Evidence

Question 1

An item is (i) _______ if it tends to make the (ii) _____ of any fact of (iii) ________ to the determination of the action more or less probable than it would be without the evidence.

Answer 1

(i) relevant; (ii) existence; (iii) consequence

Question 2

Generally, relevant evidence relates to the time, person, or (i) ____ at issue, but there are exceptions, including to prove causation, prior (ii) ______ claims, similar accidents caused by the (iii) _____ condition, rebutting a claim of impossibility, (iv) ________ (invariable behavior), and (v) _______ routine or industrial custom

Answer 2

(i) event; (ii) false; (iii) same; (iv) habit; (v) business

Question 3

There are policy exceptions to relevant evidence, including (i) ________ insurance (though may be admissible to show ownership or to impeach), subsequent (ii) ________ measures (but may be used to show feasibility if defendant disputes), (iii) ___________ offers (but only if there is a disputed claim), and offers to pay (iv) _______ expenses (but accompanying statements of facts are admissible), and withdrawn (v) ______ pleas.

Answer 3

(i) liability; (ii) remedial; (iii) settlement; (iv) medical; (iv) guilty

Question 4

A judge has broad discretion to exclude relevant evidence if its probative value is (i) ________ outweighed by: (ii) unfair _________, (iii) ________ of the issues, (iv) _________ the jury, or (iv) ______ inefficiency.

Answer 4

(i) substantially; (ii) prejudice; (iii) confusion; (iv) misleading; (iv) undue inefficiency

Question 5

For its substantive value, character evidence is permitted as (i) _______ or (ii) _____ testimony, but generally, (iii) ______ acts are not permitted. A specific act may be referenced for substantive MIMIC reasons.

Answer 5

(i) opinion; (ii) reputation; (iii) specific acts

Question 6

There are exceptions when specific acts can be referenced substantively. These are the MIMIC exceptions: (i) _______, (ii) _______, (iii) ________, (iv) _______, (v) ________.

Answer 6

(i) Motive; (ii) Intent; (iii) Mistake (absence of); (iv) identification / identity; (v) Common Plan or Scheme

Question 7

In a criminal case, the (i) ________ can introduce evidence of good character, but when he does so, he (ii) _____ the door.

Answer 7

(i) defendant; (ii) opens the door

Question 8

The prosecution can introduce elements of the defendants bad character: (i) after the defendant ___- the door, or (ii) ________ bad acts, or (iii) specific bad acts that are _______ if the case is sexual assault or child molestation

Answer 8

(i) opens; (ii) MIMIC; (iii) similar

Question 9

A defendant can introduce evidence of the (i) _____’s character in a criminal case if it is relevant (usually (ii) ____-defense).

Answer 9

(i) victim’s; (ii) self-defense

Question 10

In a civil case, character evidence is generally (i) _____ permitted, unless character is in issue (e.g., (ii) _______, (iii) ________ hiring), though bad acts can be referenced for (iv) _____ purposes.

Answer 10

(i) not; (ii) defamation; (iii) negligent hiring; (iv) MIMIC

Question 11

For a witness to be competent to testify, they must have (i) ________ knowledge of the subject matter and (ii) ______ an oath. Witnesses are (iii) ______ competent, and there’s no age requirement.

Answer 11

(i) personal; (ii) swear; (iii) presumed

Question 12

Federal Rules do not recognize the (i) _______ Man act. The act may bar an (ii) ________ person from testifying in a civil case as to communication with the deceased.

Answer 12

(i) Dead; (ii) interested

Question 13

Generally, a lay person’s opinion will be allowed if it is (i) ________ based on the witness’s (ii) ________, it’s helpful to the jury, and it is not based on (iii) _______ or technical knowledge. General examples include appearance/condition of a person, state of emotion, speed of a moving object, intoxication, sanity, and voice or handwriting identification

Answer 13

(i) rationally; (ii) perception; (iii) scientific

Question 14

For expert testimony, course must first determine if the subject matter would assist the (i) _____. Next, the court determines if the witness is (ii) ________. Then the court assesses whether the witness has (iii) ________ probably in his opinion. Finally, the opinion must be based on (iv) _____.

