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EVIDENCE MBE Flashcards

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1
Q

Lay Witness

A

Anyone can be a witness as long as they have personal knowledge of what they are testifying about

  • Can also testify about perception
  • Cannot come to legal conclusions
  • Can require witness to take oath or affirmation
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2
Q

Who can not be a witness?

A

judge presiding over the case and jury

unless it is to testify about improper issues in court room

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3
Q

Can child be witnesses - if so what do they have to show?

A

Yes, as long as they can tell the difference between truth and a lie
CAN BE ANY AGE

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4
Q

Expert Witness

A

Must prove that person is an expert
Do this by laying a foundation
Show skills, publication, resume, awards to prove they are expert in certain area

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5
Q

What can an expert testify about/ use when testifying?

A
  • Can give expert opinion from outside material (books, studies, experiments)
  • Can give legal conclusions on case
  • **In criminal cases: cannot give opinion as to mental state of D about an element of a crime or defense **
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6
Q

what is the standard on expert based opninion?

A

Must prove by a preponderance of the evidence that the expert based her opinion on sufficient facts and methodology
- cannot leave stuff out that is clearly relevant to the issue (studies or experiments)

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7
Q

Witness on the Stand: court control

A

Court has to be in reasonable control on what’s going to make sure witnesses are telling the truth
Make sure they are not wasting time and that they are not embarrassed

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8
Q

Leading Questions - when are they allowed/ exceptions?

A

Not allowed on direct examination usually only on cross-examination

Exceptions:
Cross examination
Hostile witness (you are testifying against the party who called you to testify)
Adverse party
Shy witness/child
Jog memory
Lay foundation

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9
Q

Refreshing Witness Memory

A

Witness doesn’t remember so you show them document, photo or other stuff to get them to remember
- It is NOT read into evidence

Does not actually go into the evidence
Just helps them testify

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10
Q

Excluding Witnesses

A
  • Generally one witness cannot be in the courtroom while another witness is testifying

Exception:
- If they are a party to the case
- Statute allows them
- Needed to properly present the case

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11
Q

what does Judge and Jury decide in cases?

A

Judge: questions about rules of law + admissibility
Jury: weight of evidence + questions about facts

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12
Q

Objections

A

Something is admitted and other side is objecting
Timely - must be made right after the question is asked or after witness answers CANNOT BE AFTER THE WITNESS IS DISMISSED
Grounds for why it is being objected

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13
Q

Offer of Proof

A

evidence is excluded + you are mad
make an “offer of proof” on why it should have come in & can be appealed later

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14
Q

Burden to Prove - plaintiff/prosecution

A
  • Plaintiff or prosecution has the burden to prove each element of crime or claim
  • Once they have proved everything -> then it shifts to the D to come back with their own evidence
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15
Q

Burden of Persuasion ( Civil & Criminal)

A

Civil case: P has to prove by a preponderance of the evidence

Criminal: P has to prove each element beyond a reasonable doubt

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16
Q

Presumption

A

Once they meet burden -> judge had to conclude that there is a presumption but it is rebuttable
- Now D has to come back with evidence for contrary

if they do come back -> judge MAY but not require jury to draw a conclusion of a presumption

If they don’t -> judge MUST require the presumption of guilt

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17
Q

Conclusive Presumption

A

No rebuttal evidence may be offered
Usually happens when there is law that can’t be challenged

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18
Q

Impeachment is about who is on the stand?

A

WITNESS

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19
Q

Witness: Regular Impeachment

A

Testify about something and then they say you said something else -> statements are contradicting - usually about conflict, contradiction or

ADMISSIBLE

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20
Q

Attacking Credibility of Witness Impeachment: CRIMES

A

Attacking a witness about a prior conviction:

(1) If felony -> not admissible
unless occurred in the last 10 years + judge determines it balances the balancing test

(2) If crime (felony or misdemeanor) for honesty or truthfulness -> admissible
Can prove it by reputation, opinion, and extrinsic evidence (acts)

ABOUT WITNESS!!

