Shared Flashcard Set

Details

Evidence (MBE + Essay)
Evidence (MBE + Essay)
63
Law
Graduate
07/08/2011

Additional Law Flashcards

 


 

Cards

Term
What is "relevant" evidence?
Definition
It tends to prove (be probative of) any fact of consequence to the action (materiality).
Term
General 2 step approach for relevance
Definition

1) determine whether the evidence is relevant (i.e., tends to prove or disprove a material fact), and

2) If relevant, determine whether the evidence should nonetheless be excluded based on 

i) judicial discretion (i.e., probative value outweighed by prejudice, etc), or

ii) public policy (e.g., insurance, subsequent repairs)

Term
General rule for relevance
Definition
Evidence must relate to time, event, or person in controversy
Term
What is "habit"?  Is habit evidence admissible?
Definition

Habit is a person's regular response to a specific set of circumstances (as opposed to character, which describes one's disposition in respect to general traits).  Habit describes specific conduct and makes no moral judgment.

 

Character evidence is relevant to prove conduct of person on a particular occasion conformed with habit.

 

NOTE:  "instinctively" and "automatically" indicate habit in the question

Term
How do courts have discretion to exclude relevant evidence?
Definition

They can exclude if probative value is substantially outwighed by unfair prejudice, confusion, or waste of time.

 

Look for emotionally disturbing evidence, or evidence admissible for one purpose but inadmissible for another purpose

Term
What are the 5 different kinds of evidence that can be excluded for policy reasons?  (OWLSS)
Definition

1) offers to pay medical expenses

2) withdrawn guilty pleas

3) liability insurance

4) subsequent remedial measures (products liability)

5) settlement offers or negotiations (civil:  inadmissible to prove fault, criminal:inadmissible to prove guilt)

Term
2 exceptions to inadmissibility of settlements or offers to settle
Definition

1) no claim filed or threatened

2) no dispute as to liability or damages

Term
When is evidence about other people or events relevant?
Definition
When there are certain similarities between that evidence and the people & events at issue
Term
When are prior similar false claims or claims for the same bodily injury relevant?
Definition
When it is being offered to prove that i) the present claim is likely to be false, or ii) the plaintiff's condition is attributable in whole or in part to the prior injury
Term
What can previous similar acts be relevant to prove?
Definition
Certain kids of intent - i.e., discrimination
Term
What is evidence of comparable property sales relevant to establish?
Definition
Value of the property - must be similar property in same area sold at the same time (contemporaneous in kind and time)
Term
Can evidence of past occurrences be offered to rebut a claim of impossibility?
Definition
Yes
Term
What is evidence of routine business practice relevant to show?
Definition
That conduct was in conformity with that practice on the occassion in question
Term
What is evidence of industrial custom relevant to prove?
Definition
It may be relevant t prove standard of care in a negligence case.  However, be careful - an entire industry may be found to be acting negligenty!
Term
What is the general 4 question approach to a character evidence question?
Definition

1) what is the purpose for which the character evidence is offered (character is an issue in the case, used for circumstantial evidence of person's conduct, or impeach or support credibilty of witness)

 

2) what method or technique is used to prove character?

 

3) is it a civil or criminal case?

 

4) does the evidence prove a pertinent character trait?

Term
When is character evidence adissible in civil cases?
Definition

Character evidence is inadmissible to prove conduct except where civil claim is based on sexual assault or child molestation.

 

In such a case, defedant's prior acts of sexual assault or child molestation are admissible to prove conduct in this case.

Term
In a criminal case, can evidence of defendant's character be used to prove conduct?
Definition

Generally, no - prosecution cannot be the first to offer such evidence, except where:

 

1) cases of sexual assault or child molestation

2) where court has admitted evidence of victim's character offered by defendant, prosecution can be first to offer evidence that defendant has same character trait as the victim

Term
Who can "open the door" by offering evidence of defendant's character, and how?
Definition
A witness for the defendant may testify as to the defendant's good reputation for the trait in question and may give his personal opinion concerning that trait of the defendant
Term
If defendant introduces evidence of defendant's good character through witness for the defendant, how can the prosecution rebut?
Definition

1) cross-examine the character witness regarding his basis for testimony  (NOTE:  may inquire about prior arrests of defendant or witness, but NOT extrinsic evidence of misconduct.

 

2) call a qualified witness to testify to character's bad reputation or give their opinions of the defendant's character

Term
On cross-examination by any party, what type of evidence is admissable?
Definition
Evidence regardig reputation, pinion, and specific instances
Term
Evidence of other crimes or misconduct is admissible if these acts are...
Definition

relevant to some issue other than the defendant's character or disposition to commit the crime or act charged.

 

Ex:  MIMIC

motive

intent

mistake

identity

common plan or scheme

Term
For evidence of prior acts of misconduct to the admissible, they must MIMIC
Definition

Motive

Intent

Mistake

Identity

Common Plan or Scheme

 

NOTE:  1) sufficient evidence for jury, and 2) probative value must not be substantially outweighed by unfair prejudice

Term
Except in rape cases, defendant may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show ______, and prosecution may counter with reputation or opinion evidence of _______ or_______
Definition
the defendant's innocence, the victim's good character, the defendant's bad character for the same trait
Term
For criminal rape cases, what sort of evidence is allowed to be presented regarding the victim?  What is inadmissible?
Definition

Reputation and opinion evidence is inadmissible.  Specific instances of alleged victim's conduct are admissible only to prove

 

1) third party is source of semen or injury, or

2) prior acts of consensual intercourse between defendant and alleged victim.

Term

For civilrape cases, what sort of evidence is allowed to be presented regarding the victim (and at what time)?

Definition
Reputation, opinion, and specific instances evidence is admissible if probative value substantially outweighs unfair prejudice and, in the case of reputation evidence, plaintiff put her reputation at issue?
Term
What is required for evidence to prove identity?
Definition
Similarity and uniqueness
Term
What are the 4 requirements for witness competancy
Definition

1) personal knowledge - does the fact testified to = the fact perceived?

2) present recollection - cannot testify from record

3) communication - must be able to relate perception directly

4) sincerity - must take oath to tell the truth

Term
What are Dead Man Acts
Definition
They are state laws that provide that a party or person interested in the event is incompetent to testify to a personal transaction or communication with a deceased
Term
Objections to the form of testimony must be what ( charcteristics)
Definition
timely and specific
Term
Cross-examination must stay within....
Definition
the scope of direct examination
Term
Leading questions are OK on direct if...
Definition
adverse witness, hostile witness, or witness needing help
Term
What is present recollection revived (refreshing recollection).  Is there a hearsay problem?
Definition

A witness using a writing for the purpose of refreshing her present recollection.  Witness usually may not read from the writing while she actually testifies because the writing is not authenticated and not in evidence.

 

No hearsay problem, because writing is not offered into evidence

Term
What are the foundational requirements for past recollection recorded?  Hearsay problem?
Definition

1) The witness at one time had personal knowledge of the facts of the writing

2) the writing was made by the witness or under her direction, or it was adopted by the witness

3) the writing was timely made when the matter was fresh in the witness's mind

4) the writing is accurate, and

5) the witness has insufficient recollection to testify fully and accurately

 

This is hearsay, but it falls within an exception to the rule

Term
What are the general rules for opinion testimony by lay witnesses?
Definition

Generally inadmissible, but admissible if:

1) rationally based on the witness's perception

2) helpful to a clear understanding of his testimony or helpful to the determination of a fact at issue (to the jury), and

3) not based on scientific, technical, or other specialized knowledge

Term
What are the 5 requirements for admissibility of expert opinion?
Definition

1) helpful to jury

2) witness must be qualified

3) witness must believe in opinion to reasonable degree of certainty

4) opinion must be supported by proper factual basis

5) opinion must be based on reliable principles that were reliably applied (Daubert/Kumho standard)

Term
Can expert opinion be based on inadmissible hearsay?
Definition
Yes, if it is a learned treatise that is an accepted authority in the firld
Term
Evidence to support credibility is inadmissible unless...
Definition
credibility is attacked first
Term
Prior consistent statement is not hearsay and is admissible for all purposes if made...
Definition
Before a bribe or inconsistent statement.  Otherwise, it is inadmissible for any purpose.
Term
You cannot impeach your own witness unless the witness:
Definition

1) is an adverse party or identified with an adverse party

2 is hostile and affirmatively uncooperative

3) is one whom the party is required by law to call

4) gives surprise testimony that is affirmatively harmful to the party calling him

Term
What is the general 3 step approach to admissiblity of impeachment evidence?
Definition

1) is the source of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached

2) if extrinsic, is it admissible given impeachment technique?

3) any other foundation requirements?

Term
Extrinsic evidence is inadmissible to contradict on....
Definition
a collateral matter - a fact not material to the issues in the case that says nothing about witness' credibility other than to contradict the witness
Term
When are prior inconsistent statements hearsay, but admissible?  When are prior inconsistent statements admissible nonhearsay?
Definition

Usually, prior inconsistent statements are hearsay, admissible only for impeachment purposes.  

 

They are admissible nonhearsay when they are made under oath at a prior proceeding (trial or deposition)

Term
A witness may impeached by any crime involving...
Definition
dishonesty
Term
A witness may be impeached by a felony that does not involve dishonesty, but the court has discretion to exclude it if:
Definition

1) the witness is a criminal defendant, and the prosecution has not shown that the conviction's probative value outweighs its prejudicial effects, or

 

2) in the case of other witnesses, the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect

Term
A witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is...
Definition
probative of truthfulness (ie is an act of deceit or lying)
Term
A prior conviction that is otherwise admissible is inadmissible if it has been...
Definition
more than 10 years since the date of conviction or release from prison (whatever is later)
Term
Acts of misconduct that did not result in a conviction are admissible to impeach in both civil and criminal cases is the acts involved _____.  Is extrinsic evidence admissible?  Can impeacher ask on direct?
Definition
lying.  Extrinisc evidence to prove the acts is inadmissible.  Impeacher may only cross-examine witness about her misconduct
Term
Definition of hearsay
Definition
A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted
Term
What can the "statement" in hearsay be?
Definition

1) an oral or written assertion, or

2) nonverbal conduct intended as an assertion

Term
What out of court statements are not hearsay (3)?
Definition

1) verbal acts or legally operative facts (e.g., words of contract, defamatory words)


2) statements offered to show their effect on the hearer or reader (e.g., to prove notice in negligence case)


3) statements offered as circumstantial evidence of declarant's state of mind (e.g., evidence of insanity or knowledge)

Term
In deciding whether evidence is hearsay, ask whether it matters that the declarant...
Definition
is telling the truth.  If not, the evidence is not hearsay
Term
Can animals or machines give hearsay?
Definition
No
Term
Can you have hearsay if an out of court declarant is not a witness in this case?
Definition
Yes!
Term
Are admissions of a party-opponent hearsay?
Definition
No
Term
What is an admission of a party opponent?  Hearsay?
Definition
It is a statement by a party, or by someone whose statement is attributable to a party, offered by a party opponent.  It is not hearsay.
Term
Vicarious party admissions are statements by whom?  Are they hearsay?
Definition

They are statements by:

1) authorized spokesperson of party, or

2) employee of party concerning matter within scope of employment and made during employment relationship.

Term
What 3 hearsay exemptions apply to an out of court statement from a declarant who now testifies at trial?
Definition

1) prior inconsistent statement given under oath at trial or deposition

2) prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive

3) statement of identification of a person made after perceiving the person

Term
A declarant is unavailable if he (5 conditions)
Definition

1) is exempt from testifying because of privilege

2) refuses to testify concerning the statement despite a court order

3) testifies to lack of memory of the subject matter of the statement

4) is unable to testify due to death or physical or mental illness, or

5) is absent (beyond reach of subpoena) and the proponent is unable to procure his attendance by reasonable means)

Term
What is the statement against interest exception to hearsay?  
Definition
The statement of a person, now unavailable as a witness, made against that persons's pecuniary, proprietary, or penal interest, as well as collateral facts contained in the statement, is admissible under the statement against exception.
Term
For the dying declaration exception, does the declarant have to die?
Definition
No, not according to the federal rules (but yes according to the traditional rules)
Term
What is the former testimony hearsay exception.  Unavailability required?
Definition
Statement made under oath at same or at other proceeding at which the party against whom it is offered had motive and opportunity to develop testimony.
Term
What is the statement of personal or family history hearsay exception?  Unavailability require?
Definition
Statement of personal or family history (eg birth, death, marriage) made by family member or one intimately associated with the family.  Unavailability required
Term
In civil actions and proceedings, where an element of a claim or defense is not based on a federal question, testimonial privileges are determined by federal law or state law?
Definition
State Law
Supporting users have an ad free experience!