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Flashcards in Evidence - General Deck (104):

What is the threshold for evidence to be admitted?



What is the test for "relevance?"

Relevant =
has any tendency to make a material fact more probable or less probable than would be the case w/o the evidence


Why might relevant evidence be inadmissible?

(1) Specific Rule against it, or
(2) Probative value is substantially outweighed by one or more of the following:
i. danger of unfair prejudice
ii. danger of confusion of the issues
iii. danger of misleading the jury
iv. undue delay
v. waste of time
vi. unduly cumulative


Is the plaintiff's accident history admissible (character evidence of that π is accident prone)?

(1) Generally no, except:
-(a) the events that caused π's injury are at issue
-(b) ∆ wants to show that other accidents injured π


Is ∆'s history of causing accidents by the same instrumentality or condition admissible (character evidence that ∆ is careless)?

(1) Generally no, except:
-(a) other accident happened under substantially similar circumstances
(2) Evidence allowed for π to show:
-(a) existence of dangerous condition
-(b) causation of this accident
-(c) prior notice to ∆ of danger


Are prior incidents of ∆'s behavior admissible to indicate what ∆'s intent was on the occasion in question?

Yes, prior similar conduct of a person may be admissible to raise an inference of person's intent on a later occasion


If there is a conflict surrounding a sale, are sale prices of similar transactions admissible?

Yes, the selling price of property of similar type/location/point in time may be probative of value.


Is a person's habit generally admissible?

Yes, habit is admissible as circumstantial evidence of how a person behaved on a particular occasion.


How is habit distinguished from character for the purposes of admissibility?

(1) Character = someone's general propensity or disposition
(2) Habit = repetitive response to particular circumstances


Is the standard method of performing a task in a given industry admissible to analyze a party's conduct?

(1) Yes, Evidence of behavior in same trade/industry may be admitted as some evidence as to show how a party SHOULD have acted (Appropriate Standard of Care)
(2) Industry custom is NOT conclusive, however, of the reasonable standard of care


Is whether a party has liability insurance admissible?

(1) Not for purpose of assigning fault.
(2) Other, admissible, purposes:
-(a) proof of ownership/control, if disputed
-(b) impeachment of a witness
(3) Judge should give jury instruction on proper use of insurance evidence


If a party takes subsequent remedial measures, is this admissible as evidence?

(1) Inadmissible for purposes of proving:
-(a) negligence
-(b) culpable conduct
-(c) product defect
-(d) need for a warning
(2) Admissible for purposes of:
-(a) showing ownership/control of instrument/premises, if disputed by ∆


Is a party's offer to pay (or actual payment) for hospital bills or medical expenses admissible as evidence?

(1) Inadmissible to show fault
(2) Statements of fact connected w/ offer to pay are not excluded, however.


In the event of a disputed civil claim, what statements regarding settlements are inadmissible?

(1) evidence of settlement
(2) offers to settle
(3) statements of fact made during settlement discussions
**Statements made prior to actual dispute do not count as within settlement discussions**


What is the exception to the general rules of inadmissibility regarding settlement discussions?

(1) Civil settlement discussions in civil litigation with a regulatory agency may later be introduced in a criminal trial against same ∆ (ENRON)


What are the admissibility rules regarding statements related to criminal plea bargaining.

(1) Inadmissible:
-(a) offer to plead guilty
-(b) withdrawn guilty pleas
-(c) Plea of no contest can't be used in later civil litigation
-(d) statements of fact made during plea bargaining
(2) Admissible:
-(a) Plea of guilty (not withdrawn) admissible in subsequent litigation based on same facts under the rule of Party Admissions


What is the definition of "character evidence"?

A person's general propensity
Ex: honest, violent, etc.


When is evidence of ∆'s character admissible?

(1) ∆ may introduce evidence of good reputation/opinion of character (specific acts not admissible)
(2) If ∆ brings up own character, prosecution may rebut


What are the different methods that the prosecution is allowed to rebut a ∆'s character evidence?

(1) May cross-examine ∆'s character witnesses w/ "Were you aware..." questions, or
(2) May present its own character witnesses


Is character evidence regarding a witness admissible?

To impeach a witness's credibility


What are the rules regarding the admissibility of character evidence regarding the victim's violent character?