Answer 14

(i) jury; (ii) qualified; (iii) reasonable probability; (iv) fact

Question 15

Common methods of impeachment include: (i) ______ inconsistent statements, (ii) ________, (iii) prior _______, (iv) prior ____ _________ (no extrinsic evidence), (v) ______ or reputation for lying, (vi) ________ deficiencies, and contradictory facts

Answer 15

(i) prior; (ii) bias; (iii) prior convictions; (iv) prior bad acts; (v) opinion or reputation; (vi) sensory

Question 16

Federal courts recognize several privileges in testimony: the (i) ______-client privilege; (ii) ________ immunity; (iii) the _______ communications privilege; (iv) the _______-client privilege; (v) the _______-penitent privilege; and (vi) _________ privilege.

Answer 16

(i) attorney; (ii) spousal immunity; (iii) marital communications; (iv) therapist / social worker; (v) clergy; (vi) government

Question 17

There is no physician client (i) _______ privilege, but it’s recognized in many states. Must be acquired during the professional relationship and (ii) ________ for treatment.

Answer 17

(i) federal; (ii) necessary

Question 18

Spousal immunity only applies in (i) ______ cases. The privilege belongs to the (ii) _________-spouse. It can only be asserted (iii) _____ marriage, though the matters-at-hand can have occurred prior to marriage

Answer 18

(i) criminal; (ii) witness-spouse; (iii) during

Question 19

Confidential (i) ________ communications applies is both civil and criminal cases. The privilege belongs to (ii) _____ spouses. Communications must have been made during a (iii) _____ marriage. Divorce does not terminate the privilege retroactively.

Answer 19

(i) marital; (ii) both; (iii) valid

Question 20

Hearsay must be an (i) ____-of-______ statement (includes written and oral assertions, and nonverbal conduct, and must be human), offered for the (ii) _____ of the matter asserted.

Answer 20

(i) out-of-court; (ii) truth

Question 21

If a statement is out-of-court, and not offered for its truth, it may be allowable, like words of defamation, the effect of words on a person, or evidence of the declarant’s (i) ____ of mind

Answer 21

(i) state

Question 22

Even if a statement is hearsay, it can be admitted as non hearsay if it a statement of an (i) __________ party, if it is is: (ii) ________ against the party. It includes statements, adoptive statements (e.g., silence), and (iii) _____ statements of spokespersons.

Answer 22

(i) opposing; (ii) against; (iii) vicarious

Question 23

A prior (i) ________ statement of a (ii) ______ witness, when made under (iii) ____, can be admitted substantively as non-hearsay.

Answer 23

(i) inconsistent; (ii) testifying; (iii) oath

Question 24

A prior (i) ______ statement of a (ii) ________ witness may be admissible to rehabilitate an impeached witness, as non-hearsay.

Answer 24

(i) consistent; (ii) testifying

Question 25

A prior (i) ___________ of a testifying witness is non hearsay.

Answer 25

(i) identification

Question 26

There are several exceptions for hearsay statements, if the declarant is unavailable. Former (i) ________, under oath, can be offered if the party (ii) _______ whom the testimony was offered was a party in the former action. A statement against (iii) ________ may be admissible if the declarant knew the the statement was against her pecuniary, proprietary, or penal infested when made. A (iv) _______ declaration is admissible only in criminal (v) _____ cases, but can be admitted in any civil case, and the statement must concern the causes of death.

Answer 26

(i) testimony; (ii) against; (iii) interest; (iv) dying; (v) homicide

Question 27

There are several hearsay exceptions where the declarant’s unavailability is irrelevant. An (i) _____ utterance can be admitted; a (ii) ______ sense impression; evidence of then-existing (iii) ______ of mind; (iv) statements of ________ condition (health); (v) statements made for __________ treatment; (vi) _______ records (regular course, must be known to entrant or authenticated by someone with authority of records); or a (vii) ________ recorded, which is not admissible, but may be read if the witness cannot remember (not a refresher); (viii) _______ records; (ix) _______ documents; (x) _____ treatises (if used during examination of expert, and established as reliable).

Answer 27

(i) excited; (ii) present; (iii) state of mind; (iv) present condition; (v) medical; (vi) business records; (vii) recollection recorded; (viii) business records; (ix) ancient documents; (x) learned treatises

Question 28

A hearsay statement is barred in criminal cases if the declarant is (i) _______, the statement was (ii) _______ in nature, and the accused has no opportunity to (iii) _____-examine the witness prior to trial.

