2008 Mbe Evidence

Front 1

Judicial notice operates as a substitute for proof as to facts that are (2)

Back 1

1. Matters of common knowledge
OR
2. Capable of certain verification through easily accesible, well-established sources

Front 2

Effect of judicial notice in a criminal case

Back 2

Relieves the prosecutor from his burden of producing evidence on that fact

Front 3

Effect of judicial notice in a civil case

Back 3

The fact judicially noticed is conclusivley proven

Front 4

Relevant evidence should relate to the same (3)

Back 4

1. Event
2. Person
3. Time

Front 5

Previous similar happenings and transactions of the parties and others similarly situtated may be relevant in these circumstances (8)

Back 5

1. Causation
2. Similar accidents/injuries caused by the same event or condition
3. Prior false claims or same bodily injury
4. Previous similar acts admissible to prove intent
5. Redutting claim of impossibility
6. Sales of similar property
7. Habit
8. Business routine

Front 6

Evidence that a person has previously filed similar tort claims/has been involved in prior accidents is generally

Back 6

Inadmissible to show the invalidity of the present claim (PV outweighed by UP)

Front 7

Evidence that a person has previously filed similar FALSE tort claims/has been involved in prior accidents may be admissible to show

Back 7

MIMIC: Common plan or scheme to defraud

Front 8

Where similar accident/injuries were casued by the same event/condition, evidence of those prior events is admissible to prove (3)

Back 8

1. That a defect/dangerous condition existed
2. Defendant had knowledge of the condition
AND
3. The defect/condition was the casue of the present injury

Front 9

The requirement that prior occurrences be similar to the litigated act may be relaxed when used to rebut

Back 9

A claim of defense of impossibility

Front 10

Evidence of sales or similar property that are not too remator in time is admissible to prove

Back 10

Value

Front 11

Policy based relevance covers (3)

Back 11

1. Liability insurance
2. Subsequent remedial measures
3. Settlements

Front 12

General rule regarding liability insurance

Back 12

Not admissibile to show fault or ability to pay

Front 13

The exception to the general rule regarding liability insurance makes such evidence admissible for what purposes (2)

Back 13

- Ownership/control
- To impeach credibility of witness by showing interest/bias

Front 14

General rule regarding subsequent remedial measures

Back 14

Not admissible to show:
- negligence
- culpable conduct
- defective product
- need for warning

Front 15

Exception to the general rule regarding subsequent remedial measures admits evidence for purpose of showing

Back 15

- Ownership/control
- Impeachment: to rebut claim that precaution was not feasible

Front 16

General rule regarding admissibility of settlements

Back 16

Admission of fact, liability, or damage made in course of offer to compromise a claim are not admissible

Front 17

For settlement rule of exlcusion to operate these factors must exist (2)

Back 17

1. There must be a claim filed
2. Dispute as to liability or damages

Front 18

Payment or an offer to pay medical expenses

Back 18

Not admissible

Front 19

Key considerations in evaluating character evidence (4)

Back 19

- Purpose of the character evidence
- Method of proving it
- Type of case: civil/criminal
- What trait of character is involved

Front 20

Purpose of offer of character evidence - three reasons

Back 20

- Character directly in issue (i.e. material element)
- As circumstantial evidence to prove conduct
- To impeach the credibility of a witness

Front 21

Possible methods of proving character (3)

Back 21

1. Reputation
2. Opinion
3. Specific Acts

Front 22

The trait of character must be the specific trait in issue - examples:

Back 22

Larceny - Honesty
Assault - Peaceful
Perjury - Truthfulness

Front 23

Character in Civil cases

Back 23

Not admissibile (by anyone!)as circumstantial evidence to infer conduct

Front 24

Character is admissible in a civil case only when

Back 24

The character os a person is itself a material issue (this is rare) - example: defamation case

Front 25

Character is Criminal cases

Back 25

Prosecution can never initiate; Defendant can put his character in issue by presenting evidence FOR THE TRAIT INVOVLED in the case; only through Reputation or Opinion