(1) For purpose of self-defense claim, ∆ can show V's propensity for violence to show:
-(a) V was the aggressor, or
-(b) ∆ reacted reasonably out of fear, knowing V's character for violence

(2) Prosecution can rebut w/ BOTH:
-(a) V's character for peace, and
-(b) ∆'s character for violence


What is the general rule of admissibility regarding the victim's sexual behavior?

(1) Generally inadmissible, both reputation/opinion and past specific behavior


What are the exceptions to the general prohibition on character evidence of victim's sexual conduct?

Criminal Law:
(1) to show someone else was source of injury/semen
(2) If consent is the issue, V's past sexual conduct with the ∆
(3) Where exclusion would violate ∆'s right to due process (think love triangle cover-ups)

Civil Law:
(1) where the probative value of the evidence substantially outweighs the danger to V or prejudice to any party


If character evidence is admissible by some valid exception, when can specific acts be used to show proof of character?

(1) Civil cases


In civil cases, when is character evidence admissible?

(1) Where character is an essential element of a claim, for example:
-(a) tort action for negligent hiring (employee's character)
-(b) Defamation case (inherently reputation oriented)
-(c) Child custody dispute


What is the general rule on character evidence of ∆'s past criminal history?

Not allowed for the purpose of showing ∆'s character, but may be used for other purposes.


What are the most common admissible purposes of introducing ∆'s criminal history?

MIMIC - (civil or criminal case)
(1) Motive
(2) Intent
(3) Mistake, the absence thereof
(4) Identity
(5) Common scheme/plan


What is needed in order to introduce MIMIC evidence?

(1) ∆ was convicted of past crimes, or
(2) Conditional Relevancy Standard: could reasonable jury find that ∆ committed the crime?
***Upon ∆'s request, prosecution must give notice of intent to introduce MIMIC evidence***


What are the rules regarding admissibility of character evidence regarding the ∆'s sexual conduct?

In Crim/Civil Sexual Misconduct Case:
(1) ∆'s prior specific acts are admissible in Prosecution/π's case-in-chief as evidence of THIS TYPE of sexual misconduct

Ex: prior rape, admissible in rape case
prior child molestation admissible in child molestation case


What are the general methods of document authentication? (5)

(1) Witness's personal knowledge (saw X sign it)
(2) Proof of handwriting (3 ways)
-(a) lay person opinion (familiar w/ X's handwriting)
-(b) expert comparison opinion
-(c) jury comparison
(3) Proof by circumstantial evidence (contents, appearance, etc.)
(4) Ancient Document Rule
(5) Solicited Reply Doctrine


What is the Ancient Document Rule?

Document Presumed Admissibly Authentic if:
(1) Document is 20+ years old
(2) document is facially free of suspicion, and
(3) document found in place of natural custody


What is the solicited reply doctrine?

Document may be authenticated by evidence that it was received IN RESPONSE to a prior communication to the alleged author


What is the standard for presuming a document is authentic?

The judge must conclude that there is some evidence from which a rational jury could find that the document is authentic.


What are self-authenticating documents? (6)

Presumed authentic; no need for foundation testimony:
(1) official publication (government produced)
(2) Certified copies of public or private records on file in public office (ex: real estate deed, mortgage)
(3) newspaper or periodical
(4) Trade inscriptions and labels
(5) Acknowledged document (cert by notary)
(6) Commercial paper (ex: promissory note)


What is the typical method of authenticating photographs?

Ask witness: "Is this a fair an accurate representation" of the people or objects portrayed.

Witness need not be the photographer---just needs personal knowledge.


What is the best evidence rule?

A party whos seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence.


What is included in the definition of "writing" for purposes of the best evidence rule?

Beyond actual writing: sound records, film, x-rays


If an excuse for not producing the original writing is deemed acceptable, how may a party authenticate the document?

Secondary evidence:
oral testimony
copy of the writing


What does the Best Evidence Rule apply?

(1) If the writing is the operative legal document
-(a) ex: contract, mortgage, divorce, patent, deed
(2) Witness is testifying to facts she learned SOLELY from reading about them in writing


What qualifies as an "original writing" under the Best Evidence Rule?

(1) whatever the parties intended as original
(2) Any counterpart intended to have same effect (2 signed copies)
(3) Any negative of film or print from negative
(4) Computer print-out


Are "duplicates" acceptable for the purposes of the Best Evidence Rule?

