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GA Bar Prep > Evidence > Flashcards

Evidence Flashcards

1
Q

Similar occurrences

A

Where evidence is admissible even though it involves a different place, time, event, or person not involved in litigation. Often used for complicated issues of causation.

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2
Q

Evidence that a person has filed similar tort claims or had prior accidents is generally:

A

inadmissible.

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3
Q

Exceptions to prior accident/claims rule 2

A
  1. When person has previously filed FALSE claims can be used to show common scheme or fraud
  2. where prior claim was for an injury to the same part of the body at issue in current case.
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4
Q

Rebuttal evidence

A

Allowable to rebut an impossibility

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5
Q

Comaprable sale to establish value: Sale prices admissible if: 3 KTP

A
  1. Same general description (kind)
  2. Same relevant time period (time)
  3. Same general geographic area (place)
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6
Q

Habit evidence is relevant to show:

A

that a person acted in the same way on the occasion in question.

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7
Q

What is habit? 2 descriptors

A
  1. Specific detailed conduct

2. Recurrence The language “always” “instinctively” “invariably” “automatically”

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8
Q

Business routine:

A

Habit evidence for businesses. “What have you been trained to do?”

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9
Q

Industrial or trade custom admissible as:

A

non-conclusive evidence on standard of care.

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10
Q

Liability insurance is not admissible to:

A

to show person acted negligently, wrongfully, or their ability to pay.

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11
Q

Liability insurance can be admitted in order to: 2 reasons.

A
  1. show ownership or control

2. impeach credibility of witness by showing interest or bias.

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12
Q

Subsequent remedial measures: Not admissible to show:

A
  1. Negligence
  2. Culpable conduct

But in GA subsequent remedial measures are admissible in a products liability case.

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13
Q

Subsequent remedial measures can be used to show:

A
  1. ownership or control

2. impeachment - feasibility of precautionary measures.

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14
Q

Settlements are not admissible to prove:

A

fault, liability or amount of damage.

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15
Q

Settlement exclusion includes what 5 things?

A
  1. Actual compromises
  2. Offers to compromise
  3. Offers to plead guilty in a criminal case
  4. Withdrawn pleas of guilty
  5. Please of nolo contendere
    ANY ‘meaningful settlement talk’
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16
Q

For settlement exclusion to apply, what two things must be present?

A
  1. There must be a CLAIM.

2. The claim must be disputed as to either liability or amount

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17
Q

Offers to pay medical expenses

A

Not admissible - even though it’s not a settlement offer. UNLESS the offer accompanies a naked offer to pay hospital or medical expenses.

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18
Q

When is character evidence used? 3 situations

A
  1. Character is directly in issue
  2. As circumstantial evidence of a person’s conduct at the time of litigated event.
  3. To impeach the credibility of a witness.
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19
Q

When is character evidence in civil cases proper?

A

It’s generally not.

UNLESS the character of the party is itself a material issue in the case.(ex. defamation)

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20
Q

Sixth Amendment Right to Confrontation: Statements will not be admitted EVEN IF they fit a hearsay exception when they are offered against the accused in a criminal case if:

A
  1. Declarant is unavailable for trial, AND
  2. Statement was testimonial, AND
  3. Accused had no opportunity to cross.
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21
Q

When does D waive 6th Amendment Right to Confrontation?

A

When the prosecution demonstrates that D has intentionally prevented the declarant from testifying at trial because of D’s wrongdoing.

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22
Q

A testimonial statement is one that a:

A

reasonable declarant knows will be used in the prosecution or investigation of a crime. (Includes forensic lab reports on fingerprints, drugs, etc.)

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23
Q

5 Considerations in determining whether statements are testimonial

A
  1. Motive of declarant.
  2. Motive of interrogator
  3. Temporal element
  4. ID of person eliciting the statement (cop or family member?)
  5. Degree, amount, circumstances, and location of police interrogation.
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24
Q

Prior acts of misconduct admissible to show: (8)

Ok! I a Pimp!

A

Opportunity
Knowledge

Intent

Absence of mistake

Preparation
Identity
Motive
Plan

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25
Q

Judicial notice is appropriate when:

A

when the fact is INDISPUTABLE or can be verified through scientific principles.

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26
Q

Judicial notice: Criminal Cases: Judge instructs jury:

A

Fact MAY be accepted as conclusive.

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27
Q

Judicial notice: Civil Cases: Judge instructs jury:

A

Fact MUST be accepted as conclusive

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28
Q

2 things a judge, not a jury, gets to decide:

A
  1. who testifies as an expert.

2. whether OOC statement was a hearsay exception.

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29
Q

What may be used to refresh recollection?

A

ANYTHING.

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30
Q

What must you do if you want to use a document to refresh a witness?

A

If you use a document to refresh the recollection of the witness it must be made available to opposing counsel – then SHE may introduce it into evidence and you have no objection.

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31
Q

3 types of character evidence

A
  1. Reputation Evidence
  2. Opinion Evidence
  3. Specific Acts (prior crimes, reckless behavior, charity, etc.)
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32
Q

Criminal Trial: Good Character Evidence: D is allowed to:

A

present evidence of prior good character traits to show that he acted in conformity of his good character and did not commit the crime.
Specific acts are not allowed!

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33
Q

If D presents evidence of good character in a criminal trial, then…

A

P is allowed to introduce evidence of D’s bad character using reputation and opinion evidence or “have you heard” statements.

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34
Q

Five ways prior acts may be used other than for the propensity purpose: MIMIC

A

a. Motive
b. Identity
c. Mistake, absence of
d. Intent
e. Common scheme

Prior crime could still be excluded if the probative value is substantially outweighed by the prejudice.

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35
Q

If D chooses to testify his character for:

A

honesty is immediately in question and P can bring character evidence to show he is not honest.

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36
Q

Character Evidence in Civil Cases:

A

Generally NOT ALLOWED

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37
Q

When is bias or motive to misrepresent admissible?

A

Always allowed because it’s always material

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38
Q

Specific acts of misconduct must bear on:

A

truthfulness/untruthfulness.

Note:

a. Prior bad acts, not convictions.
b. If witness denies the specific act → NO extrinsic evidence is allowed.

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39
Q

Bad reputation in the community for truth may be proven by:

A

extrinsic evidence.

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40
Q

Character evidence against a D in a criminal case only allowed when:

A

D opens the door.

This is where D offers evidence of good character by rep. or opinion and P may rebut.

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41
Q

Admissions: Statement made or act done that amounts to:

A

a prior acknowledgement by one of the parties to an action of one of the relevant facts.

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42
Q

Materiality concerns whether the disputed fact is:

A

at issue in the case.

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43
Q

Probativeness concerns whether the evidence makes:

A

the existence of the fact more probable than it would be without the evidence.

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44
Q

Proximity of evidence refers to:

A

how close in time the evidence is to the events at issue in the case.

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45
Q

Burden of producing EVIDENCE is the burden of introducing sufficient evidence to avoid judgment against D as a:

A

matter of LAW.

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46
Q

Burden of persuasion is a:

A

determination by jury.

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47
Q

A writing may be authenticated in three ways: HAW

A

HANDWRITING evidence that it is genuine.
ADMISSION. The party whom evidence is offered against has admitted to authenticity or acted as if it was authentic.
WITNESS. circumstantial evidence. Any proof tending in reason to establish genuineness is sufficient.

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48
Q

Real evidence may be authenticated by: (2 ways)

A
  1. Recognition testimony—i.e., a witness’s testimony that the object is what the proponent claims it is.
  2. Establishing a chain of custody
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49
Q

Easily tampered with evidence must be authenticated by the proponent of the object showing that

A

it has been held in a substantially unbroken chain of possession, but does not need to negate all possibilities of substitution or tampering.

