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NY BAR REVIEW > NY BAR REVIEW 19 > Flashcards

NY BAR REVIEW 19 Flashcards

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1
Q

how is authentication satisfied?

A

by evidence sufficient to conclude that the matter in question is what its proponent claims

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2
Q

party introducing physical evidence must provide what?

A

a basis for the jury to resolve the authenticity question in favor of that party

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3
Q

a proper foundation may rest on what?

A

any manner permitted by fed. rules of evid.- ten approaches to authentication

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4
Q

authentication is made by someone who can what?

A

verify title, subject, background of painting- would be sufficient. doesnt have to be the original artist.

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5
Q

composite sketch is what?

A

an out of court sttmt by a witness and is hearsay that doesnt fall under any exception

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6
Q

prior testimony or evidence of a witness whos now deceased is inadmissible unless what?

A

that witness was cross examined about the evidence prior to trial.

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7
Q

sketch is likely inadmissible why?

A

bc reliability is seriously questioned

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8
Q

creating composite sketch carries potential of what?

A

suggestiveness of having a police artist interpret and possibly influence perceptions of witness

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9
Q

opposing party’s out of court sttmt can be what?

A

nonhearsay

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10
Q

impeachment is allowed for what?

A

material issues of the case

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11
Q

out of court sttmts are admissible if sttmts are what?

A

offered against party who made them, deeming admissible sttmts offered ag an opposing party that were made by the party

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12
Q

question has no probative value regarding what?

A

credibility of witness or guilt of def

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13
Q

citations are what?

A

too trivial and immaterialto challenge his credibility

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14
Q

far removed collateral matter that would disrupt what?

A

flow of trial, for no good reason

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15
Q

impermissible trek into where?

A

the outside territories and serve no useful purpose of any kind

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16
Q

apparent authority exists when?

A

a reasonable person would understand that assistant had authority to act

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17
Q

principal is estopped from denying agent’s authority when what?

A

principal has conferred what reasonably appears to be authority to the apparent agent

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18
Q

is there a rule that expert opinions in fire cases always must be supported by testing?

A

NO

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19
Q

criticisms of methodology are usually best dealt with when?

A

on cross examination at trial

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20
Q

questions raised on cross examination must relate to what?

A

evidence or info already on the record, leading questions are acceptable

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21
Q

random questions that dont relate to the case or are speculative, are allowed?

A

NO

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22
Q

irrelevant argumentative speculative questions are allowed?

A

NO, not productive, and time wasters

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23
Q

courts may within their sound discretion deny cross examination if evidence sought is what?

A

vague, argumentative, speculative

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24
Q

admissible circumstantial evidence

A

requires one or more inferences to be made in order to conclude that it was the suspect’s print at the scene

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25
Q

conclusion associated with inference must still be proved how?

A

beyond a reasonable doubt

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26
Q

direct evidence is like what?

A

eyewitness account, no inference required, just have to believe credibility of witness

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27
Q

hearsay

A

co-conspirator didnt make sttmt during course of conspiracy

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28
Q

establish foundation for admission of evidence under co-conspirator exception to hearsay rule, government is to show what?

A

existence of conspiracy, sttmt was made by co-conspirator of party, made during course of conspiracy, was made in furtherance of conspiracy

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29
Q

sttmt cannot by itself establish existence of conspiracy of what?

A

participation in it

30
Q

there must be independent _________ establishing conspiracy

A

evidence

31
Q

promises made in consideration of marriage must be what?

A

in writing, to be enforceable as per most state statute of fraud laws

32
Q

actions in conformance with offer

A

payment, combined with property owner’s offer in writing, consistent with statute of frauds- enough to make a binding contract

33
Q

statute of frauds- party being sued is the one who must have what?

A

signed

34
Q

signature is NOT required in order to show mutuality or assent to terms of what?

A

writing

35
Q

assent can be shown in other ways, such as by parties’ what?

A

conduct

36
Q

tort law provides what type of damages?

A

compensatory/actual and punitive

37
Q

punitive damages are awarded where what?

