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NY/ MBE Bar Study > Evidence > Flashcards

Flashcards in Evidence Deck (31):
1

What is the "substantial similarity" requriement of evidence where evidence is offered to show the non-existence of a dangerous condition of causation by showing absence of pior accidents?

the party offering evidence must lay a foundation showing a substantial similarity of the conditions and circumstances of each scenario

2

When will the statement of a person claiming to be an employee/ agent be admitted/ offered against their employer? (2)

1. employee is shown to be valid employee of employer
2. statement concerned a matter w/in scope of employment

3

When will a Defendant's 5th amend. privilege against self-incrimination not apply?

When the D has already testified to facts in his favor
(D may not testify to facts in his favor and refuse to testify about potentially incriminating facts)
**voluntarily taking the stand waives 5th amend. privilege

4

What is the main exception to the "Dead Man's Act"?

survivor(s) of an automobile accident can testify as to facts of negligence arising out of the deceased person's ownership or operation of an automobile

5

What 3 conditions must be met for information about other similar accidents caused by the same event to be admissible?

Such information is Inadmissible unless
1. other accident(s) are virtually identical to the accident in the current case showing the existence of a dangerous condition
2. causation
3. D has prior notice of other similar accidents referenced

6

What is the "Dead Man's Act"?

a party interested in the outcome of the litigation may not testify against the interest of the representative of a deceased person concerning any personal transaction or communication between them

7

What is the general rule regarding compromises, settlements, guilty pleas & payments?

Not admissible to prove negligence, culpable conduct, or damages

8

When are subsequent remedial measures admissible? (2)

Generally inadmissible to show negligence etc unless
1. to show ownership/ control
2. to impeach D's assertion of infeasibility of precautionary measures

9

What are the 2 elements of the present sence impression/ excited utterance hearsay exception?

1. the Statement describes an event
2. and is made while event is occuring or shortly after

10

What 6 types of contemporaneous statements concerning declarants condition/ state of mind are admissible (hearsay exception)?

1. emotions
2. mental feelings
3. intent/ future plans
4. sensations
5. bodily health
6. statements of future intent to act w/ 3rd party
-does not include memory or belief

11

What 5 elements must be met for the past recollection recorded hearsay exception?

witness...
1. once had personal knowledge
2. has forgotten & seeing writing doesnt jog memory
3. made/ adopted the writing
4. made writing when event was fresh in their mind
5. attests that when made, writing was accurate

12

What are the 4 parts of the business records hearsay exception?

1. made in regular course of business
2. business regularly keeps such records
3. made contemporaneously
4. contents consist of info observed by employees of business OR statemetns fit another hearsay exception

13

What type of statements does the medical diagnosis/ treatment hearsay exception NOT cover? (2)

Covers statements for purpose of treatment but NOT
1. statements of fault
2. statement about the ID of wrongdoer

14

What type of public records may NOT be offered against a D in a criminal case?

Police reports
-officers conclusion of fault may be offered in record in civil case

15

What is the relevance requirement for the former testimony hearsay exception?

the relevance of former testimony being offered in the current trial must be substantially similar to its relevance in prior proceeding

16

In using the statement against interest hearsay exception, when is the right to cross-examine satisfied? (3)

1. D already had chance to cross examine declarant
2. D now has chance to cross examine declarant
3. D has forfeited chance to cross examine declarant

17

What is hearsay evidence?

Out of court statement offered to prove truth of the matter asserted in statement.
-Generally inadmissible unless falls into exception

18

What are the 2 necessary elements for a statement to fall under the dying declaration hearsay exception?

1, statement was made under belief of certain/ impending death
2. and the statement concerns the cause/ circumstances of impending death

19

When refreshing a witnesses' memory, what does the opposing party have the right to do w/ refreshing evidence? (3)

1. inspect
2. use on cross examination
3. introduce into evidence

20

@hat 2 purposes may prior inconsistent statements or conduct of a trial witness be used for?

1, to impeach a witness
2. and as substantive evidence if prior statement was made under oath as part of formal hearing/ desposition

21

What 5 hearsay exceptions require that the declarant be unavailable?

1. former testimony
2. statements against interest
3. dying declaration
4. statement of personal/ family history
5. forfeiture of wrongdoing

22

What is extrinsic evidence/ examination?

impeaching by introducing documentary evidence or by calling other witnesses

23

What are some examples of bias that can be used to impeach a trial witness?

1. witness is a friend, relative, employee of party
2. witness is/was paid by party
3, witness has grudge against party
4. witness has somethign to gain by cases result

24

What 3 types of interests are covered by the statement against interest hearsay exception?

1. pecuniary
2. proprietary
3. penal (need corroboration with offered to exculpate D)

25

When may witness' character for truthfulness be rehabilitated?

Generally, only after witness' credibility has been attacked through impeachment

26

What 2 forms of evidence may be admitted to rehab witness' character for truthfulness?

1. reputation
2. opinion
(specific acts not allowed)

27

What 3 elements must be met for a prior consistent statement to be admissible to rehab witness & as substantive evidence?

1. prior statement must be consistent w/ witness trial testimony
2. opp. party has sugested witness motive to lie
3. prior statement made b4 motive to lie arose

28

What is intrinsic evidence/ examination?

impeaching a witness by questions on cross exam

29

What 2 elements must be met for a prior conviction to be admitted to impeach a witness?

1. conviction (or prison release, whcihever later) must be w/in 10 yrs of current trial (no time limit NY)
2. only crimes of dishonesty/ false statements (ex. perjury, fraud, embezzlement)

30

MBE, when may a witness be questioned about their prior bad acts?

when related to truthfulness
-must have good faith belief that act occured

31

What is the collateral evidence rule?

if evidence of contradictory witness statement made earlier on direct exam offered to impeach is significant= may be proved w/ extrinsic, if insignificant (collateral)= proof limited to intrinsic