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71 Cards in this Set

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Direct, Cross, Redirect
Sequences of witness examination
(questions that suggest the answer desired) (only permitted on cross-exam, or on direct if to elicit preliminary or introductory matter, when the witness needs help to respond because of loss of memory, immaturity, or physical weakness, or when the witness is hostile)
improper quetsions - leading questions
(cannot be answered without making an unintended admission), compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, unduly harassing or embarrassing, or that assume facts not in evidence are improper and are not permitted
improper questions - questions that are misleading
1. Nonresponsive to the question (responding to a yes or no question with anything but a yes or no)
2. Narrative answers (questioning must be in the form of interrogation)
improper answers
i. Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would be without the evidence
ii. General Rule → the evidence must relate to the time, event, or person involved in the present litigation
logical relevance
→ previous occurrences may be relevant if they are probative of a material issue and that probativeness outweighs the risk of confusion or unfair prejudice:
logical relevance - exceptions to general rule
1. Causation → complicated issues of causation may be established by evidence concerning other times, events, or persons
2. Prior false claims or same bodily injury → evidence that the party has made previous similar false claims or claims involving the same bodily injury is usually relevant to prove that:
a. The present claim is likely to be false, or
b. The ∏’s condition is attributable in whole or in part to the prior injury
logical relevance - exceptions to general rule
3. Similar accidents or injuries caused by same event or condition → prior accidents or injuries caused by the same event or condition is admissible to prove:
a. The existence of a dangerous condition
b. That the ∆ had knowledge of the dangerous condition, and
c. That the dangerous condition was the cause of the present injury
4. Previous similar acts admissible to prove intent → similar conduct previously committed by a party may be introduced to prove the party’s present motive or intent when such elements are relevant
logical relevance - exceptions to general rule
5. Rebutting claim of impossibility → when ∆ raises defense of impossibility
6. Sales of similar property → evidence of sales of similar personal or real property that are not too remote in time is admissible to prove value
7. Habit → habit of a person to act in a certain way is relevant to show that person acted in the same way on the occasion in question
8. Industrial or business routine → admissible just like habit
9. Industry custom as evidence of standard of care → non-conclusive evidence
logical relevance - exceptions to general rule
a. General Rule → evidence of insurance against liability is not admissible to show negligence or ability to pay a substantial judgment
b. Exception → it may be admissible to:
i. Prove ownership or control
ii. Impeachment
iii. As part of an admission
legal relevance - extrinsic policy exclusions:

liability insurance
a. General Rule → evidence of repairs or other precautionary measures made following an injury is not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction
b. Exceptions:
i. To prove ownership or control
ii. Rebut a claim that the precaution was not feasible
iii. Prove that the opposing party has destroyed evidence
legal relevance - extrinsic policy exclusions:

subsequent remedial measures
a. General Rule → evidence of compromises or offers to compromise is not admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount
i. Excludes direct admissions of liability during compromise negotiations
ii. Excludes withdrawn guilty pleas and offers to plead guilty
b. Requirements:
i. Existence of a claim (or some indication that a party is going to make a claim
ii. The claim must be in dispute as to liability or amount
legal relevance - extrinsic policy exclusions:

settlement offers
a. General Rule → payment of or offers to pay the injured party’s medical expenses are inadmissible
b. HOWEVER, admissions of fact accompanying offers to pay medical expenses are admissible
legal relevance - extrinsic policy exclusions:

offers to pay medical expenses
1. A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of:
a. Unfair prejudice
b. Confusion of issues
c. Misleading the jury
d. Undue delay
e. Waste of time
2. HOWEVER, unfair surprise is not a valid ground upon which to exclude relevant evidence
prejudical impact

1. General Rule → unless character is directly in issue, evidence of character offered by either party to prove the conduct of a person in the litigated event is generally not admissible
2. Habit
a. Habit evidence is relevant to prove that the conduct of the person on a particular occasion was in conformity with the habit
b. Habit describes a person’s regular response to a specific set of circumstances
civil case

1. General Rule → The prosecution cannot initiate evidence of bad character of the ∆ merely to show that she is more likely to have committed the crime
2. HOWEVER, the ∆ may introduce evidence of her good character to show her innocence
- After Defendant opens the door by intrudcing character evidence, prosecution may rebut it by: cross examining or calling a witness to testify
criminal case