Yes, so long as it would not be unfair, or there is some genuine question raised about the authenticity of the original


Is a handwritten copy of an original another "original" or a "duplicate?"



What counts as a "duplicate" under the Best Evidence Rule?

Any counterpart produced by mechanical means that accurately reproduced the original (photocopy, carbon copy)


What are the typical excuses for failing to produce the original document? (3)

(1) lost/cannot be found w/ due diligence
(2) destroyed w/o bad faith
(3) cannot be obtained w/ legal process (beyond court's subpoena power)


What is the standard used to analyze a party's excuse for failing to produce an original document?

Preponderance of evidence


What is the general rule of competency if a testifying witness has an interest (direct legal stake) in the outcome of the case?

Under Federal Rules, not incompetent, however some states have "Dead Man's Act," which may deem an interested witness incompetent.


What does a "Dead Man's Act" do?

Provides that:
(1) in a civil action
(2) an interested witness
(3) is incompetent to testify
(4) against the estate of the decedent
(5) concerning a transaction or communication between the interested witness and decedent


What is a leading question?

A question that suggests the answer.

"Isn't it true...."


What are the rules regarding leading questions?

(1) Not allowed during direct examination, except:
-(a) preliminary, introductory matter
-(b) youthful or forgetful witness (jog memory)
-(c) hostile witness
-(d) adverse party or adverse party's employee
(2) Allowed during cross examination of witness


What is the difference between refreshing recollection and past recollection recorded?

(1) Refreshing recollection: witness must testify on basis of current recollection, not read from prepared memo

(2) Past Recollection Recorded: writing as substitute for oral testimony


Does a "refreshing recollection" memo need to be authenticated?

No, it is not actually being read into evidence


What are the safeguards against abuse of the "refreshing recollection" rule?

(1) adversary may inspect refreshing writing
(2) adversary may use writing on cross-examination
(3) adversary may introduce the writing into evidence


Does "past recollection recorded" evidence violate hearsay rules?

Hearsay Exception: (requirements)
(1) Writing failed to jog witness' memory
(2) witness had personal knowledge at a former time
(3) writing was either made by or adopted by the witness
(4) making/adopted occurred while memory was still fresh, and
(5) witness can vouch for accuracy of writing when it was made/adopted


How is "past recollection recorded" entered as evidence?

(1) Memo is read into evidence, not admitted as an exhibit
(2) adversary, however, may then put memo in as exhibit


Is lay opinion testimony admissible?

Yes, if:
(1) personal knowledge is the source of testimony, and
(2) opinion must be helpful to jury in deciding a fact

Examples: he was drunk, he was insane, he was mad, it smelled like liquor, etc.


What qualifications are required for an expert witness to testify?

Education and/or experience


What are the acceptable bases for an expert to provide his opinion?

(1) personal knowledge
(2) Other evidence in trial record
(3) Facts outside of the record, if those facts are the type that are reasonably relied upon by this type of expert


What are the factors for determining whether an expert's methods are reliable?

(1) Testing (have principles been tested)
(2) Rate of error
(3) Acceptance in field
(4) Peer Review


May an expert witness use a treatise, periodical, or pamphlet to prove the truth of the matter asserted?

Yes, this is a hearsay exception.

Treatise can't be used by itself, and it may not be introduced as an exhibit.


What are the proper subject matters for cross examination?

(1) Matters within the scope of direct examination, and
(2) credibility issues


Are prior consistent statements admissible to bolster the credibility of your own witness?

No, except:
(1) rehabilitate credibility, or
(2) prior ID of person


What are the rules regarding a party's impeachment of its own witness?

No limits, impeach all day


What are the methods of impeachment that a party may use?

(1) Prior inconsistent statement
(2) Bias, interest, or motive to misrepresent
(3) Sensory deficiencies
(4) Bad reputation/opinion of truthfulness
(5) Criminal Convictions
(6) Bad acts that reflect on truthfulness
(7) Contradiction


Are a witness's prior inconsistent statements admissible?

No, except:
(1) for impeachment, or
(2) prior inconsistent statement was made orally under oath as part of a formal trial or deposition


What are the rules regarding an admissible prior inconsistent statement?

