Evidence Set #2 Flashcards
Relevance
Evidence tending to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the Evidence.
Role of the Judge: The JUDGE determines what _________ the jury can weigh/evaluate.
EVIDENCE
Role of the Judge: The JUDGE determines the __________ of a witness, if a witness is ________, and if any PRIVILEGES apply.
COMPETENCY QUALIFIED
Plain Error Rule (FRE 103): An attorney need not make an objection and MAY STILL APPEAL when: -the error is so ________ that an objection is not necessary. -a ___________ right is affected.
OBVIOUS SUBSTANTIAL
Judicial Notice: Judicial Notice applies only to _________ facts, NOT ________ facts under the FRE. Note: Florida Rules of Evidence may differ.
ADJUDICATIVE LEGISLATIVE
Judicial Notice: Adjudicative facts are those that are ACCURATELY and READILY determinable from a source that __________ be ___________ questioned.
CANNOT REASONABLY
Judicial Notice: Civil Juries _______ accept the judicially noticed fact as true. Criminal juries _______ or _______ _____ accept the fact as true.
MUST MAY MAY NOT
May the judge call a witness?
YES
Examination of Witnesses: The SCOPE of cross examination is limited to : 1. The ________ of Direct Questioning; and 2. _____________ .
SCOPE CREDIBILITY
Name the “Form of Question” Considerations.
- Leading (allowed for foundation/hostile/child) 2. Compound 3. Assume Facts not in Evidence 4. Call for a Conclusion or opinion (which not qual) 5. Asked and Answered
Exclusion of Wtnesses: Generally ALLOWED - Only a _______ in a criminal case may NOT BE EXCLUDED. -An officer or employee who is the ________ ________ of a corporation -_________ or _________ witnesses -_________
PARTY (DEFENDANT) DESIGNATED REPRESENTATIVE ADVISORY EXPERT VICTIMS
Burden of Persuasion: In a civil case, by a __________ of the ________ . In a criminal case, __________ a __________ Doubt .
PREPONDERANCE OF THE EVIDENCE “more likely than not” BEYOND A REASONABLE DOUBT “prosecution must prove every element of every count beyond a reasonable doubt”
Probative- Define
“evidence that has any tendency to make a fact more or less probable than it would be without that evidence.”
Circumstantial Evidence- Define
“evidence that INDIRECTLY proves a factual proposition through INFERENCE.”
Relevant evidence MAY be excluded if its probative value is SUBSTANTIALLY outweighed by the danger of…. 1. __________ prejudice 2. ________ the issues 3. __________ the Jury 4. ________ delay, waste of ________ 5. Needless Presentation of _________ ________
UNFAIR CONFUSING MISLEADING UNDUE TIME CUMULATIVE EVIDENCE
Character Evidence: T/F Character evidence is always admissible to prove conduct in conformity (PROPENSITY).
FALSE General rule is that this type of character evidence is never admissible.
Character Evidence (CIVIL) CIVIL case: Character evidence __________ to prove CONFORMING conduct. Exception- admissible if character is an _________ element of a CLAIM or DEFENSE.
INADMISSIBLE ESSENTIAL **DEFAMATION/NEGLIGENT HIRING/NEGLIGENT ENTRUSTMENT/CHILD CUSTODY.
Character Evidence (CRIMINAL) CRIMINAL: The prosecution CANNOT introduce evidence of a defendants _____ character to prove that the defendant has a propensity to have committed the ______ in question. Exception- defendant may present _______ character evidence that is _________ with the type of crime being charged. *** must be pertinent to the crime charged.
BAD CRIME GOOD INCONSISTENT “evidence the defendant was non-violent in his murder trial is admissible. Evidence that the defendant was clean or a good speller would be inadmissible”
Character Evidence (CRIMINAL) Federal Rules require the form of the evidence to be _________ or ________ testimony.
OPINION REPUTATION
Character Evidence (CRIMINAL) If a defendant “opens the door” by introducing evidence of a good character trait, the prosecution can submit _________ character evidence to _______ the defendants evidence.
NEGATIVE REBUT
Character Evidence (CRIMINAL) T/F The defendant “opens the door” to the prosecutions attack by taking the stand or testifying.
FALSE! only introduction of positive character by defendant can open the door- this is true even if he takes the stand.
Character Evidence (CRIMINAL) A defendant may introduce evidence of the VICTIMS character that is relevant to one of the ________ asserted. The prosecutrion can then offer _______ character evidence ONLY AFTER the defendant has attacked victims character.
DEFENSES GOOD **same form is required- reputation/opinion.
