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Bar Exam Prep > Evidence > Flashcards

Evidence Flashcards

1
Q

Evidence is Relevant When. . .

A

Makes existence of any fact of consequence to the determination of the action (MATERIALITY) more or less probable than it would be without the evidence (PROBATIVENESS)

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2
Q

Relevant Evidence

A

Relates to time, person, or event at issue, e.g.:

a) To prove causation
b) Prior false claims
c) Similar accidents caused by the same condition
d) Rebutting a claim of impossibility
e) Habit
f) Business routine and industrial custom

Exceptions for certain similar occurrences

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3
Q

Habit vs. Character Evidence

A

Character evidence is more general and often inadmissible

(e.g.: “Charlie never stops at the stop sign at Main and Oak.” = habit
vs.
e.g.: “Charlie is a careless driver.” = character)

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4
Q

Liability Insurance

A

INADMISSIBLE to prove:

a) Negligence;
b) Ability to pay

ADMISSIBLE to prove:

a) Ownership or control,
b) Impeachment; or
c) As part of an admission of liability

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5
Q

Subsequent Remedial Measures

A

INADMISSIBLE to prove:

a) Negligence
b) Culpable conduct
c) Defect

ADMISSIBLE to prove:

a) Ownership or control
b) Feasibility of the repair
c) Destruction of evidence

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6
Q

Settlement Offers and Accompanying Admissions of Fact

A

INADMISSIBLE to prove or disprove:

a) Validity or amount of disputed claim; or
b) To impeach by prior inconsistent statement or contradiction

EXCEPTION - preexisting information is NOT protected

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7
Q

Payments or Offers to Pay Medical Expenses

A

INADMISSIBLE to prove:
a) Liability

BUT NOTE - accompanying statements of FACT are ADMISSIBLE (unlike rule for settlement negotiations)

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8
Q

Withdrawn Guilty Pleas and Accompanying Statements

A

Generally INADMISSIBLE

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9
Q

Rule 403 - Balancing Test

A

Judge has broad discretion to exclude evidence if its PROBATIVE VALUE is SUBSTANTIALLY outweighed by:

a) Unfair prejudice
b) Confusion of Issues
c) Misleading the jury
d) Undue consumption of time

Rule 403

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10
Q

Permitted Character Evidence

A

a) Reputation testimony
b) Opinion testimony
c) Specific acts - usually NOT permitted UNLESS:
-character is directly at issue in the case (rare);
-in sexual assault or child molestation causes;
-when act is independently relevant (act relevant to
an issue other than D’s character) [Rule 412(b)(1)]

Rule 404

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11
Q

Specific Acts Relevant to an Issue Other Than Defendant’s Character

A

Acts relevant to “MIMIC” issues are generally ADMISSIBLE

1) Motive
2) Intent
3) Mistake (absence of)
4) Identity
5) Common plan or scheme

Prosecutor must give notice before trial or during trial (if good cause exists for lack of pretrial notice)

Rule 404(b)(2)

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12
Q

Specific Acts Relevant to Defendant’s Character

A

INADMISSIBLE, except for when:

a) Character is directly at issue in the case (rare);
b) In sexual assault or child molestation causes;
c) When act is independently relevant (act relevant to an issue other than D’s character)

Rule 404(a)(1)

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13
Q

Can D introduce character evidence?

A

In a CRIMINAL case, D MAY introduce evidence of his OWN good character to show innocence

In a CIVIL case, character evidence is generally NOT admitted (exceptions exist)

Rule 404(a)(2)(A)

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14
Q

Can the prosecution introduce evidence of D’s bad character?

A

In a CRIMINAL case, the prosecution may introduce evidence of D’s bad character for:

a) A rebuttal when D “OPENS THE DOOR”
b) Specific acts that are independently relevant (“MIMIC”)
c) Specific similar acts by D in sexual or child molestation cases (admissible for ANY relevant purpose, including propensity) [Rule 412(b)(1)]

Rule 404(a)(2)(A)

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15
Q

Can D introduce character evidence of the victim?

