truthfulness has been attacked can evidence of the witness's truthful character be admissible.
Absent an attack, the evidence cannot come in. No bolstering the witness prematurely!
187
When is evidence of a witnesses criminal conviction admissible for impeachment?
Evidence of a witness' criminal conviction is admissible if:
(1) The crime involves dishonesty or false statements
(2) It is a felony (punishable by more than 1 year or death)
(3) It meets the requirements for convictions older than 10 years
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Can a witness be questioned about prior arrests?
A witness may not be questioned about an arrest itself but may be asked about the conduct underluying the arrest.
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How can a witness's character for truthfulness be attacked?
A witness's credibility may be attacked by:
1. Testimony about the witness's REPUTATION FOR UNTRUTHFULNESS
2. OPINION testimony re: the witness's untruthful character
Remember: Reputation -or- Opinion
190
What are specific acts admissible under Rule 404(b)?
Hint: MIMIC
Evidence of specific acts is admissible for purposes other than proving character:
M: motive
I: intent
M: absence of mistake
I: identity
C: common plan or scheme
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Can a character witness be cross-examined about specific (bad) acts?
Yes, as long as the lawyer has a good-faith basis for believing the act occurred.
However, extrinisc evidence is not allowed to prove the specific acts.
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# True or False
Evidence of a specific bad act is admissible to show that they acted in conformity with that character.
False
193
Proof of character (whether good or bad) must be in what form?
Reputation or opinion testimony
194
When can the prosecution introduce evidence of a victim's good character in a criminal case?
The prosecution can offer rebuttal evidence of a victim's good character only after the defendant has attached it.
In other words, it can be introdued to rebut but NOT bolster
195
WHO may impeach a witness?
ANY PARTY, including the party that called the witness, may impeach the witness's credibility.
196
What is impeachment and what are the 4 common bases?
Impeachment is the process of challenging a witness's credibility. It can be based on:
1. Character for untruthfulness
2. Bias or interest
3. Sensory incompetence
4. Prior Contradictory Statements
197
Does a defendant open the door to character evidence simply by taking the stand?
No, D does not open the door just by testifying. But D is alwasy subject to impeachment.
198
Does habit evidence require coroboration or an eyewitness?
No, it can be admitted without either.
199
On the MBE, words like ____ and ____ generally refer to habit evidence.
always and every time
200
Is habit evidence admissible to prove conduct on a particular occassion?
Yes, habit evidence is admissible to show that a person acted in line with that habit or routine on a particulra question.
201
Who is protected under a Dead Man's Statute?
Heirs, devisees, legatees, executors or administrators.
202
Do the FRE include a Dead Man's Statute?
NO. The FRE does not include this restriction, but 20 plus states do.
May be applicable in federal diversity cases when state law applies.
203
How is habit evidence different from character evidence?
Habit evidence describes specific, semiautomatic reactions to situations, while character evidence reflects general personality traits and tendendcies.
204
What is habit evidence?
Refers to evidence of a person's regular response to a specific set of circumstances, such as a routine or practice.
205
What is the purpose of a Dead Mans Statute?
Dead Mans Statutes prevent parties with a financial interest in a civil case from testifying about communicaitons OR transactions with a deceased person when the testimony is adverse to the deceased's estate.
206
In addition to MIMIC, specific acts may also be admitted to show what two things?
(1) Opportunity and
(2) Preparation
207
In a battle between the no-impeachment rule and consitutional right to an impartial jury, which controls?
The constitutional right overrides the "no-impeachment" rule when a juror's post verdict statement shows racial animus or stereotypes that SIGNIFICANTLY influenced the juror's vote.
208
What is required to admit habit evidence?
The proponent must show:
(1) The habit is inflexibly regular in response to specific circumstnaces
(2) The habit is proven by an adequate sample
209
What are the two constraints on admitting specific acts as evidence?
(1) Specific acts cannot be used to show propensity
(2) They must meet other evidentiary rules, such as relevance and Rule 403
210
What does MIMIC stand for?
Motive
Intent
(Absence of) Mistake
Identity
Common plan/scheme
211
What are the EXCEPTIONS to the "no impeachment" rule?
Jurors may testify about:
1. Extraneous prejudcial information brought to the jury's attention (eg, outside news articles)
2. Improper external influence on a juror (eg, threats or bribes)
3. Clerical mistakes in entering the verdict on the form.
212
What is the presumption regarding the competence of abused children or a child who witnesses a crime?
Rebuttably presumed to be competent to testify.
If necessary, their testimony can be given via closed-circuit TV to avoid facing the defendant.