Answer 28

(i) unavailable; (ii) testimonial; (iii) cross

Question 29

Testimonial statements include (i) _________, written reports, and forensic analysis, as well as statements made during a (ii) ___________ investigation (though not during an ongoing emergency)

Answer 29

(i) affidavits; (ii) police

Question 30

The defendant will forfeit his right to bar evidence that does not conform to the confrontation clause if the defendant (i) _________ the witness not to testify.

Answer 30

(i) causes

Question 31

The bar exam tests on the (i) _____ rules of evidence

Answer 31

(i) federal

Question 32

Character evidence is generally (i) _______ _____ in civil cases for substantive value, unless it’s a tort that directly involves character

Answer 32

(i) not admissible

Question 33

A (i) _______ victim’s past behavior is generally inadmissible. Involves any case alleging (ii) ______ misconduct. In a criminal case, specific instances of the victim’s past sexual behavior may be allowed to show that (iii) _____ is from another person. Also, in criminal cases, past (iv) ______ of sexual behavior may be admitted to prove (v) _______.

Answer 33

(i) rape; (ii) sexual; (iii) semen; (iv) acts; (v) consent

Question 34

Evidence of other crimes or misconduct is generally admissible if it is relevant to some issue other than the defendant’s character or propensity to commit the crime. These areas of relevance include: (i) ________ (why the defendant allegedly acted), (ii) ________ (the defendant’s state of mind at the time), (iii) absence of ___________, (iv) __________ (e.g., stolen gun was used, or signature crimes), or a (v) _________ plan or scheme. In a criminal case, the prosecutor must provide (vi) _______ to use MIMIC evidence.

Answer 34

(i) motive; (ii) intent; (iii) absence of mistake; (iv) identity; (v) common plan or scheme; (vi) notice

Question 35

Prior (i) ______ assault or child molestation is admissible to show propensity (this is the only place where specific acs are so admitted) in a criminal OR civil case. The defendant must have (ii) ______ advance notice before trial

Answer 35

(i) sexual; (ii) 15

Question 36

In a civil case, judicial notice (i) _______ proves a fact. In a criminal case, judicial notice means that the jury (ii) ______, but is not required to, accept the fact as conclusive.

Answer 36

(i) conclusive; (ii) may

Question 37

(i) ______ or demonstrative divine is actual physical evidence addressed directly to the trier of fact. It may be direct, circumstantial, original, or prepared (demonstrative).

Answer 37

(i) real

Question 38

Real evidence must be relevant. It must be (i) ________ by either the (ii) ________ of a witness that recognizes the object and can verify that it is what counsel claims, or by evidence that the object has been in a substantially (iii) _______ chain of possession. If the condition of an object is significant, it must be presented in the same condition at (iv) ______. Real evidence may be outweighed if it is (v) ________ to bring into court, and a replica may be available.

Answer 38

(i) authenticated; (ii) testimony; (iii) unbroken; (iv) trial; (v) impracticable

Question 39

Relevant (i) _______, diagrams, or maps, or other reproduction are admissible if their value is not outweighed by unfair prejudice. However, items used entirely for explanatory purposes are not admitted.

Answer 39

(i) photographs

Question 40

A map, chart, model, etc. is usually (i) _______ to illustrate testimony, but it must be (ii) _________ by witness testimony as a faithful reproduction.

Answer 40

(i) admissible; (ii) authenticated

Question 41

An (i) ________ may be performed in the courtroom, if it is done under conditions that are substantial similar to those attending the original event. Generally, demonstrations of bodily injury are not allowed if they would unduly dramatize the injury.

Answer 41

(i) experiment

Question 42

Documentary evidence must be (i) ______ to be admitted. Generally, it must be (ii) _________ by proof that shows it is what it claims to be. Authentication can be agreed by (iii) _______ of the parties, by the admission of the party (iv) ________ who it is offered, by (v) _____ testimony of one who saw or heard it executed, by (vi) ________ analysis of someone who has personal knowledge of the handwriting before trial (or an expert who conducted an analysis), that it is an (vii) _____ document (20+ years old, free from suspicion of authenticity; found where it should have been kept), the (viii) ______ letter doctrine, a photograph authenticated by a (ix) _______ aware of the facts (but an X-ray requires testimony of the process, the machine, and the chain of custody).