A

In a CRIMINAL case, D MAY introduce character evidence of the victim if it is RELEVANT to his INNOCENCE (generally in self-defense cases)

Rule 404(a)(2)(B)

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16
Q

When/Can the prosecution enter character evidence of the victim?

A

In a CRIMINAL case, the prosecution may REBUT character evidence of the victim introduced by D for:

a) D’s bad character for same trait; or
b) Victim’s good character for same trait

May only be done AFTER D’s evidence is admitted

Rule 404(a)(2)(B)

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17
Q

Rule 404

A

Character Evidence

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18
Q

When can character evidence be admitted in a civil case?

A

a) When character is DIRECTLY in issue (e.g.: defamation, negligent hiring);
b) Similar specific acts in a sexual assault or child molestation case; or
c) Specific acts that are independently relevant (“MIMIC”)

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19
Q

Effect of Real Evidence

A

1) Object is presented DIRECTLY to trier of fact for inspection
2) Allows trier of fact to reach conclusions based on its OWN perceptions rather than relying upon those of witnesses

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20
Q

Direct Evidence

A

Offered to prove the facts about the object in and of itself

e.g.: Evidence of a permanent injury can be shown by the injury itself

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21
Q

Circumstantial Evidence

A

Facts about the object are proved as a basis for an inference that other facts are true

(e.g.: In a paternity case, the child can be shown to the jury to demonstrate the child is the same race as the alleged father)

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22
Q

Original Evidence

A

Has some connection with the transaction that is in question at the trial

(e.g.: The alleged murder weapon in a murder case)

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23
Q

Prepared Evidence

A

Evidence in the form of representation of an object

Also called “demonstrative” evidence

(e.g.: sketches, models, jury view of scene)

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24
Q

Authentication Methods for Real Evidence

A

Evidence must be authenticated:

a) Recognition testimony by witness - if item has recognizable features
b) Chain of custody - if evidence is a type likely to be confused or if it can be easily tampered with
c) Writings must be authenticated by proof showing they are what the proponent claims they are (unless self-authenticating)

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25
Q

Chain of Custody Requirement for Authentication

A

Proponent must show that the object has been held in a SUBSTANTIALLY UNBROKEN chain of possession

Need not negate ALL possibilities of substitution or tampering, but must show adherence to some system of identification and custody

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26
Q

Documentary Evidence

A

A document i.e.: a will, deed, or K that is offered as evidence

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27
Q

Authentication Methods for Documentary Evidence (3)

A

a) Writings must be authenticated by proof showing they are what the proponent claims they are (unless self-authenticating)
b) Authenticated by stipulation, evidence of authenticity, etc.
c) Oral statements (only when important)

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28
Q

Standard for Authentication of Documentary Evidence

A

Proof sufficient to support a jury finding of genuineness

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29
Q

Best Evidence Rule

A

“Original Document Rule”

In proving the terms of a writing (including a recording, photograph, or x-ray), where the terms are material, the original writing must be produced

Only applies in certain situations (2)

Secondary evidence is allowed ONLY if the original is unavailable for some reason OTHER than the serious misconduct of the proponent

If the fact exists independently of a writing, the Best Evidence Rule does NOT apply

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30
Q

When is secondary evidence permitted?

A

Secondary evidence is allowed ONLY if the original is unavailable for some reason OTHER than the serious misconduct of the proponent

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31
Q

When does the Best Evidence Rule apply?

