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Practice MBE > Review of MBE subjects -- evidence > Flashcards

Review of MBE subjects -- evidence Flashcards

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1
Q

Evidence of P’s prior accidents is admissible to show

A

something other than that P has character trait of being accident prone (e.g. causation).

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2
Q

Evidence of D’s prior accidents is admissible to show

A
  1. D had notice of condition
  2. D’s act/omission caused the accident at hand
  3. A dangerous condition existed.

**IF THE PRIOR ACCIDENTS HAPPENED UNDER SIMILAR CIRCUMSTANCES!!

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3
Q

Prior similar conduct of a person is admissible to show

A

intent, if their intent is at issue.

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4
Q

Comparable sales evidence is admissible to show

A

selling price of property similar in location and type – if you’re trying to prove the value of property.

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5
Q

Habit evidence is admissible to prove

A

via circumstantial evidence how the person acted in this case.

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6
Q

Habit evidence is a

A

repetitive response to a particular set of circumstances – distinguishable from general propensity because it’s repetitive AND particular.

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7
Q

Evidence of how others in the same trade or industry have acted in the recent past is admissible

A

as evidence of the standard of care that the party in the current case should have followed.

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8
Q

Evidence that D had liability insurance is

A

inadmissible to show fault, but admissible to show ownership or control (if those are disputed issues) or to impeach a witness.

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9
Q

Evidence of subsequent remedial measures taken by D is

A

inadmissible to show fault, product defect, or need for a warning, but admissible to show ownership or control, or that the remedial measure was feasible (if that’s a disputed issue).

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10
Q

Evidence of settlements, settlement offers, or statements of fact made in settlement conversations is

A

inadmissible to show fault OR to impeach a witness for a prior inconsistent statement, but admissible to impeach witness for bias.

Statements of fact in settlement discussions made in a civil dispute with a government agency are also admissible in later criminal case. (Not true in MA.)

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11
Q

Offers to plead guilty or withdrawn guilty pleas are

A

inadmissible in pending criminal case or in subsequent civil case based on same facts.

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12
Q

Pleas of nolo contendere are

A

inadmissible in subsequent civil cases based on same facts.

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13
Q

Offers to pay medical expenses are

A

inadmissible to prove fault. BUT, statements of fact in these conversations are admissible.

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14
Q

Evidence of a criminal defendant’s character to prove the D’s conduct on a particular occasion is

A

inadmissible in the prosecutor’s case in chief, but admissible by the defendant, if introduced via reputation or opinion evidence about a RELEVANT character trait.

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15
Q

If the defendant introduces character evidence, then

A

the prosecution can rebut this evidence, either by cross-examining D’s witness by asking about specific bad acts (but can’t prove these independently), or by introducing its own character witnesses to testify with opinion or reputation evidence of D.

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16
Q

Evidence of a victim’s character is admissible in a criminal case

A
  1. in self defense case: D can introduce evidence of victim’s violent character to suggest victim was first aggressor. Evidence of D’s knowledge of victim’s violence is admissible to suggest his state of mind.
  2. in sexual misconduct cases, evidence of victim and D’s prior sexual activity is admissible to prove consent was likelier to have been given (if consent is at issue). Evidence of victim’s prior sexual behavior is admissible to prove another person is the source of injury or semen. Evidence of a love triangle situation is also admissible where D alleges there’s a false rape accusation being made to protect relationship with third party.
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17
Q

In civil cases, evidence of a victim’s specific sexual behavior or sexual propensity is

A

admissible if its probative value substantially outweighs the danger of harm to the victim or unfair prejudice to any party.

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18
Q

In civil cases not dealing with sexual misconduct, character evidence is

A

generally inadmissible to prove behavior on a specific occasion, unless character is an essential part of the claim or defense (e.g. defamation, negligent hiring/entrustment, or child custody).

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19
Q

D’s prior crimes may be introduced for non-character purposes in the following instances:

A

MIMIC: motive, intent, mistake/accident (absence thereof), identity, common scheme or plan.

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20
Q

The three civil claims where character evidence may be admissible are:

A
  1. defamation
  2. negligent hiring or entrustment
  3. child custody
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21
Q

For MIMIC evidence, does the prosecutor have to introduce a conviction?

A

NO. As long as he produces sufficient evidence from which a reasonable juror could conclude the D committed the crime, the MIMIC evidence is good to go.

