Evidence Flashcards
(138 cards)
1
Q
Evidence must be _______ in order to be admissible.
A
Relevant
2
Q
Evidence is relevant if it is both _________ and ________.
A
Probative and Material
3
Q
What is probative evidence?
A
Evidence that has any tendency to make a fact more or less probable than it would be without the evidence.
4
Q
Evidence is material if _______.
A
It is a fact of consequence in determining the outcome of the action.
5
Q
Relevant evidence may be excluded if __________.
A
It’s probative value is substantially outweighed by a danger of 1) unfair prejudice; 2) confusing the issues; 3) misleading the jury; 4) undue delay; 5) wasting time; or 6) needlessly presenting cumulative evidence
6
Q
Irrelevant evidence is ALWAYS
A
Inadmissible
7
Q
Relevant evidence is admissible UNLESS
A
1) it is kept out by some evidence rule; or
2) court uses Rule 403 discretion to exclude it.
8
Q
Rule 403 states that a Judge has discretion to exclude evidence if it’s probative value is substantially outweighed by what considerations?
A
1) unfair prejudice -jury will decide case on emotional basis
2) confusion of issues -evidence creates a side issue other than the one the jury is deciding
3) misleading jury -jury gives it undue weight ex: expert testimony
4) undue delay
5) waste of time
6) cumulative evidence
9
Q
Subsequent remedial measures are _____.
A
Acts taken after a harm or injury that are likely to prevent future harm or injury.
10
Q
Evidence of Subsequent Remedial Measures may be admissible for:
A
1) impeachment purposes,
2) to show ownership or control, or
3) to show feasibility of precautionary measures.
11
Q
What limited instances might Plaintiff’s other lawsuits or accidents be admissible?
A
To show something other than carelessness such as:
1) prior false claims to prove present claim is false, or
2) prior accidents involving same body part when causation is at issue.
12
Q
Offers to compromise and settlement statements are admissible to prove _________.
A
1) bias/prejudice of the witness,
2) negating a contention of undue delay, or
3) proving obstruction of a criminal matter
13
Q
Offers to compromise and statements made during settlement negotiations are not admissible to prove ________.
A
Validity or amount of a DISPUTED claim or to impeach by prior inconsistent statements.
14
Q
Similar accidents caused by same event of conditions are admissible to prove _________.
A
1) Existence of a dangerous condition
2) Causation
3) The defendant had notice of the condition
15
Q
Offers to pay medical expenses are NOT admissible to prove _______.
A
Liability for the plaintiff’s injuries. However, any conduct or statements accompanying an offer to pay ARE admissible. (E.g., factual admission accompanying an offer to pay).
16
Q
Prior similar occurrences/conduct are _________ to prove present motive or intent.
A
Admissible
17
Q
Absent a knowing and voluntary waiver from the defendant, the following are NOT admissible against the defendant:
A
1) withdrawn guilty pleas
2) no contest pleas
3) statements made while negotiating with prosecutors
4) statements made during plea negotiations
18
Q
Pleas and statements made during negotiations are admissible only if _______.
A
Fairness dictates or for perjury hearings
19
Q
Sales of comparable property are admissible to _______.
A
Establish the property’s value.
Offers are not sales, and thus, are not admissible.
20
Q
Evidence of similar occurrences is ________ to rebut a claim that the occurrence at issue was not possible.
A
Admissible
21
Q
Habit and Business Routine evidence is admissible as ______
A
Circumstantial evidence that the person or organization acted in accordance with habit on occasion.
22
Q
The defining characteristics of Habit evidence are ________.
A
1) frequency of the conduct, and
2) the particularity of the circumstances in which it occurs
23
Q
Liability insurance is NOT admissible to prove
A
Whether the person acted negligently or otherwise wrongfully.
24
Q
Liability insurance may be admissible to prove
A
a witness’s bias or prejudice or proving agency, ownership, or control
25
Industrial custom evidence may be admissible to show
The appropriate standard of care
26
Character evidence is
Evidence of one’s disposition in respect to general traits
27
_______, ________, and _________ are acceptable forms of character evidence.
1) reputation in the community
2) opinion testimony
3) specific instances (only admissible on cross examination UNLESS character is an essential element of a charge, claim, or defense)
28
In Civil cases, character evidence is generally NOT admissible for ________.
Propensity purposes. (Evidence of someone’s character cannot be introduced to show that they have the propensity to act in accordance with the alleged character trait.)
There are some exceptions.