A

a) When the writing is a legally operative or dispositive instrument (e.g.: K, deed, will, divorce decree)
b) When the witness’s knowledge of a fact comes from having read it in the document

If the fact exists independently of a writing, the Best Evidence Rule does NOT apply

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32
Q

Requirements for a Witness to Testify

A

1) Personal knowledge of the subject matter
2) Sworn oath or affirmation that the witness will testify truthfully
3) All witnesses presumed competent under the Federal Rules until the contrary is demonstrated (no age requirement)

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33
Q

Dead Man Act

A

Not recognized by Federal Rules; statutes vary by state

May bar an interested person from testifying in a CIVIL case as to communication with a deceased, if such testimony is offered against the representative of the deceased

Many exceptions to this act and “door-openers”

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34
Q

Lay Opinion Testimony Requirements

A

Testimony must be rationally based on

a) witness’s perception;
b) helpful to the jury; and
c) NOT based on scientific or technical knowledge

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35
Q

Lay Opinion Testimony - Common Examples

A

1) General appearance or condition of a person
2) State of emotion
3) Speed of a moving object
4) Intoxication
5) Sanity
6) Voice or handwriting identification

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36
Q

Expert Opinion Testimony - 4 Questions to Ask

A

1) Is the subject matter one where expert testimony would ASSIST the trier of fact? (relevant and reliable)
2) Is the expert QUALIFIED on the subject?
3) Does the expert possess reasonable PROBABILITY regarding her opinion?
4) Is the opinion supported by a PROPER FACTUAL BASIS? (personal observation, facts made known to her AT trial; or facts supplied OUTSIDE the courtroom) and of a type reasonably RELIED UPON by experts in the field)

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37
Q

Daubert Test - What is it?

A

Standard used by judge to assess whether an expert witness’s scientific testimony is based on scientifically valid reasoning that can properly be applied to the facts at issue

Test used in Federal Courts, replaced Frye standard (some state courts still use Frye)

Rule 702

38
Q

Daubert Test - Factors

A

Factors considered in determining whether the methodology is valid are:

1) whether the theory or technique in question can be and has been tested;
2) whether it has been subjected to peer review and publication;
3) its known or potential error rate;
4) the existence and maintenance of standards controlling its operation; and
5) whether it has attracted widespread acceptance within a relevant scientific community

39
Q

Frye Standard

A

Court must determine whether or not the method by which that evidence was obtained was generally accepted by experts in the particular field in which it belongs

Abandoned by many states, replaced by Daubert test in Federal Courts and other states

40
Q

Who can attack the credibility of a witness?

A

Any party

41
Q

Can a party attack the credibility of its own witness?

A

Yes

42
Q

Common Methods of Witness Impeachment

A

Impeachment by cross-examination and (some methods) extrinsic evidence

1) Prior inconsistent statement
2) Bias
3) Prior conviction of crime (limitations)
4) Prior bad acts (limitations)
5) Opinion or reputation evidence of untruthfulness
6) Sensory deficiencies
7) Contradictory facts

43
Q

Can a party introduce evidence of a prior conviction of a crime to impeach a witness?

A

a) Yes,
For any crime (misdemeanor or felony) involving dishonesty or false statement cannot be excluded by the judge (no discretion)

b) Any other felony
c) Limitations on remoteness (10-year rule)

44
Q

Can a party introduce evidence of prior bad acts to impeach a witness?

A

a) Yes,
Must be probative of truthfulness (i.e.: act of deceit)

On cross-examination ONLY
No extrinsic evidence permitted

45
Q

What are the (6) privileges recognized in federal courts?

A

1) Attorney-Client Privilege
2) Spousal Immunity
3) Marital Communications Privilege
4) Psychotherapist/Social Worker-Client Privilege
5) Clergy-Penitent Privilege
6) Governmental Privileges

If not one of these, check if state law applies with respect to the privileges (i.e., is it a diversity case?)

46
Q

Steps for Determining if the Testimony is Privileged (3)

A

1) Identify the privilege, its scope, and its holder
2) Are there any exceptions, waivers, or limitations?
3) Check applicability in federal court (6 recognized privileges)

If not one of the 6, check if state law applies with respect to the privileges (i.e., is it a diversity case?)

47
Q

Attorney-Client Privilege Applies. . .

