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MBE Evidence Flashcards

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1
Q

Who is the subject of impeachment?

A

Witness

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2
Q

What is impeachment about?

A

Trying to make sure the witness is telling the truth

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3
Q

What is another term for impeachment?

A

Credibility

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4
Q

Can you impeach your own witness?

A

Yes

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5
Q

How can you impeach a witness?

A

1) Contradict what witness says
2) Show bias
3) Prior bad acts

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6
Q

When can you impeach a witness based on bias?

A

Always. Can always try to show bias to attack credibility

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7
Q

Can you ask a witness about a prior felony conviction?

A

Only if the conviction occurred within the last 10 years and judge does balancing

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8
Q

Can you ask a witness about a prior conviction relating to honesty/truthfulness?

A

Yes, always. Regardless if misdemeanor or felony

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9
Q

Can you ask a witness about a prior bad act?

A

No, unless it relates to honesty/truthfulness

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10
Q

If witness denies something and leaves the stand, can you call another witness to show that the original witness was lying?

A

No

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11
Q

What is extrinsic evidence?

A

Outside evidence

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12
Q

What do character questions look like?

A

Using the witness to say that a party did something bad in the past

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13
Q

Who is the subject of character?

A

The defendant

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14
Q

Is character evidence usually admissible or inadmissible?

A

Inadmissible

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15
Q

What are the civil cases exception to general proscription of character evidence?

A

1) Defamation
2) Child custody
3) Negligent entrustment
4) Misrepresentation

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16
Q

When can you bring in character evidence in a criminal case?

A

Only when the defendant has opened the door with good character or MIMIC exception

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17
Q

When can defendant bring in evidence of his character?

A

After plaintiff rests

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18
Q

What kind of character evidence can the defendant bring in?

A

Evidence relating to his honesty/truthfulness or peacefulness

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19
Q

What happens if defendant brings in evidence of defendant’s good character?

A

Prosecution can admit evidence of defendant’s bad character

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20
Q

What is the mimic exception to character?

A 
Can bring in evidence of character to show 
M- Motive
I- Intent
M- Mistake
I- ID
C- Common plan/scheme (MO)
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21
Q

What is common plan/scheme?

A

(MO). Must be personal/signature to the individual

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22
Q

What is habit?

A

Routine practice

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23
Q

Can prosecution bring in habit evidence?

A

Yes, to show defendant does something everyday

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24
Q

What is the definition of hearsay?

A

Out of court statement offered to prove the truth of the matter asserted

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25
Q

What are the hearsay exception?

A

1) Present sense impression
2) Excited utterance
3) Then existing state of mind
4) Business record
5) Dying declaration
6) Statement against interest

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26
Q

What is a present sense impression?

A

Hearsay exception re: statements made about what you’re observing while you are observing it

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27
Q

What is an excited utterance?

A

Hearsay exception re: statement made while excited

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28
Q

What is then existing state of mind?

A

Hearsay exception re: Emotion or intent

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29
Q

What is an example of then existing state of mind?

A

Any statement about future plans (“I was going to be in NY that day”) or emotion (“Of course I couldn’t kill her, I love her”

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30
Q

What is the business record hearsay exception?

A

Record kept in the ordinary or regular course of business. No matter what it is, we do it

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31
Q

What is double hearsay?

A

Document can come in but need another hearsay exception to admit the statements in the document

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32
Q

What are the elements of dying declaration hearsay exception?

A

1) Made in belief of impending death
2) about why person is dying
3) Only in homicide cases or civil
4) Now at trial, declarant is unavailable to testify

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33
Q

Is someone available if there is just silence as to their location?

A

Yes.

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34
Q

Do you presume that a witness is available or unavailable?

A

Available

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35
Q

What is a statement against interest?

A

Hearsay exception re: statement against their own interest and they are unavailable

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36
Q

Is an admission a hearsay exception?

A

No. Non-hearsay

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37
Q

What is the difference between an admission and statement against interest?

A

Statement against interest is unavailable, admission does not require unavailability

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38
Q

What is an adoptive admission?

A

Silence when a reasonable person would object

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39
Q

What is a prior inconsistent statement?