Character Evidence-T/F: A prior bad act is NOT admissible to prove conforming conduct (propensity).
TRUE *This is true regardless of whether its a crime or some outside act that party committed. * note: subject to MIMIC exceptions.
Character Evidence (Civil Cases) When character evidence is admissible (element of claim/defense) it may be proved by: _________ __________ _________ ________ __ CONDUCT.
OPINION REPUTATION SPECIFIC INSTANCES OF
Character Evidence: Although prior bad acts are NOT allowed to prove propensity, they ARE allowed to prove what?
MIMIC.
Character Evidence: Define MIMIC
Used to prove the Defendants conduct regarding a PRIOR ACT which does not prove propensity. Motive Intent absence of Mistake Identity Common Plan also included: Opportunity/Knowledge
Character Evidence: Prosecution must give defense ________ of its intent to use Prior Bad Acts for a MIMIC at trial.
NOTICE
Character Evidence (CRIMINAL) When character evidence is admissible “opened the door” it may be proved by _________ or _________ . Specific instances of conduct ARE/ARE NOT Admissible for this purpose.
OPINION REPUTATION ARE NOT
Character Evidence (CRIMINAL) Prior Bad Acts evidence is especially susceptible to the Rule 403 Exclusionary Rule: When the _________ value is substantially outweighed by _______ prejudice.
PROBATIVE UNFAIR
Character Evidence: T/F: HABIT evidence can be admitted WITHOUT corroboration or an eyewitness.
TRUE
MBE Distinctions- Words like: “ALWAYS” and “EVERY TIME” refer to _________ . Words like: “OFTEN” and “FREQUENTLY” refer to _________.
HABIT CHARACTER evidence
Witnesses: Non-Expert lay witnesses MUST have _________ _________ they CANNOT speculate or hypothesize.
PERSONAL KNOWLEDGE **Expert Witnesses are opposite- they are allowed to speculate/hypothesize.
Judges can/cannot be witnesses in a trial over which she presides.
CANNOT
Post-Trial: A juror MAY/MAY NOT comment on: -anything said at deliberation -effect of anything on a jurors vote -any jurors MENTAL processes
MAY NOT
Post-Trial: A juror MAY/MAY NOT comment on: -EXTRANEOUS prejudicial information brought in -OUTSIDE improper influences -MISTAKE made entering verdict onto the form
MAY
There IS/IS NOT a bright line rule established at which age a child is deemed competent to testify.
IS NOT **decided by the court
Impeachment: Who can impeach?
Any party, even the party calling the witness.
Impeachment: How can a witness be impeached? By using _________ or _________ or even __________ __________ .
Opinon Reputation SPECIFIC INSTANCES
Impeachment: A witness’ credibility CAN/CANNOT be BOLSTERED before he/she is attacked.
CANNOT
Impeachment (specific instances of conduct) MAY/MAY NOT cross-examine a witness about an ARREST but MAY/MAY NOT cross-examine about the UNDERLYING CONDUCT that led to the arrest.
MAY NOT MAY
Impeachment (specific instances of conduct) Smith lied on his job application. I am NOT allowed to bring in the job application to show that he lied. on CROSS-EXAMINATION I can ASK HIM about the job application. IF he DENIES LYING, I CAN/CANNOT bring in the extrinsic evidence.
CANNOT Smith was arrested for writing bad checks. I CANNOT ASK “you were arrested for bad check writing, correct?” However, I CAN ASK ““you cashed checks in someone elses name, correct?”
Impeachment (Criminal Convictions) Using Criminal Convictions- General Rule- CONVICTION of a prior crime is a possible basis for impeaching a _________ __________ for truthfulness. This rule is subject to LIMITATIONS.
WITNESSES CHARACTER
Impeachment (Criminal Convictions) Crimes involving DISHONESTY or FALSE STATEMENT will be ADMISSIBLE whether a __________ or __________ and REGARDLESS OF ___________ . ** Subject to the ______ year limitation Rule (note: florida may differ) **FRE 403 STILL APPLIES (probative vs. prejudicial)
MISDEMEANOR FELONY PUNISHMENT 10
Impeachment (Criminal Convictions) Crimes NOT involving DISHONESTY will NOT be admissible UNLESS it was punishable by ________ or _____________ for more than ______ ________ . ** Also subject to the ______ year limitation Rule (note: florida may differ) **FRE 403 STILL APPLIES (probative vs. prejudicial)
DEATH IMPRISONMENT ONE YEAR (felony) 10
Impeachment (Criminal Convictions) Crime which is MORE THAN 10 years old- party offering it MUST OVERCOME THE _________ test and give _________ on opposing counsel.
