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SIMULATED MBE: EVIDENCE > General Review > Flashcards

General Review Flashcards

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1
Q

How does the effect of judicial notice differ in civil and criminal cases?

A

In crim, the jury need not believe but the prosecution’s burden of proof is satisfied.

In civil, the fact judicially noticed in conclusively established.

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2
Q

What can used to refresh some one’s recollection?

A

Anything

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3
Q

In a criminal trial, the prosecution can/cannot introduce evidence of D’s character to prove conformity.

A

Cannot, unless door is opened.

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4
Q

In a criminal trial, the defendant can/cannot introduce evidence of his good character to prove conformity.

A

Can, but limited to rep or opinion only. No specific acts.

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5
Q

If the defendant introduces evidence of his good character at a criminal trial, what can the prosecution now do? What restrictions?

A

P can now present evidence to show bad character.

Reputation or opinion evidence only. No specific acts.

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6
Q

At a criminal trial, prior crimes/bad acts are admissible to show what?

A 
Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme
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7
Q

What is important to keep in mind when using the MIMIC exception to the prohibition on specific acts?

A

403 relevance.

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8
Q

What automatically puts a defendant’s character at issue in a criminal trial?

A

His testimony.

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9
Q

If a defendant in criminal trial testifies, who is entitled to present evidence concerning character for truthfulness first? D or P?

A

P

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10
Q

In a civil case, who is not permitted to introduce propensity evidence?

A

Neither

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11
Q

In a civil case, evidence introduced for purposes other than propensity are ok if . . .

A

Relevant

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12
Q

In which two types of civil cases is character automatically in issue?

A

Defamation cases

Negligent entrustment

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13
Q

T or F? Evidence of prior similar occurrences is ordinarily admissible.

A

False

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14
Q

For what three purposes are subsequent repairs admissible? To prove . . .

A

Ownership

Control

Possibility of safer condition (if defense is to the contrary)

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15
Q

T or F? Prior inconsistent statements cannot be used to impeach during cross.

A

False. Can always be used to impeach during cross.

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16
Q

T or F? PIS cannot be used to impeach through the use of extrinsic evidence.

A

False, but many restrictions on this ability

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17
Q

Can EE of a PIS be used to impeach a witness on a minor point?

A

No

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18
Q

When using EE of a PIS to impeach, the witness being impeached must be allowed to . . .

A

Comment

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19
Q

Can you use EE of a PIS on cross?

A

No

20
Q

EE always refers to evidence offered to impeach when?

A

On direct, NOT on cross.

21
Q

What are the 2 categories of prior convictions that can be used to impeach? Any restrictions? Explain in detail.

A

1) Any criminal conviction (fel or mis) involving dishonesty–can always be used
2) Any other felony (within 10 years) unless its too prejudicial.

22
Q

Questioning as to prior bad acts (not convictions) that reflect unfavorably on truthfulness are OK, but only when?

A

on cross

23
Q

If an impeached witness denies a prior bad act, can we use EE?

A

No, never.

24
Q

What is true of the of EE for contradiction?

A

Must be used for major points only.

25
Q

What must be true before bolstering occurs?

A

Impeachment

26
Q

How can bolstering evidence come in without impeachment?

A

If otherwise admissible for any other reason.

27
Q

If you are impeached for bad reputation for truthfulness, prior crime, or prior bad acts, can you rehab with evidence of a good reputation for truthfulness?

A

Yes

28
Q

3 categories of non-hearsay?

A

Admissions by a party

PIS of a witness under oath

Prior ID made by a witness in the current case

29
Q

For which of the following exceptions to HS is unavailability required?

Dying declaration
Present sense impression
Former testimony
Excited utterance
Then existing state of mind/physical condition
Purposes of medical treatment or diagnosis
Recorded recollection
Statements against interest
Business records
A

Former testimony

Dying declaration

Statements against interest

30
Q

T or F? An out-of-court statement introduced to show effect on a listener is always ok.

A

True

31
Q

What is the definition of an admission/statement by a party opponent?

A

A relevant statement by a party or agent of a party (in scope of employment) made at any previous time AND offered into evidence by the OPPOSING party.

32
Q

T or F? Availability is irrelevant for admissions/statements by a party opponent.

A

true

33
Q

When will information be deemed to have been admitted by silence?

A

When a party heard an accusation against them and failed to protest AS LONG AS a reasonable person would have protested.

34
Q

What comes in when there is a valid admission by silence? The out-of-court accusation, the silence, or both?

A

Both

35
Q

T or F? Prior IDs by witnesses not testifying in the case are H/S.

A

True. Must be testifying in the case.

36
Q

Generally, what is the only purpose for which a PIS can come in?

A

To impeach

37
Q

For a PIS to be admitted for the TMA, one of these two things must be true.

A

PIS was given under oath at a legal proceeding, or

The PIS itself qualifies under some independent exception to the H/S rule, then it’s ok for TMA.

38
Q

What is true of dying declarations when offered into evidence at a criminal trial?

A

Must be in a homicide case.

39
Q

A dying declaration can be based solely on the opinion of the dying person. T or F?

A

False. Cannot be based on mere opinion without 1st hand knowledge.

40
Q

T or F? A person making a business record must have first hand knowledge of the information in the record for it to qualify.

A

False

41
Q

T or F? If a business record qualifies, it is admissible to prove only what is in the record, as opposed to what is not in the record.

A

False. Can prove both.

42
Q

Out-of-court statements of future intention are/aren’t admissible to show that the person might have carried out that intention.

A

Are

43
Q

To achieve authentication, what must the moving party present?

A

Enough evidence to support a finding that the item is what it is purported to be.

44
Q

T or F? In a civil case, a spouse cannot be forced to testify against the other.

A

False. Only true in a federal criminal case.

45
Q

T or F? In any federal case, a spouse can refuse to disclose or keep the other from disclosing confidential communications made during marriage.

A

True

SIMULATED MBE: EVIDENCE (1 decks)

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