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50
Q

Original Evidence Refers to:

A

real evidence that has some connection with the transaction that is in question at the trial.
An alleged murder weapon is an example of original evidence.

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51
Q

Circumstantial evidence is:

A

evidence proved as a basis for an inference that other facts are true.

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52
Q

Demonstrative evidence refers to:

A

real evidence that is prepared, such as sketches or models that are made to be shown to the trier of fact.

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53
Q

The standard of proof for authenticating a document is proof:

A

sufficient to support a jury finding of genuineness,

i.e., enough evidence to support a jury finding that the document is what the proponent claims it is.

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54
Q

In GA subsequent remedial measures are ______ in a products liability case.

A

admissible.

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55
Q

Evidence is relevant if it has any tendency to make:

A

a material fact more or less probable than would be the case w/o the evidence.

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56
Q

All relevant evidence is admissible unless: (2 reasons)

A
  1. A specific exclusionary rule is applicable, or
  2. the ct makes a discretionary determination that the probative value of the evidence is substantially outweighed by it’s NEGATIVE EFFECTS.
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57
Q

When should limiting instructions be given to the jury?

A

Whenever evidence is admissible for one purpose, but not another. The judge should instruct the jury to consider the evidence only for its permissible purposes.

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58
Q

Evidence of a settlement of a disputed civil claim or offer to settle such claim is inadmissible in:

A

ALL cases to prove liability or weakness to a party’s case.

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59
Q

Statements of fact made in the course of settlement discussions of disputed civil claims are generally:

A

inadmissible in all cases for all purposes. INCLUDING WITNESS IMPEACHMENT.

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60
Q

Statements of fact made in the course of settlement discussions of a disputed civil claim asserted by a gov’t agency are admissible for: (2 cases)

A
  1. issues of guilt in a related criminal case or

2. witness impeachment.

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61
Q

Plea bargaining in a criminal case: (4 cases that are inadmissible) MAYBE FIX THIS CARD.

A
  1. Offer to plead guilty.
  2. Withdrawn guilty plea.
  3. Plea of nolo contendere
  4. Statements of fact made during any of the above plea discussions.
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62
Q

A plea of guilty that is NOT withdrawn is admissible in subsequent litigation as:

A

a party admission.

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63
Q

Character evidence is defined as:

A

a person’s propensity or disposition to act in a certain way.

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64
Q

The propensity inference: Evidence of a person’s character is inadmissible to prove:

A

that the person acted in conformity w/ his character on a particular occasion.

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65
Q

Character evidence: The propensity inference: Exceptions: 4

A
  1. Character is an essential element in the case.
  2. Accused’s good character when offered by the defense; accused’s bad character admissible in rebuttal.
  3. Pertinent character trait for the victim
  4. Character of witness for untruthfulness.
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66
Q

If the character or trait of character is an essential element in the case the trier of fact must:

A

consider the character issue in deciding the case.

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67
Q

On direct examination a character witness is limited to:

A
  1. Reputation

2. Opinion

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68
Q

In GA, a D that takes the stand and puts his character into issue may:

A

testify to his own specific conduct probative of a pertinent trait.

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69
Q

The accused may offer evidence of a ______ character trait of the victim

A

pertinent

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70
Q

Character of the victim: Self Defense: The accused may introduce evidence of the victim’s violent character to prove:

A

victim’s conduct in conformity that the victim was the first aggressor.

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71
Q

Character of the victim: Self Defense: A character witness may testify to the victim’s ______ for violence and may give an ______ that the victim was a violent person.

A

reputation

opinion

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72
Q

No specific instances of conduct on:

A

direct examination of a character witness.

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73
Q

Specific instances of conduct: Prosecution rebuttal: May cross examine character witness with:

A

“Have you heard” or “Did you know” questions about SPECIFIC ACTS of the victim that rebut the character trait

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74
Q

Specific instances of conduct: Prosecution rebuttal: May call character witness to testify regarding the victim’s:

A

pertinent character traits that have been attacked (reputation or opinion only)

75
Q

Specific instances of conduct: If defense offers evidence of the VICTIM’S violent character, this:

A

opens the door for the prosecution to prove the DEFENDANT’s character for violence.

76
Q

Federal rape shield laws provide that in both civil and criminal cases where, D is alleged to have engaged in sexual misconduct, what evidence about the victim is generally inadmissible? 2

A
  1. Opinion or reputation evidence about the victim’s sexual propensity OR
  2. Evidence of specific sexual misconduct or attitudes of the victim.
77
Q

Exceptions to “rape shield” laws. Evidence about V is admissible to prove: (2)

A
  1. Someone other than D was source of physical or psychological conditions (e.g. STD)
  2. Prior consensual activity with the victim.
78
Q

Exceptions to “rape shield” laws. If prosecution presents evidence that V has certain physical or psychological conditions that corroborate the charge of rape, the accused may offer evidence:

A

that someone other than D was the source of the conditions.

79
Q

Exceptions to “rape shield” laws. If the accused admits sexual conduct with V but claims consent then the accused may offer evidence of:

A

prior consensual sexual activity with V.

80
Q

Other crimes or specific bad acts of a D are not admissible during the prosecution’s case in chief if the only purpose is to:

A

suggest that because the D has done bad things in the past, he is more likely to have committed the crime on trial.

81
Q

Other crimes or specific bad acts CAN BE admissible if they show:

A

Something SPECIFIC about the crime charged, such evidence may be admissible as bearing on guilt.

82
Q

Other crimes or specific bad acts: Most common non-character purposes under R. 404(b): MIKI PAO

A

Motive
Intent
Knowledge
Identity

Plan or Scheme
Absence of Mistake or Accident
Opportunity

83
Q

Using other crimes or specific bad acts a non-character evidence is NOT considered character evidence, so when relevant, the prosecution may present:

A

other crimes or specific bad acts as a part of their case in chief.

84
Q

In GA if prosecution is going to use other crimes or specific bad acts in the case in chief the prosecution must:

A

automatically give written notice.

85
Q

Prior similar sexual misconduct of the accused is admissible by P for:

A

any relevant purpose INCLUDING PROPENSITY TO COMMIT SEX CRIMES.

86
Q

In civil cases character evidence is:

A

inadmissible to prove conformity in conduct.

87
Q

Habit is admissible as:

A

circumstantial evidence of how the person acted on the occasion at issue in the litigation.

88
Q

How do you know that it’s habit? SARI

A

Simple response.
Automatic response
Repetitive response to a specific set of circumstances
Invariable response (“often” or “usually” don’t qualify.)

89
Q

Chain of custody tracks the ______ and _____ of the evidence.

A

identity and integrity

90
Q

Three ways to prove handwriting:

WEP

A
  1. Witness familiar with handwriting testifies to the opinion that the document was written or signed by the alleged author.
  2. Handwriting expert testifies that the document was written or signed by the alleged author by comparing the document to a genuine sample of the alleged author’s handwriting.
  3. Party supplies jury with known samples of the alleged author’s handwriting or signature and the jury compares and reaches their own conclusion.
91
Q

Two kinds of circumstantial evidence:

A
  1. conduct

2. content

92
Q

Documents: Circumstantial Evidence: Content: Where the document contains:

A

facts that only the putative author and a few others would know.

93
Q

Documents: Circumstantial Evidence: Conduct: The putative author’s conduct :

A

corroborates that he or she wrote the document.

94
Q

Authenticity of documents is a issue to be decided by:

A

a jury.

95
Q

Self authenticating documents are documents that are:

A

presumed authentic, no need for foundation testimony.