(1) Witness must be given a chance to explain/deny prior inconsistent statement, unless:
-(a) witness is the opposing party

Prior inconsistent statement may be used both for credibility purposes and as substantive evidence


What are the required procedures for impeaching a witness based on bias or interest?

(1) Must ask witness about bias on stand, then
(2) may use extrinsic evidence


What types of evidence are admissible to attack a witness's credibility?

(1) Reputation
(2) Opinion
(3) extrinsic evidence
(3) NOT specific acts


What are the rules on introducing criminal convictions for the purpose of impeachment?

(1) any crime that included false statements
(2) Felonies where conviction/release in last 10 years


How does a party show proof of a witness's conviction for purposes of impeachment?

(1) Ask witness to admit, or
(2) Introduce record of conviction (no confrontation required)


What are the rules regarding bad acts (not convictions) used for the purpose of impeachment?

(1) Can't ask whether witness was "arrested/indicted" for bad act
(2) Confrontation is required- must hope that witness admits
(3) Extrinsic evidence not permitted (except for other purposes)
(4) Need good-faith basis for inquiry AND court permission


How may a party show contradiction for purposes of impeaching a witness?

(1) Try to obtain admission that witness made mistake/lied
(2) If fact is important (not collateral), extrinsic evidence may be used


What may prior consistent statements be used for?

Rehabilitation following:
(1) charge of recent fabrication (prior statement must have been made before motive to fabricate arose)
(2) contention of inconsistency, or
(3) contention of sensory deficiency
**If fits w/in any of these 3, statement may be used as substantive evidence as well***


What are the elements of attorney-client privilege?

(1) confidential communication
(2) between attorney and client (or rep of either)
(3) made during professional legal consultation


What types of things do not count as "communication" falling within the attorney-client privilege?

(1) client's knowledge of underlying information
(2) preexisting documents
(3) Physical evidence


Will a voluntary waiver on some privileged communications (atty-client) also waive privilege to other communications?

Yes, if:
(1) partial disclosure is intentional, and
(2) disclosed and undisclosed communications concern the same subject matter, and
(3) fairness requires that communications be considered together


Will an inadvertent disclosure of privileged communication result in a waiver of that privilege?

No, so long as privilege holder took reasonable steps to:
(1) prevent disclosure, and
(2) correct error


What are the exceptions to attorney-client privilege?

(1) Future crime/fraud exception
(2) Client puts legal advice in issue (my lawyer told me to do my taxes that way)
(3) Disputes between attorney and client


What are the elements of physician-patient privilege?

(1) Confidential communications/information
(2) acquired by physician from patient
(3) for purpose of diagnosis/treatment of medical condition


What types of professionals are included within the physician-patient privilege?

Any professional certified to diagnose/treat medical or emotional illness


How is the physician-patient privilege treated in cases in federal court solely based on federal question jurisdiction?

Only applies to psychotherapy


What are the different types of spousal privileges?

(1) Spousal Immunity
-(a) applies to criminal cases ONLY
-(b) spouse cannot be compelled (but is allowed) to testify about anything seen or heard about ∆ spouse

(2) Confidential communications
-(a) forbids disclosing confidential communications made by one spouse to the other w/o both spouses consent
-(b) does not cover observations


What are the exceptions to the spousal privileges?

(1) communications/acts in furtherance of jointly-perpetrated future crime/fraud
(2) communications/acts that are destructive of family unit (abuse)
(3) litigation between spouses themselves


What is the definition of hearsay?

(1) an out of court statement
(2) offered to prove the truth of the matter asserted in the statement


What are the principal categories of non-hearsay purposes for including an out of court statement?

(1) Verbal act ("I accept your offer"; offered to simply show that the words were spoken)

(2) To show effect on person who heard the statement (notice, motive, fear)

(3) Circumstantial evidence of speaker's state of mind (Person said crazy stuff might show insanity @ time; asking questions may show lack of knowledge)


May an agent's out of court statements be admissible to be used against principal in trial?

Yes, statement by agent is admissible against principal if the statement concerns a matte w/in the scope of agency and the statement was made during the existence of the agency relationship.


What is the Party Admissions exception to the hearsay doctrine?

Any statement made by a party for its truth is admissible if it is offered AGAINST the party.


Are Co-conspirator A's out of court statements admissible against co-conspirator B for the truth of the matter asserted?

