Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Evidence > MBE Evidece > Flashcards

MBE Evidece Flashcards

1
Q

When is P’s accident history admissible?

A

If the cause of injury is in issue

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Evidence of similar accidents caused by same instrumentality or condition

A

Generally inadmisisble but may be admitted if the other accident occurred under substantially similar circumstances

1) To show existence of a dangerous condition
2) Causation of accident
3) Prior notice to defendant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Intent in issue

A

Prior similar conduct may be admissible to raise inference of person’s intent on later occasion

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Comparable sales on issue of value

A

Selling price of other property of similar type, in same general location and time is some evidence of value of property at issue

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Habit

A

Repetitive response to a particular set of circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Defining characteristics of habit

A

1) Frequency

2) Particularity

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Business routine

A

Variation on habit.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Industrial custom as standard of care

A

Can provide evidence but is not conclusive

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Policy-based exclusions (5)

A

1) Liability insurance
2) Subsequent remedial measures
3) Settlement offers or negotiations
4) Withdrawn guilty pleas or offers to plead guilty
5) Offers to pay or payment of medical expenses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Liability insurance

A

Inadmisisble for proving fault or ability to pay but admisisble to show (i) ownership/control (ii) to impeach (iii) as part of an admission

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Subsequent remedial measures

A

Only admissible to show proof of ownership of control or feasibility of safer condition, if either is disputed by D

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Settlements of disputed civil claims

A

The following are inadmissible for the purpose of showing liability or impeaching as PIS

1) Settlement
2) Offer to settle
3) Statements of fact made during settlement negotiations

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Exceptions to settlement of disputed civil claims rules

A

1) Impeaching on the ground of bias
2) Statements of fact made during settlement discussion in civil litigation with gov. reg. agency are admissible in later criminal case

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What is required for the settlement of disputed claims rule to kick in?

A

Must be a claim and it must be disputed as to validity or amount

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Plea bargaining in criminal case- what is inadmissible

A

1) Offer to plead guilty
2) Withdrawn guilty plea
3) Nolo conender
4) Statements of fact during the above 3

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Offer to pay hospital or medical expenses

A

Inadmissible to show liability but does not extend to statements

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Use of character evidence in criminal case

A

Inadmissible in prosecution’s case in chief. Defendant can introduce reputation or opinion testimony of relevant evidence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Once D has opened the door with character evidence, prosecutor can respond with:

A

1) Rebuttal testimony in the form of “have you heard” questions about specific acts or arrests (must have good faith basis)
2) Calling its own reputation/opinion witnesses to contradict defendant’s witnesses

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Victim’s character in self-defense case

A

Criminal defendant may introduce evidence of victim’s violent tendency for conformity with reputation or opinion

Prosecutor can rebut with evidence of victim’s good character for peacefulness or evidence of D’s bad character for violence

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Rape shield exceptions(3)

A

1) Specific sexual behavior of victim to show defendant was not the source of semen or injury
2) Sexual activity with defendant to show consent
3) IF necessary for due process (love triangle)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Character evidence admissible in civil cases where:

A

Essential element of claim or defense

1) Defamation
2) Tort alleging negligent supervision or entrustment
3) Child custody dispute

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Method of proof of MIMIC evidence

A

By conviction or by evidence that proves the crime occurred (only conditional relevance standard)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Other sexual misconduct to show propensity for sexual assaults or child moelsetation

A

Propensity evidence allowed in case of chief (prior acts only)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

To prove signature (3)

A

1) Lay person opinion
2) Expert comparison
3) Jury comparison

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Ancient document rule

A

Document may be authenticated by evidence that

1) It is at least 20 years old
2) Facially free of suspicion
3) Was found in a place where it would likely be kept

26
Q

Solicited reply doctrine

A

Document can be authenticated by evidence that it was received in response to a prior communication to the alleged author

27
Q

Self-authenticating documents

A

1) Official publications
2) Certified copies of public or private records on file in public office
3) Newspapers or periodicals
4) Trade inscriptions and labels
5) Acknowledged document
6) Commercial paper

28
Q

Authentication of photographs

A

Witness may testify on the basis of personal knowledge that the photograph is a “fair and accurate representation” of the people or objects portrayed

29
Q

Best evidence rule

A

Party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for absence

30
Q

Two situations when best evidence rule applies

A

1) Writing is a legally operative document

2) Witness is testifying to facts that she learned solely from reading about them in a writing

31
Q

What qualifies as original writing for best evidence rule?