A

defendant’s actions were wanton, reckless, and in callous disregard of pl’s rights

38
Q

defendant opened the door to what?

A

issue of liability coverage when tried to prove that was unable to pay any punitive damage verdict when in fact had liability insurance.

39
Q

when def left impression that only 100k in coverage was available, they opened the door to what?

A

issue of availability of coverage for an excess verdict based on bad faith of insurance co.

40
Q

where treatment of mental patient involves exercise of control by physician who knows or should know that patient is likely to cause bodily harm to others, what arises?

A

independent duty from that relationship requiring doctor to exercise reasonable care to prevent the harm

41
Q

duty of those in charge of person having dangerous propensities?

A

one who takes charge of 3rd person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm

42
Q

out of ct sttmt quoting another out of ct sttmt

A

each sttmt must fit an exception to the hearsay rule to be admissible

43
Q

hearsay within hearsay is admissible if what?

A

each part of combined sttmts fits an exception to the hearsay rule

44
Q

with every increased level of hearsay there is what?

A

corresponding decrease in reliability

45
Q

every level of hearsay provides what?

A

another possibility that the facts were inaccurately reported by the declarant, either intentionally or unintentionally or misunderstood by the person to whom the sttmt was made

46
Q

presumption of innocence

A

the law endows the accused and which extends to every element of the crime

47
Q

state cannot create intent through a presumption and thus do what?

A

take away prosecution’s need to prove the intent element

48
Q

prosecution would be relieved of proving affirmatively the guilt of the defendant ______

A

beyond a reasonable doubt

49
Q

no way to tell if jurors were swayed by instruction. with no way to know if finding of intent was an independent one, verdict is what?

A

tainted and must be reversed

50
Q

interim freezing of wages without a chance to be heard violates what?

A

procedural due process

51
Q

pre-judgment garnishment procedure

A

could drive a wage earning family to the wall, and is in violation of the fundamental principles of due process. without prior notice and hearing, procedure is UNCONSTL

52
Q

prejudgment writ of attachment procedure violates what?

A

due process

53
Q

garnishment statute was unconstl bc didnt provide for what?

A

notice, hearing, participation of judicial officer

54
Q

trespass is what type of tort?

A

intentional

55
Q

trespass does not require proof of what?

A

intent to trespass or intent to harm.

56
Q

trespass requires proof of what?

A

proof of intent to perform the act leading to trespass is all that is needed

57
Q

trespass

A

causing something to go onto the land is sufficient without personal intrusion by def

58
Q

trespass is an intentional tort bc what?

A

it involves an intent to commit an act which violates a property right or would be practically certain to have that effect, although the actor may not know that the act he intends to commit is such a violation

59
Q

privileges, licenses, certificates, franchises qualify as what?

A

property interests for purposes of procedural due process

60
Q

once issued, a license or permit may become what?

A

essential in the pursuit of a livelihood and may not be taken away without due process

61
Q

it must be determined whether the process the state provided was what?

A

constitutionally adequate

62
Q

due process requires what?

A

opportunity to be heard at a meaningful time and in a meaningful manner

63
Q

what does meaningful time mean?

A

prior to deprivation of liberty or property right at issue

64
Q

judgment note given by 1 joint tenant on his interest in property does not sever what?

A

joint tenancy

65
Q

right of survivorship became operative on death of first cousin, as such ___________?

A

pl is now sole owner of estate, in its entirety

66
Q

property right of joint tenant is extinguished at moment of what?

A

joint tenant’s death

67
Q

while was alive, judgment existed as what?

A

potential lien on joint tenancy interest in real estate

68
Q

upon death, interest ceased to exist and along with it what?

A

the potential lien of judgment note

69
Q

a sttmt is NOT hearsay if what?

A

it is offered ag a party and is made by party’s agent or servant concerning a matter within the scope of agency or employment during existence of relationship

70
Q

high degree of reliability and support admission as non hearsay sttmt which is essentially made ag employer’s interest by employers agent or servant while what?

A

in scope of employment

NY BAR REVIEW (123 decks)

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