Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Kaplan Foundation Slides > Kaplan Evidence Foundation Slides > Flashcards

Kaplan Evidence Foundation Slides Flashcards

1
Q

Presentation of Evidence - Coverage Areas

A

Presentation of Evidence

  • Preliminary Questions of Admissibility
  • First Hand Knowledge
  • Burdens of Persuasion and Presumption
  • Habit Evidence
  • Subsequent Remedial Measures
  • Settlement Offers
  • Offers to Pay Medical Expenses
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Approach to Evidence Questions

A
  • Underline the Cause of Action
    • Civil or Criminal
  • Situate the Proceeding
    • Direct or Redirect
    • Party or Witness
  • Purpose for Evidence
    • Substantive use
    • Impeachment use
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Relevant Evidence is

A

Relevant Evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Admissions are

A
  • Statement of a party
    • Oral or Written Assertion / Conduct
  • Used against them by their opponent
  • Can be anything (words, letters, documents)
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

FRE 1002: Best Evidence Rule is

A
  • To prove the contents of a writing (recording, photograph, X ray) the original must be produced unless shown to be available
  • Rule applies where contents are in issue: i.e., where the testimony is reliant on the writing, not on personal knowledge
    • The person testifying has personal knowledge ONLY because of the original writing
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Preliminary Questions of Admissibility include

A

Questions concerning qualification of a person to be a witness (FRE 601, 602, 603, 401), existence of a privilege, or admissibility of evidence shall be determined by the court

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Burdens in a Civil Action

A
  • Burden of proof on the Plaintiff

- Burden of persuasion - preponderance of the Evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Burdens in a Criminal Action

A
  • Burden of proof on Prosecution

- Burden of persuasion - beyond a reasonable doubt of every element

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Habit Evidence

A

Habit Evidence is evidence of the habit of a person, or the routine practice of an organization is admissible to prove conduct.

Corroboration is not required

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Subsequent Remedial Measures

A

Evidence of subsequent remedial measures is inadmissible to prove negligence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Subsequent Remedial Measures, Exceptions are:

A

Is evidence to prove (1) Ownership, (2) Control

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Settlement offers that are not admissible are

A

Offers to settle claims in “dispute” are inadmissible. Admission are NOT severed and are inadmissible

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Offers to Pay Medical Expenses

A

Offers to pay medical expenses of another are inadmissible. Admission ARE severable and admissible

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Checkpoint Items for Character Evidence

A
  • Character is tricky, watch for state distinctions as trap answers as they are generally opposite rules
  • Impeachment is a good answer when someone does not come in substantively for its truth
  • Have to follow and approach,
    • where are you in the case
    • what kind of case is it
    • purpose of the evidence
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Character Evidence in Criminal Cases- Character of Defendant

A

Defendant may open the door with “reputation or opinion” evidence (not specific acts) of his good character to prove his innocence and the prosecution may so rebut

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Character Evidence in Criminal Cases- Character of Victim

A

Where evidence of a pertinent trait of character of the alleged victim is offered by the accused, the prosecution may rebut the same way

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Character Approach in Criminal Cases

A

Door opened? Trait? Reputation / Opinion

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

4 Ways to Impeach

A
  • Bias / Prejudice; Prior Inconsistent Statement; Sensory Defects; Character to Impeach
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Bias / Prejudice

A
  • Bias of a witness is always considered relevant.
  • A witness can be impeached by showing that he has a reason for lying about or misrepresenting facts because he is
    • biased in favor of a party,
    • prejudiced against a party, or
    • has an interest in the outcome
20
Q

Prior Inconsistent Statement may be admissible substantively when

A

Admissible substantively in 3 cases

  1. If “sworn” under FRE 801(d)(1)
  2. As an admission under FRE 801(d)(2)
  3. If a Hearsay Exception applies
21
Q

Sensory Defects

A

Any sensory or mental defect that might affect a witness’s capacity to observe, recall, or relate the events about which the witness has testified is admissible to impeach

22
Q

Prior Bad Act Impeachment

A
  • Reputation or opinion testimony about the witness involving truthfulness
  • Questions regarding specific instances of conduct allowed on cross-examination
23
Q

Convictions to Impeach

A
  • Felony Conviction

- Convictions involving dishonesty or false statement

24
Q

FRE 404(b): Mimic Rule

A

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes.