Answer 42

(i) relevant; (ii) authenticated; (iii) stipulation; (iv) against; (v) eyewitness; (vi) handwriting; (vii) ancient; (ix) witness;

Question 43

Oral direct evidence can be admitted if it is authenticated. It can be authenticated by anyone who knows the speaker’s voice (at any (i) _____, not just before trial) or if it was a reliable phone call (recognized voice, knowledge of facts, called the right number).

Answer 43

(i) time

Question 44

Certain documents are self-authenticating, and need no further authentication. They include: (i) domestic _____ document bearing a seal; similar (ii) ____ documents; (iii) ______ copies of public record; (iv) ________ publications; (v) _______ and periodicals; (vi) ______ inscriptions, (vii) _______ documents; (viii) ________ paper and related documents, and (ix) _____ records

Answer 44

(i) public; (ii) foreign; (iii) certified; (iv) official; (v) newspaper; (vi) trade; (vii) acknowledged; (viii) commercial; (ix) business

Question 45

If the terms of a writing are material, the (i) ______ writing must be produced (best evidence rule). Secondary evidence is only admissible if the best evidence is (ii) ________. It does not apply to voluminous records or public records. Duplicates (exact copies) are generally admissible unless their authenticity is challenged.

Answer 45

(i) original; (ii) unavailable

Question 46

Leading questions are generally improper on (i) _____ examination, but they are permissible on (ii) ____-examination, to elicit (iii) ________ matter, when the witness needs aide due to (iv) ______ loss (or immaturity), or when the witness is (v) ________, an adverse party, or affiliated with an adverse party.

Answer 46

(i) direct; (ii) cross; (iii) introductory; (iv) memory; (v) hostile

Question 47

Questions that are misreading, compound, argumentative, concessionary, cumulative, unduly harassing or embarrassing, call for narrative or speculation, or assume facts not in evidence are not (i) ______.

Answer 47

(i) permitted

Question 48

If a witness answers without (i) _____ knowledge, or the response is not in response to a (ii) ________, the witness’s response may be stricken.

Answer 48

(i) personal; (ii) question

Question 49

Any (i) _______ can be used to refresh a witness’s memory (it need not be admissible evidence). But where it is used on the stand, the adverse party is entitled to (ii) _____- the writing, cross-examine thereon, and introduce portions relating to the testimony into (iii) _______.

Answer 49

(i) material; (ii) inspect; (iii) evidence

Question 50

Where refresher is insufficient to revive a witness’s memory, she may (i) ______ into evidence if: the witness at one time had (ii) _______ knowledge of the facts recorded; the recording was made by the (iii) ______ or under her direction (or it was adopted by the witness); the record was (iv) _______ made while the matter was fresh; the document was (v) ________ when made; and the witness has insufficient recollection to testify truthfully without reading. However, even though the document is read, it is not (vi) _________, though the adverse party may choose to admit it.

Answer 50

(i) read; (ii) personal; (iii) witness; (iv) timely; (v) accurate; (vi) admitted

Question 51

In general, an expert can offer an (i) _____ as to the ultimate issues in the case, but not on the issue of whether a defendant was insane at the time of a crime.

Answer 51

(i) opinion

Question 52

A (i) _____ treatise can be used to impeach an expert, and its material can also be used for (ii) _____ evidence. However, the expert must be on the (iii) _____ when an expert is read from the treatise, and it is entered into the (iv) _______ (not admitted as an exhibit)

Answer 52

(i) learned; (ii) substantive; (iii) stand; (iv) record

Question 53

Cross examination is generally limited to the (i) ____ of direct examination, and testing the (ii) _____ of the witness

Answer 53

(i) scope; (ii) credibility

Question 54

Generally, a party cannot introduce (i) ________ evidence to substantively contradict a witness, though there are exceptions for (ii) ________, interest, or a past (iii) _______.

Answer 54

(I) extrinsic; (ii) bias; (iii) conviction

Question 55

To impeach a witness, a party may show (by cross-examination or extrinsic evidence), (i) _____ inconsistent statements. And if the prior statement was made under oath at a prior proceeding, it can also be used (ii) ________-

Answer 55

(i) prior; (ii) substantively

Question 56

A witness may be impeached by a prior (i) __________, by any crime involving (ii) ________ (perjury, false statement, embezzlement, false pretense, but not simple theft), or by any (iii) _________ (at the court’s discretion), but the conviction must not be more than (iv) _____ years old; it was a (v) _____ conviction, or if the conviction was (vi) ________ invalid, or if the person was (vii) _______ based on innocence.