3. ∆ may introduce reputation or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the ∆’s innocence. After the Defendant opens the door, the prosecution may counter with reputation opinion evidence of: Rape victim past behvior
criminal case
a. General Rule → evidence of a person’s other crimes or misconduct is inadmissible if offered solely to establish a criminal disposition or bad character
criminal case: specific acts of misconduct
b. Exception → evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the ∆’s character or disposition to commit the crime or act charged
i. Motive
ii. Intent
iii. Mistake (absence of)
iv. Identity (modus operandi)
v. Common plan or scheme
c. To be admissible:
i. There must be sufficient evidence to support a jury finding that the ∆ committed the prior act, and
ii. Its probative value must not be substantially outweighed by the danger of unfair prejudice
criminal case: specific acts of misconduct

a. The capacity to observe
b. To recollect
c. To communicate
d. To appreciate the obligation to speak truthfully
witness competency

a. The competency of an infant depends on the capacity and intelligence of the particular child as determined by the trial judge
b. An insane person may testify provided he understands the obligation to speak truthfully and has the capacity to testify accurately
witness competency - age and mental capacity

→ a party interested in the event is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased
witness competency - dead man acts

ii. Personal knowledge → witness must have personal knowledge of the matter about which he is to testify (and must declare to testify truthfully)
witness competency

1. A witness may be impeached either by:
a. Cross-examination → by eliciting facts from the witness that discredit his own testimony
b. Extrinsic evidence → by putting other witnesses on the stand who will introduce facts discrediting his testimony

→ a party may show, by cross examination or extrinsic evidence, that the witness has, on another occasion, made statements inconsistent with his present testimony
i. If done by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case
ii. Foundation → the witness must be given, at some point, an opportunity to explain or deny the statement
iii. Evidentiary effect
1. Prior inconsistent statements are hearsay, admissible only for impeachment purposes
impeachment - traditional impeachment methods

evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie
i. Foundation → before a witness can be impeached by extrinsic evidence of bias or interest, he must first be asked about the facts that show bias or interest on cross-examination
ii. Evidence that is otherwise inadmissible (e.g. arrests, liability insurance) may be introduced if relevant for impeachment purposes, provided proper foundation
impeachment - bias or interests
a witness may be impeached by proof of a conviction for certain crimes
i. A witness may be impeached by any crime involving deceit or false statement (felony or misdemeanor)
ii. A witness may be impeached by a felony that does not involve dishonesty, but the court has discretion to exclude it if:
1. The witness being impeached is a criminal ∆, and the prosecution has not shown that the conviction’s probative value outweighs its prejudicial effect; or
2. In the case of all other witnesses, the court determines that the conviction’s probative value is substantially outweighed by its prejudicial effect
impeachment - convictino of a crime

iii. 10 Year Rule → if more than 10 years have elapsed since the date of conviction or the date of release from jail, the conviction is inadmissible
iv. No foundation required for extrinsic evidence → a prior conviction may be shown either by:
1. Cross examination of the witness
2. Introducing a record of the judgment
impeachment - conviction of a crime

→ a witness may be interrogated upon cross-examination with respect to an act of misconduct ONLY if the act is PROBATIVE of TRUTHFULNESS (i.e. an act of deceit or lying)
i. Subject to discretion of judge
ii. Inquiry must be made in good faith
iii. Extrinsic evidence not permitted → a specific act of misconduct relevant to impair credibility can be elicited only on cross-examination of the witness
iv. Cannot ask about arrests
specific acts of misconduct

a witness may be impeached by showing that he has a poor reputation for truthfulness
i. May include evidence of reputation in business circles as well as in the community
ii. An impeaching witness may state his own opinion as to the character of the witness for truth
opinion of reputation evidence

a witness may be impeached by showing, either on cross or by extrinsic evidence, that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts
impeachemtn - defects in memory, perception, knowledge

a witness who has been impeached may be rehabilitated by the following methods:

b. Good reputation for truth → when the witness’s character for truth and veracity has been attacked, other witnesses may be called to testify to the good reputation for truth of the impeached witness or to give their opinions as to the truthfulness of the impeached witness
c. Prior consistent statement → admissible to rebut an express or implied charge that the witness is lying or exaggerating because of some motive
i. The statement must have been made before the motive arose
ii. The statement will come in as substantive evidence as well

a writing or any secondary evidence of its contents will not be received in evidence unless the writing is authenticated by proof (sufficient to support a jury finding of genuineness) that shows that the writing is what the proponent claims it to be

a. Admissions → the party against whom it is offered has either admitted to its authenticity or acted upon it as authentic
b. Eyewitness testimony
c. Handwriting verifications
i. Opinion of a nonexpert with personal knowledge
ii. Opinion of an expert who has compared
iii. Jury comparison
evidence of authenticity

d. Ancient documents → a document that is at least 20 years old, in a non-fraudulent condition, found in a place where it would likely be kept
e. Reply letter doctrine → evidence that it was written in response to a communication sent to the claimed author
evidence of authenticity

f. Photographs → admissible only if identified by a witness as a portrayal of certain facts relevant to the issue and verified by the witness as a correct representation of those facts
i. Unattended camera → photograph may be admitted upon a showing that the camera was properly operating at the relevant time and that the photo was developed from film obtained from that camera
ii. X-rays, electrocardiograms → must be shown that the process used is accurate, the machine was in working order, and the operator was qualified to operate it; the custodial chain must be established
evidence of authenticity

a. Certified copies of public records
b. Official publications
c. Newspapers and periodicals
d. Trade inscriptions
e. Acknowledged documents
f. Commercial paper
g. Certified business records
self authenticating documents

to prove the terms of a writing, the original must be produced if the terms of the writing are material; secondary evidence is only admissible if the original is unavailable and there is a reasonable explanation
best evidence rule

1. Rule applies to situations where:
a. The writing is a legally operative or dispositive instrument; or
b. The knowledge of a witness concerning a fact results solely from having read it in the document
2. Rule does not apply:
a. Where the fact to be proved has an existence independent of the writing
b. The writing is collateral to the litigated issue
c. Summaries of voluminous records
d. Public records
best evidence rule

3. An original is the writing itself or any duplicate that is intended by the person executing it to have the same effect as an original
4. If the proponent cannot produce the original, he may offer secondary evidence of its contents if a satisfactory explanation is given for the nonproduction of the original
best evidence rule

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 in issue
3. Not based on scientific, technical, or other specialized knowledge
opinion testimony - lay witness

1. The subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact (relevant and reliable)
2. The witness is qualified as an expert
3. The expert possesses reasonable certainty regarding his opinion; and
4. The opinion is supported by a proper factual basis
a. Personal observation
b. Facts made known to the expert at trial, or
c. Facts not known personally but supplied to him outside the courtroom and of a type reasonably relied upon by experts in the particular field
opinion testimony - expert witness

courts take judicial notice of indisputable facts that are either matters of common knowledge in the community or capable of verification by resort to easily accessible sources of unquestionable accuracy
judicial notice
burden of proof encompasses the burden of producing or going forward with the evidence and the burden of persuasion
i. Burden of producing evidence on the party bringing the claim; once it is met, it shifts to the other party to rebut
ii. Burden of persuasion is always on the party making the claim
burdens of proof

a presumption is a rule that requires that a particular inference be drawn from an ascertained se of facts
i. A form of substitute proof in that proof of the presumed fact is rendered unnecessary once evidence has been introduced of the basic fact that gives rise to the presumption

ii. A presumption operates, until rebutted, to shift the burden of production to the party against whom the presumption operates
iii. HOWEVER, it does not shift the burden of persuasion
iv. A presumption is overcome or destroyed when the adversary produces some evidence contradicting the presumed fact

a. Definition → an out of court statement offered in evidence to prove the truth of the matter asserted

a. Inconsistent with the declarant’s in-court testimony and was given under oath at a prior proceeding
b. Consistent with the declarant’s in-court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive; or
c. The prior statement is one of identification
non hearsay: prior statemetns by witness

a. An admission is a declaration of a party offered against that party
i. Need not be against interest at the time of making the statement
ii. Need not be based on personal knowledge
iii. Can be in the form of a legal conclusion
Non Hearsay: admissions by party opponent