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22
Q

For MIMIC evidence, the court must always

A

weigh probative value vs. prejudice and give limiting instructions.

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23
Q

MIMIC evidence is/is not admissible in civil cases?

A

Admissible if relevant for a non-character purpose – e.g. intent may be relevant in tort cases for fraud or assault, or for discrimination cases.

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24
Q

In sexual assault or child molestation cases, character evidence of defendant’s prior bad acts is

A

allowed to show PROPENSITY: the ONLY context where this is OK. (Not ok in MA.) Note that only specific acts are allowed here – no reputation or opinion evidence.

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25
Q

Re: authenticity of documents – Documents are admitted when a judge finds there’s

A

sufficient evidence for a reasonable juror to find them authentic.

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26
Q

Ancient document rule provides:

A

can infer authenticity if a document is at least 20 years old, facially free of suspicion, and found in a place of natural custody.

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27
Q

The following documents are self-authenticating, for MBE:

A
  1. official publications
  2. certified copies of public or private records on file in public office
  3. newspapers/periodicals
  4. trade inscriptions and labels
  5. acknowledged documents (notarized)
  6. commercial paper
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28
Q

Best evidence rule applies when

A
  1. Document is legally operative – e.g. contract, deed, patent, divorce decree, mortgage
  2. Witness is testifying to facts she learned ONLY from a writing.
29
Q

Duplicates (xerox) are admissible unless

A

there’s a genuine dispute about their accuracy, or it would be unfair.

30
Q

What excuses are valid reasons not to introduce an original writing per the best evidence rule?

A
  1. destruction has been lost, or destroyed without bad faith, and can’t be found via due diligence
  2. original exists, but is beyond legal process
31
Q

Voluminous records can be presented

A

through summary or chart, as long as originals are available for inspection

32
Q

Certified copies of public documents are

A

not subject to the best evidence rule

33
Q

Collateral documents are

A

not subject to the best evidence rule, per the court’s discretion.

34
Q

If a jurisdiction has a dead man statute, you cannot

A

allow an interested witness to testify against the estate of a decedent regarding a transaction/communication between witness and decedent.

35
Q

Can a document used to refresh witness’s recollection be admitted into evidence?

A

Only by the opposing party.

36
Q

Can a document used as a past recollection recorded be admitted into evidence?

A

No, but it may be read to the jury. (MA: May be admitted.)

37
Q

Opinions on ultimate issues in a case are

A

usually fine, but an expert witness cannot testify as to whether D had or didn’t have relevant mental state (e.g. cannot say “D’s schizophrenia prevented him from knowing he was shooting at the victim”).

38
Q

General rule on bolstering the credibility of your own witness:

A

You cannot do it until she’s been impeached, unless it’s a prior identification – you can introduce evidence of that (as substantive evidence too).

39
Q

Extrinsic evidence can be used to impeach a witness, except in these types of impeachment:

A
  • -Prior bad acts (not convictions)

- -Contradiction on a collateral matter (not on a major one)

40
Q

Where extrinsic evidence is allowed to impeach, you need not ask a witness about the impeaching fact before impeaching her with extrinsic evidence, EXCEPT

A

if you are impeaching for bias.

41
Q

Prior inconsistent statements are _________ as impeachment; __________ as substantive evidence.

A

always admissible; only admissible if made orally under oath AND witness is currently available for cross-examination.

42
Q

Must a witness be confronted with her prior inconsistent statement (i.e. given the chance to explain or deny)?

A

YES, but not immediately. She must be given some chance to return to stand to explain or deny after there’s proof by extrinsic evidence. (Different in MA if you’re impeaching your own witness.)

If the witness is the opposing party, you NEVER need to give them an opportunity to explain or deny.

43
Q

How do you impeach a witness based on her character for truthfulness?

A

Opinion or reputation evidence only.

Can impeach any witness this way!

44
Q

Criminal convictions can be introduced to impeach

A

any witness, in civil or criminal cases. DO NOT CONFUSE with MIMIC evidence, which is about proving a defendant’s substantive guilt in a criminal case.

45
Q

Convictions are automatically admissible to impeach a witness if

A

they required proof that the D made a false statement as element of the crime (e.g. fraud, perjury) and occurred within 10 years of current trial.

46
Q

Convictions are admissible per the judge’s discretion if

A

they are felonies where conviction occurred within 10 years of current trial.