A

Not hearsay re: under oath and subject to cross examination

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40
Q

What is a prior inconsistent statement admissible for?

A

Impeach and substantive

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41
Q

What is a subsequent remedial measure?

A

After an accident, someone is trying to fix or repair what happened

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42
Q

What is subsequent remedial measure admissible for?

A

Ownership and control

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43
Q

What can subsequent remedial measure not be admitted for?

A

Cannot be admitted to prove negligence or liability

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44
Q

Is an offer to settle/compromise admissible?

A

No

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45
Q

What is required for an offer to settle/compromise be inadmissible?

A

Needs to first be a legal dispute

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46
Q

Are admission severable in context of settlement/compromise?

A

No. Whole thing is inadmissible

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47
Q

Is an offer to pay medical bills admissible?

A

Not admissible to prove liability

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48
Q

Is an admission severable in the context of offering to pay for medical bills?

A

Yes

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49
Q

How long does attorney/client relationship last?

A

Forever

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50
Q

Can you waive privilege of attorney/client communications?

A

Yes, but never infer waiver

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51
Q

What are the exceptions to attorney/client privilege?

A

1) Seeking advice to commit crimes

2) Any conflicts with the lawyer himself (ex: attorney’s fees)

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52
Q

When can either spouse stop the other from disclosing something?

A

Spousal communications privilege. Just about the communications they had.

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53
Q

What is testimonial privilege?

A

Between husband and wife and applies only in criminal cases, asking one spouse personal knowledge

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54
Q

Who holds the privilege in testimonial privilege?

A

Witness holds the privilege

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55
Q

What is doctor/patient privilege?

A

Communications about the actual medical treatment

56
Q

Can other people be in the room to still have doctor/patient privilege?

A

Yes, as long as they are there to assist either the doctor or the patient

57
Q

What is the best evidence rule?

A

Someone is trying to submit a document, and the original is the best

58
Q

If the original document is unavailable can you use a copy as the best evidence?

A

Yes, so long as the copy is authenticated

59
Q

What does it mean for a document to be authenticated?

A

Not subject to any tampering

60
Q

What is the presumption of tampering relating to document?

A

Presumption is that it is authentic, unless you see evidence to the contrary

61
Q

When does best evidence rule apply/does it matter whether you have a copy and it’s authentic?

A

1) Trying to prove contents of the document itself

2) No other way to prove/corroborate a witness’s testimony but for the document itself

62
Q

Who can be a witness?

A

Anyone

63
Q

What can a witness testify about?

A

Anything that person has personal knowledge of or any common perceptions

64
Q

How do you admit an expert witness?

A

Lay a foundation and provide evidence that they are an expert in that area (usually done by resume or CV)

65
Q

Can an expert witness be impeached?

A

Yes

66
Q

In a criminal case, can an expert witness testify as to the defendant’s mental state?

A

No

67
Q

What is judicial notice?

A

Court is going to admit evidence without any proof

68
Q

What kind of evidence is subject to judicial notice?

A

Evidence that is not subject to any dispute (accepted as basic information)

69
Q

If court takes judicial notice of something, what does jury do with it in a criminal case?

A

Jury may accept it as fact

70
Q

If court takes judicial notice of something, what does jury do with it in a civil case?

A

Jury must accept it as fact

71
Q

What is the threshold question for evidence?

A

Whether the evidence is relevant

72
Q

What makes evidence relevant?

A

1) Material

2) Probative

73
Q

What makes evidence material?

A

The proposition is “of consequence: in the case

74
Q

What makes evidence probative?

A

The evidence has any tendency to make the proposition more or less likely

75
Q

What discretion standard does the judge use to determine whether to exclude?

A

If probative value is substantially outweighed by the danger

76
Q

What dangers would a judge consider to determine admissibility?

A

1) Unfair prejudice
2) Confusion
3) Misleading
4) Undue delay
5) Waste of time
6) Cumulative

77
Q

What is the general rule for similar occurrences?

A

Inadmissible

78
Q

What recurring situations would be admissible?

A

1) Plaintiff’s accident history (prior false claims or same bodily injury)
2) Similar accidents or injuries caused by same event or condition
3) Previous similar acts to prove intent
4) sales of similar property (value)
5) Rebutting claim of impossibility
6) Causation
7) Habit
8) Industry custom

79
Q

Is evidence that plaintiff filed previous similar tort claims admissible?

