EVIDENCE Flashcards
(146 cards)
1
Q
To be admissible, evidnece must be:
A
material, competent, and probative
2
Q
______ evidence relates to a fact of consequence to the determination of the action
A
Material
3
Q
Evidence is ________ if it contributes to proving or disproving a material issue.
A
probative
4
Q
Evidence is _________ if it does not violate an exclusionary rule.
A
competent
5
Q
Evidence that a plaintiff has filed similar tort claims in the past generally is admissible to show __________.
A
that the present claim is false, where the prior claims were also false
6
Q
What type of evidence can come only from someone with actual knowledge of a disputed fact by means of his senses?
A
Direct
7
Q
Under the Federal Rules, is a criminal defendant’s withdrawn guilty plea ever admissible as evidence?
A
No.
8
Q
Under the Federal Rules, a trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of:
A
Unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or cumulative evidence
9
Q
________, __________, and _________ are all factors in determining the relevance of evidence.
A
Materiality; probativeness; proximity in time to the events in question
10
Q
Under the Federal Rules, evidence of a defendant’s withdrawn guilty plea is __________ admissible in subsequent civil proceedings.
A
Never
11
Q
In a tort lawsuit, the defendant seeks to introduce evidence that the plaintiff has filed similar tort claims in the past, which were false. Is this evidence likely admissible?
A
Yes, to prove that the present calim is likely to be false.
12
Q
Evidence that one party to a lawsuit has liability insurance may be admissible:
A
To prove ownership or to impeach a witness. Not to show ability to pay a judgment.
13
Q
When is evidence considered competent?
A
When it does not violate any exclusionary rule
14
Q
Evidence of subsequent repairs to a product may be admissible to prove:
A
Ownership or control of the product.
15
Q
Evidence of subsequent repairs may be __________ to show __________.
A
Admissible; that a party destroyed evidence
16
Q
Evidence of a party’s liability insurance is inadmissible __________.
A
where offered to show the insured’s ability to pay a substantial judgment
17
Q
In determining relevance, the evidence’s __________ is not a factor.
A
form or manner
18
Q
A firm has an established business routine. What is this relevant to show?
A
That a particular event occurred
19
Q
Under the Federal Rules, admissions of fact made in the course of settlement negotiations are often inadmissible.
In order for this rule to apply:
A
There must be some indication that a party is going to make a disputed claim
20
Q
In a personal injury lawsuit where the plaintiff claims that he was injured after falling on the defendant’s slippery floor, the defendant seeks to introduce evidence that no one had ever slipped on his floor before.
What is this evidence most likely relevant to prove?
A
That the defendant lacked knowledge of any danger
21
Q
The custom of a particular industry is not admissible to __________.
A
show that a party likely acted in accordance with that custom on the occasion in question
22
Q
What is the custom of a particular industry admissible to show?
A
That a party’s actions adhered to or deviated from an industry-wide standard of care
23
Q
A criminal defendant wants to show that she is a peaceful person and unlikely to have committed the violent act of which she is accused.
She __________ call a witness to testify about __________.
A
may; the D’s reputation for peacefulness
24
Q
If a criminal defendant takes the stand and testifies, her __________ is automatically in issue.
A
credibility
25
In a negligence case where the plaintiff alleges that the defendant driver ran a red light and hit her, testimony that the defendant invariably failed to stop at the particular stop sign in question is considered:
habit evidence
26
In which of the following situations may the prosecution introduce evidence of the defendant’s bad character to establish she probably committed the crime charged?
Where the D first introduces evidence of her good character.
27
In order for prior misconduct to be admissible, there must be:
Sufficient evidence to support a jury finding that the defendant committed the prior misconduct
28
Character evidence is admissible in a civil case if __________.
character is directly in issue.
29
If the defendant in a murder case pleads self-defense and introduces evidence that the victim was a violent person, the prosecution may:
Introduce testimony that the defendant has a reputation for violence
30
Once a defendant in a __________ case puts her character in issue, the other party can rebut by calling witnesses to testify about the defendant’s reputation for the same character trait.
criminal (not civil)
31
Prior misconduct evidence is inadmissible if the danger of unfair prejudice __________ the probative value.
substantially outweighs
32
In a criminal rape case, the defense may introduce evidence of the alleged victim’s sexual behavior with a person other than the accused to:
Prove the source of semen, injury, or other physical evidence
33
In a criminal case, the prosecution can call witnesses to testify about the defendant’s character for a particular trait to establish the defendant acted in conformity with that trait:
Only if the defendant has already put that particular character trait in issue
34
A defendant wants to show that she is a peaceful person and unlikely to have committed the violent crime of which she is accused.
