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121 Cards in this Set

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What is the threshold question to ask when confronted by a piece of evidence?
Is is relevant?
What are the two categories of relevance of evidence?q
1. logical relevance and 2. discretionary, pragmatic or policy-based relevance.
Logical relevance does what?
Has a tendency to make a material fact more or less probable than it would be without the evidence.
What are some warning words to indicate that evidence may not be logically relevant (too remote)? IE: when if evidence not logically relevant?
When it involves
some other time
some other place or
some other person
than the one directly involved in the litigation.
Discretionary or policy based evidence involves a stricter standard for admissibility. It may be exclued upon showing one of 6 situations. What are they?
1. unfair prejudice
2. confusion of issues
3. misleading the jury
4. undue delay
5. waste of time
6. cumulative evidence
These are the auxiliary situations the danger of which maysubstantially outweight the probative value of the evidence.
Is unfair surprise an auxiliary situation that may be dangerous to admission of evidence?
Logical relevance:
When may evidence occurring at another time, place or to another person be admitted?
To prove causation, prior accidents or claims to show common plan or scheme of fraud or if they are relenvant to damages; to infer intent from prior conduct; to rebut the defense of impossibility; to compare sales and establish value; to show a habit; to show a business routine; to show an industrial or trade custom.
When can prior accidents or claims be admissible?
Generally they are not, BUT,
they may be to show common plan of fraud and scheme (eg: make a living bringing bogus claims)
if the prior accident is relevant to the damages (eg: back injuried in an OLD accident)
Are other accidents which involve the same instrumentality and occurred under the same circumstances admissible?
Can a plaintiff use D's prior conduct to show the state of mind of the D? IE intent?
YES. For example, to show discriminatory intent.
If the Defendant says that it is impossible that a thing happened or that they did a thing, what can you now do?
Use prior acts to rebut the defense of impossibility.
What are the three requirement of comparable sales exception to the rule of same person, same time, same event?
To show the sale of other chattels or real property you must show
1. others are of same general description as your own,
2. the sale happened at the same general time and
3. the same geographic area.
What is a habit? What are the two requirements?
1. There is detailed conduct. Specificity.
2. the conduct is recurrent.

The question will likely signal: always, instinctively, invariably, automatically)
The industry trade or custom that is used as evidence of another's behavior is admissible as _________ _______ _______.
non-conclusive evidence of standard of care.
IE: no city busses ever have safety doors.
It is never conclusive of liability though.
Discretionary, Policy-based Evidence:
What are the three areas of importance?
1. liability insurance
2. subsequent remedial measures and
3. insurance.
When is evidence of liability insurance admissible?
1. to show evidence of ownership or control
2. when it is relevant to impeach the credibility of a witness by showing interest or bias, or motive to misrepresent. IE stake in the litigation.
Discretionary, or Policy-based Relevance: Subsequent remedial measures:
when are a D's subsequent remedial measures admissible?
1. to show ownership and control
2. to show that the measures were feasible, when the feasibility is controverted by the D.
NOT to show:
negligence, culpabel conduct, defect in product or product design or need for warning or instruction.
Can settlements be admissible to show fault, liability, amount of damage?
NO. Applies to actual compromises, OFFERS to compromise, offers to plead guilty in a criminal case, withdrawn guilty pleas, nolo contendere pleas
What is the settlement negotiations rule of exclusion conditioned upon?
There must be a CLAIM.
Facts must have matured so that there is an identifiable claim.
There must be DISPUTED as to liability or amount.
An offer to pay med expenses is NOT admissible EVEN if not in settlement offer.
If an admission accompanies a NAKED offer to pay hospital bills or medical expenses, is that admission admissible?
YES. It must have a humanitarian motive.
I will pay your medical bills...admissible?
I was wrong. I will pay your medical bills....admissible?
Let's settle. I was wrong. I will pay your hospital bills...admissible?
What are the four preliminary questions to ask in addressing questions invoking character evidence rules?
1. What is the PURPOSE of offering the character evidence?
2. what is the METHOD of proving the character?
3. What is the TYPE OF CASE involved?
4. What TRAIT of character is involved?
What are some legitimate PURPOSES of offer of character evidence?
1. When character is itself an element of the claim.
2. Character as circumstantial evidence of a person's conduct at the time of the litigated event.(conduct in conformity w/ character on occasion in issue)
3. Character to impeach the credibility of a witness. (special rules..see later qs)
What are the three methods or techniques to PROVE character?
1. Specific acts conduct
2. Opinion
3. Reputation
(you have to know the purpose of the character evidence to determine the appropriate method).
What is the qualification of the character trait sought to be used in evidence?
It must be THE trait specific to the substantive issue in the case.
EG: peacefulness -- battery
honesty -- perjury
Character evidence in criminal trials:
WHEN generally is character evidence not admissible in civil trial?
When offered as CIRCUMSTANTIAL evidence to infer conduct AT THE TIME of the LITIGATED EVENT.
reckless before --- reckless now, not admissible.
careful before -- careful now, not admissible.
When is character evidence admissible in a civil case?
When the character of a person(party) is itself a material issue in the case. Character directly in issue.
YOU can prove it by any of the three means: acts, opinion, reputation
Think of defamation, negligent entrustment, or wrongful death cases.
When character evidence is directly in issue, what methods of proof are admissible?
All of them. Specific acts, opinion or reputation.
Can the prosecution bring evidence of bad character (specific acts of prior misconduct, prior crimes or covictions, bad opinion, bad reputation) to show criminal dispostion to commit the crime?
NO. Unless the D opens the door by offering evidence of good character in the form of opinion or reputation evidence.
May the prosecution in a criminal case use prior convictions for perjury to show lack of truthfulness to impeach the credibility of a Defendant witness?
How may a defendant show his GOOD character (opening the door)?
By reputation or opinion.

NOT by specific acts of good conduct.

The opinion or reputation evidence must go to the substance of the crime.
ie: peaceful -- battery; honest -- perjury, etc.
After an accused has offered evidence of bad character, opening the door, what methods of establishing character may the prosecution use ON CROSS?
Generally, reputation, opinion, AND specific acts.
BUT the specific acts must be by asking the witness "did you know" or "have you heard" about (prior convictions).
May a prosecutor, in response to a D using good character evidence by opinion or reputation, call a witness to testify about the D's prior convictions?
NO. Only the "have you heard" or "did you know" exception to test the witness's knowledge.
Once the D has offered his good opinion or reputation evidence, may the prosecutor call their own opinion of reputation witnesses?
Self-defense and character evidence:
May the D in a murder or assault trial bring in evidence of the character of the victim? circumstantial evidence that the victim was the aggressor. ONLY by reputation or opinion...with one exception as the the state of mind of the D. (scared of the victim, b/c he heard of all the scary things he had done.)
After testifying to the violence of a victim of murder or assault, may the prosecution call a witness to testify that the victim was in fact peaceful?
After testifying to the violence of a victim of murder or assault, may the prosecution call a witness to testify that the DEFENDANT himself was in fact very violent?
In order to establish self defense, in a murder or assault case, may the defense call a witness to testify that the victim did a specific act of violence?
In testifying to a vicitm's violence to establish a self defense, when can specific acts of violence by the victim be brought in and to what end?
When the witness testifies that they told the D some act of violence by the order to show the D's state of mind, but NOT to show the disposition of the victim.
When may a victim's sexual history be admitted to prove consent in a sexual misconduct criminal case?
1. NO OPINION OR REPUTATION...ony specific acts
and only if they are
a. offered to prove that 3rd party was the source of semen, or, b. prior acts of consensual sex b/w victim and accused, or 3. exclusion would violate the constitutional rights of the accused.
When may a victim's sexual history be admitted to prove consent in a sexual misconduct civil case?
When the probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
When may specific instances of prior misconduct by the accused be admitted?
For non-character purpose such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake of fact.
EG: the banker who burned the bank to destroy embezzlement evidence. the embezzlement gets in. EG: kill investigator into a former murder charge.
A defendant in a stolen goods case claims the goods were stolen. Can the evidence of receipt of stolen goods from same thief 5 times before be admissible?
YES. Its goes to state of mind of the defendant.
Use of prior conduct: identity
Victim is murdered w/ stolen pistol of Smith. Jones convicted of stealing it 3 years ago. Admissible against Jones?
When is modus operandi a method of admitting prior acts?
When the modus operandi is sufficiently unique.
Unique: eating the victim's spleen or something.
Not: stabbing in the butt.
D charged w/ bank robbery. Can prosecution say that D stole a truck that was used in the bank robbery?
YES... common plan or scheme.
What are the elements of the MIMIC rule and what do they do?
Motive, intent, Mistake (absence of), identity, Common plan or scheme. They allow prior acts into evidence.

REMEMBER: the issue is now their relevancy. STILL can be excluded under FRE 403 balancing.
In civil or criminal cases charging Defendants with sexual assault or child molestation, what may prior acts be used to show propensity or dispostion?
YES. Exception to the general rule.
When laying a foundation for a writing you must show _________.
That it is genuine. Authenticate. Written docs are not self-authenticating.
What are the forms of direct evidence for foundation of a document?
Admitting (its my signature), eyewitness testimony (I saw him sign it), handwriting proof.
When can a lay witness testify to handwriting?
When they have encountered the signature before many times.
NOT, in preparation for litigation though. They may not act like an expert on handwriting they haven't seen.
Can a jury compare two handwriting samples for authenticity of one? long as there is a genuine specimen in evidence.
What are the forms of circumstantial evidence for foundation of a document?
Ancient Document Rule-- 1. the doc is 20 or more years old, 2. its regular on its face (no signs of alteration) 3. its found in its place of natural custody;
Solicited Reply Rule -- proof that a doc came in response to a prior communication.
How much evidence is necessary to lay a foundation?
Sufficient evidence to justify a reasonable jury finding of genuineness.
NOT preponderence of evidence.
What are self-authenticating documents?
Certified copies of business records; official publications (pamphlet fo the State Motor Vehicle Department); Newspapers and periodicals (even the National Inquirer); trade inscriptions and labels; acknowledged Documents; signatures on certain commercial docs as by UCC.
What is an acknowledged document?
A person signs a K and then attaches an acknowledged document, signed and swearing it is his signature.
How do you authenticate a photograph?
A foundation can be laid by any eyewitness familiar w/ the scene.
How do you establish a foundation for a surveillance camera?
Show that the camera was 1) functioning properly 2) at the time of the footage and how the camera and film was handled up until trial.
A party wishing prove the CONTENT of a writing must satisfy the __________.
The best evidence rule.(applies to film, photo, X-rays and recordings) They must either 1) produce the original OR 2) account for the absence of the original.
If a proponent of a writing, in the best evidence rule, attempts to account for the absence of the original, what is the standard?
The explanation for the absence must be reasonable and a foundation must be laid for the secondary evidence.
A letter is found by an officer in the possesion of a murderer, it can't be produced now. The officer testifies orally about the letter...the objection would be...
Best evidence...the officer should have a reasonable explanation for the absence.

Its not hearsay. Authentication is unnecessary if the officer had it and read it.
Best evidence does not apply to:
Facts independent of the writing-- witness has knowledge of the facts that HAPPEN to be described in the writing; Collateral documents-- writings of minor importance such as divorce papers, medical license etc.
The requirements of the best evidence rule:
The rule is not required for...
Public records; voluminous documents (a summary or chart can be used if both sides have access and can produce their own); duplicates -- must be done by means which accurately reproduce the original.
When is a duplicate not admissible?
When there is a genuine question about the authenticity of the original OR
it would be unfair to amdit the duplicate in lieu of the original. EG: a Xerox of two lines of a 250 pg document.
In order for a witness to be competent to give testimonial evidence they must have _________ and ________.
Personal communicable knowledge and take an oath or affirmation of sincerity.
What are the elements of a Dead Man's Statute?
1. Witness must be an interested witness w/ a direct stake in proceeding 2. must be testifying FOR her interests, not against, (3) against the decedent or reps interests (4) only to matters the decedent could negate if alive, only in civil cases, and the Statute can be WAIVED.
How can the Dead Man's Statute be waived by the decedent or his/her representatives?
Usually by deposition testimony of the decedent before he/she died.