A

No, unless to previous claim was false or was about the same part of body that sustained injury

80
Q

When is a similar accident or injury caused by the same event or condition admissible?

A

When it occurred under substantially similar circumstances and being used to prove:

1) existence of a dangerous condition;
2) Dangerous condition was the cause of the present injury; and
3) Defendant had notice of the dangerous condition (if before plaintiff’s accident)

81
Q

What is absence of complaints admissible for?

A

Admissible to show defendant’s lack of knowledge of the danger

82
Q

What are sales of similar properties admissible for?

A

To prove the property’s value

83
Q

Example of similar occurrence to rebut claim of impossibility?

A

Defendant claims car won’t go above 50 mph can be rebutted by showing occasions when the car went above 50 mph

84
Q

What is habit?

A

Describes a person’s regular response to a specific set of circumstances

85
Q

What are the two defining characteristics of habit?

A

1) frequency of conduct (repeated)

2) particularity of circumstances

86
Q

Is habit evidence admissible?

A

Yes, to show person (or organization) acted in accordance with the habit

87
Q

What is industry practice admissible for?

A

To show appropriate standard of care

88
Q

What is industry practice not conclusive of?

A

Appropriate standard of care (an entire industry may be acting negligently)

89
Q

What is liability insurance inadmissible for?

A

To prove negligence or ability to pay

90
Q

What is liability insurance admissible for?

A

To prove ownership or control, impeachment, or as part of an admission of liability (ex: “Don’t worry, my insurance will pay it off”)

91
Q

What are subsequent remedial measures inadmissible for?

A

1) to prove negligence,
2) culpable conduct,
3) a defect in a product or design,
4) need for a warning or instruction

92
Q

What are subsequent remedial measures admissible for?

A

1) to prove ownership or control
2) rebut a claim that precautions were impossible
3) prove destruction of evidence

93
Q

What are settlement offers or negotiations inadmissible for?

A

1) to prove or disprove the validity or amount of a disputed claim
2) impeach by prior inconsistent statement
3) impeach by contradiction

94
Q

What are offers to pay and payment of medical expenses inadmissible for?

A

To prove culpable conduct

95
Q

Are admissions of fact accompanying an offer to pay medical expenses admissible?

A

Yes

96
Q

What pleas are inadmissible in civil or criminal cases against the defendant who made the plea?

A

1) offers to plead guilty;
2) withdrawn guilty pleas
3) actual pleas of nolo contendere
4) statement of facts during any of the above plea discussions

97
Q

Is actual guilty plea admissible?

A

Usually, as a statement of an opposing party

98
Q

If offer to pay medical expenses is coupled with an admission of liability, what, if anything, is admissible?

A

The admission as a statement by an opposing party

99
Q

What is required for business record exception to hearsay?

A

Needs to at least be related to the nature of the business

100
Q

If post bail, and then try to leave the country under an alias, can that evidence be brought in?

A

Yes because it goes to that person’s consciousness of guilt

101
Q

What must an expert opinion be based on?

A

Sufficient facts and date + expert must employ a reliable methodology

102
Q

What two situations does the best evidence rule apply?

A

1) Writing is a legally operative or dispositive instrument

2) Knowledge of a witness concerning a fact results from having read it in the writing

103
Q

When does the best evidence rule not apply?

A

When the witness has personal knowledge of the fact to be proved

104
Q

Do you need to authenticate a photograph for it to be admissible?

A

Generally, photographs and videos are admissible only if identified by a witness as a portrayal of certain facts relevant tot he issue and the witness verifies that it is a fair and accurate representation of those facts

105
Q

How do you forfeit a hearsay or confrontation clause objection?

A

By engaging in wrongful conduct FOR THE PURPOSE OF preventing the declarant from testifying (prevent trial testimony)

106
Q

When should the court instruct the jury on a lesser offense?

A

Upon motion (can be by D), the jury may rationally acquit the defendant of the charged offense but convict on the lesser offense based on the evidence

107
Q

Can you make an objection about a witness’ testimony after they have left the stand?