→ a party may make an admission by expressly or impliedly adopting or acquiescing in the statement of another
non hearsay: admission by party opponent - adoptive admissions

before admitting a hearsay statement as a vicarious admission, the court must make a preliminary determination of the declarant’s relationship with the party against whom the statement is offered (the statement alone is not enough to establish the required relationship)
non hearsay: admissions by party opponent - vicarious admissions

i. Principal-Agent → an agent’s statements concerning any matter within the scope of her agency, made while the employment relationship exists, are not hearsay and are admissible against the principal
ii. Partners → an admission of one partner relating to matters within the scope of the partnership business is binding upon her co-partners
iii. Co-conspirators → admissions of one co-conspirator, made to a 3rd party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators
non hearsay: admissions by party opponent - viarious admisssions

a. Elements:
i. Statement of a person,
ii. Now unavailable as a witness,
iii. Against that person’s pecuniary, proprietary, or penal interest at the time the statement was made
b. Limitation → a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances
Exceptions: unavailability excpetions: declarations aginast intersts
b. Elements:
i. State of mind → statement made under a sense of impending death
ii. Unavailability of declarant
iii. Homicide or civil case
iv. Must concern cause or circumstance of impending death
exceptions to hearsay; dying declaration

meaningful opportunity to develop a cross examine in the prior proceeding with the witness giave the testimoy; and
Unavailability of declarant due to privilege, refusal to testify, memory fails, dead or sick, or unable to procure attendance
exceptions to hearsay: former testimony
a. Requirements:
i. Startling event
ii. Made under stress of excitement
iii. Concerns the facts of the startling event
reliability exceptions; excited utterances

a statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter
a. Does not require startling event
b. No appreciable time lapse
reliability exceptions: present sense impressions

a declaration of then existing physical or mental condition is admissible to show the condition
reliability exceptions:

present state of mind

statement made for purposes of diagnosis or treatment and describing medical history or past symptoms or the general character of the cause or external source of the symptoms insofar as reasonably pertinent to diagnosis or treatment
reliability exceptions:

past physical condition

5. Declaration of existing state of mind in issue
6. Declaration of existing intent to do something in the future offered to infer that the intended future act was done
reliability exceptions

if a witness’s memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event
documentary exceptions:

past recollection recorded

a. Must be a business
b. The record must have been made in the course of a regularly conducted business activity
c. It was customary to make the type of entry involved
d. Entrant must have personal knowledge
e. Authenticity of the record must be established by the custodian:
i. Testifying that the record is a business record, or
ii. Certifying in writing that the record is a business record
documentary exceptions: business records

the following public records are admissible:
a. Records setting forth the activities of the office or agency;
b. Recordings of matters observed pursuant to a duty imposed by law;
c. Records of factual findings resulting from an investigation authorized by law
documentary exceptions:

public records

1. Ancient documents → statements in any authenticated document 20 years old or more are admissible
2. Learned treatises → admissible as substantive proof if:
a. Called to the attention of an expert or relied upon by an expert; and
b. Established as reliable authority by the testimony of that witness, other expert testimony, or judicial notice
miscellaneous hearsay stuff

3. Federal catch all → any hearsay not covered by an exception may be admitted if:
a. The statement possesses circumstantial guarantees of trustworthiness;
b. The statement is strictly necessary; and
c. Notice must be given to the adversary as to the nature of the statement
miscellaneous hearsay stuff

communications between an attorney and client, made during professional legal consultation are privileged from disclosure unless waived by the client or the representative of the deceased client
attorney client

1. Patient must be seeking treatment
2. Information acquired must be confidential and necessary to facilitate professional treatment
physician patient

→ one spouse cannot be forced to give adverse testimony against the other in a criminal case
i. Valid marriage at time of trial
ii. Protects against any and all testimony
iii. Holder of privilege is witness spouse not party spouse
iv. Applies only in criminal case
marital spousal immunity privileges

a husband or a wife 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
i. Married not necessarily at the time of trial but at time of protected communication
ii. Confidential communications protected only
iii. Either spouse is holder of privilege
iv. Applies to all cases
marital: confidential marital communications

1. Future crime or fraud
2. At issue exception → when client or patient affirmatively puts communication in issue
3. Disputes between the parties to the professional relationship
4. Joint client exception → where two or more parties communicate with an attorney about a matter of common interest
privileges exceptions