Front 26

How does the prosecution rebut D's character evidence

Back 26

- Cross the witness and ask, "have you heard/do you know?"
- Call a qualified witness to testify to Reputation or Opinion

Front 27

Victim's character in a self-defense case (homicide/assault)

Back 27

The accused may introduce character evidence of the "victim" as circumstantial evidence to infer that on the occassion in question the alleged victim was the first aggressor

Front 28

Victim's character in sexual misconduct cases (rape) is limited as follows

Back 28

- No opinion/reputation
- Specific instances admissible only to prove third party was the source of sexual crime or to show prior consensual acts between the "victim" and the accused

Front 29

Specific acts of prior misconduct by the accused

Back 29

Not admissible for propensity BUT may be admitted when relevant to prove a material fact other than character (MIMIC)

Front 30

If using a specific act to show MIMIC always consider this rule

Back 30

403 - Balancing test: PV vs. UP

Front 31

MIMIC rule is good for what types of cases

Back 31

Criminal AND Civil

Front 32

Prior similar acts allowed to show propensity: special rule for cases involving

Back 32

- Sexual Assault
- Children

Front 33

Writings: rule of authentication

Back 33

A writing is not admissible until it has been authenticated - requires foundation that the item is genuine

Front 34

Methods of authentication: direct evidence in the form of (3)

Back 34

1. Admission
2. Eyewitness testimony
3. Handwriting proof

Front 35

Sources allowable for authenticating a handwriting proof (3)

Back 35

- Lay witness
- Expert witness
- Jury comparison

Front 36

Impermissible techniques by lay witness to authenticate handwriting (2)

Back 36

- Cannot become familiar just for purpose of litigation
- Cannot compare to authentic signature

Front 37

Self-authenticating documents (6)

Back 37

1. Certified copies of public/business records
2. Official publications
3. Newspapers/periodicals
4. Trade inscriptions or lables
5. Acknowledged documents
6. Signatures on certain commercial documents

Front 38

Authenticating a photograph

Back 38

Need a witness familiar with the relevant scene (i.e. present at the relevant time)to attest that the photo is a fair and accurate representation

Front 39

Best Evidence Rule: in seeking to prove the content of a writing (broad) must either (2)

Back 39

1. Produce the original
OR
2. Account for the absence of the original - if reasonable okay to proceeded with secondary evidence

Front 40

Modifications to the best evidence rule: public records; voluminous documents; duplicates

Back 40

- Public records: certified copies
- Voluminous docs: summaries (if originals would be admissible and made available to opposing party)
- Duplicates: an electrnoic copy

Front 41

Witnesses use of writings to aid in testimony - general rule

Back 41

Cannot read testimony previously prepared documents

Front 42

Proper use of a writing by a witness testifying (2)

Back 42

1. Refreshing recollection
2. Recorded recollection

Front 43

Refreshing recollection

Back 43

Can use ANYTHING to job the memory of the witness

Front 44

Recorded recollection

Back 44

Witnesses own writing may be admitted into evidence in place of his testimony

Front 45

Foundation for recorded recollection requires a showing of (5)

Back 45

1. Witness has personal knowledge
2. Writing was made by (or directed by) the witness
3. Was madee timely
4. It is accurate/reliable
5. Necessity: witness has insufficient recollection to testify full and accurately

Front 46

Two forms of Opinion testimony

Back 46

- Lay opinion
- Expert opinion

Front 47

Lay opinion is admissible if (2)

Back 47

1. Rationally based on the perception of the witness
AND
2. Helpful to the trier of fact

Front 48

Four basic requirements for expert testimony

Back 48

1. Subject matter must be appropriate
2. Witness must be qualified as an expert
3. Expert must possess reasonable certainty/probablity
4. Must support with a proper factual basis

Front 49

What qualifications does an "expert" witness need

Back 49

Simply enough experience will suffice; need not be formal/academic

Front 50

Facts supporting an expert's opinion must be either (3)