96
Q

Examples of self authenticating documents: CONTAC

A
  1. Commercial Paper
  2. Official Publications
  3. Newspapers and periodicals
  4. Trade instruments
  5. Acknowledge Documents (notarized)
  6. Certified Public Records - Except records from GA don’t require seal.
97
Q

Authenticating public documents is done simply to:

A

prove that they are true copies of the official documents used and/or kept by public agency.

98
Q

How do you authenticate public documents?

A

Make sure they have the official seal used by the public agency to certify copies of of its documents.

The properly certified document is self authenticating.

99
Q

In GA, GA state, city, county public records may be certified:

A

without a seal.

100
Q

How are photos, videos, or other recordings authenticated?

A

A witness with personal knowledge testifies that a photograph or video is a “fair and accurate representation” of the matters portrayed.

101
Q

Best Evidence Rule: Copy Rule:

A

A copy of a writing is admissible same as the original UNLESS the opponent raises a some specific problem with using the copy.

102
Q

Best Evidence Rule: Contents Rule: A witness cannot refer to: ??? Check CMR.

A

the contents of a writing or other recording w/o either producing the original or giving a legally validly excuse for not doing so.

103
Q

Purpose of best evidence rule:

A

A party should not be able to refer to corroborating evidence w/o producing that evidence for inspection of explaining why it cannot be produced.

104
Q

Best evidence rule does not apply when a witness with personal knowledge testifies to a fact contained in a writing or video as long as:

A

the witness does not refer to the writing (or photo or video)

105
Q

Best Evidence Rule: Valid Excuses for not Producing the Document or Recording: (3)

A
  1. Lost or cannot be found with due diligence
  2. Destroyed without bad faith
  3. Cannot be obtained with legal process.
106
Q

Best Evidence Rule: If the ct has been persuaded by ________ that the excuse has been established, then:

A

a preponderance of evidence

then secondary evidence is admissible (e.g. testimony based on memory)

107
Q

Voluminous Documents can be presented at trial through a summary or chart provided: (2 things)

A
  1. The underlying records are admissible, and

2. they are available for inspection pretrial or in the ctroom.

108
Q

Competency of Witnesses: In GA, A child who was a victim or witness to a crime is:

A

always deemed competent to testify, regardless of age.

109
Q

Witness examination: No leading questions on direct examination except: (5)
A H E A D

A
  1. Adverse witness(opposing party or clearly aligned with opposing party.)
  2. Hostile witness - must be shown to be hostile.
  3. Evidentiary foundation, to lay it.
  4. Aid the testimony of a minimally competent witness, or
  5. Develop the witness’s testimony, to help do so.
110
Q

In GA, the scope of cross examination is:

A

THERE IS NO SCOPE. GA allows wide open cross, any relevant questions are allowed.

111
Q

Refreshing recollection: Basic Rule: How to Refresh: A witness may not read from prepared notes or other documents but must testify on current recollection. But if a witness’s memory fails him, he may be shown:

A

a document or ANY tangible item to jog his memory.
After looking at the item the witness must return it to counsel and then testifies, if he can, from his now refreshed memory.

112
Q

Opinion Testimony: Lay opinions are admissible if they are: (3 requirements):

A
  1. Based on a witness’s perception (personal knowledge)
  2. Rational
  3. Mundane non expert opinions.
113
Q

Examples of permissible lay opinions:

A 
Drunk/sober
Speed of vehicle
Sane/insane
emotions of another person
handwriting
value of ordinary goods or witness's real property.
114
Q

To testify an Expert Witness you must meet 4 Basic Requirements:

A
  1. Education and/or experience to give the opinions
  2. RELIABLE theory or field of expertise (Daubert)
  3. Applies her expertise reliably to the facts of the case.
  4. Bases her opinions on reliable facts and data.
115
Q

Expert Witness: Qualifications: Expert’s qualifications should be presented before:

A

any questions asking for expert opinions.

