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71 Cards in this Set

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Judicial Notice
Accept facts as true without proof
What is a judically known fact?
Something that is generally known within the territorial jurisdiction of the court or is capable of ready & accurate determination by sources whose accuracy cannot be questioned

Ex. Durham may take notice that Roxboro street runs north to south
how many types of Judicial notice are there?
Two
1. Mandatory
2.Discretionary
What is Mandatory Judicial Notice?
1. state and federal law
2. indisputable scientific facts (i.e. blood test
What is discretionary judicial notice?
1. laws of foreign countries
2. laws of sister states
3. Municipal ordinances
4. regulations of public or private agencies
5. matters of local geography
The jury in civil cases
Will take judiical notice.
Judicial notice has per the jury in criminal cases is not conclusive, true of false?
True, the court is not bound to take JN.
what is relevant evidence?
Evidence if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
When will evidence be inadmissible?
When the probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or by consideration of undue delay, waste of time. This is the balancing test
What is logical evidence?
evidence that is logically relevant. it must be relevant to time, proximity, place or person.
what are the exceptions to similar happenings?
1. to show intent or state of mind
2. to rebut impossibility
3. comparative sale to establish value
4. habit evidence
5. business routine
6. industrial custom

CHIPCRIB
What is legal relevance?
it's a discretionary rule of exclusion
what are policy exclusions under legal relevance?
1. liability insurance
2. subsequent remedial measures
3. settlement offers
4. withdrawn guilt pleas not admissible
5. withdrawn guilt pleas not admissible

LSMSW
NC - subsequent remedial measures
Inadmissible to PROVE negligence or culpable conduct.
What are the exceptions to Rule 407 Subsequent Remedial Measures?
1. to prove ownership/control
2. for feasibility/impeachment

FICO
Are offers to settle admissible?
No, an ofer to settle a claim which is disputed is inadmissible to prove liabiity for the claim or its amount

Note: if the person admits fault before offering to settle (rule 408)
What are the exceptions to the Settlement Rule 408?
unless to
1. bias
2. impeachment
3.prejudice of a witness
4. negate claim of undue delay.
What is character evidence?
evidence of character is inadmissible to show dft acted in conformity therewith.

Ask: is it being offered for impeachment?
NC payment of medical expenses
applies to medical and hospital expenses and to other expenses. i.e lost wages, property damages
NC Character evidence-victims in criminal cases
The prosecution may rebut the dft's bad character evidence only with the victim's good character of the same trait.
NC rape cases
[evidence must be relevant]
NC allows evidence of sexual behavior in 4 situations
1. sexual behavior was btwn the complainant & the dft
2.evidence is being offered to show that the acts were NOT committed by the dft
3. to prove conduct( pattern is so distinctive & closely resembles the dft's version
4. experts opinion-fantasized or invested the acts charged.
What are the three forms of character evidence?
1. opinion
2. reputation
3. specific instances of conduct

ORS
Specific acts of conduct
NC- admissible if independently relevant to rebut a claim of entrapment.
prior acts
nc will admit evidence of other se offenses committed by the dft when those offenses involved the same victim as the victim in the crime in which the dft is on trail.
What is the general rule for character evidence in a civil case
Generally, character evidence is inadmissible to prove conduct in conformity therewith on a particular.
What are the exceptions for character evidence in a civil case.
1. where character is an essential element of a claim, defense or cause

2. where knowledge of the character of another is in issue (negligent entrustment)
Character evidence- criminal cases
prosecutor may not, in his case in chief, introduce evidence of dft's bad character to show he acted in conformity on a particular occasion.
When can a criminal defendant use character evidence?
A criminal defendant can use character evidence by "opening the door" and the criminal defendant may offer evidence of his good character by reputation or opinion. (Rule 404(a))
When can a criminal defendant show bad character of the victim?
a defendant may use only reputation and opinion testimony to show the victim as the first aggressor.