213
How do the Federal Rules approahc the competence of witnesses with mental incapacity or immaturity?
No special test applies.
Court considers whehter the person understands the importance of truth and can differentiate it from falsehood.
No bright-line age rule
214
What is the "no impeachment" rule for juror testimony
After the verdice, juror may NOT testify about:
1. Statement made or incidents during jury deliberations
2. The effect of anythign on the their or another juror's vote
3. Any juror's mental processes concerning the verdict.
215
When does state law determine a witness' competence in federal court?
State law determines competence when the case involves a coaim or defense for which the state law suppplies the rules of decision.
216
Can a juror testify as a witness during the trial?
A juror CANNOT testify in front of other jurors. If called to testify, the court must allow objections outside the jury's presence.
217
What factors affect a witness' credibility as opposed to their competence?
Factors like:
- Mental abilities
- Influence of drugs/alcohol
- Degree of certainity in testimony
218
What are the requirements for a witness to be competent?
(1) The witness must have personal knowledge of the matter
(2) The witness must given an oath or affirmation to testify truthfully
219
Can a judge testify as a witness in a trial they are presiding over?
NO, testimony from a presiding judge is ABSOLUTELY barred.
220
What limits apply to character evidence about the victim in sexual misconduct cases?
Evidence of the victim's sexual behavior is admissible only:
(1) To prove someone other than D is reasonable for the source of injury or physical evidence
(2) To prove consent
(3) When exclusion of the evidence would violate D'
221
Can a witness testify to hearsay WITHOUT personal knowledge of matter affected?
A witness testifying to hearsay must have personal knowledge of the statement made but need not know about the matter asserted.
222
223
What is the judge's role in determining whether a witness has personal knowledge?
The judge determines whether sufficient evidence exists for a reasonable jury to find that the wintess has personal knowedge.
The jury decides if the witness actually has personal knowledge.
224
Is evidence of liability insurance admissible?
No, evidence of liability insurance is not admissible to prove negligence or wrongful conduct.
225
What is the definition of hearsay?
Hearsay is an out-of-court statement offered to prove teh truth of the matter asserted.
226
When is hearsay admissible?
Hearsay is admissible only if it falls within an exception or exclusion under the Federal Rules.
227
Who qualifies as a declarant?
A declarant is a person who made the out-of-court statement. Evidence generated by machines or animals is not hearsay because there is no declarant.
228
What are the three key elements of hearsay?
(1) Declarant - person
(2) Statement - assertion
(3) Offered for truth of matter asserted
229
What are five examples of statements NOT offered for the truth of the matter asserted?
1. Legally operative facts
2. Effect on recipient
3. State of mind
4. Identification
5. Impeachment or rehabilitation
230
Hearsay is generally ____, unless it falls within an exception or exclusion.
inadmissible
231
If a statement is offerred for a purpose other than its truth, is it hearsay?
No, it is not hearsay. Hearsay requires that the statement be offered for its truth.
232
What is the hearsay rule for **legally operative facts?**
Statements that have legal significance by being made (e.g. a slanderous statement in a defamation case) are non-hearsay and admissible.
233
What is the hearsay rule for **effect on recipient?**
A statement that shows the effect on the listener (e.g. notice of danger) is not hearsay - admissible!
234
What is the hearsay rule for **state of mind**?
A statement that shows the declarant's mental state (e.g. a delusional remark as evidence of insanity) is not hearsay - admissible!
235
What is the hearsay rule for **identification**?
Circumstantial evidence linking someone to an event (e.g. a hotel receipt as evidence of presence) is not hearsay - admissible!
236
What is the hearsay rule for **impeachment / rehabilitation?**
Statements used solely to challenge or bolster a witness' credibility are not hearsay - admissible!
237
What is multiple hearsay, and when is it admissible?
Multiple hearsay is a statement containing another hearsay statement. It is admissible if each part conforms to a hearsay exception.
238
What are the three types of declarant-witness prior statements that are not hearsay?
1. Prior **inconsistent** statements made under oath.
2. Prior **consistent** statements to rebut charges of fabrication or improper motive
3. Prior statements of **identification** after perceiving a person.
239
What must be true for the declarant-witness prior statements exceptions to apply?
The declarant must **testify as a witness** and **be subject to cross-examination**
240
# Declarant-Witness
What is a prior inconsistent statement?
A prior inconsistent statement is not hearsay if:
1. It was made under oath,
2. During a trial, hearing, deposition, or other proceeding.
These statements can are not hearsay; they can be admitted to challenge the declarant-witness' credibility by showing inconsistency.