47
Q

Prior bad acts may be proven by extrinsic evidence if the bad act is

A

relevant for some reason other than the witness’s bad character for truthfulness – e.g. bias.

48
Q

An inquiry about a witness’s prior bad act is limited to

A

the act itself – no collateral consequences of the act, like job termination, civil judgment, or arrest.

49
Q

Contradiction is impeachment by

A

trying to get the witness to admit she lied about something on direct.

50
Q

The two permitted methods of rehabilitating a witness are

A
  1. good character for truthfulness – to rebut suggestion that witness was lying. Reputation/opinion only (reputation only in MA).
  2. prior consistent statement – to rebut charge of recent fabrication (not general character for untruthfulness), to rebut contention of inconsistency, or to rebut a claim of sensory deficiency.

NB: These types of prior consistent statement evidence are admissible as substantive evidence too.

51
Q

Prior consistent statements can be used to rebut

A
  1. charge of inconsistency
  2. charge of recent fabrication
  3. charge of sensory deficiency
52
Q

True/false: prior consistent statements can be used as substantive evidence and as rehabilitation evidence?

A

True, if used to rebut one of the three charges for which it’s permissible rehabilitation evidence (inconsistency, recent fabrication, sensory deficiency).

53
Q

For a case in federal court, the privilege law that applies is:

A
  1. For FQ cases – “principles of the common law” as interpreted by federal courts
  2. For diversity cases – state substantive law governs
54
Q

Exceptions to A/C privilege:

A
  1. client puts legal advice at issue (e.g. “attorney told me to do it”)
  2. communication was for purpose of advancing future crime or fraud
  3. any dispute between attorney and client
55
Q

Physician-patient privilege applies to

A

confidential communication from patient to doctor

for purpose of diagnosis or treatment of a medical condition

56
Q

Communications between spouses are confidential as long as

A

the parties didn’t know they were being overheard and weren’t negligent.

57
Q

Spousal confidential-communications privilege does not apply to

A

actions between spouses, communications in furtherance of jointly perpetrated future crime or fraud, or communications destructive of family unit (e.g. abuse)

58
Q

Statement by an employee or agent is admissible as a party admission IF it was

A

on a MATTER within the scope of employment/agency
and
made DURING the existence of the employment/agency

59
Q

Co-conspirator admission is admissible against another party to the conspiracy if statement was

A

made during the conspiracy and in furtherance of it.

60
Q

These hearsay exceptions apply ONLY when the witness is unavailable:

A
  1. forfeiture by wrongdoing
  2. former testimony
  3. statement against interest
  4. dying declaration
  5. past recollection recorded
61
Q

For statements against interest, personal knowledge

A

is required. (Unlike admissions!)

62
Q

Dying declarations are admissible in criminal cases if____ and civil cases if _____.

A

homicide only; any civil cases.

63
Q

Former testimony vs. prior inconsistent statements

A

Former testimony hearsay exception applies only if declarant is now unavailable AND the opposing party had a similar opportunity and motive to cross-examine her at the prior hearing.

Prior inconsistent statements are NONhearsay if they were made under oath during formal proceeding. No requirement about unavailability OR that the opposing party have had a decent chance to cross. (Note that prior inconsistent statements are NOT admissible for TOMA in MA.)

64
Q

Statements for purpose of getting medical treatment or diagnosis must be statements about:

A
  1. present symptoms
  2. past symptoms
  3. general cause of condition (not details of liability or identity of torfeasor, unless it’s the identity of an abuser in a DV or child abuse case).
65
Q

The contents of business records that are admissible under the business records exception must be

A

info observed by employees of businesses, OR statements that fall within an independent hearsay exception.

66
Q

The public records exception allows evidence of

A

activities of public office/agency, or matters observed pursuant to duty imposed by law (except police reports can’t be admitted against D in a criminal case), or findings of fact or opinion from investigations authorized by law (MA doesn’t allow last part).

67
Q

When does state law apply to determine applicability of a presumption?

A

In diversity cases where presumption operates on a substantive element of the claim or defense.

(Erie – state law governs re: substantive elements.)

68
Q

Judicial notice can be taken when

A
  1. fact is matter of common knowledge in the community where the trial court sits, OR
  2. fact is capable of certain verification (e.g. by reference to an almanac, court records – not facts specific to a party like the birth date of a party).

Practice MBE (5 decks)

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