Which of the following are both permissible ways of introducing this evidence through a character witness?
Having the witness testify that the defendant has a reputation for peacefulness, or that he believes the defendant to be peaceful
(no specific acts)
35
A defendant is charged with murdering a gang member. Evidence that prior to the murder, the defendant joined a rival gang known for selling drugs in the area may be admissible to prove:
motive
36
Evidence of prior acts or crimes may be admissible to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake in __________.
either civil or criminal cases.
37
A character witness testifies as to the defendant’s good character. The prosecution cross-examines the character witness regarding the defendant’s specific instances of misconduct.
If the witness denies knowledge of the defendant’s acts, when may the prosecution seek to prove them through extrinsic evidence?
Never, the prosecution is limited to inquiry on cross-examination
38
In __________ cases involving sexual assault, evidence offered to prove the sexual disposition or behavior of the alleged victim is admissible if it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party.
Civil
39
In a civil case, when character is directly in issue, that character may be proved by evidence in the form of:
Reputation, opinion, or specific acts
40
__________ is a type of civil claim where character evidence may be admissible because character is often “directly in issue.”
Negligent hiring
41
A character witness testifies as to the defendant’s good character. The prosecution then cross-examines the character witness regarding the defendant’s specific instances of misconduct.
If the witness denies knowledge of the defendant’s acts, the prosecution may __________ seek to prove those acts through extrinsic evidence.
Not
42
In a civil case involving sexual assault, under what circumstances will evidence offered to prove the sexual disposition or behavior of the alleged victim be admissible?
If it is otherwise admissible under the Federal Rules and its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party
43
Once a defendant in a __________ case puts her character in issue, the other party can rebut by calling witnesses to testify about the defendant’s reputation for the same character trait.
criminal
44
In civil cases, evidence of an alleged victim’s sexual reputation is:
Admissible only if it has been placed in controversy by the victim
45
In a criminal rape case, under what circumstances may the defense introduce evidence of the alleged victim’s sexual behavior with a person other than the accused?
To prove the source of semen, injury, or other physical evidence.
46
In order for prior misconduct to be admissible, there must be:
Sufficient evidence to support a jury finding that the defendant committed the prior misconduct
47
In any __________ proceeding involving alleged sexual misconduct, evidence offered to prove the sexual behavior or sexual disposition of the alleged victim is generally __________.
criminal or civil; inadmissible
48
If a defendant in a criminal case puts her character in issue, which of the following is an impermissible method of rebutting defendant’s character evidence?
The prosecution asks the witness about a certain bad act committed by the defendant, and after the witness denies knowledge of it, the prosecution proves the bad act by extrinsic evidence.
*Can ask a witness about bad acts committed by D. Can also call new witness to testify about D's repuation for trait involved.
49
What legal phrase refers to a rule that requires that a particular inference be drawn from an ascertained set of facts?
Presumption
50
The presumption of __________ is a common rebuttable presumption.
legitimacy
51
In a dispute between the parties regarding whether a particular document was signed by the defendant, or by a forger, who decides this preliminary fact under the Federal Rules?
the jury.
52
Under the Federal Rules, the ____ decides questions of relevancy of evidence, while the ______ decides questions of the competency of relevant evidence.
jury; judge
53
If two or more conflicting presumptions arise, the _____, not the ______, shall apply the presumption that is founded on the weightier considerations of policy and logic.
judge; jury
54
A _________ is a rule that requires that a particular inference be drawn from an ascertained set of facts. It is a form of substitute proof or evidentiary shortcut, in that proof of the __________ fact is rendered unnecessary once evidence has been introduced of the ________ fact that gives rise to the ____________.
presumption; presumed; basic; presumption
55
A presumption is overcome or destroyed when the adversary_______________.
produces some evidence contradicting the presumed fact.
56
The term “burden of proof” involves:
Both the burden of producing evidence and the burden of persuasion
57
A party’s burden of __________ is the burden of introducing sufficient evidence to avoid judgment against her as a matter of law.
producing evidence
58
The presumption of __________ is a common rebuttable presumption.
legitimacy
*Where legitimacy is in dispute, the law presumes that every person is legitimate. The mere fact of birth gives rise to the presumption. The presumption is destroyed by evidence of illegitimacy that is “clear and convincing.”
