MBE Evidence Flashcards
1
Q
Who is the subject of impeachment?
A
Witness
2
Q
What is impeachment about?
A
Trying to make sure the witness is telling the truth
3
Q
What is another term for impeachment?
A
Credibility
4
Q
Can you impeach your own witness?
A
Yes
5
Q
How can you impeach a witness?
A
1) Contradict what witness says
2) Show bias
3) Prior bad acts
6
Q
When can you impeach a witness based on bias?
A
Always. Can always try to show bias to attack credibility
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
8
Q
Can you ask a witness about a prior conviction relating to honesty/truthfulness?
A
Yes, always. Regardless if misdemeanor or felony
9
Q
Can you ask a witness about a prior bad act?
A
No, unless it relates to honesty/truthfulness
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
11
Q
What is extrinsic evidence?
A
Outside evidence
12
Q
What do character questions look like?
A
Using the witness to say that a party did something bad in the past
13
Q
Who is the subject of character?
A
The defendant
14
Q
Is character evidence usually admissible or inadmissible?
A
Inadmissible
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
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
17
Q
When can defendant bring in evidence of his character?
A
After plaintiff rests
18
Q
What kind of character evidence can the defendant bring in?
A
Evidence relating to his honesty/truthfulness or peacefulness
19
Q
What happens if defendant brings in evidence of defendant’s good character?
A
Prosecution can admit evidence of defendant’s bad character
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)
21
Q
What is common plan/scheme?
A
(MO). Must be personal/signature to the individual
22
Q
What is habit?
A
Routine practice
23
Q
Can prosecution bring in habit evidence?
A
Yes, to show defendant does something everyday
24
Q
What is the definition of hearsay?
A
Out of court statement offered to prove the truth of the matter asserted
25
What are the hearsay exception?
1) Present sense impression
2) Excited utterance
3) Then existing state of mind
4) Business record
5) Dying declaration
6) Statement against interest
26
What is a present sense impression?
Hearsay exception re: statements made about what you're observing while you are observing it
27
What is an excited utterance?
Hearsay exception re: statement made while excited
28
What is then existing state of mind?
Hearsay exception re: Emotion or intent
29
What is an example of then existing state of mind?
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"
30
What is the business record hearsay exception?
Record kept in the ordinary or regular course of business. No matter what it is, we do it
31
What is double hearsay?
Document can come in but need another hearsay exception to admit the statements in the document
32
What are the elements of dying declaration hearsay exception?
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
33
Is someone available if there is just silence as to their location?
Yes.
34
Do you presume that a witness is available or unavailable?
Available
35
What is a statement against interest?
Hearsay exception re: statement against their own interest and they are *unavailable*
36
Is an admission a hearsay exception?
No. Non-hearsay
37
What is the difference between an admission and statement against interest?
Statement against interest is unavailable, admission does not require unavailability
38
What is an adoptive admission?
Silence when a reasonable person would object
39
What is a prior inconsistent statement?
Not hearsay re: under oath and subject to cross examination
40
What is a prior inconsistent statement admissible for?
Impeach and substantive
41
What is a subsequent remedial measure?
After an accident, someone is trying to fix or repair what happened
42
What is subsequent remedial measure admissible for?
Ownership and control
43
What can subsequent remedial measure not be admitted for?
Cannot be admitted to prove negligence or liability
44
Is an offer to settle/compromise admissible?
No
45
What is required for an offer to settle/compromise be inadmissible?
Needs to first be a legal dispute
46
Are admission severable in context of settlement/compromise?
No. Whole thing is inadmissible
47
Is an offer to pay medical bills admissible?
Not admissible to prove liability
48
Is an admission severable in the context of offering to pay for medical bills?
Yes
49
How long does attorney/client relationship last?
Forever
50
Can you waive privilege of attorney/client communications?
Yes, but never infer waiver
51
What are the exceptions to attorney/client privilege?
1) Seeking advice to commit crimes
| 2) Any conflicts with the lawyer himself (ex: attorney's fees)
52
When can either spouse stop the other from disclosing something?
Spousal communications privilege. Just about the communications they had.