29
Subsequent Remedial Measures is inadmissible to prove _________.
negligence, defective product or design, or culpable conduct.
30
Civil settlements and settlement negotiations are admissible to _________.
impeach a witness on the grounds of bias.
31
Conduct or statements in ______________ with government/regulatory authority are admissible in _________.
civil settlements and settlement negotiations; related criminal trials.
32
An actual guilty plea that is NOT withdrawn is _______ in related litigation as a statement of an opposing party.
generally admissible
33
I'll pay your medical expenses if you drop the case is _______.
a settlement offer and the more restrictive rule about settlement negotiations applies. Thus, the statement is inadmissible.
34
In civil cases, character evidence is admissible for propensity purposes when ______.
1.) Character is an essential element of the claim or defense (defamation, negligent entrustment, child custody, etc.)
2.) The case is based on the defendant's sexual misconduct
35
In criminal cases, the prosecution cannot introduce evidence of a defendant's _________.
bad character to prove that the defendant has the propensity to commit the crime in question.
36
In criminal cases, the defendant may present positive character evidence as long as it is ______.
1) pertinent to the crime charged; AND
2) through reputation or opinion evidence (NOT specific instances of conduct)
37
When the defendant opens the door by presenting positive character evidence, the prosecution may then introduce negative character evidence (must relate to the same character trait in question) to rebut the defendant in two different ways:
1) Can call its own character witness who is limited to reputation and opinion testimony.
2) Cross-examine the defendant's character witness by asking about specific instances, reputation and opinion testimony (Have you heard? Did you know?)
38
A criminal defendant may introduce reputation or opinion testimony of the victim's character if it is _______.
relevant to one of the defenses asserted.
39
If the defendant introduce reputation or opinion testimony of the victim's character, the prosecution may rebut by presenting evidence of:
1) the defendant's bad character for the same trait
2) the victim's good character for the same trait
40
In criminal cases, the Court may admit evidence of specific instances of a victim's sexual behavior if offered _____.
1) to prove the Defendant was not involved in the sex crime
2) as evidence of sexual relations between Defendant and victim if offered by Defendant to prove consent, or offered by the prosecution for any reason
3)evidence whose exclusion would violate the Defendant's constitutional rights
41
Victim's past behavior is generally inadmissible, except:
In criminal cases to prove different source of injury or physical evidence or to show consent between victim and defendant
42
Specific instances of conduct are generally NOT admissible to show propensity, but are admissible to show:
1) Motive or opportunity
2) Intent
3) (absence of) Mistake
4) Identity
5) Common plan or scheme
43
Specific instances of conduct are admissible for MIMIC purposes if:
1) there is sufficient evidence to support a jury finding that the defendant committed the prior act; AND
2) the probative value of the specific instances of conduct is NOT substantially outweighed by the danger of unfair prejudice to the jury
44
In criminal cases, the prosecutor must
provide reasonable notice, in writing and in advance of trial, of any MIMIC evidence that she intends to offer at trial.
45
What is the Best Evidence Rule?
A party must provide original documentation or an accurate duplicate when:
1) the contents are at issue; OR
2) the witness is relying on the document when testifying
46
When must original documentation or an accurate duplicate be provided?
When the contents of the document are at issue or when the witness is relying on the document when testifying
47
All tangible evidence must be
authenticated
48
Tangible evidence is
any evidence that is not presented as oral or verbal testimony
49
Authentication requires that a party
show that the item being introduced as evidence is what the party claims it to be
50
physical evidence may be authenticated through
1) witness testimony; OR
2) chain of custody
51
documentary evidence may be authenticated through
1) stipulation (both parties agree)
2) witness testimony; OR
3) handwriting verification
52
In order for witness testimony to authenticate physical evidence, the witness must
have personal knowledge and familiarity with the object
53
Who can verify handwriting by comparing the writing in question with another writing that has been proven to be genuine?
An expert witness or trier of fact
54
A non-expert witness may verify handwriting if
she has personal knowledge of the handwriting in question. She cannot become familiar with the handwriting in order to prepare for litigation.
55
What documents are self-authenticating and do NOT require extrinsic proof of authenticity?
1) public documents bearing a seal
2) certified copies of public records
3) official publications issued by a public authority
4) newspapers and periodicals
5) notarized documents
6) commercial paper
7) trade inscriptions; AND
8) records of regularly conducted business activity certified by a custodian of the records
56
Ancient documents can be authenticated if ______.
