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Bar Exam 2014 > Evidence > Flashcards

Flashcards in Evidence Deck (18):


Relevant evidence is that which tends to make the existence of a fact of consequence more (or less) probable than it would otherwise be. Is generally admissible, but is inadmissible where its probative value is substantially outweighed by the danger of unfair prejudice; confusion of the issues; misleading the jury; or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.


FRE 406 - Habit

evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice

Key words: "always," "invariably," "customarily" and "habitually." Conversely, if a person "generally" behaves or "often" acts in a particular situation, that is not sufficient to constitute habit.


FRE 407 - Subsequent Remedial Measures

can be used to show ownership or control


FRE 408 - Settlement/Compromise Negotiations

To exclude statements or admissions made during settlement negotiations, there must be an actual dispute between the parties. Any statements made during the course of settlement negotiations will be excluded.


FRE 409 - Admissions + Offer to Pay Medical Expenses

Admissions made in connection with an offer to pay medical expenses are severed and admitted.


FRE 404(a)(1) - Character Evidence

An accused may offer evidence of his good character by reputation and opinion, but not specific acts, to prove his innocence, and the prosecution may rebut with the same. However, D must first "open the door" by presenting such evidence of his good character before the prosecution is entitled to rebut the good character of the accused.


FRE 404(a)(2) - Character Evidence

If the accused offers evidence of a relevant character trait of the alleged victim (reputation and opinion), the prosecution in rebuttal may offer evidence of the same character trait of the accused (reputation and opinion). D need not first offer evidence of his good character to trigger a rebuttal by the prosecution.


FRE 405 (b) - Specific Instances of Conduct to Prove Character

Generally, character evidence is not admissible in civil trials unless it is impeachment evidence in the form of reputation or opinion evidence about a witness's truthfulness, or a question asked of the witness herself about prior bad acts relating to truthfulness. Where a person's character is an essential element of a charge, claim, or defense, character evidence may be used to prove the essential character issue. Civil types: defamation, negligent hiring, negligent entrustment, and child custody.


FRE 608 - Impeachment by specific instances of conduct

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime, may not be proved by extrinsic evidence." On the other hand, extrinsic evidence is permitted to impeach a witness by showing bias.


FRE 1002 - Best Evidence Rule

To prove the contents of a writing (recording,
photograph, X ray) the original must be
produced unless shown to be unavailable. Applies where contents are in issue ie. where testimony is reliant on the writing, not on personal knowledge


FRE 803(6) - Business Record

1) report or record concerning act or event
2) Made at or near the time
3) By a person with knowledge
4) Kept in the regular course of business
Lack of a record to prove that a transaction or occurrence had not taken place, is admissible if it was the regular practice of the business to record such events if they had actually occurred.


Past Recollection Recorded

1) W once had personal knowledge of the writing
2) W now forgets the writing and showing the writing to W does not jog his or her memory;
3) writing was either made by W or adopted by W;
4) writing was made when event was fresh in W’s memory; &
5) W can attest that, when made, the writing was


FRE 803(2) - Excited Utterance

Statement relating to a startling event made while declarant was under the stress of excitement caused by the event.


FRE 804(b)(2) - Dying Declaration

1. Statement must concern cause or circumstances of death
2. Unavailable declarant
3. Criminal homicide or any civil case
4. Declarant’s belief of imminent death


FRE 804(b)(3) - Declaration Against Interest

Statement of an:
1. Unavailable
2. Non-party (generally)
3. Against interest when made (penal, pecuniary or proprietary)


FRE 804(b)(4) - Statement of Pedigree

A statement concerning declarant’s own relationship by blood, adoption, or marriage or other similar fact of personal or family history.


Spousal Privilege

Criminal cases only. Protects communications BEFORE AND DURING marriage (impressions & observations). Lost at divorce.


Marital Privilege

Civil & Criminal cases. Protects communications only DURING marriage. Privilege survives divorce.