Dass Bar Review- Evidence

Front 1

Logical Relevance

Back 1

tendency to make a material fact more probable or less probable than it would be w/o evidence (threshold requirement)

Front 2

Bars to Logical Relevance

Back 2

Different:
1) time
2) Event
3) Person

Front 3

Judicial Discretion Bars to Relevant Evidence being admitted

Back 3

probabative value is substanitally outweighed by the danger of:
unfair prejudice, confusion of issues, misleading jury, undue delay, waste of time, cumulative evidence
(not unfair surprise)

Front 4

Logical Relevance: Causation

Back 4

To prove cause and effect
ex: several people eat same thing and get sick

Front 5

Logical Relevance: Prior Accidents or Claims

Back 5

General: P's prior accidents or claims not admissible
UNLESS: involving same instrument and circumstances

Front 6

Logical Relevance: Intent or state of mind in issue

Back 6

to infer intent from prior conduct.
ex. showing ER did not hire several well qualified women that applied to prove gender discrimination

Front 7

Logical Relevance: Rebuttal Evidence

Back 7

To rebut defense of impossibility
ex. Second bottle of coke with mouse in it

Front 8

Logical Relevance: Comparable Sales to Establish Value

Back 8

Sale price of other chattels or real estate can be used if
1) same kind
2) same time period
3) same geographical area

Front 9

Logical Relevance: Habit Evidence

Back 9

admissible to show someone acted a certain way
habit evidence must be:
1) specifically detaled conduct
2) Recurring
ex. w has seen d stop at that stop sign ten or twenty prior ooccasions

Front 10

Logical Relevance: Business Routine

Back 10

Habit of business, follow same rules as habit evidence

Front 11

Logical Relevance: Industrial or Trade Custom

Back 11

non-conclusive evience of standard of care
ex. not focused on what parties themsevles did but what trade does and maybe what they should have done

Front 12

Liability Insurance

Back 12

Not admissible to show person acted negligently or wrongfully or to show ability to pay.
Exceptions:
ownership or control
impeachment interest or bias

Front 13

subsequent remedial measures

Back 13

not admissible to show negligence, culpable conduct, a defect in a product or design or need for warning.
exception- to show:
ownership and control
impeachment to show feasability of precautionary measures

Front 14

Settlements

Back 14

not to show fault, liability or amount of damage. Admissions made during the discussion are NOT admissible

Front 15

limitations to settlement exclusion

Back 15

- must be a claim
- claim must be disputed as to either liability or amount

Front 16

Offer to pay medical expenses

Back 16

not admissible. But an admission of fact that accompanies it may be admitted

Front 17

Character Evidence in Civil Case

Back 17

No admissible when offered to infer conduct
only admissible if itself is material to issue in the case
- might be admissible for MIMIC
- If admissible it may be proven through specific acts, opinion, reputation

Front 18

Character in Criminal Case

Back 18

not admissible just to show disposition
- unless D opens the door
- good character trait offered must be pertinent to case
- can only use reputation or opinion
after D opens the door Pros. may:
-ask ask the witness about D's specific acts
- call witness to testify about only reputation or opinion

Front 19

Victim's Character- Self Defense

Back 19

D may show by opinion or reputation
Pros. may respond by showing V's good resputation or option or
by showing bad reputation or bad opinion of D
- specific acts of V not admissible as bad character but admissible to show D's state of mind

Front 20

Victim Character- Sexual Misconduct Cases (criminal)

Back 20

only to show consent:
- no opinion or reputation evidence
- only specific:
to show 3rd party was source of semen
prior acts of consentual intercourse
exclusiong would violate const. rights of D
- requires in camera review

Front 21

Victim Character- Sexual Misconduct Cases (Civil)

Back 21

if probabive values substantially outseighs the danger for harm to the victim and unfair prejudice to any party
- requires in camera hearing

Front 22

other crimes offered for non-character purpose

Back 22

prior accused misconduct admissible if relevant to show, motive opportunity, intent, preparation, plan, knowledge, identity, abesence of mistake or accident
(MIMIC)
- judge has discretion - probative value substantially outweighed by danger of unfair prejudice

Front 23

Sexual Assault and Child molestation

Back 23

in civil and criminal cases, charging d with sexual assult or child molestation, d's prior acts of sexual assault of child molestation may be used. Note: need not be convicted or even charged

Front 24

Authentication of writing

Back 24

must show that the writing is what it purports to be.