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21
Q

Attacking Credibility of Witness Impeachment: PRIOR BAD ACTS

A

(1) Prior Bad Act: NEVER WAS CONVICTED
- weren’t you accused of or on trial for XYZ? -> not admissible!!!

(2) prior bad act related to honesty and truthfulness -> admissible
“Cheating on law school exam”
Can only ask while on stand!!! -> if they deny it -> cannot prove it via extrinsic evidence (can’t call law school to verify)

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22
Q

Impeach Witness on Collateral Matter (irrelevant info)

A

NOT ALLOWED - has to do with the case

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23
Q

What do you pick when the answer says “Admissible to impeach + substantive evidence”?

A

You pick the two when the statement is a hearsay exception

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24
Q

Relevancy + exceptions

A

Relevancy: any tendency to make a fact more or less probable
Generally admissible

Exceptions
Unfair prejudice (lie detector test)
Confusion
Delay
Wasting Time

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25
Authentication
Evidence is what it says it is - or what it purports to be Writing, photos, documents, charts, photographs, voice recording
26
How do you authenticate? (3 ways)
(1) Testimony with personal knowledge who is familiar - Doesn’t matter how long ago (second grade teacher is ok) (2) Special marking (3) Direct testimony
27
Signatures
If there is an authenticated specimen -> the jury can compare the two with non authenticated specimen
28
Self Authenticating Documents
Don’t need additional testimony to bring in b/c it is self authenticating Official Notarized Newspaper Seal
29
Character Evidence
Bad things the DEFENDANT did in the past -> NOT ADMISSIBLE!!!!!!! Answers will say “too prejudicial” or “improper character evidence” John is on trial for robbery -> prosecution tries to put his friend bob on the stand to talk about how they used to steal phones in high school -> IMPROPER CHARACTER EVIDENCE
30
Character Evidence Exceptions (Civil)
Civil case: Character is admissible when it is an issue in the case: - Defamation (slander or liable) - Child custody - Negligent entrustment - Misrepresentation/Fraud Can be proven by reputation, opinion and specific acts
31
When is character evidence allowed?
Character is not admissible UNLESS D “OPENS TO DOOR” with evidence of his good character D introduce evidence of good character (honest OR peaceful) - based on the trait of crime you are on trial for NO SPECIFIC ACTS Ex: can’t bring proof of truthfulness for battery, robbery and assault b/c its not relevant
32
What can prosecution do once D opens the door for character evidence? (2)
prosecution can bring evidence that you are not peaceful or truthful by (1) calling own witness to testify about your reputation and opinion and (2) on cross-examination, by asking the reputation witness if he has heard of particular instances of the defendant's misconduct pertinent to the trait in question.
33
MIMIC
Evidence to prove motive, intent, absence of mistake or accident, ID, and common plan or scheme is admissible Not to show that you did the crime but to show that they had a motive ONLY APPLIES IF THEY ARE TALKING AB IT IN THE FACTS
34
Self Defense
Defendant can show plaintiff was initial aggressor
35
Child Molestation
Evidence of other child molestation is admissible
36
Habit Evidence/Routine Practice
If can show that it happens all the time -> admissible Can’t happen a few times a year
37
When do privileges apply?
ALL STAGES OF A CASE INCLUDING GRAND JURY PROCEEDINGS*
38
Attorney/Client Privilege (6)
(1) There must be a relationship (2) Client Holds the privilege (3) Extends to paralegals, junior associates (4) Nature of communication has to be confidential (5) last 4ever even if fired by client (6) can be waived must be voluntary
39
Work Product & What is the standard if need it?
Generally speaking is protected and not admissivle exception: must show substantial need and undue hardship in getting it another way
40
Attorney/Client Privilege (Exceptions 2)
(1) Go to your lawyer to get advice on how to commit a crime (2) Dispute between lawyer and client
41
Doctor/Patient Privilege
Statements about treatment + diagnoses -> all privileged Statements not related to the treatment -> not privileged ex: “I got hit by a ball during a robbery at the baseball field” Other people can be present as long as its people helping the doc or the patient