On the MBE, look for the phrase "a dead man's statute exists."
What are examples of objections to questions when examining a witness?
Narrative, Leading (suggests the answer), Misleading, Compound, Argumentative.
When can a question be a leading question?
When on cross examination, on direct as to preliminary matters, when you are having difficulty w/ witnesses who are (old, dumb, young, forgetful)
"Do you really expect the jury to believe..." Admissible?
No. Argumentative.
What are two situations where you may use writings to aid testimony?
1. Refreshing recollection
2. Recorded recollection
What can you use to refresh recollection?
The article must be shown to the opposing side, and they are entitled to use it, and put it into evidence.
Can you use someone else's statement as a recorded recollection?
NO. It must be the statement of the person trying to remember.
The recorded recollection can be used when a foundation is laid showing that...
1. the witness had personal knowledge at one time
2. this writing was made by witness, under supervision of the witness or was adopted by the witness
3. at the time (fresh memory)
4. the witness thought and thinks its accurate
5. there is necessity (ie: they forgot)
Must a recorded recollection be put into evidence? HOW?
YES. It must be READ into evidence. The exhibit itself does not come into evidence.
Is recorded recollection hearsay?
YES, but its admissible.
When is lay opinion admissible?
When it is:
1. Rationally based on the perception of the witness (ie: I saw X going 25mph)
2. and is helpful to the trier of fact (you CAN'T say, "they were being negligent." Thats a legal conclusion)
What are the 4 requirements for expert testimony?
1. Subject matter must be appropriate testimony
2. the witness must be qualified as an expert
3. Expert must have a reasonable certainty or probability for the opinion
4. the opinion must be supported by a proper factual basis.
What are the two subdivisions of appropriate subject matter requirement of expert testimony?
1. The subject matter must be RELIABLE and
What is the standard for the judge to accept the reliability and relevancy requirement of expert opinion testimony?
It is BY A PREPONDERENCE OF THE EVIDENCE. This is Different than "whether a reasonable jury would find it helpful." !! BEWARE
What qualifications make an expert witness an expert?
ONLY EXPERIENCE. Not degrees formal or academic.
An expert must possess _______ ________ or _______ in his/her opinion.
reasonable certainty/probability
Facts supporting an expert opinion must be 1) _______ 2) ________ 3)________.
Facts w/in the personal knowledge of the expert.
Facts not w/in the personal knowledge of the expert but supplied to him or her in court (HYPO usually)
Facts which are NOT in evidence and may not be admissable as long as the experts in that field would reasonably rely on them in making the opinion. (X-rays)
Are statements made for purposes of medical diagnosis or treatment and describing medical history or past or present symptoms for diagnosis or treatment hearsay?
They are not. They are NOT excluded by the hearsay rule.
May a text be used to impeach contrary opinion by defense expert?
What are the four ways to establish a treatise as authoritative?
1. If the opening expert relied on the text to base his opinion.
2. by eliciting an admission on cross.
3. by calling on an expert to authorize the text
4. by judicial notice
May you use a learned text or treatise to support your own expert's opinion?
Yes, w/o waiting for another expert...
May the learned text or treatise by admitted as to the truth of what it says? (hearsay)
YES, if it is established as reliable by
1. relied on by your expert on direct
2. on cross of opposing expert it is admitted
3. testimony of an expert
4. judicial notice.
What is required to authorize a learned text?
An expert on the stand. (unless by judicial notice.
When is cross examination of a witness not allowed?
When can cross exceed the scope of direct?
Collateral Matters Doctrine: what is a collateral matter?
What may not be used to contradict a witness as to a collateral matter?
1. One which is relevant only to show a contradiction (eg was coming from grandma's when saw the wreck, but really house of ill repute)
2. NO extrinsic evidence in these cases.
Can you bolster the credibility of your witness before they are impeached?
EGS: having another witness say your witness is a great guy or said the same thing to him before that he said in trial. (prior consistent statement)
When IS a prior consistent statement admissible to show credibility?
When it is an IDENTIFICATION. (exception to hearsay.)
If a witness forgets that he saw X, may the cop get on stand and say that witness identified x in lineup?
What if the witness doesn't testify at trial (about having forgot the ID)
Yes. Prior statement. (not consistent.)