Front 25

methods of authentication

Back 25

admission, eyewitness testimony, handwriting (witness familiar with writing, expert, jury comparison)

Front 26

Authentication of Ancient Document

Back 26

1) 20 or more years
2)regular on its face
3) found in a place of natural custody

Front 27

Authentication- solicited reply doctrine

Back 27

proof that disputed document came in response to prior communication (offer and acceptance)

Front 28

Authentication- Quantum of Proof

Back 28

Sufficient evidence to justify a jury finding of genuiness

Front 29

Self Authenticating Documents

Back 29

Certified copes of public records, official publications, newspapers, trade inscription labels, acknowledged documents (signed contract then affidavidt about contract)

Front 30

Authentication of photograph

Back 30

witness to say it is a fair and accurate depiction
- if no one was there need someone to say: camera operating fine, time it was operating, and what was done with evidence until trial

Front 31

Best Evidence Rule

Back 31

must be seekign to prove the content of writing.
either 1) produce the original or 2) account for it's absence

Front 32

best evidence rule applies to

Back 32

-legally operative documents
- witness' sole knowledge comes from a document

Front 33

Best evidence does not apply to:

Back 33

-facts independnt of the writing (ex. birth certificate)
- collateral documents (minor importance)

Front 34

public records (best evidence rule)

Back 34

certified copes are admissible in place of original

Front 35

Voluminous documents

Back 35

summaries, charts or calculations are admissible as long as:
a) originals would be admissible if offered and
b) made accessible to opposing party

Front 36

Generally duplicate admissible unless:

Back 36

1) genuine question raised a/b authenticity or
2) it would be unfair to admit the duplicate (ex. only copied to sentences out of the whole document)

Front 37

to be a witness someone must:

Back 37

have personal knowledge (perception & memory), communication, and Sincerity (oath)

Front 38

Dead Man Act

Back 38

1) witness on stand as interested witness
2) witness testifying for her interest
3) testifying against decedent
4) bars surivor from testifying a/b something decedent could contradict (communication or transaction w/ decedent)
5) only civil case
6) can be a waiver
(be suspicious of this answer on exam)

Front 39

Objectionable questions

Back 39

narrative
Leading
misleading or compound or argumentative

Front 40

when leading questions permitted

Back 40

1) cross
2) may lead as to preliminary matters
3) when having difficulty illiciting info b/c witness is handicapped
4) adverse party or under control of adverse party or hostile witness

Front 41

Use of writings in aid of testimony

Back 41

generally witness cannot read from document unless refreshing recollection or recorded recollection

Front 42

Refreshing recollection

Back 42

when witness memory fails anything can be used to jog the memory of the witness
- opposing counsel can use in cross, and introduce the article into evidence

Front 43

Recorded recollection

Back 43

1) witness at one time had personal knowledge
2) witness's own writing
3) must have been made timely
4) show writing is reliable/accurate
5) necessity- witness can't remember all or part
- can be read into evidence
- document can't be admitted into evidence

Front 44

Lay Opinion

Back 44

Admissible if:
a) rationally based on perception of witness
b) helpful to trier of fact

Front 45

Expert opinion

Back 45

1) subject matter appropriate for expert testimony
2) qualified as expert
3) reasonable certainty or probability regarding opinion
4) supported by proper factual basis

Front 46

proper factual basis of expert testimony

Back 46

1) w/i personal knowledge of expert
2) hypothetical
3) facts not w/i personal knowledge or in evidence