A

Whatever the parties intended as the original or copy intended to have the same effect as original

32
Q

Duplicates (definition and rule)

A

Counterpart produced by any mechanical means that accurately reproduced the original

Admissible to same extent as original unless it would be unfair or the authenticity of the original is challenged

33
Q

Excuses for non-production of original

A

1) Lost or cannot be found with due diligence
2) Destroyed without bad faith
3) Cannot be obtained with legal process

34
Q

Best evidence rule does not apply to (4)

A

1) Fact to be proved exists independently of writing
2) Writing is collateral
3) Summaries of voluminous records- requires the original records would be admissible and they are available for inspection
4) Certified copies of public records

35
Q

Dead man’s statute (where noted that it applies)

A

In a civil action an interested witness is incompetent to testify against the estate of decdent concerning personal transaction/communication between witness and decedent

36
Q

Refreshing recollection

A

If witness’s memory fails him, he may be shown a tangible item to jog his memory . Cannot read from it

37
Q

Safeguards against abuse of refreshing recollection

A

1) Adversary has right to

1) Inspect the item
2) Use it on cross
3) Introduce it into evidence

38
Q

Contents of writing may be read to jury where it is:

A

Past recollection recorded

39
Q

Past recollection recorded foundation requirements (5)

A

1) Showing writing to witness fails to jog memory
2) witness had personal knowledge at former time
3) Writing was either made or adopted by witness
4) Making or adoption occurred while event was fresh in memory
5) Witness can vouch for accuracy of writing when made or adopted

40
Q

Lay opinion testimony is admissible if

A

Based on personal knowledge and helpful

41
Q

Expert testimony is admissible where

A

1) Subject matter is one where specialized knowledge would assist the trier of fact
2) Witness is qualified as expert
3) Expert possesses reasonable probability regarding his opinion
4) Supported by proper factual basis

42
Q

Expert testimony may be based on (3)

A

1) Personal knowledge
2) Other evidence in the trial record
3) Facts outside the record if of a type reasonably relied upon by experts in the field (can’t disclose contents of inadmissible facts to jury, though opponent may on cross)

43
Q

Learned treatise

A

On direct, may be read into evidence as substantive evidence if established as reliable authority

On cross, may be read into evidence to impeach/contradict and as substantive evidence

Not admissible as exhibit

44
Q

Ultimate issue

A

Not a problem unless it is mental state in a criminal case where it constitutes an element of the crime

45
Q

Party’s impeachment of own witness

A

Any party may impeach any witness, including her own, by any method of interpretation

46
Q

Impeachment methods

A

1) PIS
2) Bias
3) Contradiction
4) Bad acts
5) Criminal convictions
6) Bad reputation/opinion for truthfulness
7) Sensory deficiency

47
Q

Extrinsic evidence may be used to impeach for all methods except:

A

Bad acts and collateral contradictory facts

48
Q

For extrinsic evidence, it is necessary to ask the witness about the impeaching fact before introduction for

A

Bias (NY: PIS)

49
Q

PIS can be admitted to impeach and as substantive evidence

A

If statement was made orally under oath and in a live testamentary context

50
Q

Evidence of criminal convictions

A

For convictions or release from prison within 10 years of trial

1) Conviction of any crime as to which the prosecution was required to prove false statement as element of offense
2) Felony, though court may exclude if probative value on issue of credibility is outweighed by danger of unfair prejudice

51
Q

Bad acts to impeach is admissible (when and form)

A

If it relates to dishonesty and only through confrontation on cross-examination

52
Q

Two methods of rehabilitation

A

Showing witness’s good character for truthfulness where impeachment clearly suggested witness was lying
2) PCS to rebut a charge of recent fabrication (admissible as substantive evidence)

53
Q

Exceptions to attorney client privilege

A

1) Future crimes/fraud
2) Client puts legal advice in issue
3) Attorney-client dispute

54
Q

Inadvertent waiver of privilege

A

Will not waive privilege so long as privilege-holder took reasonable steps to prevent disclosure and takes reasonable steps to correct the error

55
Q

Non-hearsay statements

A

1) Party admission
2) Prior statement by witness if (i) PIS and was given under oath at prior proceeding (ii) offered as PCS (iii) prior ID

56
Q

Silence counts as adoptive admission where:

A

A reasonable person would have responded (assuming he heard it and was capable of responding)

57
Q

For vicarious party admission of employee

A

Statement must be made during the course and within the scope of the relationship

58
Q

Hearsay exceptions where witness unavailability matters

A

1) Former testimony
2) Statement against interest
3) Dying declaration

59
Q

Corroboration required for

A

Statement against penal interest

60
Q

Grounds for unavailability where required:

A

1) Privilege
2) Refuses to testify despite court order
3) Lack of memory
4) Death of physical/mental illness
5) Beyond he reach of court subpoena

61
Q

Dying declaration

A

Homicide cases and all civil cases where declarant spoke under belief of imminent death about circumstances relating to his death

62
Q

Business records elements

A

1) Records of a business of any type
2) Made in the regular course of business
3) Business regularly keeps such records
4) Made at or about the time of the event recorded

Evidence (2 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions