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42 Cards in this Set

  • Front
  • Back
when can a witness' bad character for veracity be used?
to impeach, not substantive evidence. rep or opinion by extrinsic (documents or other witnesses) or intrinsic evidence. NOT SPECIFIC ACTS.
convictions of what kind of crimes are admissible?
crimes of dishonesty, false statement (lie or betrayal of trust), but not crimes of violence, drug crimes, theft or misdemanors
IF within ten years
felonies are allowed regarding veracity IF prob>prej
convictions of what kind of crimes are inadmissible?
crimes of violence, drug crimes, theft, misdeamanors, felonies re: veracity if prob>prej
when do you consider probative and prejudical values?
when protecting D. can bring anything in to impeach WITNESS.
when will WITNESS' bad character evidence be admissible?
re: veracity, can be used to impeach, by cross examination or documents/other witnesses by reputation or opinion
*not specific acts, not as substantive evidence!
when must you give W opportunity to explain?
prior inconsistent statement, anytime during proceeding.
note: do NOT ave to give opp to explain conviction.
when and for what purpose are convictions admissible?
1) propensity to commit sexual assault (subst),
2) MIMIC (not offered for propensity, directly relevant)
3) impeaching WITNESS' character for veracity (crimes of deceit, serious felonies (balancing test))
4)impeach characters knowledge (cross-X questions only, to impeach NOT propensity)
when are WITNESS' prior bad acts(without convictions) admissible?
when reflects adversely on WITNESS' veracity, if 1) good faith that it occured, 2) intrinsic STUCK WITH ANSWER
note: extrinsic may be used for another purpose (bias, MIMIC)
when are arrests admissible to impeach?
INADMISSIBLE for W's character for veracity
ADMISSIBLE for W's knowledge of D (by intrinsic)
ADMISSIBLE for bias biased against law enforcementor W incentive to curry favor - look for pending charges)
can a WITNESS be impeached for a contradictory statement?
WITNESS cannot be impeached by MISTAKE or LIE on direct examination.
If significant to case, can be proven by extrinsic evidence.
If collateral, instrsic only; STUCK WITH ANSWER
when is the prosecution stuck with Witness' answer?
1) prior bad acts (reflect badly on W's veracity)
2) witness' contradictory statmenet, if collateral (if significant, can use extrinsic)
When can you rehabiliate your witness?
only after credibility has been attacked through impeachment. (cannot bolster beforehand, except for prior statement of identification)
When can you rehabilitate witness before witness' character is attacked("bolster")?
For a prior stmt of identification, even if not previously attacked (Hearsay Exception), but must be trial witness subject to cross-examination.
How to do rehabilitate a witness?
1) good character for truthfulness (if veracity attacked) by reputation or opinion;
2) prior consistent stmt if consistent with W's trial testimony, opposing party suggested through impeacgment W has motive to lie (bias), AND made befoe motive arose.
if three prongs met, can be used as SUBSTANTIVE EVIDENCE.
when does a witness need personal knowledge?
authenticating a document (then BER doesnt apply), demonstrative evidence of a photograph, laying a foundation for real evidence (along w chain of custody), showing competency to testify, past recollection recorded, lay witness opinion testimony, statement against interest (pecuniary, against decl's interest when made), recorded recollection and business records exception.
note: JURY decides whether W has personal knowledge.
when doesn't a witness need personal knowledge?
party admissions, when testifying about facts she learned from reading.
when can prior inconsistent statements can be used as substantive evidence?
if under oath and part of form proceeding, trial, deposition or grand jury.
affadavit is not enough.
always admissible to impeach.
must give opportunity to explain/deny.
Limitations on impeachment for bias?
can use for impeach or substanative to show rltp witness can lie, extrinisic and intrinsic - but CONFRONT first.
When do you have to confront witness first? when do you have to give an oportunity to explain or deny?
confront for BIAS (not for sensory, nor present sense impression for criminal cases)
opp to explain or deny prior inconsistent stmt not convictions.
when can an expert NOT address the ultimate issue of case?
in criminal cases (FRE), that D did/did not have required mental state.
what can you read as evidence but not admit as evidence?
present recollection refreshed and past recolection recorded, and learned treatise in aid (subsnative, HS exception), but not exhibit.
Note for PRR(s), opposing party can inspect and admit into evidence.
In federal diversity claims, what law is applied?
FRE for evidence, but
State law for BOPs, dead man statutes, privileges.