53
What is testimonial privilege?
Between husband and wife and applies only in criminal cases, asking one spouse personal knowledge
54
Who holds the privilege in testimonial privilege?
Witness holds the privilege
55
What is doctor/patient privilege?
Communications about the actual medical treatment
56
Can other people be in the room to still have doctor/patient privilege?
Yes, as long as they are there to assist either the doctor or the patient
57
What is the best evidence rule?
Someone is trying to submit a document, and the original is the best
58
If the original document is unavailable can you use a copy as the best evidence?
Yes, so long as the copy is authenticated
59
What does it mean for a document to be authenticated?
Not subject to any tampering
60
What is the presumption of tampering relating to document?
Presumption is that it is authentic, unless you see evidence to the contrary
61
When does best evidence rule apply/does it matter whether you have a copy and it's authentic?
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
Who can be a witness?
Anyone
63
What can a witness testify about?
Anything that person has personal knowledge of or any common perceptions
64
How do you admit an expert witness?
Lay a foundation and provide evidence that they are an expert in that area (usually done by resume or CV)
65
Can an expert witness be impeached?
Yes
66
In a criminal case, can an expert witness testify as to the defendant's mental state?
No
67
What is judicial notice?
Court is going to admit evidence without any proof
68
What kind of evidence is subject to judicial notice?
Evidence that is not subject to any dispute (accepted as basic information)
69
If court takes judicial notice of something, what does jury do with it in a criminal case?
Jury may accept it as fact
70
If court takes judicial notice of something, what does jury do with it in a civil case?
Jury must accept it as fact
71
What is the threshold question for evidence?
Whether the evidence is relevant
72
What makes evidence relevant?
1) Material
| 2) Probative
73
What makes evidence material?
The proposition is "of consequence: in the case
74
What makes evidence probative?
The evidence has any tendency to make the proposition more or less likely
75
What discretion standard does the judge use to determine whether to exclude?
If probative value is substantially outweighed by the danger
76
What dangers would a judge consider to determine admissibility?
1) Unfair prejudice
2) Confusion
3) Misleading
4) Undue delay
5) Waste of time
6) Cumulative
77
What is the *general* rule for similar occurrences?
Inadmissible
78
What recurring situations would be admissible?
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
Is evidence that plaintiff filed previous similar tort claims admissible?
No, unless to previous claim was false or was about the same part of body that sustained injury
80
When is a similar accident or injury caused by the same event or condition admissible?
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
What is absence of complaints admissible for?
Admissible to show defendant's lack of knowledge of the danger
82
What are sales of similar properties admissible for?
To prove the property's value
83
Example of similar occurrence to rebut claim of impossibility?
Defendant claims car won't go above 50 mph can be rebutted by showing occasions when the car went above 50 mph
84
What is habit?
Describes a person's regular response to a specific set of circumstances
85
What are the two defining characteristics of habit?
1) frequency of conduct (repeated)
| 2) particularity of circumstances
86
Is habit evidence admissible?
Yes, to show person (or organization) acted in accordance with the habit
87
What is industry practice admissible for?
To show appropriate standard of care
88
What is industry practice not conclusive of?
Appropriate standard of care (an entire industry may be acting negligently)
89
What is liability insurance inadmissible for?
To prove negligence or ability to pay
90
What is liability insurance admissible for?
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
What are subsequent remedial measures inadmissible for?
1) to prove negligence,
2) culpable conduct,
3) a defect in a product or design,
4) need for a warning or instruction
92
What are subsequent remedial measures admissible for?
1) to prove ownership or control
2) rebut a claim that precautions were impossible
3) prove destruction of evidence
93
What are settlement offers or negotiations inadmissible for?
1) to prove or disprove the validity or amount of a disputed claim
2) impeach by prior inconsistent statement
3) impeach by contradiction
94
What are offers to pay and payment of medical expenses inadmissible for?
To prove culpable conduct
95
Are admissions of fact accompanying an offer to pay medical expenses admissible?
Yes
96
What pleas are inadmissible in civil or criminal cases against the defendant who made the plea?
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
Is actual guilty plea admissible?