241
A witness testifies under oath that D ran a red light but cannot recall it at trial. What is this prior statement admissible for?
To impeach and as substantive evidence
Reason: because the prior inconsistent statement was made under oath in a prior proceeding
242
A witness told police that the defendant assaulted the victim but denies it at trial. What is this prior statement admissible for?
Admissibly only for impeachment since it was not under oath when given
243
What is a prior consistent statement and when is it admissible?
A prior statement that is consistent with the declarant’s testimony can be offered to **rehabilitate** or **rebut** attacks to the declarant’s credibility. These statements are not hearsay - admissible.
244
What is a prior statement of identification?
A previous out-of-court identification of a person (after perceiving them) is not hearsay - admissible.
245
A witness identified the defendant in a lineup after a robbery but cannot recall it at trial. Can this prior identification be admitted?
Yes, it is admissible as substantive evidence under the **prior statements of identification** exclusion.
246
What is an admission by a party opponent?
If the statement being introduced against a party is their OWN prior statement, it is not hearsay.
247
# True or False
The party opponent doctrine applies to any statement made!
True!
248
The admission by a party opponent doctrine applies to direct admission but also to what other types of admission?
(1) Adoptive Admissions
(2) Judicial Admissions
(3) Vicarious Admissions
(4) Co-Conspirators
249
What is an adoptive admission?
A statement made by another that the party adopts as their own through agreement or conduct
250
Does silence qualify as an adoptive admission for the admission by a party opponent rule?
Yes, it can qualify if:
1. The party heard the statement and understood it
2. The party had the ability to respond
3. A reasonable person would have denied the statement if untrue
251
What is the rule for judicial admissions under the admission by a party opponent rule?
A judicial admission is an admission made during discovery, pleadings, or stipulations. These are conclusive and can be used against the party who made them.
252
What is a vicarious admission?
A statement made by a person authorized to speak on the party's behalf - e.g. an employment in the scope of employment or an agent. These statements can be held against the party even though they didn't directly make it.
253
What is the admission by a party opponent rule for co-conspirators?
Statements made by a co-conspirator during or in furtherance of the conspiracy is admissible aginst ALL members of the conspiracy.
254
What are the 5 exceptions to hearsay that apply when the declarant is **unavailable?**
(1) Former Testimony
(2) Dying Declaration
(3) Statements Against Interest
(4) Statements of Personal or Family History
(5) Forfeiture by Misconduct
255
What is the hearsay exception for **former testimony?**
Former testimony is admissible (not hearsay) if:
- The declarant is **unavailable**
- The former testimony was given at **trial**, a hearing, or deposition
- The opposing party had **opportunity** and **motive** to **develop** the testimony
256
What is the hearsay exception for **dying declarations?**
A statement is admissible (not hearsay) if:
- The declarant believed death was **imminent**
- The statement was about the **cause** or **circumstances** of their believed impending death
257
For dying declarations, does the declarant actaully have to die?
Actual death is **not required**, but the declarant must be unavailable for some other reason if they do not die.
258
To what kinds of cases does the Dying Declaration exception apply to?
Dying Declaration applies to **all civil** cases and to **homicide** cases.
259
What is a statement against interest?
A statement is admissible if it is so against a declarant's pecuniary, proprietary, or legal interest when made that a reasonable person would not have made it unless it was true.
260
Statements aginst interest that would subject a declarant to criminal liability are NOT admissible under the exception unless...?
Corroborating circumstances clearly indicate the trustworthiness of the statement
261
What is a statement of person or family history?
Statements concering an unavailable declarant's birth, adoption, legitimacy, marriage, or family relationships are admissible (not hearsay!)
262
What is the rule for forfeiture by misconduct?
If a party engages in wrongdoing for the purpose of making the declarant unavailable to testify, then the party cannot later claim the declarant is unavailable.
263
What is the legal consequence of forefeiture by misconduct?
Misconduct opens the door to enable the opposing party to use ANYTHING the declarant said against the party.
264
What are the 9 (!) hearsay exceptions where the (un)availability of the witness is immaterial?
1. Present Sense Impression
2. Excited Utterance
3. State of Mind (Then-Existing)
4. Medical Diagnosis or Treatment
5. Recorded Recollection
6. Business Records
7. Public Records
8. Learned Treatises
9. Judgment of Previous Convictions
265
What is the mnemonic to remember the 9 hearsay exceptions where the (un)availability of the witness is immaterial?
Pink Elephants Singing Make Rainbow Balloons Pop Like Jellybeans
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