Evidence

Front 1

Evidence is relevant if...?

Back 1

it has any tendancy to make the existence of any fact that is of consequence to the determination of the action more or less probable.

Front 2

What balancing test will a court employ where is has discretion to exclude relevant evidence?

Back 2

Is the probative value substantially outweighed by unfair prejudice, confusion, or waste of time.

Front 3

What types of evidence are excluded for policy reasons?

Back 3

IRSMd
1. liability insurance
2. subsequent remedial measures or repairs
3. settlements, offers to settle and pleas
4. payments or offers to pay medical expenses

Front 4

Evidence of liability insurance is inadmissable to show what?

Back 4

To prove culpability or ability to pay judgment. Admiss to show anything else.

Front 5

Evidence of remedial measures or repairs is inadmissable to show what?

Back 5

Culpable conduct or defective products design

Front 6

Evidence of remedial measures or repair is admiss to show what?

Back 6

To rebut a defense of no feasable precaution. Or anything other than culpability or product design defect.

Front 7

Evidence of settlements, offers, or pleas is inadmissable to show what?

Back 7

Liability, fault, or guilt.

Front 8

What statements are covered by the settlement, offer, or plea exclusion?

Back 8

All offers and related statements.

Front 9

What exceptions exist to the rule that settlements, offer, or pleas are inadmissable?

Back 9

1. Offers to settle where no claim has been asserted yet.
2. Statements made where there is no dispute as to liability or damages.

Front 10

Evidence of offers to pay or payment of medical bills is inadmissable to show what?

Back 10

To prove liability for the injuries in question, but related statements are still admiss,

Front 11

Which is more expansive, the exclusion of settlement offer or offers to pay medical bills?

Back 11

Settlements and offers to settle--all related statements are excluded. for med bills only the offer is excluded.

Front 12

When is evidence about something other than the parties or events involved admiss?

Back 12

In certain circumstances where there are similarities with other people or events.

Front 13

Similar occurrances may be admissible to show what?

Back 13

Causation, intent, to rebut defense of impossibility, to establish value (using comparable sales

Front 14

May evidence of prior accidents or claims by the P be admitted?

Back 14

Normally it is excluded as irrelevant unless there are strong similatities to current events.

Front 15

When may evidence of prior claims be admitted?

Back 15

Where they demonstrate a pattern of fraudulent claims. (or strong similarities to current claim)

Front 16

May D offer evidence of a P's preexisting condition where relevant?

Back 16

Yes.

Front 18

Habit evidence is admissible to show what?

Back 18

That the person acted in accordance with the habit on a particular occasion.

Front 19

What is the difference between habit and character evidence?

Back 19

Character evidence describes something general and conveys a moral judgment. Habit evidence describes specific conduct.

Front 20

Habit = ?

Back 20

Frequently repated conduct (more than a few times)

Front 21

What is the business equivalent of habit evidence?

Back 21

Routine practice evidence.

Front 22

What is industrial practice evidence relevant to prove?

Back 22

The standard of care in a neglgience case.

Front 23

The 4 part test for evaluating character evidence?

Back 23

1. For what purpose is it offered?
2. What method is being used?
3. Is the case civil or criminal?
4. Does it prove a pertinent character trait?

Front 24

What methods are used to introduce character evidence?

Back 24

Specific acts of conduct
opinion
reputation

Front 25

In civil cases character evidence is admissible to prove conduct where?

Back 25

Only where the claim is based on sexual assualt or child molestation--no other char evidence to prove conduct allowed.

Front 26

Character evidence is admiss where ___________ is at issue?

Back 26

Character (as in defamation or negligent entrustment)

Front 27

What methods are allowed to prove character when it is at issue?

Back 27

All methods (spec, rep, opinion)

Front 28

When may the prosecution in a criminal case be the first to introduce character evidence?

Back 28

1. evidence of prior sexual assault or child molestation in such a case
2. where D has introduced character evidence of victim, pros may prove same character trait in D

Front 29

Once D has introduced character evidence in a criminal case the prosecution may do what?

Back 29

Intorduce character evidence to rebut D's evidence of a pertinent character trait.

Front 30

Once the door to character evidence is open, what types of evidence may be offered on direct?

Back 30

only reputation and opinion

Front 31

Can the D offer specific instances of character evidence on direct questioning?

Back 31

No, niether party may offer specific instances on direct.

Front 32

What types of character evidence are admiss on cross?

Back 32

Any type: opinion, rep, specific incidents

Front 33

Under what circumstances may the prosecution offer character evidence of the victim?

Back 33

1. to rebut D's character evidence of the victim
2. in a homocide case where D offers evidence V attacked 1st, P can offer evidence for peacefulness.

Front 34

What type of character evidence may the prosecution offer once the D has offered char evidence about V?

Back 34

P can offer char evidence showing the same char trait.

Front 35

When can char evidence always be admitted (sub to discretion)?

Back 35

To prove things other than character (e.g., D's state of mind)

Front 36

In criminal rape or sexual assault cases what is the rule regarding character evidence D can offer re: V?

Back 36

D can offer only specific instances to prove:
1) 3rd pty source of semen or injury
2) prior acts of consenual intercourse w/ D

Front 37

In civil rape or sexual assault cases what is the rule regarding character evidence D can offer re: V?

Back 37

All types of char evidence are admiss if probative value substantially outweighs unfair prejudice. Reputation evidence can only be admiss if P places reputation in issue.

Front 38

When may specific instances of bad conduct be admitted?

Back 38

MIMIC
Motive
Intent
Mistake (or absence)
Identity
Common Plan or Scheme

Front 39

When bad conduct is used to show identity what is required?

Back 39

Similarity and uniqueness sufficient to prove identity

Front 40

Is MIMIC evidence subject to discretion?

Back 40

Yes, it may be excluded for unfair prejudice.

Front 41

What are the 4 elements of compentency needed to testify?

Back 41

1. personal knowledge
2. present recollection
3. communication
4. sincerity

Front 42

To establish personal knowledge the fact testified to must =

Back 42

the fact perceived.

Front 43

What objection when someone quotes an out-of-court statement?

Back 43

hearsay

Front 44

What is the communication requirement for compentency to testify?

Back 44

Witness must be able to relate perception directly or through an interpreter.

Front 45

How is the sincerity requirement met to establish competency to testify?

Back 45

By taking an oath or affirmation to tell truth.

Front 46

Who is absolutely disquaified from testifying in a case?

Back 46

The judge and jury.

Front 47

Is there an age requirement for testifying?

Back 47

No, so long as the competency requirements are met.

Front 48

Can a person who is insane or has previous convictions for perjury testify?

Back 48

Yes, but these issues may be used to impeach.

Front 49

Can a person who has been hypnotized by police to restore memory testify?

Back 49

Yes.

Front 50

Objections must be ____ and _____.

Back 50

timely; specific

Front 51

Name the 6 common objections?

Back 51

1. calls for narrative
2. unresponsive
3. leading
4. assumes fact not in evidence
5. argumentative
6. compound question

Front 52

When is leading okay?

Back 52

On cross, or on direct where the witness is hostile, adverse, or needs help.

Front 53

Cross examination may have what scope?

Back 53

Must stay w/in scope of direct questioning.

Front 54

How can a witness use a non-admitted document during testimony?

Back 54

To refresh their recollection. Reading from the doc is hearsay.

Front 55

All documents are _________ statements.

Back 55

out of court

Front 56

What rights does the opponent have to anything used to refresh witness memory on stand?

Back 56

Right to inspect and offer it into evidence.

Front 57

What rule allows admission of documents when a witness cannot refresh their memory?

Back 57

The recorded recollection exception to hearsay rule.

Front 58

What are the elements of the recorded recollection to hearsay rule?

Back 58

1. witness had personal knowledge
2. document was made by witness, at their direction, or adopted by them
3. document was made when facts were fresh in witnesses memory
4. doc was accurate when made
5. witness now has insufficient recollection to testify to those matters

Front 59

When is lay opinion testimony admiss?

Back 59

If reationally based on witness' perceptions and helpful to the trier of fact. Not based on specialized knowledge. Helpful = gives more info than mere perceptions.

Front 60

Lay opinion is regurally admitted as to what subjects?

Back 60

1. speed of auto
2. sanity
3. intoxication
4. emotions
5. value of witness' property

Front 61

May witnesses offer legal opinion testimony?

Back 61

No, because they are not helpful in that they do not give the jury more information.

Front 62

What are the 5 requirements for admiss of expert opinion?

Back 62

1. helpful to jury
2. qualified witness
3. witness believes opinion to reasonable degree of certainty
4. opinion supported by proper factual basis
5. based on reliable principles reliability applied.