Usually, as a statement of an opposing party
98
If offer to pay medical expenses is coupled with an admission of liability, what, if anything, is admissible?
The admission as a statement by an opposing party
99
What is required for business record exception to hearsay?
Needs to at least be related to the nature of the business
100
If post bail, and then try to leave the country under an alias, can that evidence be brought in?
Yes because it goes to that person's consciousness of guilt
101
What must an expert opinion be based on?
Sufficient facts and date + expert must employ a reliable methodology
102
What two situations does the best evidence rule apply?
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
When does the best evidence rule not apply?
When the witness has personal knowledge of the fact to be proved
104
Do you need to authenticate a photograph for it to be admissible?
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
How do you forfeit a hearsay or confrontation clause objection?
By engaging in wrongful conduct FOR THE PURPOSE OF preventing the declarant from testifying (prevent trial testimony)
106
When should the court instruct the jury on a lesser offense?
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
Can you make an objection about a witness' testimony after they have left the stand?
No, that's untimely
108
What is the effect of not providing a specific basis for objection?
Failed to preserve the objection for appeal
109
What is the limitation to statement against penal interest?
Needs to be corroborated
110
What makes a statement non-testimonial?
If it was not made for the primary purpose of assisting with a criminal investigation
111
Does Sixth Amendment apply to testimonial statements?
Yes, 6th Amendment Confrontation Clause
112
What is a statement against interest?
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
What is the effect of a judge giving the jury an inapplicable instruction?
Plain error if affecting the person's substantive rights
114
When can't you bring in extrinsic evidence?
Can't bring in extrinsic evidence only for prior bad acts?
115
Can you bring in extrinsic evidence of prior inconsistent statement to impeach?
Prior inconsistent statement if witness given a chance to explain or deny the prior consistent statement?
116
Is the identity of a client privileged?
No
117
Can a treatise be introduced as substantive evidence?
Yes, if expert is on the stand and it's called to his attention and it is established as reliable authority
118
Can the contents of voluminous files be admissible as a chart?
Yes, as long as the original documents are available to the other party for examination and copying
119
Do you need to pose a hypothetical question to an expert to elicit their opinion?
No
120
Who can testify as to someone's handwriting or inspect the handwriting?
expert, trier of fact, someone who saw the handwriting BEFORE trial
121
What is needed to exclude a statement on the basis of a settlement negotiation?
There must be a dispute between the parties
122
What is a family record and is it admissible?
Statement of fact concerning personal or family history contained in family bibles, genealogies, tombstones, are admissible hearsay
123
Once a defendant has raised an entrapment defense, what may the prosecution do in rebuttal?
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
Can you use the statement of an employee as an exclusion from hearsay?
Yes, if it is within the scope of their duties
125
Who can place a person's mental state into controversy so that a medical exam may be required?
Anyone
126
Can the court admit ireelevant evidence?
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
Can Defendant bring in evidence of victim's character even if not on murder?
Yes, in self- defense cases
128
Can you challenge an experts qualifications even after the court has said the expert can testify?
Yes because challenging the witness' qualifications is relevant to the weight given to the witness' opinion
129
For a lay witness to properly authenticate handwriting, when would it *not* be okay for the witness to testify as to the handwriting/signature?
When the witness' familiarity with the handwriting was acquired solely for the purpose of litigation
130
What is the recorded recollection exception to hearsay?
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
What documents are self-authenticating?
1) Newspapers/periodicals
2) trade inspections, signs, tags, labels
3) official publications
132
Can the records of an illegal activity come in under the business records exception?
Yes, when all the foundational requirements are met
133
Can a judge order a defendant to testify first in his own defense?
Yes, the court has broad authority to control the mode and order of examining witnesses and presenting evidence
134
Can you use statements, even those of fact, made during a civil settlement negotiation in a criminal trial?
No
135
Can routine practice of an organization come in?
Yes, this is like habit but for a company
136
Do the rules of evidence apply in probation revocation proceedings?
No
137
What is the standard for authentication?
Whether there is sufficient evidence to support a finding that the evidence is what the proponent claims it to be