A

Client must be seeking attorney’s services at the time of the communications

Communications must be confidential (not intended to be disclosed to third parties)

Termination of attorney-client relationship does NOT terminate privilege; even survives death

Special rules for corporate clients

48
Q

Situations Where Attorney-Client Privilege is not Applicable (4)

A

1) Where the client seeks legal advice in aid of CRIME or fraud
2) Parties claiming through the SAME deceased client
3) DISPUTE between attorney and client (e.g.: malpractice)
4) Client puts LEGAL SERVICES at issue

49
Q

Physician-Patient Privilege Applies. . .

A

No federal privilege, but recognized in many states

Information must be acquired WHILE professional relationship exists, WHILE attending patient, and information must be NECESSARY for treatment

50
Q

Situations Where Physician-Patient Privilege is not Applicable (2)

A

1) DISPUTE between patient and physician (e.g.: malpractice)

2) Patient puts PHYSICAL CONDITION at issue (e.g.: personal injury lawsuit)

51
Q

Psychotherapist/Social Worker-Client Privilege

A

Similar to attorney-client privilege

52
Q

Privileges Related to Marriage (2)

A

1) Spousal Immunity Privilege

2) Confidential Marital Communications Privilege

53
Q

Spousal Immunity

A

Privilege not to testify in a CRIMINAL case (only)

Privilege belongs to witness-spouse under Federal Rules

Can only be asserted DURING marriage, although the matters at issue may have occurred prior to the marriage

54
Q

Confidential Marital Communications

A

Applies in BOTH civil and criminal cases

Privilege belongs to BOTH spouses

Communication must have been made during a valid marriage, but divorce WILL NOT terminate the privilege retroactively

Protects communications only, NOT observations

55
Q

Exceptions to Marital Privileges

A

Applies to both privileges

Privilege does NOT apply in:

1) Legal actions BETWEEN the spouses
2) Cases involving crimes against the TESTIFYING spouse or either spouse’s children
3) In furtherance of JOINT CRIME or fraud

56
Q

Hearsay is. . .

A

an out of court statement, made by a human, being offered for the truth of the matter

“Statement” can be oral or written assertion, or nonverbal conduct intended as an assertion

Rule 801

57
Q

Hearsay by Animals

A

No such thing

Nonhuman declarations are not hearsay (animals, machines, etc.)

58
Q

Out-of-Court Statements Not Offered for Their Truth (4)

A

1) Legally operative facts (e.g.: words of a K or defamation)
2) Offered to prove effect on reader or listener (e.g.: notice)
3) Circumstantial evidence of declarant’s state of mind
4) Impeachment

Not offered for their truth, therefore NOT hearsay

59
Q

Is hearsay within hearsay admissible?

A

Both inner and outer hearsay statements must fall within a hearsay exception to be admissible

60
Q

Hearsay Statements Categorized as Non-hearsay Under Federal Rules (4)

A

1) Statement by an OPPOSING party
2) Prior INCONSISTENT statement of testifying witness
3) Prior CONSISTENT statement of testifying witness
4) Prior statement of IDENTIFICATION of testifying witness

Rule 801, 802

61
Q

Statement by an Opposing Party (3)

A

1) A statement by or attributable to a party, offered against that party (does not have to be against interest)
2) Adoptive admissions (e.g.: party’s silence in the face of an accusation)
3) Vicarious admissions (i.e.: made by the party’s authorized spokesperson, agent, co-conspirator, etc.)

Categorized as non-hearsay by federal rules
Also called “admission” of a party-opponent

Rule 801, 802

62
Q

Adoptive Admissions

A

Hearsay exception for statement by an opposing party

Statement that is against an accused is not inadmissible hearsay, IF the accused is aware of the statement and has INDICATED ACCEPTANCE that the statement is TRUE

Can be oral or written or by conduct
(e.g.: party’s silence in the fact of an accusation)

Rule 801, 802

63
Q

Vicarious Admissions

A

Hearsay exception for statement by an opposing party

Statements made by a DECLARANT AUTHORIZED by the party to make the statement, or by a servant or agent, if it concerns a matter within the scope of the servant