59
A court will take judicial notice of the what facts?
1. Matters of common knowledge within the community, and
| 2. Matters easily verified by resorting to easily accessible, well-established sources
60
A jury must accept as conclusive any fact judicially noticed __________.
In a civil case, but not in a criminal case
61
The burden of ______________ is the burden of introducing sufficient evidence to avoid judgment against her as a matter of law.
producing evidence
*There must be enough evidence to create a fact question of the issue involved, so that the issue may appropriately reach the jury.
62
If, after all the proof is in, the issue is equally balanced in the minds of the jury, then the _________________must lose.
party with the burden of persuasion
63
Once a particular scientific test has become _____________, courts no longer require proof of the underlying basis of the test
sufficiently well-established
64
A court may (but is not required to) take judicial notice of:
municipal ordinances
65
True or False: Proof of the presumed fact is unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption
True.
66
In a dispute between the parties regarding whether a particular document was signed by the defendant, or by a forger, who decides this preliminary fact under the Federal Rules?
THe jury
67
If two or more conflicting presumptions apply, the _______ decides which presumption to apply.
judge
68
Permissible inference?
Where it is shown that a letter was properly addressed, stamped, and mailed, an inference arises that the letter has been delivered in the due course of mail.
Nope
69
Permissible inference?
The intentional destruction or mutilation of relevant evidence may give rise to an inference that the destroyed evidence is unfavorable to the spoliator.
Yup.
70
Permissible inference?
Where the attorney who drafted a will is its principal beneficiary to the exclusion of the natural objects of the testator’s bounty, an inference of undue influence may arise.
Yup.
71
Permissible Inference?
An inference of negligence arises where the accident would not ordinarily occur without negligence by someone in the defendant’s position.
Yup--this is res ipsa loquitor.
72
The standard of proof for authenticating a document is:
proof sufficient to support a jury finding of genuineness.
73
Under the __________, if an agreement is reduced to writing with the intent that it embody the full and final expression of the bargain, that writing is the agreement and constitutes the only evidence of it.
parol evidence rule
74
Under the best evidence rule, the term “original” includes:
Any copy intended by the person executing it to have the same effect as an original
75
True or False?
In some circumstances, real evidence may be authenticated by a witness’s testimony that the object is what the proponent claims it is)
True.
76
Under the Federal Rules of Evidence, the question of __________ must be submitted to the judge, rather than the jury.
Whether oral testimony regarding an original’s contents is admissible
77
A witness testifies that she saw the defendant shoot the victim with a gun. The prosecution then introduces that gun into evidence. The gun is:
a. testimonial evidence
b. real evidence
c. documentary evidence
b. real evidence
78
True or False?
| A lay person cannot become familiar with a voice after litigation has begun if it is for the sole purpose of testifying.
False
79
A voice, whether heard firsthand or through a device (e.g., a tape recording) may/ may not be identified by the opinion of anyone who has heard the voice at any time.
may
80
Not all oral statements need to be authenticated; only where ___________________ is authentication required.
the identity of the speaker is important (e.g., admission by a party)
81
Statements made during a telephone conversation may be authenticated by one of the parties to the call who testifies that the _____________________________.
speaker had knowledge of certain facts that only a particular person would have.
82
If helpful in deciding a disputed issue in a case, the jury may be permitted to view the scene:
in civil or criminal cases
83
Evidence in the form of a writing is known as:
documentary evidence
84
Parol evidence is admissible when used to prove __________________.
that the contract is void or voidable.
85
The best evidence rule __________ where the writing involved is a contract or deed or where the witness knows a given fact only from having read it in a document.
applies
86
By definition, __________ evidence is a type of real evidence that has some connection with the real world event that is in question at the trial.
original
87
___________ evidence is evidence proved as a basis for an inference that other facts are true.
circumstantial
88
The best evidence rule ____________apply to facts such as birth, marriage, and death.
does not
*These facts may be proved orally, although certificates evidencing these facts are in existence. Where the fact to be proved has an existence independent of any writing (such as birth, marriage, or death), the best evidence rule does not apply.
89
A writing may be authenticated by evidence that the party against whom the writing is offered has _____________________.
acted upon the writing as authentic.
90
A document that is __________ does not require extrinsic evidence of authenticity as a condition to admissibility.
self-authenticating
91
If a jury is permitted to view a scene at issue in a case, the trial judge:
usually need not be present.
92
Before a writing can be admitted into evidence, it must be __________.
authenticated
93
A writing __________ be authenticated by __________.
may; evidence that the party against whom it is offered has admitted its authenticity.
94
If the condition of an object of real evidence is significant, the object must be shown to be in __________ condition at trial.
substantially the same
95
A _______ is an example of a self-authenticating document.
Newspaper
(i) Certified copies of public records (an uncertified copy would not qualify);
(ii) Official publications (i.e., books, pamphlets, or other publications purporting to be issued by a public authority);
(iii) Printed materials purporting to be newspapers or periodicals;
(iv) Trade inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin;
(v) Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments;
(vi) Commercial paper, signatures thereon, and documents relating thereto, to the extent provided by general commercial law; and
(vii) Business records certified as such by a custodian or other qualified person.
96
Before a writing may be received in evidence, the writing must be authenticated by proof showing that the writing is __________.
what the proponent claims it is.
97
Certified copies of public records, newspapers, periodicals, trade inscriptions, and business records certified as such by a custodian or other qualified person are all examples of __________.
self-authenticating documents
98
The knife used by the defendant in an attempted murder case is an example of ______ evidence.
Original
*A similar knife would be circumstantial evidence and a drawing of the knife would be demonstrative evidence; neither would be considered original evidence.
99
The best evidence rule does not apply where __________.
the fact to be proved has an existence independent of a writing
100
A _________ of the original document would satisfy the best evidence rule without any need for explanation.
photocopy.
101
Under the best evidence rule an “original” means not only the writing or recording itself, but also a __________ intended by the person executing it to have the same effect as an original.
copy
102
On cross-examination, questions that __________ are __________.
are leading; allowed
103
Generally, a witness may be deemed incompetent to testify if he __________.
has no recollection of the matter
104
A memorandum used by a party at trial to refresh a witness’s present recollection:
need not be authenticated
*The writing is intended to help the witness to recall by jogging her memory, but the witness usually may not read from the writing while testifying. The memorandum is not introduced into evidence by the party using it to refresh the witness’s recollection (although it may be introduced by the adverse party).
105
True/ false
| An expert’s opinion may be based on evidence introduced at the trial and communicated to the expert by counsel
True
106
Which of the following objections to deposition testimony may validly be made after the deposition?
a. objection as to relevance
b. objection to leading question
c. objection based on testimonial privilege
d. objection to compound quesiton
a. objection as to relevance.
Objections going to the substance of a question or answer (e.g., relevance, hearsay) can be postponed until the deposition is offered in evidence.
107
Dead Man Acts generally provide that a person or party interested in the event is incompetent to testify to a personal transaction or communication with:
The deceased, when offered against the representative or successors in interest of the deceased
108
How old must a witness be in order to be deemed competent to testify?
There is no precise age. Trick question!
109
Under the Federal Rules, opinion testimony by lay witnesses is permissible if it is rationally based on the perception of the witness, as well as:
Helpful to a clear understanding of her testimony or to the determination of a fact in issue, and not based on scientific, technical, or other specialized knowledge
110
If a party objects to hearsay, and the court sustains the objection, the ruling will be upheld on appeal:
Only if the ground stated is the correct one, not if there was any valid ground for the objection.
111
A ________ (lay/expert) witness may base his opinion on facts not known personally but supplied to him outiside the courtroom and such facts _______ (need/need not) be admitted in evidence.
expert; need not
112
An objection may be either general (“I object”) or specific (“Objection, relevance”). If a specific objection is sustained, the ruling will be:
Upheld on appeal only if the ground stated was the correct one
113
Under most Dead Man Acts, a person with a pecuniary interest in the outcome of the litigation is:
incompetent to testify
114
At trial, what is the result when a party uses portions of a memorandum to refresh the recollection of a witness on the stand?
The adverse party may introduce these portions of the memorandum into evidence
115
If a witness is ___________, the judge may allow leading questions on direct examination.
Hostile
116
May a lay witness testify that she recognizes a document as being written in the defendant’s handwriting?
Yes, but only if a foundation is laid
117
If a __________ objection is sustained, the ruling will be upheld on appeal if __________.
