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VA BAR > Evidence- outline points > Flashcards

Evidence- outline points Flashcards

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1
Q

Least likely reason for the court to exclude otherwise admissible evidence

A

unfair surprise.

court has no discretion to exclude.

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2
Q

is liability insurance admissible to prove fault or lack thereof?

A

no

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3
Q

when is liability insurance admissible? (2 times)

A

proof of DISPUTED ownership/control

or

impeachment on the ground of bias

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4
Q

when are subsequent remedial measures not admissible?

A

to prove D’s fault

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5
Q

when are subsequent remedial measures admissible?

A

proof of ownership or control

feasibility of DISPUTED remedial measures

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6
Q

in a disputed civil claim, when is evidence of settlement/offer to settle/statement of fact made during negotiation inadmissible?

A

to prove liability or the amount of the claim

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7
Q

when may settlement evidence be admissible?

A

to impeach a witness on the ground of bias

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8
Q

in Virginia, is an admission of liability or independent fact admissible?

A

yes, even if admitted during settlement negotiations

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9
Q

when does the ban on settlement evidence apply?

A

only when, at the time of discussion, there is a claim and a dispute

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10
Q

is hearsay a problem when offered against the party who made the statement?

A

no. admission by a party opponent.

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11
Q

are unsuccessful offers to plead guilty admissible?

A

no, not for any purpose

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12
Q

are withdrawn guilty pleas admissible?

A

no, not for any purpose

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13
Q

are no contest please admissible?

A

no, not for any purpose

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14
Q

are nolo contendre pleas from criminal proceedings admissible in VA?

A

yes, if used as admission against a party in civil litigation

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15
Q

when is character evidence not admissible?

A

to prove propensity

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16
Q

when is character evidence generally admissible?

A

impeachment; witness veracity; when the trait is an essential element

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17
Q

is conforming conduct admissible character evidence?

A

rarely

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18
Q

when character evidence IS admissible to prove propensity, what forms are/are not allowed?

A

are: personal opinion, reputation

are not: specific acts

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19
Q

in Virginia, when character evidence is admissible to prove conforming conduct, about what may a character witness testify?

A

reputation, NOT personal opinion

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20
Q

when/how can prosecution bring in specific acts evidence against D’s character?

A

when D opened the door through character witnesses

by questioning their knowledge of D’s specific acts relevant to the character trait at issue

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21
Q

when may a criminal D offer evidence of a victim’s character, and in what form?

A

criminal D may offer evidence of a victim’s character for violence to argue that the victim was the first aggressor

opinion or reputation

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22
Q

when a criminal D offer evidence of a victim’s character for violence, how may the prosecution rebut?

A

through evidence of the victim’s peaceful character or evidence of the defendant’s violent character

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23
Q

when may a D offer evidence of his own knowledge of the victim’s bad character for violence, and by what form?

A

to show that D reasonably feared he was in danger

reputation, opinion, OR SPECIFIC ACTS

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24
Q

notwithstanding the rape shield rule, when can D introduce evidence of a victim’s sexual conduct (3)?

A

evidence of victim’s sexual activity with the D IF the defense is consent

evidence of victim’s sexual activity with others to prove that someone other than D was the source of physical evidence

evidence of victim’s motivation to lie (wife lying to husband that her lover raped her)

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25
Q

when, if ever, is character evidence admissible to prove conforming conduct?

A

in a CIVIL action when character is an essential element of a claim or defense, such as negligent entrustment or defamation

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26
Q

two distinguishing characteristics of habit evidence

A

frequency

regularity of response

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27
Q

when is evidence of D’s other crimes admissible?

A

when offered for a purpose other than demonstrating propensity: something specific about the crime at issue

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28
Q

what are the most common non-character purposes for evidence of D’s other crimes

A 
MIMIC:
motive
intent
mistake (absence thereof)
identity
common scheme or plan
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29
Q

standard of proof for MIMIC-purpose crimes?

