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MBE Exam Prep > Evidence > Flashcards

Evidence Flashcards

1
Q

TOPIC REVIEW

What are the two (2) elements for relevant evidence?

A
  1. Material
  2. Probative
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2
Q

RULE STATEMENT

Relevance

A

Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action. Relevant evidence must be material and probative to the case.

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3
Q

RULE STATEMENT

Excluding Relevant Evidence

A

The court has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by some potential danger.

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4
Q

TOPIC REVIEW

What are the six (6) grounds for excluding relevant evidence under FRE Rule 403?

A
  1. Unfair Prejudice
  2. Confusion of the Issues
  3. Misleading teh Prejudice / Undue Weight
  4. Undue Delay
  5. Waste of Time
  6. Presentation Cumulative Evidence
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5
Q

BLACK LETTER

Generally, if evidence involves some time, event, or place other than that involved in the present case, the evidence is ________________.

A

Inadmissible

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6
Q

TOPIC REVIEW

What are the eight (8) exceptions to the prior similar occurrences rule?

Prior Similar Occurrences Rule. Generally, evidence that involves some time, event, or place other than that involved in the present case is inadmissible.

A
  1. Plaintiff’s Accident History / Prior False Claims or Same Bodily Injury
  2. Similar Accidents or Injuries Caused by Same Event or Condition
  3. Previous Similar Acts Admissible to Prove Intent
  4. Sales of Similar Property
  5. Rebutting Claim of Impossibility
  6. Causation
  7. Habit and Business Routine Evidence
  8. Industry Custom
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7
Q

TOPIC REVIEW

What are the five (5) public policy exceptions for excluding relevant evidence?

A
  1. Subsequent Remedial Measures
  2. Liability Insurance
  3. Compromise Offers or Settlement Negotiations
  4. Offers to Pay Medical Expenses
  5. Pleas, Plea Discussions, and Related Statements
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8
Q

BLACK LETTER

For a public policy exception to apply, the evidence must be offered for what purpose?

A

To prove negligence, culpability, or other wrongful conduct.

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9
Q

BLACK LETTER

Notwithstanding the public policy exclusions, under what circumstances will evidence of liability insurance be admissible?

A

To prove:
* Ownership or Control (IF DISPUTED)
* Impeach Witness for Bias or Prejudice
* Admission of Liability

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10
Q

BLACK LETTER

Notwithstanding the public policy exclusions, under what circumstances will evidence of subsequent remedial measures be admissible?

A

To prove:
* Ownership or Control (IF DISPUTED)
* Rebut Claim of UNFEASIBLE Precaution
* Destruction of Evidence

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11
Q

BLACK LETTER

Notwithstanding the public policy exclusions, under what circumstances will evidence of compromise offers and settlement negotiations be admissible?

A

To prove:
* Impeach Witness for Bias or Prejudice [NOT TO PROVE INCONSISTENT STATEMENTS]
* Rebut Claim of Undue Delay
* Prove Criminal Obstruction

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12
Q

BLACK LETTER

Notwithstanding the public policy exclusions, under what circumstances will evidence of pleas, plea discussions, and other related statements be admissible?

A

When the statement involves an actual, unwithdrawn guilty plea.

Evidence of the actual, unwithdrawn guilty will be admitted as a statement of an opposing party.

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13
Q

BLACK LETTER

Notwithstanding the public policy exclusions, under what circumstances will evidence of offers to pay medical expenses be admissible?

A

When there is a statement made in conjunction with an offer to pay medical expenses.

The statement making the offer to pay medical expenses is inadmissible, but all other admissions of fact surrounding the offer are admissible.

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14
Q

BLACK LETTER

What are the four (4) types of plea discussions that are inadmissible under the plea deals policy exception?

A
  1. Offers to Plead Guilty
  2. Withdrawn Guilty Pleas
  3. Pleas of No Contest
  4. Statements of Fact Made During Plea Discussions
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15
Q

RULE STATEMENT

Character Evidence

A

Character evidence is documentary evidence offered to prove that a person acted in conformity with a particular character trait, such as a person’s general behavior patterns or prior behavior.

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16
Q

BLACK LETTER

In civil cases, under what circumstances is character evidence admissible

A

In civil cases, character evidence is admissible to prove propensity when a person’s character is directly in issue.

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17
Q

BLACK LETTER

What are the four (4) cases where a person’s character is directly in issue?

MNEMONIC: DECH

A
  1. Defamation (Plaintiff)
  2. Child Custody (Parent)
  3. Negligent Entrustment (Entrustee)
  4. Negligent Hiring (Employer)
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18
Q

BLACK LETTER

Under what circumstances may character evidence be introudced as substantive evidence?

A
  • To prove a person’s character where character is directly in issue in the case
  • To serve as circumstantial evidence to prove propensity
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19
Q

TOPIC REVIEW

What are the three (3) methods of proving character?

A
  1. Reputation Evidence
  2. Opinion Evidence
  3. Evidence of Specific Acts
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20
Q

RULE STATEMENT

Character Evidence in Criminal Cases:
“Opening the Door”

A

The prosecution cannot introduce character evidence in its case-in-chief to prove the defendant’s propensity to commit the charged crime unless and until the defendant introudces evidence of their evidence of their good character to show their innocence.

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21
Q

TOPIC REVIEW

Once the defendant opens the door to character evidence, what methods does the prosecutor have to rebut the evidence?

A
  • On cross-examination, the prosecution can call its own witness to provide reputation or opinion testiomony about the defendant’s bad character.
  • On cross-examination, the prosecution can ask the character witness about specific acts of the defendant to prove the character witness’s lack of knowledge.
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22
Q

TOPIC REVIEW

In criminal cases relating to character evidence, in what form is the prosecution permitted to ask questions about the defendant’s specific acts evidencing the defendant’s bad character?

A

Questions must be in the form of “did you know. . .?” or “have you heard. . .?”

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23
Q

TOPIC REVIEW

In criminal cases, under what circumstances is the defendant permitted to introduce a bad character trait of the victim?

A

Defendant is permitted to introduce evidence of the victim’s bad character where the defendant claims self-defense and argues the victim is the first agressor to prove the defendant’s innocence.

Evidence must be in the form of repution or opinion evidence.

**Exception: **Defendant cannot introduce evidence of the victim’s bad character in sexual assault cases.

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24
Q

BLACK LETTER

In criminal cases, under what circumstances is the prosecution permitted to introduce evidence of the victim’s good character regardless of whether the defendant has introudced character evidence of the victim’s violent propensity?

A

Homicide Cases // Self-Defense

Where the defendant claims self-defense in a homicide case, the prosecution may offer character evidence of any kind to prove the victim’s good character for peacefulness.

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25
Q

RULE STATEMENT

Character Evidence:
Past Behavior of Sexual Assault Victims

A

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the victim is generally inadmissible.

26
Q

TOPIC REVIEW

Under what circumstances is character evidence of a sexual assault victim’s sexual behavior admissible?

A
  • In criminal cases, specific instances of a victim’s sexual behavior are admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence.
  • In criminal cases, specific instances of sexual behavior between the victim and the defendant are admissible by the prosecution for any reason and by the defense to prove consent.
  • In civil cases, evidence of the alleged victim’s sexual behavior is admissible if it is not excluded by any other rule and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.

Criminal Cases [SPECIFIC ACTS]
Civil Cases [REPUTATION]

*NOTE: In a civil case, evidence of the alleged victim’s reputation is admissible only if it has been placed in controversy by the victim.

27
Q

RULE STATEMENT

Character Evidence:

Evidence of Person’s Other Misconduct

Person’s Other Misconduct. Under certain circumstances, evidence of the person’s misconduct may be admitted for non-character purposes.

A

Evidence of a person’s other crimes, wrongs, or acts is generally inadmissible if offered solely to prove conduct in conformity/propensity unless the evidence is offered for a non-character (MIMIC) purpose

28
Q

TOPIC REVIEW

Under what circumstances is evidence of the person’s misconduct admissible?

MIMIC EVIDENCE

A

Evidence of the person’s misconduct may be admitted for non-character purposes.

  • Motive
  • Intent
  • Absence of Mistake
  • Identity
  • Common Scheme or Plan
29
Q

BLACK LETTER

What is the standard for determining whether evidence of a person’s other misconduct is admissible.

A

Whether there is sufficient evidence for a reasonable juror to find that the defendant committed the other misconduct.

30
Q

RULE STATEMENT

Authentication

A

A writing or any secondary evidence of its content will not be received in evidence unless the writing is authenticated by proof that shows that the writing is what the proponent claims it is.

31
Q

TOPIC REVIEW

What are the four (4) methods of authentication?

A
  • Witness Testimony
  • Chain of Custody
  • Expert Testimony
  • Distinctive Characteristics
32
Q

TOPIC REVIEW

What are the eight (8) examples of self-authenticating documents?

A
  1. Domestic Public Documents (Seal Required)
  2. Official Publications
  3. Certified Public or Private Records
  4. Newspapers and Periodicals
  5. Trade Insciptions and Lables
  6. Notarized (Acknowledged) Documents
  7. Commerical Papers
  8. Business Records
33
Q

RULE STATEMENT

Best Evidence Rule

A

To prove the content of a writing, recording, or photograph, the original writing must be produced if the terms of the writing are material.

34
Q

TOPIC REVIEW

Under what circumstances is secondary evidence admissible under the best evidence rule?

**Secondary Evidence. **Oral Testimony

A

Secondary evidence of the writing is admissible only if the proponent provides a satisfactory excuse for the original’s absence.

  • Loss / Destruction of Original
  • Inability to Obtain Original Through Judicial Process
  • Original is in Possession of Person Failing to Produce it.
35
Q

TOPIC REVIEW

When does the best evidence rule apply?

A

The best evidence rule applies where:
* the writing is a legally operative or dispositive instrument
* the knowledge of a witness concerning a fact results from having read it in the writing

EXCEPTION: The best evidence rule does not apply where the witness has personal knowledge of the fact to be proved, and oral testimony of the fact may be given without producing the original writing that recorded the event.

36
Q

TOPIC REVIEW

Under the best evidence rule, what circumstances exclude the admissibility of duplicates?

A
  • Unfairness. The circumstances make it unfair to admit the duplicate
  • Authenticity Issues. A genuine question is raised about the authenticity of the original.
37
Q

BLACK LETTER

What are the exceptions to the best evidence rule where the original writing of evidence is not required?

A
  1. Summaries of Voluminous Records
  2. Certified Public Records
  3. Writing is Collateral to Litigation
  4. Testimony / Written Admission of Party Opponent
38
Q

RULE STATEMENT

Real Evidence

A

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

39
Q

RULE STATEMENT

Real Evidence

A

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

40
Q

TOPIC REVIEW

What are the competency requirements for a witnesss to testify?

A

The witness must have personal knowledge of the matters being testified about and provide an oath or affirmation about their ability to testify truthfully.

41
Q

BLACK LETTER

What are the three (3) requirements for permitting opinion testimony from a lay witness?

A
  1. Helpful
  2. Based on Perception
  3. Not Based on Specialized Knowledge
42
Q

BLACK LETTER

What are the four (4) requirements for permitting opinion testimony from a expert witness?

A
  1. Opinion Based on Sufficient Facts / Data
  2. Expert Must Require Specialized Knowledge, Skill, Experience, Training, or Education
  3. Opinion Based on Reasonable Probability
  4. Expert Applied Reliable Principles / Methods to Facts
43
Q

TOPIC REVIEW

What are the three (3) possible sources of information for expert opinions?

A
  1. Personal Observation
  2. Facts Made Known at Trial
  3. Facts Reasonably Relied Upon by Other Experts in Field
44
Q

TOPIC REVIEW

Under what circumstances are judges prohibited to testify?

A

A judge cannot testify in the present case over which they are presiding.

45
Q

TOPIC REVIEW

Under what circumstances are jurors prohibited to testify?

A

Jurors cannot testify in the present case over which they are serving as jurors unless an exception applies.

46
Q

TOPIC REVIEW

What are the exceptions permitting a juror to testify?

A

Extraneous Prejudicial Information. Prejudicial information improperly brought to the jury’s attention.
Outside Influence. Improper influence brought to bear on any juror.
Mistake on Verdict Form
Racial Stereotyp or Animus. Clear statements of racism or animus from any juror during the conviction of a criminal defendant.

47
Q

RULE STATEMENT

Opinion Testimony

A

Generally, opinion testimony is inadmissible unless the testimony is necessary or helpful to the finder of fact. Opinions from lay witness are inadmissible unless the testimony is rationally based on the witness’s perception and assists with clarifying or determining a factual issue.

48
Q

RULE STATEMENT

Admissibility of Expert Witness Testimony

A

Expert opinion testimony is admissible where the subject matter is scientific, technical, or specialized and would assist the trier of fact, the opinion is based on sufficient facts or data, and the expert has reliably applied reliable principles and methods to the facts of the case.

49
Q

TOPIC REVIEW

What are the four (4) considerations for determining the reliability of an expert witness’s testimony?

Daubert Factors

A
  1. Testing of Principle / Methodology
  2. Rate of Error
  3. Acceptance of Methodology by Experts in the Same Discipline
  4. Peer Review and Publication
50
Q

RULE STATEMENT

Dead Man Acts

A

In civil cases, some statutes provide that an interest person is incompetent to testify to a personal transaction or communication with a deceased. A person is interested if they stand to gain or lose by judgment, or if the judgment may be used for or against them in a subsequent action.

51
Q

RULE STATEMENT

Hearsay

A

Hearsay is an out-of-court statement made by a person and offered into evidence to prove the truth of the matter asserted in the statement. Generally, hearsay is inadmissible to prove the substance of the statement unless an exception applies.

52
Q

TOPIC REVIEW

What are the five (5) types of out-of-court statements that do not qualify as hearsay?

A

(1) Knowledge / Notice
(2) State of Mind
(3) Effect on the Listener
(4) Impeachment
(5) Legal / Verbal Acts

53
Q

TOPIC REVIEW

What are the six (6) hearsay exclusions?

A

(1) Prior Statements by Witness
* Prior Inconsistent Statement
* Prior Consistent Statement
* Prior Statement of Identification

(2) Statements Attributable to Opposing Party
* Judicial / Extrajudicial Statement
* Vicarious Statements
* Adoptive Statements

54
Q

RULE STATEMENT

Prior Inconsistent Statement

A

Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to cross-examine the witness about it, or if justice so requires.

55
Q

TOPIC REVIEW

What are the elements of a prior inconsistent statement?

PIS-SS-WOE-OCE

A
  • Opportunity to Cross-Examine
  • Witness Opportunity to Explain / Deny
  • Prior Inconsistent Statement
  • Statement Made Under Oath
56
Q

RULE STATEMENT

Prior Consistent Statement

A

Proponent may introduce the impeached witness’s prior consistent statement. If the witness is accused of fabricating testimony due to a recent improper motive or interest, the prior consistent statement is admissible so long as the past statement was made before the motive or interest arose.

57
Q

TOPIC REVIEW

What are the elements of a prior consistent statement?

PCS-AIM-SMBA

A
  • Prior Consistent Statement
  • Accusation of Improper Motive / Interest
  • Statement Made Before Motive Arose
58
Q

RULE STATEMENT

Prior Statement of Identification

A

A witness’s prior statement identifying a person as someone he perceived earlier is not hearsay.

59
Q

TOPIC REVIEW

What are the elements of a prior statement of identification?

PS-SIP

A
  • Prior Statement
  • Statement Identifying Person Perceived Earlier
60
Q

RULE STATEMENT

Statements Attributable to Opposing Party

A

Any statement made by an opposing party and offered against that party is not hearsay. The statement need not have been against the party’s interest at the time the statement was made to qualify as an opposing party’s statement.

61
Q

TOPIC REVIEW

What are the relationships where a vicarious statement may be attributable to an opposing party?

RULE STATEMENT. A declarant’s statement may be attributable to a party because of the relationship between them.

A

Co-Parties
Authorized Spokesperson
Agents / Employees
Partners
Co-Conspirators
Privities in Title / Joint Tenants [STATE COURTS ONLY]

62
Q

RULE STATEMENT

Adoptive Statements

A

A party may expressly or impliedly adopt someone else’s statement as his own, thus giving rise to an adoptive statement. The party must hear and understand an accusation against him, must be capable of denying the accusation, and a reasonable person would have denied the accusation if the statement were untrue.

MBE Exam Prep (4 decks)

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