Back 50

- Facts w/i the personal knowledge of the expert
- Facts which are presented in court by the evidence
OR
- Facts are of the type that experts in that field reasonably rely upon in making out of court opinions

Front 51

Learned treatise limitations

Back 51

- Hearsay (w/ an exception)
- For impeachment to show not all experts agree
- Text itself is not received as evidence

Front 52

To fit within the hearsay exception for learned treatise must establish it as authoritative and reliable (4 ways)

Back 52

1. Reliance by your expert on direct
2. Admission on cross of your opposing expert
3. Testimony of any expert
4. Judicial notice

Front 53

Under federal rules, a treastise may used to support

Back 53

Your own expert's opinion

Front 54

Credibility and impeachment attacked two ways

Back 54

- On cross-examination
OR
- Through extrinsic evidence

Front 55

Collateral Matters Doctrine

Back 55

No extrinsic evidence is allowed to contradict a witness as to a collateral matter (i.e. relevant only to show a contradiction)

Front 56

Limited to bolstering your own witness only when

Back 56

There has first been an appropriate impeachment

Front 57

A prior out-of-court statement of identification made by a witness testifing at trial is

Back 57

Excluded from the definition of hearsay and therefore admissible (for its truth!); additionally anyone present at this prior statement of identification can testify to support it

Front 58

Basic five impeachment techniques

Back 58

1. Prior inconsistent statement
2. Showing bias, interest, motive
CHARACTER ATTACKS
3. Prior criminal conviction
4. Specific acts of deceit/lying
5. Bad reputation for truth/veracity

Front 59

Generally prior inconsistent statements are admissibile for

Back 59

Only for impeachment; NOT for its truth

Front 60

Exception to general rule of admissibility for prior inconsistent statments

Back 60

If (1) given under oath and (2) at a trial, hearing or other proceeding --> its admissible for its truth

Front 61

Two means of proving a prior inconsistent statement

Back 61

1. On cross-examination
OR
2. Through extrinsic evidence

Front 62

Prerequisite to using extrinsic evidence to impeach on prior inconsistent statement

Back 62

Lay foundation by giving witness an opportunity to explain or deny the making of the inconsistent statement (means witness needs to be present at the trial)

Front 63

Prior inconsistent statement of a party as an admission

Back 63

Yes

Front 64

Bias, Interest, Motive may be shown by extrinsic evidence after

Back 64

A foundation is laid by inquiry on cross of the target witness

Front 65

Prio Convictions are usable to impeach if

Back 65

The conviction is for the proper kind of crime

Front 66

Convictions usable to impeach (2)

Back 66

1. Any crime involving dishonesty or false statement
OR
2. A felony (at the discretion of the court - consider remoteness past 10 years)

Front 67

Extrinsic evidence of conviction is

Back 67

Admissible and no foundation necessary

Front 68

Cross-examining on Specific Acts of deceit or lying (i.e. "Isn't it true you filed a false income tax return in 199?") (3)

Back 68

- Good faith required
- Act inquired about must involved deceit or lying
- No extrinsic evidence permitted (only on cross)

Front 69

Rehabilitation after Impeachment - two options

Back 69

- Good reputation (opinion) for truth may be shown if impeachment involved a character attack
OR
- Prior Inconsistent Statement to rebut charge of fabrication or improer motive

Front 70

Four exceptions to the standard Attorney-Client privilege

Back 70

1. Future crime/fraud
2. At issue exception ("I followed advice of lawyer")
3. Disputes between the parties (allows lawyer to defend himself)
4. Join client exception

Front 71

Physician/Psychiatrist - Patient Privilege

Back 71

Confidential information acquired in a professional relationship by the treating doctor for the purpose of obtaining treatment

Front 72

Husband-Wife spousal privileges (2)

Back 72

1. Spousal Immunity privilege
2. Confidential marital communications privilege

Front 73

Define: Spousal Immunity privilege

Back 73

One spouse cannot be forced to give adverse testimony against the other in a criminal case