A

“sufficiency standard:” evidence sufficient for a reasonable jury to conclude, by preponderance, that D committed the prior act

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30
Q

is MIMIC evidence limited to criminal cases?

A

no. admissible in civil; think torts like fraud or assault

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31
Q

for what criminal misconduct may prosecution/plaintiff offer similar acts evidence from the start?

A

in any case alleging sexual assault or child molestation, similar acts evidence may be offered to prove D’s propensity to commit those acts

“once a rapist, always a racist”

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32
Q

is a plaintiff’s history of accidents or lawsuits admissible?

A

generally not (merely tends to show propensity for carelessness or litigiousness); but may be admissible as another explanation for the injury at issue

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33
Q

is evidence of similar accidents caused by the same thing/event/condition admissible?

A

generally not, but exceptions exist for substantially similar circumstances for:
dangerous condition
causation
prior notice to the defendant

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34
Q

when is the value of similar property admissible?

A

to prove the value of the property at issue

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35
Q

when is evidence of a prevailing standard of care admissible?

A

to establish how a party in the same industry/trade should have acted

36
Q

of what types of facts may the court take judicial notice?

A

indisputable facts:

  • matters of common knowledge w/in the court’s jx
  • matters readily determinable by reliable sources (ex: 9/5/87 was a Saturday)
37
Q

are judicially noticed facts conclusive in civil cases?

A

yes (jury must regard)

38
Q

are judicially noticed facts conclusive in criminal cases?

A

no (jury may regard)

39
Q

how may authorship of a handwritten document be authenticated (4)?

A

testimony by a witness with knowledge (saw signing)
lay opinion (familiar w/handwriting)
expert witness
comparison by the jury

40
Q

what is the ancient document rule, and what are its terms (3)?

A

authenticity may be inferred for old things.

  • at least 20 years old (in VA, real estate deeds must be 30 years old)
  • facially unsuspicious
  • found in natural location
41
Q

self-authenticating documents?

A 
government regulations
newspapers, periodicals
certified copies of public/private docs filed in public office
trade logos
notarized documents
commercial paper
certified business records
42
Q

when a photo is offered as independent evidence rather than illustrating a witness’ testimony, how is an absence of tampering proven?

A

chain of custody

43
Q

when does the best evidence rule apply (2)?

A

writing is a legally operative document

witness is testifying to facts learned solely from reading them in the writing

44
Q

is a handwritten copy considered an original document?

A

no

45
Q

when will the non-production of an original document be excused?

A

original is lost/can’t be found with due diligence

original destroyed without bad faith

original can’t be obtained with legal process (out of jx)

46
Q

standard of evidence for excusing non-production of original written document?

A

preponderance

47
Q

what is real evidence?

A

actual physical evidence (drugs, guns, etc.)

48
Q

methods of authenticating real evidence (2)

A

eyewitness testimony (“I recognize that weapon from the scene)

chain of custody

49
Q

requisite standard for condition of real evidence

A

substantially the same condition as the time of incident, if condition of the item before trial is relevant

50
Q

two requirements for witness competence

A

personal knowledge + oath/affirmation

51
Q

dead man statute

A

in civil lit, an interested party can’t testify about interaction w/the dead party against the deceased’s estate

(party is “interested” if legally bound by the lit outcome)

52
Q

do the federal rules have a dead man’s statute?

A

no

53
Q

could a dead man’s statute ever apply in fed court?

A

yes, if incorporating state law in a diversity case (Erie wrinkle)

54
Q

does Virginia have a dead man’s statute?

A

sort of: interested party may testify against decedent’s estate, but ONLY if the testimony is corroborative

55
Q

when are leading questions necessary on direct?

A

young/scared/forgetful witness

56
Q

how and when may a witness’s recollection be refreshed?

A

if a witness forgets something he once knew; by being shown a writing or something else to jog his memory

57
Q

what rights are afforded the opposing party when something is used to refresh a witness’ recollection?

A

right to inspect the refreshing item
right to use the item on cross
right to introduce the item into evidence

58
Q

when can a past recorded recollection be read to the jury?