What privileges are recognized in FRE? in NY?
FRE: att/cl, husband wife, priest penitent, psychothreapist patient
NY: dr patient, social worker client, reporter source
what are the two spousal privileges?
communications - to encourage candor, lasts after marriage, waived by both
immunity for criminal cases, prosecution cannot compel spouse to testify, if currently married, waived by W-spouse
EXCEPT in furtherance of fraud or crime, or destructive of family unit (abuse)
what are the four non-hearsay purposes?
impeach, verbal acts, show effect non hearer/reader, speaker's state of mind.
1) impeachment (purpose not to prove truth of statement),
2) verbal acts (legally operative words, K terms, gift or bribe, act of prejury or crimianl misrepresentation or defamation),
3) show effect on person who heard/read statement (notice, motive, form reasonable belief),
4) circumstantial evidence of speaker's state of mind (unintentionally reveals state, insanity, lies that show consciousness of guilt, questions demonstrate lack of knowledge)
when are prior statements of trial WITNESS admissible? (careful: must be out of court)
inadmissible - even witnes may say it differently in court - except:
1) prior stmt of ID,
2) prior stmt made under oath and during formal proceeding,
3) prior statement used to rebut motive to lie, if made before motive to lie arose.
when is a vicarious admission admissible?
1) by agent/EE of party admissible against party if within scope of employment and made during employment.
2) by co-conpirator if stmt made during and in furtherance of conspiracy *not talking to known cop*
which hearsay exceptions require unavailability?
former testimony, dying declaration, statement against interest (need personal K), statement of personal/family history
What makes someone "unavailable" to testify?
privilege, refusal to testify, ill or dead, memory loss, absense of jurisidiction
prior statement v. former testimony
prior statement - decl must be at court, and doesn't need opp/motive to testify;
former testimony - made in proceeding/depo and offered against party who had opp/motive to cross-x (similiar proceeding, same motive to cross-x)
which kinds of cases may dying declaration be used?
cause of circumstances of death for civil or criminal homicide
which cases can statement against interest be used as HR exception?
civil or criminal, but in criminal, when offered to exculpate, must be supported by corroborating evidence
***corroborate and be unavailable!! 5A counts.
statement against interest v. party admission
SAI = can be made by anyone, and used against anyone, declarant must be unavailable, and must have personal knowledge, and statement against interest when made.
admission = said by party, used agianst him, personal K not required
what is the burden of proof for different cases?
civil - prepondernce
criminal - BRD
up to jury, each element
what does the jury decide? judge?
jury = conditional relevance: whether W has personal K, whether exhibit is authentic, whether d is in fact person who committed prior bad act as MIMIC
judge = whether testimony is HS, communication privileged, expert qualified, burden is preponderence (any evidence)
presumptions v. inferences
judge may instruct jury as to inferences, not presumptions
when is character evidence admisisble in criminal cases?
1) when D introduces GOOD evidence (prosecution can rebut for SAME trait if relevant): rep/op
2) V's chaarcter in self D to prove first aggressor (R/O) or reasonable belief in need for self-defense (ANY FORM),
3) V's character in sexual misconduct, to show consent (iff with D), source of semen.
when is character evidence admissible in civil cases?
only if an essential element of claim or defense (ANY FORM): for negligent hiring or entrustment, defamation
note: careful, wrongful death is civil, negligent car facts may be negligent hiring,
when is character evidence always admissible?
1) habit
2) for non-character purposes, something specific about charged crime: MIMIC: motive/ intent/ mistake of accident (or absence of mistake)/ identity common scheme or plan
3) for propensity for sexual assault (assault or molestation)
how can MIMIC be proved?
character evidence (crimes or bad acts), conviction, evidence that tend sto prove prior (bad) act occured.
note: once MIMIc established, P can open door himself!
bop = reas jury can conclude by propendernce of act (court discretion, upon notice, P must give notice)
when can similiar occurrences be admissible?
p's accident history if fraudulent scheme or plan, or causation (damage to leg)
same event or condition (same instrument/condition, substl similiar circumstances) if to show existence of condition, causation or notice. (same test for experiments and tests)
intent in issue (like mimic) but only for civil cases
comparable sales on issue of value (price),
industrial custom as std of care (others in trade would've acted)
what is dead man's statute?
civil action, interested party may not testify against decendent about communications with dead party (FRE has no DMS)