A

No, that’s untimely

108
Q

What is the effect of not providing a specific basis for objection?

A

Failed to preserve the objection for appeal

109
Q

What is the limitation to statement against penal interest?

A

Needs to be corroborated

110
Q

What makes a statement non-testimonial?

A

If it was not made for the primary purpose of assisting with a criminal investigation

111
Q

Does Sixth Amendment apply to testimonial statements?

A

Yes, 6th Amendment Confrontation Clause

112
Q

What is a statement against interest?

A

A statement of a person (now unavailable) made against that person’s pecuniary, proprietary, or penal interest when made, such that a reasonable person in the declarant’s position would have made it only if they believed it to be true

113
Q

What is the effect of a judge giving the jury an inapplicable instruction?

A

Plain error if affecting the person’s substantive rights

114
Q

When can’t you bring in extrinsic evidence?

A

Can’t bring in extrinsic evidence only for prior bad acts?

115
Q

Can you bring in extrinsic evidence of prior inconsistent statement to impeach?

A

Prior inconsistent statement if witness given a chance to explain or deny the prior consistent statement?

116
Q

Is the identity of a client privileged?

A

No

117
Q

Can a treatise be introduced as substantive evidence?

A

Yes, if expert is on the stand and it’s called to his attention and it is established as reliable authority

118
Q

Can the contents of voluminous files be admissible as a chart?

A

Yes, as long as the original documents are available to the other party for examination and copying

119
Q

Do you need to pose a hypothetical question to an expert to elicit their opinion?

A

No

120
Q

Who can testify as to someone’s handwriting or inspect the handwriting?

A

expert, trier of fact, someone who saw the handwriting BEFORE trial

121
Q

What is needed to exclude a statement on the basis of a settlement negotiation?

A

There must be a dispute between the parties

122
Q

What is a family record and is it admissible?

A

Statement of fact concerning personal or family history contained in family bibles, genealogies, tombstones, are admissible hearsay

123
Q

Once a defendant has raised an entrapment defense, what may the prosecution do in rebuttal?

A

Introduce prior related convictions as substantive evidence to disprove the entrapment defense by showing the defendant’s willingness to commit the crime as relevant prior misconduct`

124
Q

Can you use the statement of an employee as an exclusion from hearsay?

A

Yes, if it is within the scope of their duties

125
Q

Who can place a person’s mental state into controversy so that a medical exam may be required?

A

Anyone

126
Q

Can the court admit ireelevant evidence?

A

A court may–but does not have to–admit irrelevant evidence if the evidence is curative and rebuts previously admitted irrelevant evidence and the curative evidence is not prejudicial (doesn’t matter if didn’t object)

127
Q

Can Defendant bring in evidence of victim’s character even if not on murder?

A

Yes, in self- defense cases

128
Q

Can you challenge an experts qualifications even after the court has said the expert can testify?

A

Yes because challenging the witness’ qualifications is relevant to the weight given to the witness’ opinion

129
Q

For a lay witness to properly authenticate handwriting, when would it not be okay for the witness to testify as to the handwriting/signature?

A

When the witness’ familiarity with the handwriting was acquired solely for the purpose of litigation

130
Q

What is the recorded recollection exception to hearsay?

A

If a witness’ memory cannot be revived and properly authenticated, can bring in that memorandum/note that they made before when they did have knowledge of it

131
Q

What documents are self-authenticating?

A

1) Newspapers/periodicals
2) trade inspections, signs, tags, labels
3) official publications

132
Q

Can the records of an illegal activity come in under the business records exception?

A

Yes, when all the foundational requirements are met

133
Q

Can a judge order a defendant to testify first in his own defense?

A

Yes, the court has broad authority to control the mode and order of examining witnesses and presenting evidence

134
Q

Can you use statements, even those of fact, made during a civil settlement negotiation in a criminal trial?

A

No

135
Q

Can routine practice of an organization come in?

A

Yes, this is like habit but for a company

136
Q

Do the rules of evidence apply in probation revocation proceedings?

A

No

137
Q

What is the standard for authentication?

A

Whether there is sufficient evidence to support a finding that the evidence is what the proponent claims it to be

MBE (8 decks)

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