A

witness once had personal knowledge
now witness can’t recall
writing was made/adopted by the witness
writing was made while event was fresh to witness
witness can attest that writing was accurate when made

59
Q

when a writing is read to the jury as a past recorded recollection, may anyone show the document to the jury?

A

opposing party may introduce the writing as an exhibit, but the witness may not show the writing to the jury

60
Q

when may a witness testify as an expert?

A

witness is qualified
testifying on subject where specialized knowledge helpful
opinion has proper basis
opinion is reasonably reliable

61
Q

expert opinion must be based on one of three sources:

A

expert’s personal knowledge
evidence admitted at trial
facts outside the record, REASONABLY RELIED UPON by experts in that field

62
Q

what is the federal rule for reliability of scientific evidence?

A 
Daubert Standard on methodology, TART:
tested
rates of error
accepted
peer review
63
Q

who may express opinion testimony on the ultimate issue?

A

lay or expert witness

64
Q

when is testimony on the ultimate issue not allowed?

A

in a criminal case, experts may not testify that D did/didn’t have requisite mental state

65
Q

when can a treatise be used?

A

on direct or cross of an expert, if the treatise is established as reliable

66
Q

may a treatise be read to the jury as substantive evidence?

A

yes (exception to HS)

67
Q

may a treatise itself be shown to the jury?

A

no

68
Q

how is the authority of a treatise established?

A

either party’s expert may testify to its authority, or the judge may take judicial notice

69
Q

what happens if a witness testifies but then cannot be crossed?

A

the direct testimony is stricken from the record

70
Q

proper scope of cross examination?

A

scope of direct + witness credibility matters

71
Q

intrinsic impeachment

A

asking the witness to admit facts on cross

72
Q

extrinsic impeachment

A

introducing evidence other than witness’ admissions (using documentary evidence, calling other witnesses)

73
Q

is a prior inconsistent statement admissible as substantive evidence that the prior statement is true?

A

no, unless made:

(a) under oath, AND
(b) at trial/hearing/deposition

74
Q

when is a prior inconsistent statement admissible?

A

for impeachment

75
Q

what opportunity must be given a witness who is being impeached based on a prior inconsistent statement, and when is it given?

A

opportunity to explain or deny the statement; given to any witness except the opposing party

76
Q

with what kind of evidence may bias be proved?

A

intrinsic or extrinsic

77
Q

how recent must convictions be to be admissible to impeach for veracity?

A

within 10 years of the trial

78
Q

what types of criminal convictions must be admitted?

A

crimes of dishonesty or false statement (crimes involving a lie or betrayal of trust by definition)

79
Q

what crimes are not admissible for impeachment?

A

misdemeanors

80
Q

when are felony convictions NOT involving dishonesty admissible to impeach for veracity?

A

when the probative value of the conviction, on the issue of veracity, outweighs the risk of unfair prejudice

81
Q

how may a conviction be proved?

A

intrinsic or extrinsic evidence

82
Q

when may a witness be asked about his prior bad acts without conviction?

A

when those acts relate to his veracity, and the cross examiner has a good faith basis to believe the bad act occurred

83
Q

how may prior bad acts without conviction be proved?

A

through extrinsic evidence only (cross-examiner is stuck with the witness’ answer!)

84
Q

when may bad acts without conviction be proved by extrinsic evidence?

A

when offered to prove something other than truthfulness, like proof of bias

85
Q

when may a witness be impeached by intrinsic versus extrinsic evidence?

A

contradictions significant to the case may be proved by extrinsic evidence

contradictions collateral (insignificant to case/witness credibility) may only be proven through intrinsic evidence

86
Q

term for introducing evidence to support a witness’s credibility before the witness credibility has been attached, and whether it’s allowed

A

bolstering

not allowed

87
Q

what one exception of bolstering is permitted before the witness’s credibility has been attacked?

A

testifying witness’ prior statement of identification

VA BAR (10 decks)

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