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Bar Exam > Evidence > Flashcards

Evidence Flashcards

1
Q

Harmless Error

A

The jury would have reached the same verdict even if the error hadn’t occurred, no substantial rights are affected.

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2
Q

Plain Error

A

An error that affects a substantial right of a party, or a serious mistake that affects the verdict.

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3
Q

Judicial Notice

A

Mandatory if

  1. Requested by the party AND
  2. Supplied with the necessary information
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4
Q

Judicial Notice Jury Instruction

A

Civil: must accept the fact as true
Criminal: may accept the fact as true

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5
Q

Preponderance of the Evidence

A

Civil standard used in some aspects of criminal cases (i.e. motion to suppress, involuntariness of confession)

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6
Q

Clear and Convincing Evidence

A

Criminally related civil actions (fraud, validity of deed or will) and to determine insanity in federal court (burden on D)

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7
Q

Beyond a Reasonable Doubt

A

Criminal standard in guilt phase

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8
Q

Logical Relevance

A

Has some probative value and has some logical tendency to prove or disprove a fact of consequence

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9
Q

Legal Relevance

A

Evidence must be helpful in deciding the case

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10
Q

403 Balancing Test

A

Exclude evidence if the probative value is substantially outweighed by

  1. the danger of unfair prejudice
  2. confusion of the issues
  3. misleading the jury
  4. undue delay
  5. waste of time OR
  6. needless presentation of cumulative evidence
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11
Q

Civil Case Character Evidence

A

Character evidence is allowed when character is an essential element of the cause of action

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12
Q

Criminal Case Character Evidence

A

Testimony about a pertinent good character trait must be raised by D. Then the prosecution may rebut with reputation or opinion evidence

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13
Q

Victim’s Pertinent Trait/Character

A

D may offer evidence of a victim’s violent character as circumstantial evidence that the victim was the first aggressor. Then the prosecution may rebut with good character of the victim or bad character of the D through reputation or opinion.

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14
Q

Homicide Cases Character Evidence

A

D may offer evidence that victim was the first aggressor, then the prosecution may offer evidence of the victim’s good character for peacefulness.

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15
Q

MIMIC

A 
Evidence of character can be used for any purpose other than to show conduct in conformity with one's character.
Motive
Identity
Mistake (absence of)
Intent
Common scheme or plan
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16
Q

Habit Evidence

A

Evidence of the habit of a person, or routine practice of an organization, is relevant to prove conduct in conformity with the habit.

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17
Q

Subsequent Remedial Measures

A

Inadmissible to prove negligence, culpable conduct, design defect, or the need for a warning.

Admissible to show ownership or control, impeachment, feasibility of precautions if controverted

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18
Q

Compromise and Offers to Settle

A

Evidence of an offer to settle a claim that is disputed about either validity or amount is inadmissible to prove liability.

Admissible to show bias or prejudice or to negate a contention of undue delay.

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19
Q

Payment of Medical and Similar Expenses

A

Evidence of offering to pay medical bills is inadmissible to prove liability for an injury.

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20
Q

Pleas, Plea Discussions, and Related Statements

A

A plea and any statement made during plea negotiations by D to a prosecutor will be inadmissible against D in a later proceeding.

Doesn’t apply to statements made by police.

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21
Q

Liability Insurance

A

Evidence that a person was/wasn’t insured is inadmissible to prove negligence or fault. Can be admitted to prove agency, ownership, or control, but limits of coverage are never admissible.

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22
Q

Rape-Shield Law

A

In civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show the alleged victim’s sexual behavior is excluded.

Exception:

  1. consent (past sex with D)
  2. source of semen, injury, or other physical evidence
  3. evidence that is constitutionally required
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23
Q

Attorney Client Privilege

A

The client is the holder of the privilege and may refuse to disclose and prevent others from disclosing confidential communications made for the purpose of seeking professional legal advice or services. Lawyer may assert privilege on behalf of client.

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24
Q

Exceptions to Attorney Client Privilege

A
  1. future crime or fraud
  2. suits between attorney and client
  3. joint client exception (two clients hire the same attorney and are then involved in litigation with each other)
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25
Q

Psychotherapist Patient Privilege

A

Protects confidential communications between a licensed psychotherapist and a patient who is seeking diagnosis or treatment for a medical condition.

