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Evidence MBE Flashcards

1
Q

Public records exception elements:

A
  1. factual findings (including opinions and conclusions)
  2. resulting from an investigation made pursuant to AUTHORITY GRANTED BY LAW
  3. unless the circumstances indicate a lack of trustworthiness
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2
Q

Attorney Client Privilege: when doesn’t it apply?

A

In suits between two parties who were once represented by the same attorney OR if a third party was present during the lawyer’s talk with the client

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3
Q

Rule 403 balancing: when is evidence excluded?

A

When the probative value is substantially outweighed by the prejudicial value

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4
Q

Character evidence, when can D have a witness present it about D?

A

When it relates to a trait involved in the case.

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5
Q

Confidential marital privilege:can it be asserted in an action between the spouses?

A

NO

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6
Q

When will a witness not be considered “unavailable?”

A

When no attempt was made to procure witness’s attendance.

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7
Q

Recorded recollection:

A

When witness cannot remember sufficiently even after consulting a writing, the writing may be READ INTO evidence (does not go back with jury)

  • witness cannot testify fully and accurately based on memory alone
  • witness had personal knowledge at an earlier time
  • writing was either made by the witness or adopted by witness when memory was fresh
  • writing is true and accurate
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8
Q

Refreshing recollection:

A

you can use any writing to refresh. The writing is not put into evidence unless the other side wants it in.

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9
Q

When is the confrontation clause triggered?

A

Only criminal cases when evidence is offered against D

Not admissible when:
Testimonial evidence and declarant is unavailable at trial AND D had no opportunity to cross examine

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10
Q

How is the confrontation clause satisfied?

A

(1) testifies on the stand OR (2) unavailable but D previously had an opportunity to cross examine

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11
Q

When is evidence relevant?

A

If has any tendency to make a material fact more or less probable than would be the case without the evidence.

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12
Q

Rule about relevant evidence

A

All relevant evidence is admissible UNLESS

  • some specific exclusionary rule is applicable OR
  • court determines that the probative value is substantially outweighed by its negative effects
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13
Q

What should be given when evidence is admitted for only one purpose, but not another?

A

Limiting instruction and balancing test if requested

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14
Q

When can evidence of subsequent remedial measures come in?

A

When ordered by a third party OR

when offered to prove feasibility or ownership (if in dispute)

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15
Q

What if you make statements to a government agency in a settlement talk, when can this be admitted?

A

In a subsequent criminal case regarding a related manner

gov’t agencies will share info

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16
Q

How can a guilty plea be later admitted?

A

Admission by a party opponent

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17
Q

MBE: offer to pay medical bills

A

Offer to pay bills is inadmissible, but any accompanying statement of fault IS ADMISSIBLE

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18
Q

General rule about character evidence

A

Inadmissible when offered to prove that a person acted in conformity w/ his character on a particular occasion

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19
Q

Exceptions: when is character evidence admissible

A
  1. character is an essential element of the crime
  2. accused can offer evidence of good character which opens the door for admission of D’s bad character in rebuttal
  3. pertinent character trait of victim
  4. character of a witness for untruthfulness, character for truthfulness in rebuttal
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20
Q

What is the rule of specific acts?

A

No specific acts are allowed on direct (except if character is an essential element of a claim or defense)
GA exception: criminal D can testify about his specific acts

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21
Q

Homicide case: D opening the door by suggesting self defense

A

If D offers evidence of any kind that victim was the first aggressor, prosecution may introduce evidence of the victim’s character for peacefulness

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22
Q

Rape victim shield law: what is generally inadmissible

A
  • sexual propensity of the victim

- specific sexual behavior or attitudes of the victim

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23
Q

When are D’s other crimes, wrongs, or acts allowed in a civil or criminal case in the case in chief? (404b)

A

When they are used for non character purpose, subject to balancing test:

Motive
Intent
Knowledge
Identity
Plan or scheme
Absence of mistake
Opportunity
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24
Q

What must P do if it wants to offer “other crimes or acts”?

A

If D requests notice, P must give pretrial notice of intent to offer other crimes or acts. Judge must perform balancing test.