Note: prosecution can show the victim was peaceful or nonviolent.

Note: Under the federal rules opening the door to character of the victim also opens the door to the character of the defendant.
What are the exceptions to the general rule for rape cases?
1. to prove that someone other than the defendant was the source of semen or injury to the victim

2. to prove consent

3. where exclusion would violate the defendant's right of due process
When can prosecution in a criminal case use other crimes to bad acts to show the defendant acted in comfority therewith.
This is when the M.I.M.I.C rule applies.

1. motive
2. intent
3. absence of mistake
4. identity
5. common scheme or plan
What are the methods of proof under M.I.M.I.C?
1. by conviction
2. evidence that proves the crime occurred
Victim's exceptions under MIMIC
if dft argues self-defense, prosecution may present evidence of victim's relevant good character (peacefulness)
Competency of Witnesses
The witness must have personal knowledge of the matter on which he will testify (FRE 602), and he must declare that he will testify truthfully,
by oath or affirmation. FRE 603.
Under the FRE note further that the judge, not the jury, determines witness competence.
Test Tip: See if the witness has MOCK (Memory;Observance; Competence; Knowledge).
NC Competency of Witnesses
A person will be disqualified as a witness, if the court determines that he is
1. incapable of epressing himself concerning the matter to be understood, either directly or thru interpretation by one who can understand him
2. is incapable of understanding the duty of a witness to tell the truth.
Dead Man Act
Law prohibiting testimony concerning a transaction between a witness with an interest in the outcome and a now-deceased person, in
cases pressed or defended by the decedent's executor. The laws are founded on the theory
that such one-sided testimony is unreliable, since the living person can lie without fear of contradiction.
NC Dead Man Act
Applies to testimoney concerning any oral communication between witness and the deceased or insane person. 4 requirements:
1. Interested person
2. testify to own behalf and against deceased
3. oral communication
4. no exception to the rule
Specific acts of conduct
NC- admissible if independently relevant to rebut a claim of entrapment.
prior acts
nc will admit evidence of other se offenses committed by the dft when those offenses involved the same victim as the victim in the crime in which the dft is on trail.
What is the general rule for character evidence in a civil case
Generally, character evidence is inadmissible to prove conduct in conformity therewith on a particular.
What are the exceptions for character evidence in a civil case.
1. where character is an essential element of a claim, defense or cause

2. where knowledge of the character of another is in issue (negligent entrustment)
Character evidence- criminal cases
prosecutor may not, in his case in chief, introduce evidence of dft's bad character to show he acted in conformity on a particular occasion.
When can a criminal defendant use character evidence?
A criminal defendant can use character evidence by "opening the door" and the criminal defendant may offer evidence of his good character by reputation or opinion. (Rule 404(a))
When can a criminal defendant show bad character of the victim?
a defendant may use only reputation and opinion testimony to show the victim as the first aggressor.

Note: prosecution can show the victim was peaceful or nonviolent.

Note: Under the federal rules opening the door to character of the victim also opens the door to the character of the defendant.
What are the exceptions to the general rule for rape cases?
1. to prove that someone other than the defendant was the source of semen or injury to the victim

2. to prove consent

3. where exclusion would violate the defendant's right of due process
When can prosecution in a criminal case use other crimes to bad acts to show the defendant acted in comfority therewith.
This is when the M.I.M.I.C rule applies.

