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Flashcards in Evidence Deck (81)
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1

What are 4 public policy reasons evidence is excluded?

1. Liability insurance
2. Subsequent Remedial Measure
3. Settlement Offers & Withdrawn guilty pleas
4. Offers to Pay Medical Expenses

2

1. Evidence of Subsequent Remedial Measures Not Admissible to Prove? (3)

2. When may evidence of Subsequent Remedial Measures be admissible? (3)

A) culpable conduct
B) product design
C) need for warning or instruction

A) ownership
B) claim of precaution impossible
C) destruction of evidence

3

When may similar occurrences be relevant and therefore admissible?

If there probative value outweighs their prejudicial value.

4

What are 9 similar occurrences that may be admissible?

1. Causation
2. False Claim or Same Bodily Injury
3. Similar Accidents or Injury
4. Similar Acts to Prove Intent
5. Rebut Defense of
6. Sale of similar sales of property
7. Habit
8. Business Routine
9. Industry Custom Standard of Car

5

When are similar accidents or injuries caused by same event or condition admissible? (3)

1. show existence of dangerous condition

2. DEF had knowledge of dangerous condition

3. dangerous condition was the cause

6

When is evidence of sales of similar property admissible?
ex:

2. Are prices quoted admissible?

3. How about unaccepted offers?

1. To shoe value
ex: x home taken in condemnation case or burned in fire can bring in evidence of other sales

2. No

3. Yes if used against him as admission

7

1. For habit evidence to qualify what must it be ?

ex: not habit

1. Frequent repeated conduct

ex: person rides in a car and only 3 times and says driver always comes to a complete stop

8

Character Evidence What 4 questions do yo need to ask?

1. What purpose offered
2. What method or technique
3. Civil or Criminal
4. Prove pertinent character trait

9

3 purposes Character Evidence may be offered?

1. Character is at issue in case

2. Circumstantial evidence of conduct

3. Bolster or Impeach Witness

10

1. Action for injuries auto accident. Plaintiff calls witnesses to testify DEF has a reputation as a reckless driver, admissible?

2. Same case DEF calls witness who offers to testify that, in his opinion, DEF is a careful driver. Admissible?

3. Civil action molestation case DEF denies molestation, PLAINTIFF offers evidence of DEF molesting other children, admissible?

1. NO

2. NO

3. YES

11

2 exceptions character evidence of DEF admissible criminal case?

ex:

1. Sexual Assault or Child Molestation case.

2. DEF admitted evidence of Victims Character, prosecution can be first to offer evidence the DEF has the SAME character trait.

ex: DEF admits evidence that victim has violent character, prosecution can offer DEF violent character.

12

What are the two ways DEF can open the door to victims character?

1. DEF offers evidence of victims character, prosecution may rebut.

2. Homicide case DEF offers evidence victim attacked first, prosecution may offer evidence of victims peacefullness

13

1. Rape Shield Civil Rules Generally?

2. If DEF (civil) wants to bring in reputation of victim what must happen?

1. Reputation opinion and specific instances admissible if probative outweighs prejudicial.

2. PLAINTIFF must have put reputation at issues

14

Rape Shield Criminal Rules Generally ?

1. Reputation or Opinion

2. Specific instances a & b ?

1. Reputation and Opinion evidence inadmissable.

2. a. 3rd party source of semen
b. prior acts consent between DEF and victim.

15

1. Generally are specific instances of DEF's bad character admissible to prove DEF's Character?

2. If relevant for what may specific instance be brought in to prove?

1. NO

2. M MOTIVE
I INTENT
M MISTAKE
I IDENTITY
C COMMON PLAN / SCHEME

16

1. Antitrust case. PLAINTIFF attorney calls PLAINTIFF on direct asks :isn't it true the DEF fixed prices?" Objection?

2. Antirust case. DEF attorney on cross-exam asked PLAINTIFF "Isn't it true you farted when you swore to tell the truth?" Objection

1. Leading - on direct

2. Beyond the Scope

17

1. Divorce case. Husband testifies that since his wedding he has never looked at another woman. On cross wife's counsel asked "do you expect the jury to believe that baloney?" Objection ?

2. Divorce case. On cross exam wife's counsel asks "isn't true that you cheated on your wife and beat her?" Objection?

1. Argumentative

2. Compound question

18

1. 5 elements of Recorded Recollection:

2. Once 5 elements are met, what can witness do?

1. Once had personal knowledge
2. Can't remember now
3. Witness made or adopted report
4. At time of report fresh in memory
5. Accurately made

Read the document to the jury,

19

1. Lay opinion admissible if? (3)

2. 5 topics for lay witnesses

1. helpful
2. rationally based
3. based on perception

1. intoxication
2. speed
3. sanity
4. emotions
5. value of witness property

20

Expert testimony 5 requirements

1. Helpful
2.Qualified
3. Reasonably certain
4.Supported by Facts
5.Reliable principles

21

Factual Basis - Expert

3 ways expert can base his factual basis:

1. admitted evidence (in court case)
2. personal knowledge
3. inadmissible evidence, reasonably relied upon

22

Reliable Principles, reasonably applied - Expert

5 Daubert / Koho

What do you need under FED.

1. Peer reviewed
2. Published journals
3. test and retested
4. low error rate
5. reasonable level of acceptance

ALL (1-4) except reasonable level of acceptance



23

1. When is a prior consistent statement NOT hearsay and admissible for all purposes (2) ?

2. What does the time line look like?

If made: 1. before inconsistent statement
2. before bribe

24

Can impeach BMI

BIAS
MOTIVE
INTENT

25

If witness is given a chance to explain or deny (a statement) what has happened? And what can you now do if witness denied?

Foundation has been laid

You can admit the document

26

Prosecution for tax fraud. DEF testifies and admits his tax returns did not report all his income, but claims this was unintended. Prosecution offers evidence that DEF previously convicted of filing a false police report. Admissible to prove DEF has character of a liar? Admissible to prove credibility?

No - not for proving character

Yes -

27

1. Can you impeach w/ non conviction misconduct bearing on truthfulness?

2. What type of act?

3. Extrinsic evidence allowed?

1. Yes

2. lying

3. No - only can cross examine

28

1. Can you impeach with Reputation / Opinion regarding truthfulness?

2. Extrinsic evidence allowed

3. What is ex personal injury case

1. yes

2. yes

3. Plaintiff testifies he suffers from back pain after accident. DEF witness testifies that he lives in community with knows Plaintiff for many years and Plaintiff is known as a liar.

29

Personal injury action. Plaintiff testifies he suffers back pain because of an accident. Defense witness testifies he lives in plaintiffs community and has know plaintiff for years. Witness testifies that he believes plaintiff is a liar and is known in the neighborhood as "shifty." Admissible?

1. yes

30

1. Breach of contract, DEF denies entering the contract PLAINTIFF offers out of court statement of DEF's secretary who said "I saw DEF sign the contract" Hearsay?

2. Same case witness testifies she heard DEF say to PLAINTIFF "I accept your offer" Hearsay? What can be done here?

1. YES - if secretary is lying our would be misled

2. NO - "i accept" has independent legal significance
in contract law.