Yes if:
(1) statement was made during the conspiracy, and
(2) in furtherance of the conspiracy


What are the general hearsay exceptions? (12)

1. Forfeiture by wrongdoing
2. Former testimony
3. Statement against interest
4. Dying declaration
5. Excited utterance
6. Present Sense Impression
7. Present state of mind
8. Declaration of Intent
9. Present Physical Condition
10. Statement for purpose of med treatment/diagnosis
11. Business Records
12. Public Records


With regard to hearsay exceptions, what are the rules on the criminal ∆'s confrontation rights?

Prosecution can't use hearsay exception IF:
(1) statement is testimonial
(2) declarant is unavailable to come to trial, and
(3) ∆ had no opportunity for cross-examination


When is a statement "testimonial?"

(1) Grand jury testimony = testimonial
(2) Testimonial =
primary purpose of questioning is to establish or prove PAST events that are potentially relevant to a later criminal prosecution
(3) meeting an ongoing emergency ≠ testimonial
(4) Business records ≠ testimonial; sworn affidavits = testimonial


Are forensic lab reports "testimonial?"

(1) Yes, if primary purpose is to target an individual of criminal conduct
(2) BUT: DNA analysis ≠ testimonial if no particular suspect @ the time of analysis
(3) Even if report IS testimonial, there is no confrontation violation if an expert is called and generally refers to the report to show a partial basis for opinion


What is the forfeiture by wrongdoing exception to the hearsay rules?

Hearsay is admissible if the ∆'s wrongdoing made the witness unavailable.

To use exception:
(1) court must find by preponderance that
(2) ∆'s wrongdoing was designed to prevent the witness from testifying


What is the former testimony exception to the hearsay rules?

(1) Former testimony of a now unavailable witness is admissible given at a former proceeding/deposition IS admissible against a party who had the opportunity and motive to cross-examine or develop testimony of the witness. (motive = issue was basically the same)
(2) Grounds of Unavailability:
-(a) privilege
-(b) can't be found w/ due diligence or beyond court's subpoena power
-(c) Illness/death
-(d) lack of memory
-(e) Stubborn refusal to testify


What is the "statement against interest" exception to hearsay?

Unavailable declarant's statements against his or her own:
(1) pecuniary interests (money)
(2) Proprietary interests (property)
(3) Penal Interests (requires corroboration)

Diff from party admission exception: declarant does not have to be a party, but has to be unavailable


What is the dying declaration exception to hearsay?

(1) Statement made under the belief of impending and certain death by a now-unavailable declarant concerning cause or surrounding circumstances of the declarant's death
(2) Crim cases: only allowed for homicide cases
(3) Civil Cases: allowed in any kind of case


What is the excited utterance exception to hearsay?

(1) Statement concerning a startling event and made while declarant is still under stress of excitement caused by event
(2) Factors: nature of event, passage of time


What is the present sense impression exception to hearsay?

(1) description of an event made while the event is occurring or immediately thereafter (within seconds)


What is the present state of mind exception to hearsay?

(1) contemporaneous statement concerning declarant's present state of mind, feelings, emotions


What is the declaration of intent exception to hearsay?

Statement of declarant's intent to do something in the future, including intent to engage in conduct w/ another person


What is the Present physical condition exception to hearsay?

Statement made to anyone about declarant's current physical condition


What is the medical diagnosis hearsay exception?

Statement made to anyone for purpose of obtaining medical treatment/diagnosis (including by expert witness) if it concerns declarant's:
(1) present symptoms, or
(2) past symptoms, or
(3) general cause of his condition

NOT: details of liability, or ID of tortfeasor, unless it is ID of abuser in domestic/child abuse


What is the Business Records exception to hearsay?

Admissible IF:
(1) records of a business of any type (inc. police)
(2) made in the regular course of business
(3) that the business routinely keeps
(4) made contemporaneously with the event
(5) and the contents consist of information observed by an employee of this business (or fall w/in some other hearsay exception)


What is the public records exception to hearsay?

Record of public office or agency setting forth:
(1) the activities of the office/agency
(2) matters observed pursuant to a duty imposed by law
(3) findings of fact or opinion resulting from an investigation authorized by law


What methods are available to impeach hearsay declarants?

Any impeachment method.

If impeachment consists of prior inconsistent statement, the usual requirement that the declarant be given an opportunity to explain/deny is waived.