116
Q

Expert Witness: Qualifications: A witness may be qualified by:

A

education, training, or experience.

It depends on the underlying issue. (e.g. Drug dealer can be an expert witness in determing where pot was grown.)

117
Q

Expert Witness: Daubert Hearing is a:

A

Pretrial motion to exclude an expert’s testimony.

118
Q

Expert Witness: Novel or controversial science is not ready for the courtroom. Examples of red flags:

A

Purely theoretical - not testable. (ex. tachyon particles)
Rejected by the weight of scientific opinion (ex. electromagnetic waves cause cancer.)
Not peer reviewed (ex. cold fusion, creationism.)

119
Q

Expert Witness: Three possible factual bases for admissible expert’s opinion:

A
  1. Personal knowledge (Dr. examined P’s knee)
  2. Facts admitted at trial (Dr. reviewed X-Ray admitted at trial)
  3. Facts NOT admitted into evidence BUT reasonably relied upon by experts in the field. (Dr. reviewed MRI report by radiologist)
120
Q

Expert Witness: Facts NOT admitted into evidence BUT reasonably relied upon by experts in the field is NOT a hearsay exception. Expert may give an opinion based on such facts, but such facts may not be:

A

disclosed to the jury.

121
Q

EXAMPLE. Dr. M, an orthopedist, testifies, “In my opinion, within a reasonable degree of certainty, P will never walk again. My opinion is based on 1. my own physical examination of P, 2. Exhibits 1 and 2 in evidence (MRI test results and medical records), 3. Consultation w/ Dr. D; and 4. A written report prepared by Dr. R. As to items 3 and 4 this is the type of info that orthopedists customarily relied upon in making prognosis. (3 & 4 are inadmissable hearsay.)

D moves to strike Dr. M’s opinion b/c it is based, in part, on inadmissable hearsay. Result?

A

Overruled. B/c the facts are of a type reasonably relied upon by experts.

However the CONTENTS of the inadmissible hearsay are STILL inadmissible.

122
Q

Two kinds of opinions that are not helpful:

A
  1. Opinions on matters that jurors can decide for themselves.
    (ex. “D intendent to defraud P” or “D’s actions were justified in self defense”)
    OR
  2. Opinions phrased in legal terms that the jury will need to apply
    (ex. “D was negligent” or “The accident was the proximate cause of P’s injuries”
123
Q

Who has a monopoly on the use of legal terms in the courtroom?

A

THE MOTHER FUCKIN’ JUDGE.

124
Q

To impeach means to suggest:

A

that a witness may be lying or mistaken.

125
Q

Five impeachment methods:

CPMCV

A
  1. Contradiction
  2. Perception
  3. Memory
  4. Communication
  5. Veracity
126
Q

Impeachment: Contradiction: On cross, counsel may confront a witness with:

A

facts that contradict what the witness said on direct.

If the witness admits mistake or that she lied she has been MOTHER FUCKIN’ impeached by contradiction.

127
Q

Impeachment: Contradiction: If on cross W sticks to her story when may extrinsic evidence be introduced to prove the contradictory fact?

A

If the fact at issue is NOT COLLATERAL.

128
Q

Collateral facts have:

A

NO significant relevance to the case.

129
Q

Can bias be collateral?

A

NEVER!

130
Q

Can problems with W’s perception or memory be collateral?

A

NEVER!

131
Q

Impeachment: Veracity:

Is Bib PP

A

Interest
Specific Acts

Bias or Motive to misrepresent
Inconsistent statements, prior
Bad reputation

Prejudice
Prior Conviction

132
Q

Impeachment: Veracity: Specific bias to the party. Admissible?

A

Always.

133
Q

Impeachment: Veracity: General bias or prejudice: (Attitude toward a group which the party belongs.) Admissible?

A

Not unless it’s extraordinary.

134
Q

When a witness’s statements are admitted at trial for their truth then:

A

the witness’s character for truthfulness is in issue.

