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BAR exam Con Law > Evidence > Flashcards

Evidence Flashcards

1
Q

When can an evidentiary ruling be reversed even if the opposing party didn’t object?

A

Plain error - an error that effects the substantial right of the party. (effecting the verdict)

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2
Q

Conditional relevance rule

A

whether there is enough evidence to determine if the necessary fact existed.

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3
Q

When should a limiting instruction be given by the judge?

A

Evidence admissible for one party/purpose but inadmissible for another party or purpose.

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4
Q

Rule of completeness

A

When a party introduces part of a writing/recording, the adverse party may introduce any other part of the writing for context/fairness.

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5
Q

When is the rule of completeness not applicable?

A

When it includes inadmissible evidence such as hearsay.

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6
Q

What are three preliminary questions?

A

CAP
Competency
Admissibility
Privilege

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7
Q

What is the effect of judicial notice on the jury?

A

Civil - must accept as fact

Criminal jury - MAY accept it

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8
Q

Who has the burden of production

A

Civil - plaint.

Crim - prosecution

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9
Q

When is preponderance of the evidence used in criminal trials?

A

Motion to surpress

Validity of confession

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10
Q

What is the burden to prove insanity?

A

Clear and convincing evidenc

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11
Q

When can the court exclude relevant evidence?

A

When the probative value is substantially outweighed by:

1) prejudice
2) confussion of the issue
3) misleading the jury
4) delay/cumulative

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12
Q

what are the there forms of character evidence

A

Reputation
Opinion
Specific Acts

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13
Q

What types of civil cases

A

Defamation
Child Custody
Negligent entrustment
Negligent hiring

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14
Q

When the def. puts on character evidence what can the prosecution do?

A

Cross- specific acts

direct - reputation and opinion

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15
Q

How does the court treat habit evidence?

A

It is admissible substantively: both opinon and specific acts

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16
Q

How are SUBSEQUENT remedial measurers treated?

A

Inadmissible to prove:
Negligence, culpable conduct, failure to ward

Admissible: ownership/control, impeach, feasibility

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17
Q

Admissibility of offers/settlements negotiations?

A

Inadmissible: validity/amount, liability, impeachment

Admissible:
bias/prejudice, undue delay

note: need a dispute

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18
Q

Admissibility of medical bills/expenses?

A

Inadmissible but admissions are admissible.

note: don’t need a dispute

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19
Q

Admissibility of Plea negotiations

A

Inadmissible: any statement made to PROSECUTORS during plea negotiations

note: doesn’t apply to police

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20
Q

Do plea negotiation protections apply to admissions to police officers?

A

No - only prosecutors

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21
Q

Admissibility of Liability Insurance

A

Inadmissible: to prove negligence or fault

Admissible: ownership/control, bias/prejudice

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22
Q

Rape shield rule

A

In any civil or criminal proceeding involving alleged sexual misconduct, evidence offered to show:
The victim’s sexual behavior, predisposition, or sexual history is excluded

23
Q

Exception to the rape-shield rule

A
  • to negate source of semen (past acts with other men)

- consent (past acts with THIS defendant)

24
Q

What is required to bring in exceptions to rape shield?

A

1) notice;
2) the evidence is reviewed in camera by the judge; and
3) the evidence alleges sexual misconduct.

25
Q

In a criminal/civil case in which the defendant is accused of child molestation or sexual assault (FRE 413, 414), specific acts by the defendant are?

A

Admissible (including to prove propensity)

26
Q

Attorney client privilege

A

1) confidential
2) communication (not observations by atty)
3) seeking legal advice

27
Q

How do federal courts treat patient/doctor relationships?

A

There is no doctor-patient privilege in federal court (there is psychiatric/patient privilege)

28
Q

What is the major exception to marital privilege?

A

joint participation in a crime

29
Q

When does spousal immunity apply?

A

Only in criminal cases
during and before marriage (divorce destroys)
by the party spouse

30
Q

What are the different types of immunity?

A

Transactional - broad, cannot be prosecuted for the underlying offense

Use - statements by witness may not be used against him but prosecutors can prosecute with independent evidence

31
Q

When does the 5th amendment apply?

A

only to testimonial evidence (on the stand)

doesn’t apply to physical or demonstrative evidence

32
Q

Who may impeach a witness?

A

Any party

33
Q

How do you impeach a witness using character of untruthfulness?

A

reputation and opinion evidence that they are not truthful.

34
Q

Explain impeachment process for witnesses?

A

Direct - reputation and opinion about untruthfulness

Cross - specific acts about untruthfulness

Bolster - Reputation and opinion only if attacked

35
Q

A lay witness may testify if they have what type of knowledge?

A

personal knowledge?

36
Q

Who may impeach a witness?

A

Any party

37
Q

Admission by conduct (hearsay exemption)

A

A reasonable person would have denied statement

38
Q

Adoptive admission (hearsay admission

A

Evidence sufficient to show party heard and understood the statement and adopted it as her own

(example - friend has drugs)

39
Q

When are employee statements admissible as exempt hearsay?

A

1) made during scope of employment;

2) in a matter related to scope of THEIR employment

40
Q

Co-conspirator statements as exempt hearsay?

A

1) existence of conspiracy
2) member of conspiracy
3) made in furtherance of conspiracy
4) made during the existence of conspiracy

41
Q

Prior statements

A

3 types:

1) prior ID
2) prior consistent
3) prior inconsistent

2 requirements:

a) testify at trial; and
b) available and subject to cross

42
Q

Present sense impression exception

A

Declarant must make during or immediately after event. Verbal or in writing

43
Q

Excited utterance

A

statements made during the stress or excitement of an event

44
Q

State of mind/then existing mental, physical condition.

A

Must be present. be aware of past tense

45
Q

Recorded recollection

A

1) witness once had knowledge
2) now has insufficient recollection
3) made when fresh
4) statement reflects knowledge (authentication)

46
Q

Business records

A

1) made in regular course of business
2) foundation witness is familiar with record keeping process
3) trustworthiness (determined by judge)

examples - sales receipts hospital records, payroll

47
Q

Absence of entry into a business record

A

1) witness familiar w/ records; 2) diligently searched; 3) found no record of event

48
Q

What are the unavailability hearsay scenarios (when is the declarant unavailable)

A

PRISM

Privilege
Refusal 
Incapacitated
Subpoena
Memory
49
Q

Former testimony

A

Admissible

1) if made under oath;
2) same or related proceeding or deposition.
3) opportunity to cross about same subject matter

Note- doesn’t have to be same cause of action

50
Q

Statements made under impending death (Dying declaration)

A

1) must be made under imminent death
2) needs to be a homicide case (ok in civil)
3) DON’T actually have to die

51
Q

Statements made against interest

A

1) non party

2) against pecuniary, penal, or proprietary interest at time it was made.

52
Q

What’s the difference between non-testimonial and testimonial statements?

A

Testimonial statements are made to further an investigation/build a case while non-testimonial statements are made to aide police during an ongoing emergency.

53
Q

What is the foundation for demonstrative evidence.

A
  • Must assist the trier of fact; and
  • Fairly and accurate represent
  • witness must be substantially familiar w/ items shown
54
Q

What kind of documents are self authenticating?

A

CONTAC

1) certified documents
2) Official publication by a PUBLIC auth.
3) Newspapers/periodicals
4) Trade inscriptions
5) Acknowledged documents (notarized)
6) Commercial paper

BAR exam Con Law (9 decks)

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