Front 47

learned treatise

Back 47

can be offered to impeach opposing witness and support your own witness

Front 48

establishing authority of learned treatise

Back 48

1) opposing expert actually relied on it or cite it during testimony
2) ellicit admission on x that grey's is reliable
3) call your own epert to the stand
4) judicial notice

Front 49

Learned treatise introduced for truth of matter if:

Back 49

(exception to hearsay)
a) reliance by your expert on direct
b) admission on cross by your opposing expert
c) testimony of any expert or
d) judicial notice
note: must be filitered through witness, must be read to jury is not received as evidence

Front 50

Cross examination

Back 50

- absolute right to cross-examine a witness who testifies live
- not exceed scope of direct
- cannot use extrinsic evidence to impeach on collateral matters

Front 51

Accrediting own witness

Back 51

not allowed unless witness first impeached
exception for statement of identification

Front 52

statement of identification

Back 52

admissible if witness testifies (exception to hearsay and comes in for truth)

Front 53

impeaching your own witness

Back 53

yes you can

Front 54

ways to impeach adversaries

Back 54

1) prior inconsistent statement
2) showing of interest or bias
3) prior conviction
4) specific acts of deceit or lying
5) bad reputation or opinion for truth

Front 55

prior inconsistent statement

Back 55

statement made prior to trial inconsistent with testimony now
-admissible only to impeach, not for truth
UNLESS under oath and at trial, hearing other other proceeding or in a deposition, such statement is admissible for truth
- can use extrinsic evidence to prove

Front 56

prior inconsistent statement of party

Back 56

qualifies as an admission and come in for truth
- party does not even have to testify

Front 57

Bias, interest or motive impeachment

Back 57

may use extrinsic evidence after foundation laid
ex. insurance, settlements, relation, had fight with party

Front 58

Convictions useable for impeachment

Back 58

- crime that involves dishonesty
ex: fraud, larcey by trick, perjury
* no discretion to disclude it
- felony (court has discetion)
- not more than 10 years from conviction or date of release
- extrinsic evidence allowed
NOT ALLOWED IN MT

Front 59

specific acts of deceit or lying

Back 59

- may be asked about in cross
- good faith required
- act inquired about must involve deceit or lying
- * no extrinsic evidence permitted

Front 60

Bad reputation or opinion for truth and veracity

Back 60

- extrinsic evidence allowed
- call community moutht stand
- can give opinion and reputation

Front 61

Rehabilitation- good reputation

Back 61

-opinion for truth may be shown if impeachment involved character attack
- not admissible for truth of matter asserted

Front 62

Rehabilitation- prior consistent statement

Back 62

1) not usually to rebut charge of prior inconsistent statement
2) to rebut charge of recent fabrication or improper influence or motive
3) must be pre-motive statement
4) admissible for its truth

Front 63

Attorney-client privileges

Back 63

- right of the parties
- confidential communication
- professional legal relationship which means:
1) intent by client to est. a professional legal relationship
2) predominatnly legal advice sought

Front 64

where attorney- client privilege doesn't apply

Back 64

- future crim or fraud
- it's at issue (tax fraud- that's what my attorney told me to do)
- disputes a/b professional relationship
- joint client exception

Front 65

physician/psychiatrist patient privilege

Back 65

- seeking treatment
- confidental and necessary to facilitate professional treatment
- wavied by patient sues or defends by putting physical or mental condition in issue

Front 66

spousal immunity privilege

Back 66

1) valid marraige at time of trial
2) protects against any and all testimony
3) holder of privege is witness spouse, not party spouse
4) only applies in criminal cases
- does not apply in intra-family injury cases (abuse)

Front 67

Confidential Marital Communications privilege

Back 67

1) married at time communication occurred
2) protects only confidences (not all testimony)
3) either spouse holds privilege
4) applies in civil and criminal cases

Front 68

three situations in which state evidence law will apply in fed. ct. if state substantive law applies