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26
Q

Exceptions to Psychotherapist Patient Privilege

A
  1. statements made regarding commitment proceedings
  2. statements dealing with court-ordered exams
  3. when the medical condition is part of the claim, i.e. malpractice suits
  4. future fraud or crime
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27
Q

Marital Communications Privilege

A

Can be asserted by either spouse and it applies in both criminal and civil suits. Protects confidential communications between the spouses during the marriage.

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28
Q

Exceptions to Marital Communications Privilege

A
  1. Crimes or intentional torts committed by one spouse against the other or a child
  2. Divorce proceedings/adverse civil proceedings
  3. Joint participation in a crime
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29
Q

Spousal Immunity

A

Protects all communications, regardless of confidentiality, both during and before the marriage, includes testimony, observations, and impressions. The privilege is held by the party spouse under common law and witness spouse under FRE. Only applies to criminal cases.

30
Q

Exceptions to Spousal Immunity

A
  1. suits between spouses

2. suits involving a child of either spouse

31
Q

Religious Privilege

A

Protects confidential communications made from penitent to clergyman in his professional capacity as spiritual advisor. Either the clergyman or the penitent may assert the privilege.

32
Q

5th Amendment Privilege Against Self Incrimination

A

Applies to evidence that is testimonial. Doesn’t apply to real or demonstrative forms of evidence. The prosecutor may not comments on D’s refusal to testify. Doesn’t apply when witness waives the privilege and cross exam is limited to the subject matter waived.

33
Q

Immunity

A

Transactional- witness cannot be prosecuted for the underlying offense.
Use- witness’s statements cannot be used against him, but the prosecution doesn’t agree it will never prosecute

34
Q

Juror Testimony

A

A juror may not testify as a witness before the jury of which he is a member.

Exception: Juror may testify to:

  1. extraneous prejudicial info improperly brought to the juror’s attention
  2. whether any outside influence was improperly brought to bear on any juror
  3. clerical/secretarial errors
35
Q

Collateral Matter Rule

A

A collateral matter is evidence solely affect the credibility of a witness. While questioned about a collateral matter, the party cross-examining the witness is bound by the witness’s answer to matters solely affecting credibility. Extrinsic evidence is inadmissible.

36
Q

Methods of Impeachment

A
  1. bias or prejudice
  2. sensory defects
  3. prior inconsistent statements
  4. Character (reputation, opinion, prior bad acts, felony convictions, conviction of crimes involving dishonesty)
37
Q

Evidence of Felony Conviction

A

If used to impeach a witness other than D, the conviction is subject t a rule 403 balancing test

If used to impeach D, conviction will be admitted if the prosecution show the probative value outweighs the prejudicial effect.

38
Q

Crimes Involving Dishonesty

A

Evidence of such crimes is admissible if they are less than 10 years old.

39
Q

10 Year Limit Rule

A

Convictions more than 10 years old are inadmissible to impeach unless the probative value substantially outweighs the prejudicial effect.

40
Q

Guilty Pleas and Suppressed Evidence

A

Admissible to impeach

41
Q

Leading Questions

A

Generally not permitted on direct exam. Exceptions:

  1. hostile witness
  2. adverse witness
  3. child witness
  4. preliminary background info
  5. refresh recollection
42
Q

Writing to Refresh Memory

A

Cannot introduce writing into evidence. Opposing party may inspect it and use it on cross and introduce relevant portions into evidence.

43
Q

Prior Witness Statement

A

A prior inconsistent statement is not sworn and is admissible only to impeach. Extrinsic evidence is admissible if:

  1. the witness is afforded an opportunity to explain or deny the evidence at some point during trial AND
  2. opposing counsel is afforded an opportunity to interrogate the sponsoring witness

If witness denies making the statement, then it will be admissible to impeach.

44
Q

Proper Scope of Non-Expert Opinion (VEMPS)

A 
Value of one's own land
Emotional state of other
Measurements
Physical states
Sensory descriptions
45
Q

Expert Testimony

A
  1. expert is qualified
  2. testimony is relevant

May be based on:

  1. personal knowledge
  2. facts presented to the expert at trial
  3. facts presented to the expert outside of court

Can give opinion or inference that embraces an ultimate issue

46
Q

Daubert Factors (TAPES)

A 
Tested: Has theory been tested?
Acceptance: General acceptance in relevant community 
Peer: Peer review of the theory
Error: Degree of error
Standards
47
Q

Statement by Party Opponent

A

A statement of a party offered against him. An admission by silence can be used against him also if a reasonable person would have denied the statement.