Rule 801, 802

64
Q

Prior Inconsistent Statement of Testifying Witness

A

Hearsay exception for statement by an opposing party when made UNDER OATH at a prior proceeding or deposition

Rule 801, 802

65
Q

Prior Consistent Statement of Testifying Witness

A

Hearsay exception for statement by an opposing party in certain circumstances when offered to REHABILITATE an impeached witness

Rule 801, 802

66
Q

Prior Statement of Identification of Testifying Witness

A

Hearsay exception for statement by an opposing party for the identification of a person made after perceiving
the person

(e.g.: photo identifications)

Rule 801, 802

67
Q

Hearsay Exceptions Where Declarant MUST be Unavailable to Testify (5)

A

a) Former testimony - under oath
b) Statement against interest
c) Dying declarations
d) Statement of personal or family history
e) Statement against party procuring unavailability

68
Q

When is former testimony, under oath, admissible?

A

Admissible when declarant is UNAVAILABLE, and the party against whom the testimony is offered (or his predecessor in interest in civil cases) must have been a PARTY IN THE FORMER ACTION

69
Q

When are statements against interest admissible?

A

Admissible when declarant is UNAVAILABLE, the declarant must have KNOWN the statement was AGAINST her pecuniary, proprietary, or penal INTEREST when made

70
Q

When are dying declarations admissible?

A

Admissible when declarant is UNAVAILABLE, if the person reasonably believes that death is imminent and the testimony is concerning the cause or circumstances of death

Homicide and civil cases ONLY
Declarant didn’t have to actually die

Rule 804(b)(2)

71
Q

Can a dying declaration be admitted into evidence if the person who made the declaration didn’t die?

A

Yes, as long as they are UNAVAILABLE to testify AND the case is either a HOMICIDE or a CIVIL case

Person only had to believe death was imminent, doesn’t have to actually die

Exception to hearsay

Rule 804(b)(2)

72
Q

Rule 804

A

Hearsay Exceptions where Declarant is Unavailable

73
Q

Rule 802

A

The Rule Against Hearsay

74
Q

Can a statement regarding personal or family history be admitted into evidence when the declarant is unavailable?

A

Yes, if the declarant is unavailable, AND the declarant is a member of the family in question or immediately associated with the family, then this falls under an exception to hearsay

75
Q

Can a statement against the party procuring the unavailability of the declarant be admitted into evidence, even though the declarant is unavailable?

A

Yes, the unavailable declarant’s hearsay statements ARE admissible against the party who procured her unavailability by DELIBERATE wrongdoing

76
Q

Hearsay Exceptions Where Declarant’s Unavailability is Immaterial (11)

A

“The reasonably prudent individual usually stays behind and orders birthday cake.” (mnemonic)

1) Excited utterance
2) Present sense impression
3) Then-existing state of mind
4) Exceptions relating to bodily conditions
5) Business records
6) Recorded recollection
7) Official records
8) Ancient documents
9) Learned treatise
10) Statements in documents affecting an interest in property
11) Catch-all exception

77
Q

“The reasonably prudent individual usually stays behind and orders birthday cake” is a mnemonic for. . .

A

These are the hearsay exceptions where the declarant’s unavailability is immaterial

T - learned TREATISE
R - RECORDED recollection
P - PRESENT SENSE IMPRESSION
I - statement in documents re: INTEREST IN PROPERTY
U - excited UTTERANCE
S - STATE OF MIND
B - BUSINESS RECORDS
A - ANCIENT DOCUMENTS
O - OFFICIAL RECORDS
B - BODILY conditions
C - CATCH-ALL
78
Q

What is an excited utterance?

A

A statement made under stress of an exciting event

Doesn’t matter if declarant is unavailable or not
Hearsay Exception

79
Q

What is a present sense impression?

