Purple Flashcards
(81 cards)
1
Q
What is hearsay?
A
An out of court statement used to prove the truth of the matter asserted.
2
Q
What is relevancy?
A
The tendency to make the existence of any fact of consequence more or less probable.
3
Q
What is liability insurance inadmissible to prove?
A
Negligence or wrongful conduct
4
Q
What is liability insurance admissible to prove?
A
Ownership/control or bias
5
Q
What are subsequent remedial measures inadmissible to prove?
A
Negligence, culpable conduct, defect, or need for warning/instruction
6
Q
What are subsequent remedial measures admissible to prove?
A
Ownership/control, feasibility, destruction of evidence
7
Q
What are settlements/negotiations inadmissible to prove?
A
Validity/amount of a claim or to impeach.
8
Q
What are settlements/negotiations admissible to prove?
A
Negligence in a disputed claim
9
Q
What are plea discussions inadmissible to prove?
A
Offers to plead guilty, withdrawn guilty pleas, no-contest pleas, statements in plea discussions.
10
Q
What are offers to pay medical expenses inadmissible to prove?
A
Liability
11
Q
When is evidence of prior specific acts admissible?
A
If the acts are relevant to some other issue other than disposition to commit the crime charged.
12
Q
Two exceptions to the inadmissibility of a victim’s past sexual behavior:
A
- In criminal cases to prove someone other than D was the source of injury, physical evidence, or to show consent.
- In civil cases, evidence where the probative value outweighs the prejudicial effect.
13
Q
Is D’s similar misconduct in sex crimes admissible?
A
Yes; admissible for any relevant purpose.
14
Q
All forms of character evidence is admissible when:
A
The character trait is an essential element directly in issue (defamation, negligent hiring/entrustment, child custody)
15
Q
What is evidence of other crimes, wrongs, or acts admissible to prove?
A
MIMIC
- Motive
- Intent
- Mistake (absence of)
- Identity
- Common plan/scheme
16
Q
Is extrinsic evidence permissible regarding other crimes, wrongs, or acts?
A
No
17
Q
What is the rule on authentication?
A
A writing or secondary evidence will not be received in evidence unless it is authenticated.
18
Q
Who can testify to a documents authenticity of a signature?
A
Anyone as long as they have seen the person’s signature and can express an opinion regarding its authenticity.
19
Q
What is the best evidence rule?
A
To prove the content of a document, the original must be produced or show that the original is unavailable.
20
Q
3 times secondary evidence is admissible:
A
- Original is lost or destroyed
- Original cannot be obtained
- Original is in possession of an adversary who fails to produce it.
21
Q
5 requirements of physical evidence:
A
- Relevant
- Authenticated
- Held in an unbroken chain of possession
- Allow the jury to determine its genuineness
- In the same condition at trial as it was at the relevant time
22
Q
4 things jurors may testify to:
A
- Extraneous prejudicial information
- Outside influence
- Mistake in verdict form
- Another juror’s clear statement that they relied on racial stereotype
23
Q
3 requirements of admissible lay witness testimony:
A
- Rationally based on the witnesses perception
- Helpful
- Not based on specialized knowledge
24
Q
4 requirements of admissible expert opinion testimony:
A
- Helpful
- Based on sufficient facts/data
- Reliable
- Witness is qualified by specialized skill, knowledge, experience, training, or education
25
4 Daubert factors for the court to determine an experts reliability:
TRAP
1. Testing of principle
2. Rate of error
3. Acceptance in the community
4. Peer review/publication
26
A party may not bolster unless:
The testimony of their witness has been impeached
27
Are a witnesses religious beliefs or opinions admissible to show credibility?
No
28
2 requirements for a prior inconsistent statement to be admissible to impeach:
1. Proper foundation must be laid
| 2. The statement must be relevant.
29
When is a prior inconsistent statement admissible as substantive evidence?
Only when made in a prior proceeding
30
Is extrinsic evidence of bias allowed?
Yes
31
3 types of bad character for untruthfulness used to impeach:
1. Prior bad acts involving untruthfulness
2. Opinion or reputation of untruthfulness
3. Prior conviction of a crime involving dishonesty or false statement.
32
What is the 10 year rule?
Evidence of a felony involving dishonesty or untruthfulness is inadmissible if more than 10 years have passed since the date of conviction/release.
33
3 ways a witness may be rehabilitated:
1. Explanation on redirect
2. Good character for truthfulness
3. Prior consistent statements as substantive evidence
34
What is the attorney client privilege?
Confidential communications are privileges if necessary to transmit information between the attorney and client.
35
What is the joint client rule?
Where joint clients have a common interest, their communications are not privileged if they sue each other.
36
4 situations the attorney client privilege does not apply?
1. Client seeks legal advice in the aid of a crime or fraud.
2. Parties claiming through the same deceased client
3. Dispute between the attorney and client
4. Legal malpractice claims
37
When is the physician-patient privilege admissible?
The information must be acquired while a professional relationship exists while attending to the patient, the information was acquired for treatment, and information must be necessary for treatment.
38
4 times the doctor-patient privilege does not apply:
1. Dispute between the physician and patient
2. Patient puts physical condition at issue
3. Assistance was sought to aid wrongdoing
4. Patient agreed by contract to waive the privilege
39
What is the spousal immunity privilege?
One spouse may not be compelled to testify in a criminal case, but may do so willingly.
Note: the spouses must be married at the time of trial and communications are immune made before marriage.
40
3 features of the marital communications privilege:
1. Applies in both civil and criminal cases
2. Privilege belongs to both spouses
3. Communication must have been made during marriage and divorce will not terminate the privilege.
41
3 exceptions to the marital communication privilege:
1. Legal actions between the spouses
2. Cases involving crime against the spouse or children
3. Cases involving a furtherance of joint crime or fraud
42
4 types of non-hearsay:
1. Statement by an opposing party
2. Prior inconsistent statements
3. Prior consistent statement
4. Prior statement of identification
43
3 hearsay exceptions where the declarant must be unavailable:
FAD
1. Former testimony under oath
2. Against interest (statement)
3. Dying declarations
44
7 hearsay exceptions where the declarant's unavailability is immaterial:
1. Excited utterance
2. Present sense impression
3. Present state of mind
4. Statement made for medical diagnosis
5. Business records
6. Official records
7. Recorded recollections
45
What is an excited utterance?
A statement made under the stress of an exciting event
46
What is a present sense impression?
A statement that describes an event or condition made during or immediately after the event or condition.
47
What is a present state of mind?
A statement of a then existing motive, intent, plan, or emotional/sensory/physical condition.
Note: cannot be memory or belief
48
What is a statement of medical diagnosis:
A statement describing medical history, past or present symptoms, or their general cause.
49
3 requirements of the admissibility of a business record:
1. Made in the regular course of business
2. Made near the time of event
3. Made by someone with personal knowledge or someone with a business duty to transmit such matters.
50
3 types of admissible official records:
RAM
1. Activities of agency
2. Matters observed pursuant to a legal duty not including against D in a criminal case.
3. Records of factual findings
51
When are judgements of felony convictions admissible?
In both civil and criminal cases to prove any fact essential to the judgement.
52
3 requirements for a statement to be barred by the confrontation clause:
1. The declarant was unavailable
2. The statement was testimonial
3. The accused had no opportunity to cross-examine
53
Who has the burden of production?
The party who has the burden of pleading to make out a prima facie case.
54
What is the burden of persuasion for a civil and criminal case?
1. Civil case: by a preponderance of the evidence
| 2. Criminal case: beyond a reasonable doubt
55
3 issues affecting relevance decided by the jury:
1. Authenticity of evidence
2. Whether the person was acting as an agent
3. Whether the witness has personal knowledge
56
What does a judge determine regarding preliminary facts?
That there is sufficient proof to support a jury finding that the fact exists.
57
3 preliminary facts decided by a judge:
1. Whether evidence is admissible and the competency of the evidence
2. All non-privileged evidence
3. Whether the jury should be excused
58
What is judicial notice?
The court recognizes that a fact is true without the presentation of the evidence.
59
What is the collateral issue rule?
Extrinsic evidence is banned on collateral issues.
60
When must a court take a judicial notice of fact?
If the court is supplied with the necessary information to indicate that the fact is not subject to reasonable dispute.
61
When is an objection not timely?
When raised after the witness has left the stand.
62
What type of hearings do the FRE not apply to?
Probation revocation proceedings and grand jury hearings
63
What is an expert not allowed to testify to?
Whether D did it did not have the mental state at issue.
64
May an entire learned treatise be examined?
No there is a risk the jury may rely on irrelevant sections.
65
What is the purpose of adverse inference instructions?
A party’s intentional loss or destruction to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable.
66
If a document is used to refresh memory before testifying, the court will allow the opposing party to:
Examine it if justice so requires; if used during testimony the court must allow it.
67
4 reasons why relevant evidence may be excluded:
1. 403 balancing test
2. Misleading the jury
3. Confusion of the issues
4. Waste of time/undue delay
68
When may an agents admission be introduced against the principal?
As long as the admission was made during the course of the agency relationship and was within the scope of agency.
69
What is cross examination limited to?
The subject matter of the direct examination and matters affecting credibility.
70
When must re-direct be permitted?
Only to reply to significant new matters raised in cross examination.
71
When may a witness be attacked with reputation evidence?
Only if it deals with the witnesses character for truthfulness or untruthful ness.
72
4 forms of nonhearsay:
LESA
1. Legally operative facts
2. Effect on the listener
3. Stare of mind
4. Admissions of a party opponent
73
Judicial notice in a civil vs. criminal cases is noticed when:
Civil: conclusively established
Criminal: established beyond a reasonable doubt
74
2 features of slowing recollection:
1. Anything may be used to refresh memory
| 2. A document used to refresh recollection, opposing counsel can inspect and introduce all or parts into evidence.
75
What is the family record exception?
Statements of fact concerning personal or family history contained in documents is admissible hearsay.
76
When may a recorded recollection otherwise inadmissible is allowed to be read into evidence?
A witness still does not have the knolwedge to testify even after consulting it.
77
What do the judge/jury decide regarding preliminary facts?
```
Jury = whether the evidence is relevant
Judge = whether the evidence is competent
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78
What is the reply letter doctrine?
It allows a letter to be authenticated by content and circumstances indicating it was in reply to a duly authenticated one.
79
When can prior evidence of a felony conviction be admissible?
If used to impeach and the probative value outweighs its prejudicial effect.
80
May a judge control the order of examining witnesses?
Yes
81
What is the learned treatise exception?
It requires an expert witness to testify regarding the text for it to be admissible substantively.