Front 74

Elements necessary to establish spousal immunity privilege (4)

Back 74

1. Valid marriage at time of trial
2. Protects against any/all testimony
3. Holder of privilege is witness spouse not party spouse (can choose to talk)
4. Applies only in criminal case

Front 75

Define: Confidential Marial Communications privilege

Back 75

Shall not be required, or without the consent of the other, shall not be allowed to disclose a confidential communication made by one to the other during the marriage

Front 76

Elements necessary to establish confidential marital communications privilege (4)

Back 76

1. Married at time of protected communication (not neccesarily at trial)
2. Protects only confidences
3. Hold is either spouse
4. Applies to all cases civil/criminal

Front 77

Applicability of state law in federal court - three situation in which state evidence law will apply in federal court IF state substantive law applies (think diversity j/d)

Back 77

1. Presumptions and burdens of proof
2. Competency of witness
3. Privileges

Front 78

Specific non-hearsay situations (3)

Back 78

1. Verbal acts or legally operative facts
2. Offered to show effect on listener
3. Offered as circumstantial evidence of declarant's state of mind

Front 79

Verbal acts/legally operative facts means

Back 79

The words constitute the act
- "I accept" for a (K)
- Cancellation
- Conspiracy
- Waiver

Front 80

Statements offered to show effect on listener important in showing

Back 80

- Notice
- Knowledge
- Motive

Front 81

A witnesses' own prior statements can be hearsay, but the rules exclude certain statements (3)

Back 81

- Prior Inconsistent Statemnet (under oath, prior proceeding)
- Prior Consistent Statement (to rebut impeachment)
- Prior statement of identification made by a witness

Front 82

Major hearsay exceptions (6)

Back 82

1. Party admission
2. Former testimnoy
3. Statement against interest
4. Dying declaration
5. Business records
6. Spontaneous statements

Front 83

Common spontaneous statements that will be excepted from hearsay

Back 83

- Present state of mind
- Statement of existing intent to prove intended act
- Excited utterance
- Present sense impression
- Declaration of present physcial condition
- Declaration of past physical condition

Front 84

Part Admission exception

Back 84

- need not be against interest at time of making it
- need not be based on personal knowledge
- can be a legal conclusion
- is non-hearsay

Front 85

Vicarious party admission admissible when

Back 85

A statement is made by the party's agent, within the scope of agency and during existence of the relationship

Front 86

Former testimony exception - 2 requirements

Back 86

1. Meaningful opportunity to cross
AND
2. Declarant is "unavailable"

Front 87

Defined: Statement against interest exception

Back 87

Declaration of a person, now unavailable as a witness, against that persons' interests at the time the statement was made

Front 88

Limitation to exception for statements against interest

Back 88

Statements against penal interest (i.e. criminal liability) - must be corroborated

Front 89

Distinguish statements against interest from admission of party

Back 89

Statements Against Interest
- Must be against interest at the time statement was made
- May be made by any person
- Require personal knowledge
- Requires unavailibility

Front 90

Dying declaration key points

Back 90

- Criminal Homicide case or a civil case
- Statement made under a sense of impending death
- Must concern cause or circumstances of death (personal knowledge)
- Declarant is unavailable

Front 91

Preliminary questions of fact concerning qualification of witness, existence of privilege, admissibility of evidence shall be determined by

Back 91

The court

Front 92

Business records exception - 2 requirements

Back 92

1. Made at/near time
2. Kept in the regular course of business (entry needs to be german to the business)
- Allows the record to substitute for the in-court testimony of the employees

Front 93

Crawford held that out-of-court statements that fit the hearsay exception may still not be admitted where (5)

Back 93

1. Offered in a criminal case
2. Declarant unavailable
3. Statement was testimonial
4. No opportunity to cross the declarant's testimonial statement
UNLESS
5. Prosecution demonstrates defendant forfeited his confrontation clause objection by wrongdoing that prevented him from testifying at trial