1. motive
2. intent
3. absence of mistake
4. identity
5. common scheme or plan
What are the methods of proof under M.I.M.I.C?
1. by conviction
2. evidence that proves the crime occurred
Victim's exceptions under MIMIC
if dft argues self-defense, prosecution may present evidence of victim's relevant good character (peacefulness)
Competency of Witnesses
The witness must have personal knowledge of the matter on which he will testify (FRE 602), and he must declare that he will testify truthfully,
by oath or affirmation. FRE 603.
Under the FRE note further that the judge, not the jury, determines witness competence.
Test Tip: See if the witness has MOCK (Memory;Observance; Competence; Knowledge).
NC Competency of Witnesses
A person will be disqualified as a witness, if the court determines that he is
1. incapable of epressing himself concerning the matter to be understood, either directly or thru interpretation by one who can understand him
2. is incapable of understanding the duty of a witness to tell the truth.
Dead Man Act
Law prohibiting testimony concerning a transaction between a witness with an interest in the outcome and a now-deceased person, in
cases pressed or defended by the decedent's executor. The laws are founded on the theory
that such one-sided testimony is unreliable, since the living person can lie without fear of contradiction.
NC Dead Man Act
Applies to testimoney concerning any oral communication between witness and the deceased or insane person. 4 requirements:
1. Interested person
2. testify to own behalf and against deceased
3. oral communication
4. no exception to the rule
NC Presentation of evidence-
in camera
Objects,writings & privileged information
Types of opinion evidence
Lay and Expert
NC Opinion testimony
NC allows anyone who has observed another or conversed or had dealings with him, and had a reasonable opportunity of forming an opinion as to the mental condition of such a person to give her opinion in evidence upon the issue of mental capacity, although she is not an epert.
Requirements for expert witness
(1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony?

(2) Is the witness testifying at trial qualified as an expert in that area of testimony?

(3) Is the expert's testimony relevant
What is the qualification of an expert witness in NC?
must tender the witness to court for ruling that the expert is qualified.
What is the NC distinction for cross examination?
Any matter relevant to the issue. It doesn't restrict the scope of cross examination or affecting credibility.
What is the NC distinctions for prior inconsistent statements
1. all forms of prior inconsistent statement are generally admissible only to impeach, not as substantive evidence

Extrinsic evidence of prior inconsistent statements admissible without need to confront witness or to give opportunity to explain or deny
proof of reputation
a witness may be impeached by showing his reputation anywhere in the society, and not necessarily only in the community y where he lives
What is the NC distinction for prior consistent statements?
prior consistent statements? prior consistent statements are admissible to bolster own witness credibility on direct. (don't need to rebut)
What is the attorney client privilege?
Attorney client privilege protects confidential communication both from attorney to client and from client to attorney made during the existence of a protected relationship.
NC- What is the attorney client privilege?
It survives the death of the client, and it not be waived by the eecutor or the decendent estate.
Accountant/client
no privilege
What is the distinction for doctor-patient privilege?
In NC, judge may lift physician-patient privilege "if in his opinion disclosure is necessary to proper administer justice.
Admission by party opponent
Admissible as hearsay in NC.
What is a dying declaration?
declaration made by an unavailable declaranT while under the an imminent belief of death concerning the cause or circumstances of the purportedly imminent death in a criminal homicide prosecution or any civil action.

Note: the declarant does not have to die

Note: applies to all types of criminal actions in NC
Business records
In NC they are not self-authenticating
Does NC have a professional journalist privilege?
Yes, NC has professional journalist privilege, victim of rape or domestic violence to rape crisis center worker privilege
Hearsay
Statements against declarant’s’ pecuniary, property, or penal interests at the time they were made
- includes opinions, speculations, etc.
- if statement exculpates a criminal Δ – declarant confesses to the crime – it is admissible only if there is corroboration of the declarant’s guilt
NC: all statements against interest in criminal cases must have corroborating evidence.
Hearsay
Residual exception: if hearsay statement does not fit within any of the enumerated exceptions but has equivalent circumstantial guarantees of trustworthiness, it may fit within the catch-all exception if it is the most probative evidence of a material fact and the proponent gives sufficient notice of her intent to use this exception

NC: requires written notice in advance of offering such statements
Factors
1. assurance of declarant’s personal knowledge of underlying event
2. declarant’s motivation to speak the truth
3. whether declarant ever recanted the statement, and
4. reasons for declarant’s unavailability