1) at least 20 years old
2) in non-suspicious condition, AND
3) found in place where such a writing would likely be kept
57
What is the Reply Letter Doctrine?
Document can be authenticated by evidence it was written in response to communication sent to alleged author
58
What does the Best Evidence Rule say about secondary evidence?
Secondary evidence is admissible only if proponent has a good excuse for not producing original
59
A party is proving the contents of a writing when
1) the writing is legally operative or dispositive. it creates rights and obligations.
2) the witness's knowledge results from having seen the writing
60
The Best Evidence Rule does NOT apply when
the witness has personal knowledge of the fact to be proven in the writing
61
What factors are used to determine whether a witness is competent?
1) Witness must have personal knowledge
2) Witness must take an oath
62
What is Refreshing Recollection?
A witness may use any writing or object for the purpose of refreshing their present recollection. They usually may not read the writing while testifying because the writing is not authenticated and not in evidence.
63
Does the writing used in refreshing recollection need to be authenticated and why?
no, because the writing is not in evidence. The testimony, not the writing, is the evidence.
64
When laying the foundation for recorded recollection evidence, the following are required:
1) the witness has insufficient recollection to testify fully and accurately
2) there was a time when the witness knew the facts
3) the record was made by the witness or under their direction, or it was adopted by the witness
4) the record was made when the matter was fresh in the witness's mind
5) the record accurately reflects the witness's knowledge
65
Lay witness testimony is admissible if
1) rationally based on witness's perception
2) Helpful
3) not based on specialized knowledge
66
Expert witness testimony must be________.
1) Helpful
2) Based on sufficient facts or data
3) Reliable
4) Qualified by specialized knowledge, skill, experience, training, or education
5) Proper factual basis
67
Expert witness testimony has a proper factual basis if
1) the facts are based on experts own observation
2) the facts are made known to expert at trial
3) the facts are supplied to expert outside courtroom that are of a type reasonably relied upon by other experts in the field
68
What is Hearsay?
An out of court statement that is offered to prove the truth of the matter asserted.
69
Hearsay requires an out of court statement. What is a statement?
A person's oral assertions, written assertions, or nonverbal conduct if the person intended it as an assertion.
70
What are the types of out of court statements NOT offered to prove the truth of the matter asserted?
1) Verbal acts of independent significance
2) Statements offered to show the effect on the listener
3) Statements offered to show the declarant's mental state or state of mind;
4) Statements offered for impeachment purposes
71
Subsequent Remedial Measures are inadmissible to prove:
1) negligence,
2) defective product or design, or
3) culpable conduct
72
What is impeachment?
An attempt to discredit the witness.
73
A witness's credibility may be attacked by introducing _____.
character evidence of the witness's untruthfulness through reputation or opinion testimony.
74
Can a witness's testimony be bolstered?
No. The witness's credibility must first be attacked.
75
On cross-examination, a witness's credibility may be attacked with _______.
specific instances of conduct
76
The exceptions to bolstering a witness's credibility are
1) timely complaint
2) prior statement of identification
77
When may a witness's credibility be attacked with specific instances of conduct?
On cross-examination provided that:
1) the specific instance regards the truthfulness of the witness
2) There is good faith belief in the prior misconduct; AND
3) The specific instance does NOT involve arrest or a consequence of an arrest
78
Generally, is extrinsic evidence of specific instances of conduct admissible?
NO
79
What are the seven impeachment methods?
1) Prior inconsistent statements
2) Bias
3) Sensory deficiencies
4) Contradiction
5) Opinion or reputation evidence of untruthfulness
6) Prior convictions
7) Prior bad acts involving untruthfulness
80
Prior inconsistent statements are generally admissible for
impeachment purposes only, but can be admissible as substantive evidence when made under oath at a prior proceeding
81
Can extrinsic evidence be introduced to prove prior inconsistent statements?
Yes.
82
What must happen when introducing extrinsic evidence to prove prior inconsistent statements?
1) Give witness opportunity to explain or deny
2) Give adverse party opportunity to examine witness about it
83
What are the exceptions to the foundation requirement for prior inconsistent statements?
1) Prior inconsistent statement is opposing party's statement
2) Hearsay declarant is being impeached
3) Justice requires
84
Extrinsic evidence may be used for impeachment by contradiction if
the issue on which contradiction is based is not collateral.
85
What is impeachment by prior inconsistent statements?
Showing witness has, on a separate occasion, made statements inconsistent with some MATERIAL part of his present testimony.