NO., not if the witness doesn't testify at trial. PURE HEARSAY.
What are the five ways to impeach your adversary's witness? (cross)
1. prior inconsistent statement
2. show of bias, motive or intent to exaggerate or lie
3. prior conviction
4. specific acts of deceit or lying.
5. bad reputation or opinion for truthfulness
A prior inconsistent statement is generally not admissible for its truth. What is the exception?
When the prior inconsistent statement is made under oath at a trial hearing or deposition.
A prior inconsistent statement can/cannot be a writing signed by witness?
remember, the declarant is available, its him, he's on the stand. Its his statement. He CAN be cross examined.
Can you use extrinsic evidence to prove a prior inconsistent statement?
What foundation is necessary?
You need a foundation if the witness who made the statement is NO LONGER available to take the stand.
When is a prior inconsistent statement an ADMISSION and thus comes in for truth REGARDLESS of whether it was made in a proceeding?
When the prior inconsistent statment is made by A PARTY (D or P)
Another way to impeach an adversary's witness is to show bias, interest, or motive:
When may you use extrinsic evidence to do so?
Only once you have laid a foundation by inquiry on cross of the target witness. (eg: what did you agree to do in the 50K settlement you made?) Different from prior incon statement b/c the foundation is laid doesn't depend on the witness availability(?)
If a witness has been convicted of a crime involving dishonesty (fraud, larceny by trick, embezzlement, perjury, NOT robbery) can it be used to impeach your opponent's witness?
YES. Also, there is no discretion to exclude by judge. 403 doesn't apply.
When can a crime convicition not involving honesty be used to impeach? Discretion on court?
When it is punishable by MORE than one year AND is a FELONY. No court discretion.
Can you use extrinsic evidence of a conviction ? What foundation?
YES. NO need for foundation.
After how long can a prior conviction NO longer be used to impeach?
10 years from the later of the date of conviction or the date of release. (even if the conviction involved dishonesty)
Bad acts may be used to impeach if 1 ____ 2______.
There is a good faith belief that witness did the bad acts


the act involved DECEIT OR LYING!!
Can you use extrinsic evidence to impeach a witness with their bad acts involving lying or deceit?
Can a witness be impeached by their bad reputation for truth or veracity?
Once your witness is impeached, can you rehabilitate?
You can show a good rep for truth if the impeachment involved a character attack
You can show a prior CONSISTENT statement to REBUT charge of recent fabrication or improper influence or motive.
Can you use a prior consistent statement to rebut an impeachment charge of a prior inconsistent statement?
NO! You can't say, I said "this".
A prior consistent statement must be _________.
Then it will/will not be admissible for its truth.
A pre-motive statement

Will be admissible for its truth.
Are pre-existing documents, or objects privileged by the attorney client privilege?
NO! Only communications made to the attorney during professional legal consultation.
What three exceptions negate all professional privileges?
1. future crime or fraud (crime fraud exception)
2. When the client or patient affirmatively puts the communication at issue.
3. Disputes BETWEEN the parties as to the PROFESSIONAL relationship. (actions for fee or malpractice)
If two or more parties have one lawyer, does the privilege exist b/w the parties?
Spousal immunity privilege protects ________.
All testimony.
Only criminal cases.
The witness spouse holds the privilege (she can blab if she wants)
Requires a valid marriage at the time of the trial
CONFIDENTIAL marital communications privilege protects __________.
ONLY confidences,
civil or criminal trial
either spouse can assert, not just witness
need not be married at time of trial as long as were married when confidence was made.
What are the three situations in which state evidence law will apply in federal court IF state substantive law applies?
1. presumptions and burdens of proof
2. rules regarding competency of witness
3. privileges (dead man's statute)
Federal question or federal criminal law cases _________ privilege law will apply.
What is hearsay?
An out of court statement offered for the truth of the matter asserted in the statement.