42
Doctor/Patient Privilege Exceptions
When patient puts condition at issue Dispute between doc and patient
43
physician or psychiatric patient privilege?
Federal courts do NOT recognize!!!!!!
44
Husband/Wife Privilege - two types
(1) Spousal Communication Privilege (2) Spousal Testimonial Privilege
45
Spousal Communication Privilege
(1) Protects confidential information disclosed during marriage (2) Applies to criminal or civil cases !!! (3) Couple must be legally married at time of communication (4) Privilege survives divorce (5) Either spouse can refuse to disclose or prevent the other from disclosing (6) If choose to waive -> both spouses must waive the privilege together
46
Spousal Testimonial Privilege
- Only applies in criminal case!!!! - One spouse is called to testify against the other (could be about anything including unrelated to hubby guilt such as color of shirt or time he came home) - At time of the trial -> must be legally married - Covers any discussion before + during the marriage but ends at divorce - The one who is going on the stand is the one who decides if they are going to testify
47
Spousal Testimonial Privilege Exceptions
No privilege for: - Future crimes - Any statements made about child or spousal abuse
48
Judicial Notice
Judge can take judicial notice about any topic not subject to dispute Can take JN without any permission from parties If requested by one of the parties -> must take if not in dispute must take JN of federal/state law may take JN of foreign or municipal ordinance
49
Instructing the jury about JN
Civil case: the jury must accept it as conclusive Criminal case: the jury may accept the fact as conclusive
50
Subsequent Remedial Measure + Exception
Evidence that I fixed something or repaired it -> not admissible Violates public policy Exception Admissible to show control or ownership To show that this is isa’s property or her car
51
Liability Insurance
Not admissible to show negligence May come in to show bias
52
Offer to Settle or Compromise
Communications made in settlements are not admissible Violate public policy There has to be a dispute Disputes have lawyers and trials ect Instant statement after accidents -> admissible unless there was a dispute
53
Offer to settle + an admission
“I will give you 10k it was all my fault” -> entire statement is inadmissible
54
Offer to pay medical expenses
Not admissible for public policy Exception: Medical expenses + an admission = may be severed and admission is admissible Ex: “here is 10k for the doctor bills it was my fault” Can remove the 10k part and include the “it was my fault”
55
Plea Deals
Statements that were made negotiating a plea for criminal or civil cases -> not admissible Exception: If it is coupled with an admissible statement and it would be fair -> can be admissible
56
Past Sexual Conduct of Victim
Bringing up victims sexual past conduct or other sexual behavior is -> not admissible Exceptions Depends on the type of case: Criminal: Goes to show consent Protects D’s constitutional right Physical evidence can come from another source Civil: Only admissible if passed the balancing test
57
Best Evidence Rule
should have the actual item but if it is Lost/ Stolen: You can use a copy if it is authenticated as long as no evidence of tampering
58
When does best evidence rule apply (2)?
(1) trying to prove contents of the document itself - If you need the document to prove your argument then you need the original or an authenticated copy Ex: warranty deed breach or employment agreement for termination (2) testifying about something and need document to prove what i’m saying is true - If there is another way to prove (witnesses, camera footage, ect) -> best evidence rule does not apply Only when its the only way to prove where someone was or what they were doing Parking ticket at airport to prove you weren't at murder scene
59
Completeness Rules
If you are only showing one part of a document or contract -> other party bring in the other half if it for fairness
60
Hearsay
Out of court statement offered to prove the truth of the matter asserted
61
Examples of when it is not offered to prove the truth of the matter asserted: (3)
1. words of offer & acceptance 2. libel or slander 3. verbal acts that show motive/notice
62
Hearsay Exception: Present Sense Impression