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25
When is prior similar sexual misconduct admissible?
Admissible in case-in-chief for civil and criminal cases alleging sexual assault or child molestation *allowed to show propensity
26
Are similar injuries or losses caused by a thing admissible?
Yes, if relevant. Relevance is determined by the substantial similarity test. (if other incidents were substantially similar)
27
When is custom admitted?
To show an appropriate standard of care
28
Is habit admissible?
Yes. Routine business practice is also admissible.
29
When does evidence need to be authenticated?
If the relevance of the evidence requires that the thing, or writing be what the party claims it is.
30
Authenticating
1. lay the foundation
31
Authenticating real evidence
distinct evidence: testimony by a witness with personal knowledge indistinct evidence (white baggie): chain of custody
32
Authenticating private documents
1. party can admit he wrote or signed the document 2. witness testifies that she saw the person write it 3. handwriting or signature
33
Authenticating public documents
Official seal to certify copies
34
Authenticating videos, photos
Witness with personal knowledge testifies that the photograph is a fair and accurate representation
35
Best evidence rule
If you refer to the contents of a writing, you must present the writing OR have a valid excuse
36
Valid excuses to the best evidence rule
- Lost or cannot be found despite due diligence - Destroyed without bad faith - Cannot be obtained w/ legal process
37
What can you do with voluminous evidence?
Present it in summary form as long as: - all documents are available in courtroom for inspection AND - they would be admissible `
38
Competency of a witness
- capable of understanding difference b/w lying and telling the truth - personal knowledge
39
When can a lay witness give an opinion?
Based on his perception Rational Non-expert
40
Expert witness: 4 requirements
1. qualified by education or experience to give opinions 2. field of expertise that is reliable 3. witness has applied her expertise reliably to the facts of the case 4. opinion is based on reliable facts
41
Determining whether a person should qualify as an expert
Pretrial motion | Trial judge is the gatekeeper
42
What can an expert rely on when he forms his opinions?
1. personal knowledge 2. facts admitted at trial 3. facts reasonably relied on by experts in the field
43
Learned treatise: allowed on direct of own expert?
MBE: yes GA: no
44
Effect of a learned treatise
read into evidence (does NOT go back with jury)
45
What types of "ultimate issues" opinions are not helpful?
1. opinions phrased in legal terms | 2. opinions as to matters the jury can decide itself
46
Impeachment as to collateral issues: what is allowed
Only cross | No extrinsic evidence
47
Can you impeach witnesses with prior convictions in both criminal and civil cases?
Yes
48
When can a party bolster the credibility of a witness?
Only after the witness's credibility has been attacked
49
What methods can be used to attack the credibility of a hearsay declarant whose statement was admitted?
Any impeachment method (act like the declarant is at trial)
50
Nonhearsay: main categories
1. verbal act (legally operative words) 2. effect on hearer 3. Demonstrates a relevant state of mind If declarant is testifying: 4. prior inconsistent 5. prior consistent 6. prior ID 7. admissions by a party opponent (or his agent)
51
What happens if you admit a statement as nonhearsay: what should the judge do?
May admit subject a limiting instruction AND balancing test (if requested)
52
Agent admissions: elements
1. statement was made during agency/employment relationship AND 2. statement was about a matter the agent/employee would KNOW by virtue of his duties
53
When will co conspirator's statement be admissible against the accused?
1. made during the conspiracy (or during concealment) AND | 2. statement was in furtherance of the conspiracy
54
When is evidence testimonial for purposes of the hearsay rule?
If primary purpose was investigation and collection of evidence AND not during ongoing emergency
55
When is a declarant unavailable?
- dead - too ill to testify - can't be located despite due diligence - beyond subpoena power - privilege asserted by witness
56
When you use a statement against interest in a criminal case, what must you do?
You must also have corroborating circumstances.
57
Business records exception
1. records of a business or other organization 2. made in the regular course of business 3. the business routinely keeps such records 4. made contemporaneously 5. contents consist of info observed by the owner, agent, or employee of the business OR independent hearsay exception applies
58
Laying foundation for business record
- records custodian can testify or any other knowledgeable person about the business OR - written certification under oath
59
Attorney client privilege: elements
client must intend confidentiality | statements made by coparties are confidential as against a third party but not if they later sue each other
60
Waivers of privilege
1. voluntary waiver by client 2. subject matter waiver: if you communicate you waive the privilege as to other communications that concern the same subject matter
61
Is there a physician-patient privilege?
MBE & GA: NO
62
Two kinds of marital privileges
1. spousal witness privilege (spousal immunity) | 2. spousal communications privilege
63
What is the spousal witness privilege?
in CRIMINAL CASES only, a spouse cannot be compelled to testify against D spouse *must still be married at the time of criminal trial (so can't be used if spouse is dead)
64
Spousal communications privilege "Pillow talk"
- in any type of case - the communicating spouse holds the privilege and decides whether other spouse can testify - married when statement was made - confidential - under intimacy of relationship
65
Exception to the spousal communications privilege
Spouse can't stop other spouse from testifying if there is a crime against the child or domestic abuse against spouse
66
What types of evidence issues are resolved by a judge in a preliminary determination?
Facts affecting the COMPETENCY of evidence - whether the requirements for hearsay are met - privileges - expert testimony - mental competence
67
What types of evidence issues are resolved by a jury in a preliminary determination?
Preliminary facts - agency - authenticity of a document - credibility of a witness - whether a witness has personal knowledge

Evidence (2 decks)

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