Answer 56

(i) conviction; (ii) untruthfulness; (iii) felony; (iv) old; (v) juvenile; (vi) constitutionally; (vii) pardoned

Question 57

To impeach, a witness may be interrogated about prior (i) _____ of misconduct, if the cross-examiner has (ii) ____ ______. But, (iii) ______ evidence is not permitted. But an arrest is not a bad act.

Answer 57

(i) acts; (ii) good faith; (iii) extrinsic

Question 58

If evidence is admitted via a hearsay exception, the opposing party may (i) _______ the witness as if he was on the stand(

Answer 58

(i) impeach

Question 59

A witness can be (i) _________ through (ii) _______ on redirect, a good (iii) ________ for truthfulness, or by a prior (iv) _______ statement.

Answer 59

(i) rehabilitated; (ii) explanation; (iii) reputation; (iv) consistent

Question 60

A (i) ____ objection will be sustained on appeal if there was any ground to grant the objection. An overruled (ii) ________ objection will be upheld on appeal unless the evidence was not admissible under any circumstance for any purpose.

Answer 60

(i) general; (ii) general

Question 61

The party who has the burden of pleading has the burden of (i) ______ forward with evidence sufficient to prove a (ii) ______ facie case. It is then incumbent on the other side to come forward with evidence to (iii) ______ it . The question then becomes whether the party with the burden of (iv) ______ has met their burden. In a civil case, that is by a (v) _______ of the evidence (though rarely, a civil case will require (vi) _______ and convincing evidence)); it criminal cases, it is a burden beyond a (vii) _______ ______-

Answer 61

(i) going; (ii) prima; (iii) rebut; (iv) persuasion; (v) preponderance; (vi) clear and convincing; (viii) reasonable doubt

Question 62

A (i) ________ operates, until debuted, to shift the burden of production to the party against whom the presumption operates. It does not shift the burden of persuasion (that stays on one party throughout trial)

Answer 62

(i) presumption

Question 63

A (i) _______ is overcome by some evidence that contradicts the presumed fact.

Answer 63

(i) presumption

Question 64

A (i) _______ is overcome by some evidence that contradicts the presumed fact.

Answer 64

(i) presumption

Question 65

There are several stock presumptions in the law. Every person is presumed to be of (i) ______ birth. When a cause of death is in dispute, it is presumed not to be (ii) _________. Every person is presumed (iii) ______ until shown otherwise. If a person has ben absent for seven years, he is presumed (iv) _________. If a person owns a car, he is presumed to be the (v) _________, or that the driver was his agent. Every person is presumed (vi) ______ and virtuous. Government officials are presumed to be acting with (vii) _________. Proof that a condition existed raises a presumption that it (viii) ________ to exist. A letter, properly addressed and stamped and mailed, is presumed (ix) _________. A person is presumed (x) ________ (not bankrupt). The failure of a bailee to return goods in the same condition presumes (xi) _________. And upon a marriage ceremony, a valid marriage is (xii) _______.

Answer 65

(i) legitimate; iii) suicide; (iii) sane; (iv) dead; (v) driver; (vi) chaste; (viii) regularity; (viii) continues; (ix) delivered; (x) solvent; (xi) negligence

Question 66

Preliminary facts to be decided by the JURY include whether there was a principal (i) ____ relationship, whether a document has been (ii) __________, the (iii) _______ of a witness, and whether a witness has (iv) _____ knowledge.

Answer 66

(i) agent; (iii) authenticated; (iii) credibility; (iv) person

Question 67

Preliminary facts to be decided by the judge include whether there are any applicable (i) _________, whether an (ii) ________ is qualified to testify, whether an individual is (iii) ___________

Answer 67

(i) privileges; (ii) expert; (iii) competent

Question 68

A judge may call and interrogate (i) ______ on her own initiative

Answer 68

(i) witnesses

Question 69

A judge must rule (i) _____ on evidentiary objections, and when requested, state the grounds.

Answer 69

(i) promptly

Question 70

An accused may testify at a preliminary proceeding without waiving privilege at (i) ______-

Answer 70

(i) trial