135
Q

Impeachment by prior convictions: Two permissible types of convictions:

A
  1. Felony or misdemeanor in which the prosecution was required to prove deception.
  2. Felonies.
136
Q

Impeachment by prior convictions: A felony not involving deception may be excluded by the discretion of the court if:

A

the probative value on issue of witness credibility is outweighed by danger of unfair prejudice to a party.

137
Q

Impeachment by prior convictions: Time limitation:

A

As to both categories if more than 10 years have elapsed from conviction or release from prison (whichever is later) then it may not be used for impeachment.

138
Q

Impeachment by prior convictions: Applies to both:

A

civil and criminal cases.

139
Q

Impeachment: Prior inconsistent statement: W may be impeached by showing that on some other occasion she made a statement (orally or in writing) that is inconsistent with:

A

her testimony at trial.

140
Q

Impeachment: Prior inconsistent statement: Admissible for its substantive use as well as impeachment if:

A
  1. prior statement is admissible under hearsay rules, or

2. statement was made under oath at a trial or other legal proceeding.

141
Q

Impeachment: In GA, a prior inconsistent statement for both its substantive use and impeachment use if:

A

the declarant is at trial and subject to cross.

142
Q

Unless the witness who made the prior inconsistent statement is an opponent, the witness must be given an:

A

opportunity, at some point, to admit, deny, or explain making the prior statement.

143
Q

The law presumes that all witnesses are:

A

credible until shown otherwise.

144
Q

B/c all witnesses are presumed credible a party may not bolster the credibility of a witness until:

A

after a witness’s credibility has been attacked. (Rehab.)

145
Q

Prior CONSISTENT statements of a testifying witness are only admissible if:

A

they rebut an attack on that witness’s credibility.

146
Q

Once a witness’s credibility has been attacked, a party may call:

A

a character witness to present reputation and opinion evidence as to that witness’s truthful character.

147
Q

What kind of statement CAN’T a judge make while judicially noticing things:

A

No evaluative statements. “The Braves have a great pitching staff.

148
Q

Privileges: Atty/Client: Protects:

A

Confidential communications
between client and atty
in the course of seeking legal advice.

149
Q

Privileges: Atty/Client applies only to:

A

communication. not to the underlying information, pre-existing docs or physical evidence.

150
Q

Privileges: Corp Client/Atty covers statements to attorney from:

A

employees that are a part of the “control group” (senior execs) of corp.

151
Q

Privileges: Corp Client/Atty: Lower level members of the org are only protected if: (3)

A
  1. The employee was directed to speak to the atty
  2. communications were related to the corps legal issues, and
  3. the communications were kept confidential and disclosed only on a need to know basis (Upjohn)
152
Q

Privileges: Atty/Client: Who can waive?

A

Only the client can waive the privilege. Privilege continues after death and only client’s estate can waive.

153
Q

Privileges: Atty/Client: Inadvertent Waiver: Accidental disclosure will not waive the privilege so long as:

A

the client took reasonable steps to preserve the confidentiality of the communication.

154
Q

Privileges: Atty/Client: Exceptions: 2

A
  1. Client wants help with fraud/crime

2. Client sues atty for malpractice.

155
Q

Privileges: Patient/Physician

A

NONE.

156
Q

Privileges: Mental health care provider/patient: Patterned after:

A

Atty/Client privilege

157
Q

Privileges: Mental health care provider/patient: Patient waives when:

A

he expressly or impliedly puts mental condition at issue. (Insanity defense)

158
Q

Privileges: Clergy Privilege: Patterned after atty/client with one difference:

A

BOTH clergy and the church member hold the privilege and both must waive.

159
Q

Privileges: Spousal Immunity: Can only be used in:

A

criminal cases.

160
Q

Privileges: Spousal Immunity:

A

a spouse can not be compelled to testify against D.