48
Q

Vicarious Admission

A

A statement of a party’s employee offered against the party is admissible if:

  1. it is made during the employment relationship AND
  2. it is concerns a matter within the scope of employment
49
Q

Co-Conspirator Statement

A

Statements of co-conspirators can be used against all other co-conspirators if

  1. there was a conspiracy
  2. declarant was a member of the conspiracy
  3. statement was made in furtherance of the conspiracy
  4. statement was made during the conspiracy
50
Q

Prior Statements

A
  1. declarant can testify at the trial or hearing
  2. declarant can be subject to cross exam AND
  3. statement must be either (a) prior inconsistent statement (b) prior consistent statement or (c) prior statement of identification
51
Q

Prior Inconsistent Statement

A

Permitted to be offered for its truth if is sworn

52
Q

Prior Consistent Statement

A

Can be used to rehabilitate the witness after an inference of recent fabrication (statement must predate the motive to lie) OR the declarant’s credibility as a witness when attached on another ground.

53
Q

Prior Statement of Identification

A

Admissible

54
Q

Present Sense Impression

A

Declarant doesn’t have to be at trial. A statement describing or explaining an event/condition made while or immediately after perceiving it.

55
Q

Excited Utterance

A

Declarant doesn’t have to be at trial. Statement relating to a startling event made while the declarant was under the stress of excitement caused by the event of condition.

56
Q

Then Existing Mental, Emotion, or Physical Condition

A

Declarant doesn’t have to be at trial. A statement of declarant’s then-existing physical, emotion, or mental condition is admissible if relevant to show declarant’s state of mind.

57
Q

Statements for Purpose of Medical Diagnosis or Treatment

A

Statement made to medical personnel or family member, includes statements describing medical history or past or present symptoms, pain or sensations, or the cause.

58
Q

Past Recorded Recollection

A
  1. attempted to refresh witness’ memory then writing is read into evidence
  2. memo was made while the matter was fresh in the witness’ mind
  3. the witness must testify that the writing accurately reflects the witness’ prior knowledge
59
Q

Public Records and Reports

A

The report must be prepared pursuant to a duty imposed by law

60
Q

Ancient Documents

A

Admissible if found in a place where these items are typically found

61
Q

Learned Treatises

A

Subject area (MASH): Medicine, Act, Science, and History. Read to jury but not physically given to jury.

62
Q

Unavailable Witness (PRISM)

A 
Privilege
Refusal 
Incapability
Subpoena (absence of witness despite good faith effort to find them)
Memory (lost)
63
Q

Former Testimony

A

Admitted if:

  1. declarant made the statement under oath
  2. given by a witness in the same or a different but related proceeding or in a deposition AND
  3. the party against whom the evidence is being offered must have had an opportunity and similar motive to examine the witness and develop testimony
64
Q

Statements Against Interest

A
  1. personal knowledge
  2. unavailable witness
  3. non-party
  4. statement was against interest when made
65
Q

Testimonial Evidence

A

Primary purpose of the police interrogation is to prove past events relevant to later criminal prosecution

66
Q

Handwriting Authentication

A
  1. layperson with familiarity
  2. comparison by an expert OR
  3. comparison by trier of fact
67
Q

Self Authentication (CONTAC)

A 
Certified docs
Official publications
Newspapers and periodicals 
Trade inscriptions
Acknowledged docs
Commercial paper
68
Q

Best Evidence Rule

A

To prove the contents of a writing, recording, or photo, the original is required.

69
Q

Independent Source Rule

A

Where a fact to be proved has a source independent from the writing, then the contents are not in issue and the best evidence rule doesn’t apply

70
Q

Evidence of Contents

A

The original is not required and other evidence of the doc is admissible if (LOCS):
Lost (all originals have been lost or destroyed)
Opponent (opponent has possession of the original and refuses to deliver it)
Collateral (doc is not closely related to a controlling issue)
Subpoena (original cannot be obtained by any judicial procedure)

Bar Exam (21 decks)

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