M  Motive 
I    Intent 
M  Absent of Mistake/Knowledge 
I    Identity 
C   Common Plan or Scheme
25
Q

Hearsay Exceptions

A
  • Present Sense Impression
  • Excited Utterance
  • Dying Declaration
  • Business Records
  • 403 Balancing Test
26
Q

Non Hearsay

A
  • Admission
  • Prior Consistent Statements
  • Prior Identifications
27
Q

Checkpoint items for Hearsay

A
  • 26 Rules to Memorize
  • 10 Rules of what is NOT Hearsay
  • Factually specific
  • Lot of Reading Comprehension in the fact patterns
  • Watch for Non hearsay uses
  • Calls of question are critical
28
Q

Approach to Hearsay MBE

A
  1. Isolate the Statement
  2. Determine who is the declarant
  3. Purpose for which the evidence is being offer:
    • for its truth = hearsay
    • not for its truth = not hearsay
  4. Apply the hearsay exceptions if the statement is being offered for its truth
29
Q

Effect on Listener FRE 803(3), not hearsay

A

Not Hearsay which is Circumstantial evidence offered to show:

  • Knowledge
  • Intent
  • Attitude
  • Belief

Of the declarant or of the listener

30
Q

Effect on Listener FRE 803(3), hearsay exception

A

Statement of then existing state of mind or physical condition

  • Intent
  • Design
  • Plan
  • Motive

Offered for its truth

31
Q

Statement Made for Medical Diagnosis or Treatment

A

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or external source thereof insofar as reasonably pertinent to diagnosis or treatment

32
Q

FRE 803(6): Business Record

A
  • Report or record concerning act or event
  • Made at or near the time
  • By a person with knowledge
  • Kept in the regular course of business
33
Q

Past Recollection Recorded

A
  • The witness once had personal knowledge of the writing
  • The witness now forgets the writing and showing the writing to the witness does not jog his or her memory;
  • The writing was either made by the witness or adopted by the witness;
  • The writing was made when the event was fresh in the witness’s memory; and
  • The witness can attest that, when made, the writing was accurate
34
Q

Absence of Entry in a Business Record

A

Lack of a record to prove that a transaction or occurrence had not taken place, is admissible if it was the regular practice of the business to record such events if they had actually occurred

35
Q

FRE 803(2): Excited Utterance

A

Statement relating to a startling event made while declarant was under the stress of excitement caused by the event

36
Q

FRE 804(b)(2): Dying Declaration

A
  1. Statement must concern cause or circumstances of death
  2. Unavailable declarant
  3. Criminal homicide or any civil case
  4. Declarant’s belief of imminent death
37
Q

Confrontation Clause

A

The Confrontation Clause requires that (1) in a criminal case AND (2) where the declarant is unavailable, that “Testimonial” evidence is inadmissible unless defendant is given prior opportunity to cross-examine the declarant

38
Q

Davis v. Washington established that Not Testimonial Evidence is

A

Primary purpose of the testimony by the declarant is to obtain police assistance to meet an “ongoing emergency”

39
Q

Hammon v. Indiana established that Testimonial Evidence is

A

Primary purpose of the testimony by the declarant is for “interrogation,” which is to establish or prove past events relevant to later prosecution

40
Q

FRE 804(b)(3): Declaration Against Interest

A

Statement of an:
1- Unavailable declarant
2- Non-party (generally)
3- Against interest when made (penal, pecuniary or proprietary)

41
Q

FRE 804(b)(1): Former Testimony

A

1- Testimony from the same or different proceeding, or in a deposition;
2- Unavailable declarant;
3- Opportunity and similar motive to develop the testimony on direct, cross, or redirect

42
Q

FRE 804(b)(4): Statement of Pedigree

A

A statement of Pedigree: a statement concerning declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history

43
Q

Leading Questions are appropriate when:

A
  • On Cross
  • Hostile or adverse witnesses
  • Questioning children
  • Refreshing a witness
  • Preliminary background matters
44
Q

Spousal Privilege applies to

A
  • Protects communications Before AND during marriage (impressions/observations), BUT the privilege is lost at divorce.
  • Applies to Criminal Cases ONLY
  • Holder of the privilege:
    • Common Law
    • Party Spouse
    • Federal Courts (Majority)
    • Witness Spouse
45
Q

Marital Privilege applies to

A
  • Protects communications only DURING marriage
  • Privilege survives divorce
  • Applies to BOTH Civil and Criminal
  • Holder of the privilege:
    • Both Spouses have the privilege
46
Q

Attorney Client Privilege

A
  • Communications between a client an her attorney are inadmissible
  • Rationale- By assuring confidentiality the privilege encourages clients to make “full and frank” disclosures to their attorneys, who are then better able to provide candid advice and effective representation
47
Q

Opinion Testimony applies to

A

Lay witnesses may offer opinion testimony if:

  • Opinions must be based on first-hand knowledge or perception; and
  • Helpful to the finder of fact

Kaplan Foundation Slides (7 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions