Evidence Flashcards

Question

Criminal Rape Shield

Answer 1

Reputation and opinion evidence of victim is inadmissible Evidence offered to prove victim’s sexual behavior or disposition is inadmissible Exceptions — specific instances of victim’s sexual behavior is admissible to show: 1) A third party is the source of injury or DNA evidence, or 2) Prior acts of consensual intercourse between victim and D

Answer 2

Impeachment casts an adverse reflection on the veracity of W’s testimony (can be character based and non-character based) Any party may impeach any W

Answer 3

1) Contradiction 2) Prior inconsistent statement (PIS) 3) Bias or interest 4) Sensory deficiencies -->E.g., W’s senses were incapable of producing the perceptions to which W testified 5) Reputation and/or opinion of untruthfulness -->Admissible to impeach W’s veracity by use of extrinsic evidence 6) Prior acts of misconduct -->Extrinsic evidence is prohibited 7) Prior criminal conviction

Answer 4

inadmissible unless credibility has been attacked (i.e., W has been impeached) Exception — W’s prior consistent statement is admissible if the statement was made before W had a motive to fabricate

Answer 5

Extrinsic evidence may be used to impeach W, except on collateral matters

Answer 6

Extrinsic evidence = any evidence other than W’s testimony at the current proceeding Includes evidence of out-of-court prior inconsistent statements Extrinsic evidence of contradictory facts is generally admissible to impeach W on material, non-collateral matters

Answer 7

a fact not material to issues in the case Says nothing about W’s credibility; only used to contradict W -->E.g., W1 testifies he was headed to the store when he saw D commit murder; defense cannot call W2 to testify that W1 was really headed to see his mistress — this is collateral (i.e., not material) to the issue of what W1 saw Test — to determine if evidence is collateral, ask: would the evidence be material to the given issue if not for W’s contrary assertion? If not, it is likely collateral

Answer 8

Contradiction — any evidence may be used to show W has made contradictory statements on material issues Prior inconsistent statement — W’s prior inconsistent statements may be used to impeach W’s present testimony 1) Establishing PIS — may be established through cross-exam or extrinsic evidence --Extrinsic evidence is inadmissible if the PIS relates to a collateral matter 2) Foundation requirement — W must have an opportunity to explain or deny the statement -->Not required for PIS by a hearsay declarant

Answer 9

if PIS is hearsay, it is admissible for impeachment purposes, but inadmissible as substantive evidence (to prove the truth of the matter asserted) I.e., a hearsay PIS may only be considered for its bearing on W’s credibility If the PIS is not hearsay or it falls under a hearsay exemption/exception, it may be considered for any purpose

Answer 10

Evidence of W’s bias, prior misconduct, or reputation for untruthfulness may be used to impeach W

Answer 11

may be established through cross-exam or extrinsic evidence Foundation requirement — W must be questioned on cross-exam regarding the facts that show bias or interest so that W has an opportunity to explain or deny

Answer 12

A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived those facts. A witness may also be impeached by showing that they had no knowledge of the facts to which they testified. There is no foundation requirement for proving the sensory deficiency with extrinsic evidence (meaning, the witness does not need to be confronted with the impeaching fact)

Answer 13

W may be questioned on cross-exam about any prior misconduct probative of truthfulness (i.e., lying or deceit) Arrests does not equal misconduct — must be an act of lying No extrinsic evidence permitted — W may only be asked about prior misconduct; questioning attorney must accept W’s answer

Answer 14

W may be impeached by testimony describing his reputation for untruthfulness in the community

Answer 15

If W is the D — admissible if govt. shows probative value outweighs prejudicial effect If W is non-D — admissible but court can exclude under 403 balancing Misdemeanors: inadmissible unless it involves dishonesty/false statements

Answer 16

Always admissible — court has no discretion to exclude under 403 (rare exception to 403) ->Includes felonies and misdemeanors Acts of dishonesty = prior conviction required proof or admission of an act of dishonesty or false statement (e.g., perjury, fraud)

Answer 17

Not admissible, unless: Probative value substantially outweighs unfair prejudice (note — inverse of 403 balancing) and adverse party is given notice Determining 10-year date — more than 10 years must have elapsed since date of conviction or date of release from confinement, whichever is later

Answer 18

an out-of-court statement offered to prove the truth of the matter asserted—is generally inadmissible, subject to certain exceptions and exemptions

Answer 19

an oral or written assertion, or non-verbal conduct intended as an assertion Non-human assertions are not statements (e.g., test results, radar gun reading, dog barking)

Answer 20

The term “out-of-court” means that the statement was not made by the declarant at the current trial or hearing.

Answer 21

Out-of-court statements are not hearsay if offered to prove anything other than the truth of the matter they assert Non-Hearsay: 1) Verbal Acts or Legally Operative Facts (defamation--fact that post was published) 2) Effect on Listener 3) Statements offered to show speaker's knowledge 4) Statements offered to show state of mind - statements offered as circumstantial evidence of declarant’s state of mind are not hearsay --> Compare with state of mind hearsay exception, which allows hearsay statements that reflect directly (not circumstantially) on declarant’s state of mind

Answer 22

fed. rules create both exceptions and exemptions to the hearsay ban: Exemptions — deemed “non-hearsay” and thus admitted Exceptions — deemed hearsay, but still admitted Note — beware of answer choices that turn on this distinction, such as “hearsay but admissible” or “not hearsay and admissible”

Answer 23

out-of-court statements by a party are admissible if offered against that party 1) Judicial statements — made in pleading or testimony 2) Adoptive statement — acquiescence in another’s statement 3) Vicarious statement — statement by someone other than the person against whom the statement is offered; arises with: Agency — statement by agent/employee on matters within scope of agency/employment is admissible against principal Authorized speaker — statement by one authorized by a party to speak on her behalf is admissible against the party Co-conspirator — co-conspirator’s statements are admissible against D if made in furtherance of conspiracy

Answer 24

Silence — can be a statement/admission if: 1) Party heard, understood, and was capable of responding; and 2) Reasonable person in the party’s position would have responded

Answer 25

a prior statement by a declarant who testifies and is subject to cross-examination is admissible where the statement is either: 1) Inconsistent with declarant’s testimony and given under oath, 2) Prior consistent statement — admissible to rebut charge of fabrication, improper motive or influence, or rehabilitate credibility, or 3) Prior statement of identification after perception — admissible to identify a person as someone declarant perceived earlier

Answer 26

A hearsay statement is admissible if it: 1) Relates to a startling or exciting event or condition; and 2) Was made while the declarant was under the stress or excitement of the event Declarant’s emotional state is key — declarant must be under such excitement or stress that one would not normally have an opportunity to fabricate the statement

Answer 27

A hearsay statement is admissible if it: 1) Describes or explains an event or condition; and 2) Is made contemporaneously with the event or immediately thereafter Timing is key — the statement must be made while, or immediately after, the declarant perceives the condition or event described in the statement

Answer 28

Hearsay statements are admissible if they concern a declarant’s state of mind, emotion, sensation, or physical condition existing at the time the statement was made

Answer 29

usually offered to show a declarant’s intent at the time the statement was made or as a circumstantial inference that declarant’s intent was likely carried out Distinguish from statements offered as circumstantial evidence of declarant’s state of mind, which are not hearsay Statements of intent may be admissible as circumstantial evidence tending to show that an act was committed at a later time *Statement must concern a then-existing condition or mental state *Statements of memory or belief are inadmissible b/c they do not reflect on a then-existing condition

Answer 30

usually offered to establish some physical condition, symptom, or sensation that declarant experienced at the time of the statement

Answer 31

Statements regarding past or present physical condition are admissible if made for the purpose of diagnosis or treatment. Can be describing the condition of someone else, like a family member. Requirements: 1) Statement must describe a person's medical history, past or present symptoms, or their general cause 2) Statement must be made for purpose of and reasonably pertinent to assisting in diagnosis or treatment --->Related statements (such as an admission) about an injury-causing event are usually inadmissible E.g., statement by declarant to an emergency room doctor that she was shot will be admissible, but the identity of the shooter will not, as it is not pertinent to treatment Medical Professional: Typically the statement is made to a medical professional (e.g., physician, nurse, EMT) but that is not a requirement

Answer 32

Requirements — hearsay statements in the form of business records are admissible if they are: 1) A record or transaction made or recorded by a business; E.g., receipts, reports, patient records 2) Made in the regular course of business (i.e., regular practice); 3) Made by someone with knowledge at or near the time of the matters described 4) Authenticated or certified in writing --Trustworthiness — court may exclude an otherwise qualifying record if circumstances indicate a lack of trustworthiness --Absence of record — records meeting these requirements may be admitted to show that a matter did not occur or exist

Answer 33

in criminal cases, police reports or other criminal investigative reports are inadmissible against the defendant as business records or public records

Answer 34

business records often involve multiple layers of hearsay; every layer must fall into some exception or exemption to be admissible E.g., minutes of a business meeting with a secretary’s notes of participants’ statements — secretary’s notes are one level of hearsay; participants’ statements are another

Answer 35

a public office/agency record is admissible if it: 1) Describes the activities of a public office or agency; 2) Describes either: a) Matters observed pursuant to a duty imposed by law, or b) Factual findings resulting from an investigation made pursuant to authority granted by law 3) Is made by a public employee within their scope of duty; and 4) Is made at or near the time of the event Exception — in criminal cases, police records or other criminal investigative reports are inadmissible Trustworthiness required — court may exclude an otherwise qualifying public record if the source of information or other circumstances indicate a lack of trustworthiness

Answer 36

certification or testimony from a public official that a diligent search failed to find a record is admissible to: a) Prove that the record does not exist, or b) Prove that a matter did not occur (if records were kept regularly)

Answer 37

Judgments — certified copies are admissible in both civil and criminal cases to prove any fact essential to the judgment Prior convictions — inadmissible in criminal cases against non-Ds unless used for impeachment

Answer 38

contents of a record/document W previously made or adopted is read into evidence Requirements: 1) W once had personal knowledge of the record's subject matter; 2) W’s memory is insufficient to testify as to the record’s contents (i.e., present recollection refreshed was ineffective) 3) Record was made or adopted by W when the matter was fresh in W’s memory; and 4) Record accurately reflects W’s knowledge

Answer 39

admissible if: 1) 20 or more years old; 2) Does not present any irregularities on its face; and 3) Found in a place of natural custody

Answer 40

For a hearsay statement that is not covered by a specific exception to be admitted, the Federal Rules provide a catch-all exception, which imposes the following conditions: *The hearsay statement must possess sufficient guarantees of trustworthiness. In making this determination, the court must consider: (1) the totality of the circumstances in which the statement was made, and (2) any evidence that corroborates the statement. *The statement must be strictly necessary (that is, more probative as to the fact for which it is offered than any other evidence that the proponent can reasonably produce). *The proponent must give reasonable notice to the adversary as to their intent to offer the statement, including: (1) the substance of the statement, and (2) the name of the declarant. Such notice generally must be given in writing in advance of the trial or hearing, but may be given in any form during the trial or hearing if the court, for good cause, excuses a lack of earlier notice.

Answer 41

Declarant is unavailable if either: 1) Privilege — exempt from testifying due to a privilege 2) Death or physical/mental sickness 3) Refusal to testify despite a court order 4) Lack of memory 5) Absent — beyond reach of court’s subpoena power and the statement’s proponent has not been able to procure attendance or testimony

Answer 42

Testimony given by a person in an earlier proceeding or deposition may be admissible Requirements — former testimony is admissible if: 1) Declarant is currently unavailable; 2) Declarant’s prior testimony was given under oath; and 3) Party against whom testimony is now offered was either: a) A party in the previous action and had an opportunity to cross-examine declarant; or ---Motive for cross-examining declarant in former hearing must be similar to the current motive b) A predecessor in interest of a party in the previous action, in which there was an opportunity to cross-examine declarant and a similar motive for doing so Predecessor in interest is one who has a close privity-type relationship with the party in the earlier proceeding Applicable in civil actions only Note — the MBE tests this exception; remember that it only applies if declarant is unavailable and the prior testimony was under oath

Answer 43

A hearsay statement is admissible if, at the time it was made, it was against the pecuniary or legal interests of the declarant Requirements — statement admissible if: 1) Declarant is currently unavailable; 2) Statement was contrary to declarant’s pecuniary, proprietary, or penal interest when made; and 3) A reasonable person would not have made the statement unless he believed it to be true *Criminal cases requirement — there must also be corroborating circumstances indicating the trustworthiness of the statement

Answer 44

A hearsay statement is admissible if the declarant made the statement under the belief of impending death and the statement describes the cause or circumstances of the impending death Requirements — statement admissible if: 1) Declarant is currently unavailable Unavailability ≠ death — death of declarant is not required 2) The out-of-court statement was made under the belief of impending death --Again, death is not required; declarant must only have believed he was dying when the statement was made 3) The statement was made regarding the cause or circumstances surrounding the belief of impending death Only available in: -Civil cases -Homicide cases

Answer 45

Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that: *The declarant is a member of the family in question or intimately associated with it; and *The statements are based on the declarant’s personal knowledge of the facts or their knowledge of family reputation

Answer 46

The statement of a person (now unavailable as a witness) is admissible when offered against a party who (1) has engaged or acquiesced in wrongdoing (2) that intentionally procured the declarant’s unavailability; (3) for the purpose to prevent the declarant from testifying Then statement is admissible.

Answer 47

Every item of physical evidence must be authenticated, i.e., the proponent must show that the evidence is what he claims it is Proving authentication — may be proved by any means that serve to establish authenticity (low burden) --Circumstantial Evidence can be used E.g., item may be compared with already-authenticated item Self-authenticating evidence — writings that contain identifying information do not need separate authentication E.g., deeds, notarized documents, newspapers

Answer 48

automatically authenticated if: 1) 20 or more years old; 2) Does not present any irregularities on its face; and 3) Found in a place of natural custody

Answer 49

must have personal knowledge to authenticate Need to show: 1) proof that camera was operating properly 2) proof that the images came from that camera Does fact testified to = fact perceived?

Answer 50

whether heard firsthand or through a recording, a voice may be identified by anyone who heard the voice at any time

Answer 51

item facially indistinguishable from others of its kind (e.g., bag of white powder, generic syringe) Proponent must establish “chain of custody,” i.e., that the proffered evidence is the same item it is claimed to be (will be admissible absent large breaks in chain)

Answer 52

If evidence is offered to prove the contents of a writing, an original document must be used unless it is unavailable “Writing” = any tangible collection of data (e.g., videos, documents, photos, books, e-mails, text messages, computer drives, x-rays)

Answer 53

Applicability — rule only applies if evidence is offered to prove its contents: W’s knowledge is obtained from a writing, case turns on contents of a legal instrument, etc.)

Answer 54

1) Originals 2) Duplicates — must be a machine or carbon copy Admissible unless there is a genuine question as to the authenticity of the original itself or admission is unfair 3) Testimony regarding contents — admissible if original is lost or destroyed, unless done so in bad faith by proponent of testimony Voluminous documents exception — a voluminous series of documents may be summarized in court ---Originals relied upon must be available for inspection

Answer 55

if a party introduces part of a writing or recorded statement into evidence, an adverse party may introduce any other part or any related statement, that in fairness ought to be considered at the same time and may do so over a hearsay objection

Answer 56

1) Facts exists independently of the doc (birth of a baby) 2) Issue is collateral (i.e. of minor importance) 3) Voluminous records-a voluminous series of documents may be summarized in court 4) Official public records

Answer 57

upon a party’s request, the court must order witnesses excluded from hearing other witnesses’ testimony Does not apply to parties or party representatives (e.g., where party is a non-person entity)

Answer 58

testifying witnesses must be competent, meaning they must satisfy requirements of basic reliability Witnesses are generally presumed to be competent Competency qualifications — to be competent, W must have: 1) Personal knowledge — W’s testimony must be based on her own perceptions (e.g., what W saw or heard) 2) Memory — W must have the ability to remember (e.g., must not have amnesia) 3) Communication — W must be able to relay her perceptions, either directly or through an interpreter 4) Sincerity — W must take an oath or affirm to tell the truth Diminution of any of the above capacities usually goes only to the weight of testimony (i.e., makes W less persuasive)

Answer 59

Testimony in the form of opinion is inadmissible unless W qualifies to give either lay or expert opinion

Answer 60

opinion testimony is admissible if it is: 1) Rationally based — opinion is rationally based on W’s perception 2) Helpful — opinion is helpful to the trier of fact I.e., gives the jury more information regarding W’s perception than the perception alone Legal conclusions are inadmissible b/c they are deemed unhelpful 3) Not expert — not based on scientific, technical, or other specialized knowledge (i.e., not in the realm of expert opinion) (Ex: speed of car, emotional state of an individual, voice recognition, sense recognition--smelled bad, intoxication)

Answer 61

use of documents to refresh W’s memory during testimony Anything can be used to refresh W’s memory W cannot read aloud from a document, but can look at it briefly, then continue testimony unassisted Opponent may inspect and offer into evidence anything used to refresh W’s memory Document is not read into evidence (distinguish from recorded recollection) (recorded recollection is a hearsay exception (see card 30); as such it may be admitted in to evidence (distinguish from present recollection refreshed))

Answer 62

Experts may provide opinions on facts or issues in the case

Answer 63

expert testimony is admissible if: 1) Helpful — expert opinion must be helpful to the trier of fact I.e., expert uses specialized knowledge to reach conclusions an average juror would not reach alone 2) Qualified — expert must possess special knowledge, skill, experience, training, or education 3) Reasonable certainty — expert must believe in her opinion to a reasonable degree of certainty 4) Proper factual basis — opinion must be based on facts Expert may base opinion on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon (e.g., data, other testimony, experience) 5) Reliable principals reasonably relied upon Scientific evidence — if expert opinion is based on science, court also considers whether evidence is: a) Peer tested and capable of retesting; b) Published; c) Has a low error rate; and 4) Reasonably accepted in the field of study

Answer 64

experts may render an opinion on any ultimate legal issue Exception — experts cannot give opinion on D’s mental state in a criminal trial if it is an element of a crime or defense

Answer 65

non-specific, open-ended question that allows W to tell a story rather than give specific testimony in response to specifically asked questions

Answer 66

question itself suggests the answer; improper on direct unless W is hostile or an adverse party; acceptable on cross-exam

Answer 67

question makes an assumption which has not been established on the record

Answer 68

a question that is not designed or intended to elicit relevant facts, but rather is an argumentative assertion

Answer 69

question that asks more than one question at a time; attorneys must ask questions individually

Answer 70

arises on cross-exam Attorneys must confine their questions during cross-exam to the scope of direct (i.e., they cannot ask questions involving matters not discussed on direct)

Answer 71

Unresponsive/nonresponsive — W’s testimony does not relate to or directly answer the question asked

Answer 72

Fed. courts recognize several testimonial privileges. Held by who has the privilege (client) and needs to be asserted. There are no FRE privilege rules; fed. courts have created and adopted these privileges. These privileges are not FRE rules; the MBE usually assumes the existence of these privileges, but an answer choice indicating any of these privileges is an evidentiary rule will be incorrect State privilege rules (which often vary) apply in fed. cases based on diversity jurisdiction Testimonial privileges: 1) Attorney-client 2) Clergy-penitent 3) Spousal 4) Marital communications 5) Psychotherapist/social worker-patient 6) Governmental 7) Self-incrimination 8) Physician-Patient Privilege

Answer 73

under 5th Amend., W cannot be compelled to provide self-incriminating testimony in either civil or criminal cases W may invoke privilege if there is a reasonable possibility of self-incrimination Civil cases — jury may draw an adverse inference from W’s assertion of 5th Amend. privilege Criminal cases — D cannot be punished for invoking privilege

Answer 74

Communications between an attorney and client or client’s representatives are privileged in all proceedings unless waived Organizational clients — privilege applies to any employee authorized to speak to the attorney

Answer 75

To be protected, a communication (not underlying evidence) must be: 1) Intended to be confidential; and --not intended to be disclosed to a third party or communicated in the known presence of a stranger (not eavesdroppers) 2) Made to facilitate legal services 3) No waiver--can occur thru K 4) No exceptions

Answer 76

privilege does not apply to: 1) Crime or fraud — privilege does not apply if a client seeks legal services to aid in the planning or commission of a fraud or a crime 2) Attorney defending malpractice claim — privilege does not apply if communication relates to an alleged breach of the attorney’s duty *Fees not covered

Answer 77

no privilege: Where an attorney acts for both parties in a transaction, no privilege can be invoked in a lawsuit between the parties But privilege can be claimed in a suit between either or both of the parties and a third person

Answer 78

prevents disclosure of information confidentially conveyed by a patient to a physician Statutory privilege not recognized in FRE, but recognized and applied in most fed. courts on the basis of state law To be protected, communication must be: 1) Made for purposes of obtaining diagnosis or treatment; 2) Pertinent to diagnosis or treatment; and 3) Intended by the patient to be confidential

Answer 79

privilege does not apply where: a) Patient’s condition is a legal issue (e.g., personal injury), b) Physician’s services were sought to aid in a crime, tort, or to escape capture, or c) Dispute between doctor and patient (e.g., malpractice)

Answer 80

material conveyed by patient is privileged in all civil or criminal cases if: 1) Client intends the communication to be confidential; and 2) Communication is made to facilitate therapy or social work

Answer 81

criminal cases only A person whose spouse is a D in a criminal case cannot be: a) Called as a witness by the prosecution, or b) Compelled to testify against his spouse in a criminal proceeding 1) Only the W-spouse may invoke the privilege (i.e., D cannot prevent a willing spouse from testifying against her) 2) Privilege can only be invoked during marriage 3) Marriage must be valid

Answer 82

civil and criminal Confidential communications made during marriage are privileged in any later proceeding -->Applies even if spouses divorce after confidential communication was made Either spouse may invoke the privilege A spouse can lose the privilege if he breaks confidentiality (i.e., relays a marital communication to a third party) -->The other spouse still retains the privilege

Answer 83

1) Suits between spouses 2) Suits in which one spouse is charged with a crime or tort against children 3) Suits in which spouses are co-defendants

Answer 84

Federal courts and many states recognize a privilege for statements made to a member of the clergy, the elements of which are very similar to the attorney-client privilege. Requirements: 1) Intended to be confidential; and --not intended to be disclosed to a third party or communicated in the known presence of a stranger (not eavesdroppers) 2) Made to facilitate religious services 3) No waiver--can occur thru K 4) No exceptions

Answer 85

Official information not otherwise open to the public may be privileged. The government also holds a privilege that protects the identity of an informer (someone who has provided the government with details of a potential crime). The privilege is waived if the informer’s identity is voluntarily disclosed by a privilege holder (an appropriate government representative).

Evidence Flashcards

(109 cards)