161
Q

Privileges: Spousal Immunity: Who holds the privilege?

A

The subpoenaed spouse.

162
Q

Privileges: Spousal Immunity: Witness spouse may:

A

voluntarily testify against the D spouse if she chooses and there’s nothing D can do to stop it.

163
Q

Privileges: Spousal Immunity: Exception: Can be compelled to testify in:

A

crimes against a child or for crimes against the testifying spouse.

164
Q

Privileges: Spousal Confidence (Pillow Talk Privilege):

A

Spouse’s confidential communications to his or her spouse are protected.

165
Q

Privileges: Spousal Confidence (Pillow Talk Privilege): What kinds of cases can this be asserted in?

A

Civil or criminal.

166
Q

Privileges: Spousal Confidence (Pillow Talk Privilege): Who holds the privilege?

A

The communicating spouse. (The one who said it.)

167
Q

In GA, all the FRE rules apply at sentencing hearings except:

A

hearsay and character rules

168
Q

Collateral Benefits Rule:

A

In a tort case, evidence that the P received some benefits or compensation for his losses/injuries are inadmissible at trial. Includes insurance, gifts, etc.

169
Q

Confessions that were induced by police or prosecutor by giving D hope of reduced charges, a lighter sentence, or immunity are deemed:

A

involuntary and therefore inadmissible.

170
Q

Authentication: Medical Bills:

A

testimony of patient or patient’s caregiver that the bills were received and relate to P’s injuries. No testimony needed to show that bills were reasonable or necessary.

171
Q

Refreshing recollection: In GA, atty/client nor work product privilege are waived by using covered materials to prep a witness before taking the stand and thus:

A

such materials may not be ordered disclosed.

172
Q

Impeachment: Prior inconsistent statement: In GA, a party must FIRST confront a witness w/ inconsistent statement, giving the witness a chance to explain, deny, admit, before:

A

offering extrinsic evidence of the statement.

173
Q

In GA, impeachment by prior conviction are not permitted for: 2

A
  1. prior plea of nolo contendere

2. prior adjudication of guilt under a first offender program.

174
Q

In GA, a party’s assertion of privilege may not be held against him or commented on in criminal cases but in a civil case the party’s assertion of privilege may be used by the trier of fact to:

A

draw a negative inference against the party.

175
Q

In GA, Discussions and proceedings of medical review boards and peer review committees are:

A

privileged.

176
Q

In GA acct/client communications relating to an audit are:

A

privileged.

177
Q

Special GA Hearsay Exception: OoCS of a child under 16 are admissible regarding:

A

sexual or physical abuse against the child or that the child witnessed if the child is available to testify at trial.

178
Q

In personal injury cases a party may offer a medical narrative report by a health care provider in lieu of:

A

calling the professional at trial if the party gives the opponent a copy of the report and notice at least 60 days prior to trial.

179
Q

If P is introducing evidence of the a crime OTHER THAN for the propensity purpose – then the rule on character evidence will:

A

NOT keep out prior crime. (MIMIC reasons)

Prior crime could still be excluded if the probative value is substantially outweighed by the prejudice.

180
Q

If the witness denies the bias or motive to misrepresent then:

A

Extrinsic evidence is allowed

181
Q

Proximity: Courts often consider the evidence’s proximity in time to the events in question when determining its relevance when:

A

testimony or exhibit evidence that relates to a time, event, or person OTHER THAN the time, event, or person directly involved in the controversy being litigated is offered,

182
Q

Facts that admitted into evidence BUT reasonably relied upon by experts in the field is NOT a hearsay exception, and thus may not be disclosed to the jury unless:

A

the judge finds the probative value of disclosure to explain the expert’s opinion outweighs the prejudice to the opponent of disclosing inadmissible hearsay.

183
Q

Prior crimes not use for propensity evidence could still be excluded if:

A

the probative value is substantially outweighed by the prejudice.

GA Bar Prep (24 decks)

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