Statement made while observing fact Has to be while you are looking at it Non-emotional observation
63
Hearsay Exception: Excited Utterance
Statement made while excited Usually says “yelled” “meeped” “shouted” and has a “!”
64
Hearsay Exception: Then existing mental, physical or emotional state of mind
Go to motive or intent or emotion Love, hate, pain Planning to go somewhere Statement made to anyone
65
Hearsay Exception: Business Records
Document that is in the regular ordinary course of business Happens all the time !!!
66
Hearsay Exception: Statement From Medical Diagnosis/Treatment
Statements made about being treated to medical person You make this statement to your medical professional DOES NOT INCLUDE STATEMENTS ABOUT FAULT OR IDENTIFYING WHO DID SOMETHING
67
Hearsay Exception: Recorded Recollection
Witness once knew about document but cannot remember Wrote document or adopted it MAY BE READ INTO EVIDENCE
68
Hearsay Exception: Public Record
Record from public office or agency or someone under a duty to report ******IN CRIMINAL CASES A POLICE REPORT IS TYPICALLY INADMISSIBLE B/C IT HAS MULTIPLE WITNESS STATEMENTS *** FIRE MARSHAL TYPICALLY OK
69
Hearsay Exception: Absence of Public Record or Business Record
Look for facts that indicate that there was no record
70
Hearsay Exception: Learned Treatises
arises with expert testimony only Learned treatises are accepted authority in a given field Established as reliable and accepted authority by testimony, admission, or judicial notice Experts can rely on learned treatises on direct exam or can be impeached with information from treatises on cross-exam If admissible, statements from learned treatises may only be read into evidence
71
Hearsay Exception: Ancient Document & Family History
20 years old + authenticated Prepared before 1998 statements of fact found in family keepsakes, e.g., jewelry engravings, genealogies
72
Hearsay Exception: Catch All
Any other statement that is material, trustworthy, and in the interest of justice -> can be let in
73
What are the hearsay exceptions that person is unavailable?
Former testimony* Statements against interest* Dying declarations* Statements of personal or family history
74
Dying Declaration
UNAVAILABLE Declarant has to believe they are dying Statement is about cause of death or why you are dying Homicide or civil case!!!!!!
75
Statement against interest
UNAVAILABLE Declarant makes a statement that makes them look guilty about something Generally are made by a non-party
76
Former Testimony
UNAVAILABLE Opponent was a party to a former case Former case was about the same subject Made under oath Had opportunity or motive to exam or cross exam witness
77
Forfeiture of Hearsay and Confrontation Objection
In order to forfeit either objection -> D must have had to engage in wrongful conduct to prevent declarant from testifying
78
Non-Hearsay
Admissible as non-hearsay, admissible or admissible as substantive evidence Not exceptions
79
Non-Hearsay: Admissions
If a party makes a statement admitting something and makes them look guilty
80
Two Types of Admissions:
(1) Vicarious admission: employees made statements about the job or company -> they will come in “We all drink on the job” “Nobody ever replaces the breaks” (2) Adoptive Admission Someone says something to you and you don’t reply -> silent when a reasonable person would defend themselves Silence comes in as an adoptive admission A joke doesn’t apply
81
Non-Hearsay: Prior Consistent Statement
Prior statement to refute any charge to clear up motive or that they are lying
82
Non-Hearsay: Prior Sworn Inconsistent Statement
Prior statement Made under oath That is inconsistent
83
Non-Hearsay: Prior ID
testimony that the witness previously made a statement under oath identifying the perpetrator is not hearsay This is commonly used if a witness identifies a suspect at a lineup but his appearance has changed by the time the case goes to trial
84
Right to Confront Witnesses
Out of court statement accusing someone of something Admissibility applies if it was testimonial or not
85
Testimonial vs Non Testimonial
Made to police during emergency - not testimonial -> admissible Statement not during an emergency - testimonial -> not admissible
86
Demonstrative Evidence
Scars, limp, walk -> admissible
87
Hearsay On Hearsay
2 different statements Isa told robby who told mik Not admissible if two diff statements

MBE ISA (3 decks)

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