Specific; the ground stated was the correct one
118
A ________ (lay/expert) witness may base his opinion on facts not known personally but supplied to him outiside the courtroom and such facts _______ (need/need not) be admitted in evidence.
expert; need not
119
An objection may be either general (“I object”) or specific (“Objection, relevance”). If a specific objection is sustained, the ruling will be:
Upheld on appeal only if the ground stated was the correct one
120
Under most Dead Man Acts, a person with a pecuniary interest in the outcome of the litigation is:
incompetent to testify
121
At trial, what is the result when a party uses portions of a memorandum to refresh the recollection of a witness on the stand?
The adverse party may introduce these portions of the memorandum into evidence
122
If a witness is ___________, the judge may allow leading questions on direct examination.
Hostile
123
May a lay witness testify that she recognizes a document as being written in the defendant’s handwriting?
Yes, but only if a foundation is laid
124
If a __________ objection is sustained, the ruling will be upheld on appeal if __________.
Specific; the ground stated was the correct one
125
Under the Federal Rules, an expert witness __________ opine on a(n) __________ in a case.
may; ultimate issue
126
A prior felony conviction not involving dishonesty is admissible against a criminal defendant if what standard is met?
The probative value outweighs the prejudicial effect
127
Impeachment of a witness is primarily concerned with:
Attacking the witness's credibility
128
True or false: Extrinsic evidence of prior bad acts is permissible where the witness on cross-examination denies committing the bad act.
False.
129
A court may disallow use of a recent prior conviction involving dishonesty as impeachment evidence:
Under no circumstances. No balancing test for prior conviction involving lying.
130
Under the Federal Rules, __________ may impeach a witness.
| which party?
any party
131
True or false: An unavailable hearsay declarant may be impeached by evidence that would be admissible if the declarant had testified as a witness.
True.
There is no requirement that a declarant must be present at trial to be impeached. If the declarant is impeached with evidence of her prior inconsistent statement, the foundational requirement that she must explain or deny her statement does not apply. Furthermore, where the declarant’s credibility is impeached, it may also be rehabilitated.
132
Extrinsic evidence is always permitted to show a witness’s __________, and there are no foundational requirements.
prior criminal conviction
133
Under the Federal Rules, a party cannot impeach a witness by showing that the witness has __________.
a violent disposition, e.g.
134
Generally, a party may not bolster the credibility of her own witness unless the witness has already been impeached. The two exceptions to this rule are when the bolstering is relevant to show:
Timely complaint; prior identification
135
May a prior conviction be used to impeach a witness, even if the witness is currently appealing the conviction?
Yup.
136
When impeaching a witness with extrinsic evidence of bias, that evidence _____ (need/ need not) be substantively admissible in order to be admitted for impeachment purposes.
need not
137
Extrinsic evidence may be used to prove up a prior inconsistent statement if the statement:
Is directly relevant to the issues in the case
*It is not enough that the prior inconsistent statement cast doubt on the witness’s credibility, i.e., it cannot be about a collateral matter.
138
Under the Federal Rules, a conviction is usually too remote to be admissible as impeachment evidence, if more than __________ years have passed since the date of conviction or release from confinement.
10
139
Under the Federal Rules, a party may impeach a witness __________.
even if he called the witness himself.
140
Under what circumstances do the Federal Rules permit cross-examination of a witness about a prior act of misconduct?
Only where the act is probative of truthfulness.
141
Before a prior inconsistent statement can be proved by extrinsic evidence, two requirements must be met. They are:
foundation; relevance
142
True or False?: A party is not permitted to show that a witness’s bias is justified
True.
143
Under the Federal Rules, there are no foundational requirements for impeaching a witness by admitting proof of her __________ by extrinsic evidence.
prior criminal conviction
144
Prior statements by a witness that are consistent with the witness’s testimony at trial are sometimes used to rehabilitate a witness who has been impeached.
A party may rehabilitate his witness by introducing a prior consistent statement where __________.
another party has impeached the witness by charging that the witness is lying because of some motive, and the prior consistent statement was made before that motive existed
145
To impeach a criminal accused with his prior felony conviction that did not involve dishonesty or a false statement, the government must show that __________.
the conviction’s probative value as impeachment evidence outweighs its prejudicial effect
146
In order to impeach __________ with a felony conviction not involving dishonesty, the government must show that the conviction’s probative value outweighs its prejudicial effect.
the accused in a criminal case