A

A statement made DURING or IMMEDIATELY AFTER the event or condition

Doesn’t matter if declarant is unavailable or not
Hearsay Exception

Rule 803

80
Q

When is a declarant’s ‘then-existing state of mind, emotion, or sensation’ admissible into evidence? (2)

A

1) When state of mind is directly at issue in the case
2) To prove subsequent acts of declarant

Doesn’t matter if declarant is unavailable or not
Hearsay Exception

Rule803

81
Q

What statements relating to bodily conditions are admissible into evidence? (2)

A

1) Statement of own present condition (admissible even if not made to a physician)
2) Statement made for medical diagnosis or treatment - includes past conditions; also includes CAUSE or source of injury if pertinent to Dx or Tx

Doesn’t matter if declarant is unavailable or not
Hearsay Exception

Rule 803

82
Q

What are the requirements for a declarant’s business records to be admissible into evidence?

A

1) Record must be made in regular course of business; and
2) Matters must be within the personal knowledge of the entrant or someone with a business duty to transmit such matters to the entrant

Doesn’t matter if declarant is unavailable or not
Hearsay Exception

Rule 803

83
Q

What is a recorded recollection? Is it admissible into evidence?

A

It is a document that (i) the witness once had knowledge but now has insufficient recollection to testify fully and accurately, (ii) the document was shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory, and (iii) to reflect that knowledge correctly.

Document not admissible, but may be read to the jury
Can be entered into evidence by other party
Distinguished from “refreshing recollection”

Doesn’t matter if declarant is unavailable or not
Hearsay Exception

Rule 803

84
Q

Refreshing Recollection

A

Witness testifies from their OWN memory, AFTER reviewing the document (no hearsay problem)

85
Q

How is refreshing recollection different from a recorded recollection?

A

In refreshing recollection, the witness testifies from their OWN memory AFTER reviewing the document. There is no hearsay problem for refreshing recollection.

A recorded recollection is an exception to the hearsay rule that applies when there is a document that “the witness once had knowledge but now has insufficient recollection to…testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory, and to reflect that knowledge correctly.”

A recorded recollection may be read aloud, but the document cannot be entered into evidence (except by the opposing party).

Rule 803

86
Q

What is the relevant year for the ancient documents exception to the hearsay rule?

A

1998

Statements in authenticated documents prepared before 1998 are admissible as an exception to hearsay

Doesn’t matter if declarant is unavailable or not
Hearsay Exception

Rule 803

87
Q

When are learned treatises admissible into evidence?

A

If they are used during the examination of an expert and established as reliable

Doesn’t matter if declarant is unavailable or not
Hearsay Exception

Rule 803

88
Q

What is the “catch-all” exception to the hearsay rule?

A

If a statement is not covered by a specific exception, but it
(i) has guarantees of trustworthiness,
(ii) the statements is strictly necessary, and
(iii) notice is given to adversary
It can be admissible as an exception to the hearsay rule

Doesn’t matter if declarant is unavailable or not
Hearsay Exception

89
Q

When is a hearsay statement offered against the accused in a criminal case barred by the Confrontation Clause?

A

Statement will be barred if:

a) the declarant is unavailable;
b) the statement was “testimonial” in nature; and
c) the accused had no opportunity to cross-examine the testimonial statement prior to trial

Applies EVEN IF statement falls under an exception to the hearsay rule

90
Q

What is the Confrontation Clause?

A

Under the Sixth Amendment, the confrontation clause states that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

The Fourteenth Amendment makes the right to confrontation applicable to the states AND the federal government

The right only applies to criminal prosecutions, not civil cases or other proceedings.

91
Q

What is a “testimonial” statement?

A

1) Statements made in the course of a police investigation when the primary purpose is to establish facts potentially relevant to a later criminal prosecution; or
2) Affidavits or written reports of forensic analysis

Statements made to ASSIST police in an ONGOING emergency are NON-TESTIMONIAL

For criminal cases only

92
Q

When are Confrontation Clause rights forfeited?

A

If D commits a wrongful act intended to keep the witness from testifying at trial, D forfeits his rights under the Confrontation Clause

Bar Exam Prep (8 decks)

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