86
Can witnesses be impeached by any crime involving dishonesty or false statement?
Yes, the trial Judge has no discretion to exclude.
87
What is a present sense impression?
A statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition.
88
In Virginia, habit and routine practice is admissible only in _____.
Civil cases
89
In Virginia, character evidence cannot be proved by _____.
opinion testimony
90
In Virginia, the defendant may introduce a victim's pertinent character trait only when _____.
The defendant has claimed self-defense.
91
In Virginia, the defendant may introduce ______ and _____ to prove the victim's character.
reputation testimony and specific acts of violence by the victim
92
In Virginia, when the defense introduces evidence of the victim's violent character, the prosecution may only rebut with
evidence of the victim's peaceful character. The prosecution can not rebut with evidence of the defendant's violent character.
93
In Virginia, evidence offered to prove the sexual behavior or disposition of the victim is generally inadmissible in
criminal cases only.
94
In Virginia, MIMIC evidence is admissible when
its probative value outweighs its incidental prejudice
95
In Virginia, evidence of a defendant's prior CONVICTIONS of sexual assault or child molestation where the defendant is accused of committing the same type of act is admissible only in ____.
felony prosecutions for sexual offenses against children. It does not extend to other sexual assault prosecutions, and it does not apply in civil cases.
96
In Virginia, the prosecution must provide notice of its intent to introduce evidence of a defendant's prior CONVICTIONS of sexual assault or child molestation where the defendant is accused of committing the same type of act at least ____.
14 days prior to trail
97
In Virginia, _______ cases involving actual or attempted injury or death to a person, relevant evidence of repeated physical and psychological abuse of the accused by the victim is ______
admissible, subject to the rules of evidence.
98
In Virginia, how old must a document be to be self-authenticating, and to fall within the hearsay exception for ancient documents?
30 years old
99
In Virginia, under what circumstances can a recorded telephone conversation be admitted into evidence during civil proceedings?
1) all parties to the conversation were aware that the conversation was being recorded; OR
2) (a) one of the parties was aware of the recording; (b) the portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct that is the basis for the civil action; AND (c) the proceeding is not one for divorce, separate maintenance, or annulment of a marriage
100
In Virginia, the best evidence rule does not provide for the
admissibility of duplicates; however carbon copies are generally treated as originals.
101
In Virginia, copies of business records are admissible in lieu of an original if ____.
They were made in the ordinary course of business.
102
In Virginia, polygraph results are not admissible in
any proceeding.
103
Virginia's Dead Man Statute provides that an interested witness's testimony ____.
must be corroborated.
104
In Virginia, in a civil action by or against a person who is incapable of testifying, or by or against their estate or representative, statements made by the person are admissible if _____.
such statements are relevant to a matter at issue in the case and were made while the person was capable.
105
In Virginia, if a criminal defendant testifies and denies guilt as to a charged offense, the defendant may be cross-examined as to _____.
ANY matter relevant to the issue of guilt or innocence.
106
In Virginia, lay opinion testimony that ________ is prohibited.
amounts only to an opinion of law
107
In Virginia criminal cases, the subject matter of expert witness testimony must be _____.
beyond the knowledge and experience of ordinary persons, such that the jury needs expert opinion in order to comprehend subject matter, form an intelligent opinion, and draw its conclusions.
108
In Virginia cases, an expert can rely only on
1) facts known personally by the expert; and
2) facts in evidence
109
In Virginia criminal cases, opinion testimony on ANY ultimate issue of fact is ____.
prohibited.
110
In Virginia, can a victim who is to be called as a witness be excluded from the courtroom?
No, unless the courtroom determines that the presence of the victim would impair the conduct of a fair trial.
111
In Virginia criminal cases, can the court call its own witness?
no, but it may interrogate witnesses called by the parties
112
In Virginia, a party is usually not allowed to impeach their own witness. What are the exceptions to this rule?
1) a party who knowingly calls a witness with an adverse interest may impeach the witness, but not with their reputation for untruthfulness or prior convictions
2) a party who calls a witness who turns out to be adverse may impeach the witness with the witness's prior inconsistent statements.
113
In Virginia, what are the foundation requirements for extrinsic evidence when the prior inconsistent statement is oral?
1) admissible only AFTER impeaching party has confronted the witness with the statement during cross-examination
2) the witness denies or does not remember making it
114
In Virginia, what are the foundation requirements for extrinsic evidence when the prior inconsistent statement is written?
1) impeaching party must call witness attention to the particular occasion on which the writing was made
2) upon denial or not remembering, must show it to the witness
3) if witness admits its genuineness, witness must be given opportunity to explain it
115
In Virginia, prior inconsistent statements are usually admissible only ______.
to impeach and not as substantive evidence.
116
In Virginia, in a personal injury or wrongful death action a witness generally cannot be impeached with ______.
their own inconsistent ex parte affidavit, written statement (other than a deposition), or voice recording
*there is an exception*
117
In Virginia, a witness may be impeached with a voice recording made ______.
simultaneously with the alleged negligence.
118
In Virginia, what type of conviction may a witness be impeached with?
1. Any felony
2. Any misdemeanor involving moral turpitude (lying, cheating, or stealing)
119
In Virginia, does the court have discretion to exclude convictions? If so, what type?
The court ALWAYS has discretion to exclude ANY convictions. The general Rule 403 balancing test is used for ALL convictions.
120
In Virginia, how much time must pass before a prior conviction can no longer be used to impeach a witness?
Virginia has no specific rule that excludes remote convictions.
121
In Virginia, can extrinsic evidence be used to prove a prior conviction?
Yes, extrinsic evidence is admissible only if the witness denies the conviction.
122
In Virginia, what is the procedure for cross-examining the accused in a criminal case or a party in a civil case regarding prior convictions?
the impeaching party may only ask about the number of
qualifying convictions. The name or nature of each crime must not be revealed unless it was a perjury conviction. The details of the crime must not be revealed.
123
In Virginia, what is the procedure for cross-examining all other witnesses who are not the accused in a criminal case or a party in a civil case regarding prior convictions?
it is permissible to ask about the number of convictions and the name and nature of the crimes, but not about the details of the crimes.
124
In Virginia, when can a witness be impeached with prior acts of misconduct that did NOT result in conviction?
On cross-examination only about
1) false statements under oath
2) in a sexual assault case, any complaining witness may be asked about having made prior false accusation of sexual assault
Extrinsic evidence is not allowed.
125
In Virginia, a party can rehabilitate a witness by introducing the witness's prior consistent statement where ______.
1. The witness testimony has been attacked expressly or impliedly that the testimony is lying or exaggerating because of some motive, and the prior consistent statement was made by the witness before the onset of the alleged motive.
2. The witness testimony has been impeached with a prior inconsistent statement, and the prior consistent statement has a tendency to rehabilitate their testimony.
126
In Virginia, what is a prior consistent statement admissible for?
Only to rehabilitate the witness, and not as substantive evidence.
127
Does Virginia recognize hearsay exclusions?
No
128
Are prior statements of identification admissible in Virginia?
Yes, but they are considered an exception to the hearsay rule rather than nonhearsay.
129
In Virginia, what are opposing party statements called and are they admissible?
They are called admissions and are admissible under a hearsay exception.
130
In Virginia, what cases does the dying declaration exception apply?
Homicide prosecutions only. It does not apply in civil cases.
131
In Virginia, how does the present sense impression exception differ from the FRE?
The statements must be made WHILE the declarant was perceiving the event or condition. Thus, a statement made immediately after perceiving the event or condition would not qualify.
132
In Virginia, what is the Business Records hearsay exception?
The Virginia rules do not contain a provision allowing business
records to be admitted to prove the nonoccurrence or nonexistence of a matter.
133
In Virginia, when is the record of a public office admissible as a hearsay exception?
(1) the record describes the activities of the office; or
(2) the record describes matters observed pursuant to a duty imposed by law (but not including police observations in criminal cases)
134
In Virginia, when are learned treatises recognized as a hearsay exception?
In civil cases only.In criminal cases, learned treatises are admissible only for the purpose of impeaching an expert witness.
135
In Virginia, what is the Catch All Exception to the hearsay rule?
Virginia does not recognize a catch-all exception.
136
In what type of cases does the physician-patient privilege apply in Virginia?
In civil cases only. It doesn't apply in criminal cases.
137
In Virginia, when does spousal immunity not apply?
1) any criminal sexual assault, incest, or child abuse case
2) any criminal case in which either spouse is charged with forging the name of the other or using the forged signature of the other
138
Which Hearsay exceptions require the declarant's unavailability?
1. Former Testimony
2. Statements Against Interest
3. Dying Declaration
4. Statements of Personal or Family History
5. Statement Offered Against Party Procuring Declarant's Unavailability.