Back 68

- presumptions and burdens of proof
- competency of witnesses
- privileges

Front 69

Hearsay

Back 69

out of court statement for purpose of establishing truth

Front 70

not hearsay

Back 70

1. verbal acts or legally operative facts (ex. offer acceptance)
2. Effect on the listener
3. declarant's relevant state of mind

Front 71

prior statements of the witness

Back 71

can be hearsay

Front 72

prior statements of witness that are not hearsay

Back 72

- prior inconsistent statements
(under oath, at trial, hearing or other proceeding or deposition)
- prior consistent statements to rebut
- prior statement of id made by witness

Front 73

hearsay exceptions/exclusions

Back 73

1. admission of party
2. former testimony
3 statements against interest
4. dying declaration
5. spontaneous statements
- present state of mind
- intent to prove intended act
- excited utterance
- present sense impression
- present physical condition
- past physical condition
6. business records (Not Self Authenticating in MT)

Front 74

admission of party

Back 74

hearsay exclusion, also vicarious admission- party's agent concerning matter in scope of agency during relationship

Front 75

former testimony

Back 75

meaningful opportunity to cross (if crim. must be same party or civil in privity)
2. unavailablity of the declarant

Front 76

statement against interest

Back 76

*unavailable
- would expose to criminal or civil liability at time it was made
- limitation- statement offered to expose declarant to criminal liability and offered to exculpate D= corroborating circumstances

Front 77

Dying Declaration

Back 77

1) made under sense of impending death
2) must be unavailable
3) homocide or civil case (any case in MT)
4)must concern cause or circumstances of impending death

Front 78

Declaration of existing state of mind in issue

Back 78

unavailability not required
ex. I believe I am pope

Front 79

declaration of existing intent to do something in futhre offered to infer that the intended future act was done

Back 79

unavailablity not required
ex. on monday i'm going to hairdresser to show she went to hair dresser

Front 80

excited utterance

Back 80

-startling event
-made under stress of excitment
-concerns the facts of the startling event

Front 81

present sense impression

Back 81

no time lapse, describing or explaining event as it happened or immediately after

Front 82

Declaration of present pain, suffering or physical condition

Back 82

a declaration of then exiting physical (or mental) condition is admissible to show the condition ("it hurts")

Front 83

Declaration of past physical condition

Back 83

admissible if:
- made to medical personnel
- pertient to either diagnosis or treatment (even if dx is only for giving testimony)

Front 84

Preliminary questions of fact upon which admissibility depends

Back 84

in making its determination the court is not bound by the rules of evidence

Front 85

impeaching the hearsay declarant

Back 85

when hearsay statement has been admitted credibility of declarant may be attacked as if person was on the stand

Front 86

business records exception

Back 86

kept in the regular course of business (germane to business)
- allows the record to subsitute for the incourt testimony of the ee's

Front 87

6th amendment right to confrontation

Back 87

even if available under hearsay exception not admissible if:
1) offered against accused in crim case and
2) declarant unavailable and
3) statement was testimonial and
4) no opportunity to cross when statement was made
unless- D obtained unavailability to prevent testimony

Front 88

testimonial

Back 88

statement to police, or at formal proceeding, prelim, grand jury, motion to suppress, guilty plea allocutions, forensic lab reports revealing drugs, fingerprints, firearms evidence, blood, DNA)

Front 89

considerations of whether testimionial

Back 89

1) likely motivation and intent of declarant making the statment
2) likely motivation and intent of interrogator
3) temporal element
4) Identity of person eliciting the statement
5) degree, amount, circumstances and location of police interrogation

Front 90

forfeiture by wrongdoing

Back 90

must be done with teh intent of keeping the witness from testifying

Front 91

MT Character questions

Back 91

Can only ask 2 questions
1) do you know the reputation of D in the community?
2) Is it good or bad?

Front 92

MT- Statement of Co-consperator

Back 92

Not exclusion to hearsay, cannot be used to prove the existence of a conspiracy