FRE 403- probative vs. prejudicial NOTICE
Impeachment (Criminal Convictions) Conviction Evidence NOT ADMISSIBLE if..
PARDONED ANNULLED LATER FOUND INNOCENT REHABILITATED
Impeachment (Criminal Convictions) Convictions are proved by: ___________ admission on cross or direct; OR ___________ evidence (record of conviction)
WITNESS’ EXTRINSIC
Impeachment (Prior Inconsistent Statements) Does not HAVE TO BE A _________ STATEMENT.
SWORN
Impeachment (Prior Inconsistent Statements) Witnesses chance to explain or deny the PIS- 1. The opportunity to explain or deny the statement DOES/DOES NOT need to take place before the statement is admitted. 2. Extrinsic evidence only MAY/MAY NOT be introduced IF the witness is given the chance to explain or deny the PIS.
DOES NOT MAY
Impeachment (Prior Inconsistent Statements) No OPPORTUNITY to explain or deny need be given IF: _________ a hearsay declarant; OR _________ of a party opponent.
IMPEACHING ADMISSION
Impeachment (Bias) Bias is ________ relevant to impeach.
ALWAYS
Impeachment (Bias) Bases for using Bias to Impeach: -Witness has a __________ to the party or victim -Witness has an interest in the __________ of the case -Witness has an _________ in testifying
RELATIONSHIP OUTCOME INTEREST **note- foundation must be laid before extrinsic evidence is introduced.
Impeachment (Hearsay Declarant) Hearsay Declarant may be impeached by ANY EVIDENCE that would have been admissible had the Declarant _______ .
TESTIFIED
Impeachment (General) A witness who has been impeached CAN/CANNOT be rehabilitated by using: -_________ on direct -_________ or _______ evidence for truthfulness -Prior _________ statement offered to rebut charge witness lied.
EXPLANATION OPINION REPUTATION CONSISTENT
Witnesses (Present Recollection Refreshed) A witness may examine ______ item to refresh the witnesses PRESENT RECOLLECTION but MAY NOT use the item while testifying (read directly from it). -Opposing Counsel has the right to _______ the item.
ANY INSPECT
Witnesses (Past Recollection Recorded) Whats the difference between present recollection refreshed vs. past recorded recollection?
present recollection refreshed: Item used to refresh recollection usually NOT admitted into evidence. Past Recollection Recorded: Document used as a recorded recollection MAY be admitted into evidence.
Witnesses (Experts) EXPERT may give ________ on an ________ ISSUE (including the defendants state of mind)
OPINION ULTIMATE
Witnesses (Experts) Experts must possess a _________ _______ of certainty in their opinion.
REASONABLE DEGREE
Witnesses (Experts) An expert CAN/CANNOT give an opinion about whether the defendant had the REQUISITE MENTAL STATE required for the crime.
CANNOT Expert could say Smith was an “angry man” but could not say Smith had the “requisite mental state for premeditation.”
Tangible Evidence (authentication) How is Tangible Evidence Authenticated? 1. ________ _______ of the witness familiar with the object 2. ___________ characteristics 3. _________ ___ Custody
PERSONAL KNOWLEDGE DISTINCTIVE CHAIN OF
Documentary Evidence (authentication) How is Documentary Evidence Authenticated? 1. _________ of the parties 2. _________ of an eyewitness; OR 3. _________ verification
STIPULATION TESTIMONY HANDWRITING
A NON-EXPERT witness CAN/CANNOT have become familiar with the handwriting for litigation purposes.
CANNOT
Name Self-Authenticating Documents ________ documents bearing a seal ________ copies of public records ________ publications _________ or Periodicals _________ Inscriptions (labels) _________ /Acknowledged Documents _________ Paper _________ declared by fed law to be authentic _________ Records
PUBLIC CERTIFIED OFFICIAL NEWSPAPERS TRADE NOTARIZED COMMERCIAL DOCUMENTS BUSINESS
The “Best Evidence Rule” IS/IS NOT frequently a wrong answer on the MBE.
IS
Best Evidence Rule: Applies ONLY WHEN the _______ ________ of a writing are at issue OR if a witness is __________ on the writing while testifying.
MATERIAL TERMS RELYING Duplicates are okay if they’re accurate//Original could not be produced.
CRIMINAL Case: A Prosecutor CAN/CANNOT COMMENT on a defendants FAILURE to take the stand OR SUGGEST the jury should draw a negative inference therefrom.
CANNOT NOT Admissible to do this in criminal case by CAN do this in civil case.
CIVIL Case: A Party CAN/CANNOT ask the jury to draw a negative inference from a witnesses claim of privilege.
CAN Admissible to do this in civil case but NOT criminal.
T/F: Liability Insurance is used to prove NEGLIGENCE or WRONGFUL conduct.
FALSE
T/F: Liability Insurance is used to prove AGENCY, OWNERSHIP, CONTROL, WITNESS, BIAS, and PREJUDICE.
TRUE
Sexual conduct of the DEFENDANT WILL/WILL NOT be admitted in a case where relief is based on the DEFENDANTS sexual misconduct. Whereas, Sexual conduct of the VICTIM IS/IS NOT admissible, except for a few limited circumstances.
WILL -Sexual misconduct CAN be admissible to prove propensity to commit bad sexual acts. -no time limit -NOT limited to CONVICTIONS- any evidence can be brought in to show propensity. IS NOT Exceptions: source of semen/jury/injury/questions re:consent. Opinion or reputation-inadmissible/
T/F: When a defendant takes the stand he is considered a “WITNESS” for impeachment purposes.
TRUE
DEFENDANTS character can be attacked ONLY IF he: 1. “Opens the ________” 2. Takes the stand as a __________ (he can then be impeached if possible).
DOOR WITNESS
T/F: The DEFENDANT can introduce bad character evidence of the VICTIM in a criminal case, there need be no “door opening” because its the victim, not the defendant.
TRUE Opinion or reputation **Important Note: the PROSECUTION can then introduce BAD character evidence of the DEFENDANT for the same trait.
Cross-Examination of a character witness- the court may allow a party to inquire into SPECIFIC ACTS committed by a person about whom the witness is ____________ .
TESTIFYING
T/F: Regarding opinion of Lay Witnesses, some examples of admissible “common-sense impressions” include: appearance, intoxication, speed of a vehicle, or another’s emotions.
TRUE
T/F: Communications made between spouses while they were married is privileged if the communications were made in reliance on the sanctity of marriage. The majority view is that the privilege is held by BOTH spouses, and the time for asserting this privilege extends BEYOND the termination of the marriage. Thus, EITHER PARTY may assert the privilege – by refusing to testify or by preventing the other party from doing so – at ANY time, even after divorce or the death of one spouse.
TRUE
Prior to trial, a criminal defendant filed a motion to prevent the prosecution from introducing statements by an alleged co-conspirator. At the hearing on the motion, the court definitively ruled that the statements could be admitted into evidence. At the jury trial, the prosecution called the alleged co-conspirator to testify about the statements. The defendant did not object to the introduction of the statements into evidence. On appeal, the defendant claimed that the trial court erred in admitting the statements. Should the appellate court decide the merits of this claim of error? No, because the defendant failed to object at trial when the prosecution introduced the statements. No, because the admissibility of evidence is properly a question for a trial court. Yes, because the court made a definitive ruling on the record admitting the statements. Yes, because an objection was unnecessary under the plain error rule.
Yes, because the court made a definitive ruling on the record admitting the statements. Once the court makes a definitive ruling on the admissibility of evidence, a party need not renew an objection to the admission of the evidence, even if the ruling was made before the trial began.
A man and woman who were co-workers were brought into the station house by police for questioning regarding embezzlement from their employer. Each voluntarily made a statement to police after being properly Mirandized. They were jointly tried before a jury, and both elected to testify at trial. The woman’s statement to police at the station house implicated both the man and the woman in the embezzlement. The man’s objection to the admission of the woman’s statement at trial, which implicated him, was overruled. When the woman took the stand, she repeatedly denied making a self-incriminating statement at the police station, even under cross-examination by the man’s attorney. Both were convicted of embezzlement. The man has appealed his conviction, seeking a reversal on the basis of the admission of the woman’s statement at the trial. How should the appellate court rule? Uphold the man’s conviction, because the woman testified at the trial. Uphold the man’s conviction, because the man testified at the trial. Reverse the man’s conviction, because the woman denied making the statement. Reverse the man’s conviction, because admission of the woman’s hearsay statement violated the Confrontation Clause.
Uphold the man’s conviction, because the woman testified at the trial. The admission against a defendant of a confession that implicates the defendant made by a non-testifying co-defendant at a joint trial violates the defendant’s Sixth Amendment right to confrontation. However, when the co-defendant testifies, the defendant cannot complain that this right has been denied because he could confront the witness on cross-examination. In this case, the co-defendant, the woman, testified at the trial. Accordingly, the man’s Sixth Amendment rights were not violated.
