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118 Cards in this Set

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The two facts needed for judicial notice?
1. legislative facts which have relevance to legal reasoning and the law making process

2. Adjudicative facts--the underlying facts involved in in a particular case which aid the fact finder in its adjudication

F.R.E 201
What is judicial notice?
a substitute of proof whereby the court will accept certain facts as true and thus dispense fo need for formal presentation of evidence
What is a judically known fact?
1. it is generally known within the territorial jurisdiction of the court

2. It is capable of accurate and ready determination by resorting sources whose accuracy cannot be questioned

Ex. Durham may take notice that Roxboro street runs north to south
What are the two types of judicial notice
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
When does the jury must take judicial notice?
For civil cases
How does judicial notice affect the jury in criminal cases?
the jury may take judiical notice.
What is relevance evidence?
Relevant evidence is 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 is a Plaintiff's accident history admissible?
It is admissible only if the cause of the damages is in issue.
When is a similar accident relevant and/or admissible?
the plaintiff must prove the following:
1. the existence of a dangerous condition

2. causation

3. prior notice to the defendant

4. the other accidents must involve the same instrumentality or condition and must have occured under substantially similar circumstances
When is absence of similar accidents admissible?
evidence of prior of safety history and absence of complaint is admissible to show defendant's alck of knowledge of any danger
When are prior tort claims by a plaintiff admissible?
prior tort claims may be admissible to show a common plan or scheme
When is relevant evidence not admissible?
relevant evidence is admissible unles its probative value is outweighed by unfair prejudice, confusion of the issues, misleading the jury, undue delay waste of time, needless presentation.
What is Rule 407?
Evidence subsequent remedial measures is inadmissible to prove negligence
What are the exceptions to Rule 407 Subsequent Remedial Measures?
1. to prove ownership
2. to show feasibility of precautions if constested
3. for impeachment

Note: for public policy/humaritian concerns
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?
1. to prove bias or prejudice of a witness

2. to controvert a contention of undue delay by one of the parties

3. to prove that a party attempted to obstruct a criminal investigation
What are the three forms of character evidence?
1. opinion
2. reputation
3. specific instances of conduct
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 casue

2. where knowledge of the character of another is in issue (negligent entrustment)
What is the general rule for character evidence in a criminal case?
Generally character evidence is not permissible to show comformity therewith.
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 is the general Rule for opinion evidence in rape cases.
General rule opinion evidence for rape cases is inadmissible.
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
What is the general Rule for sexual misconduct for child molestation case?
In sexual assualt or child molestation prior specific sexual misconduct fo the defendant is admissible as part of the prosecution/plaintiff's case-in-chief for any relevant purposes including the defendant's propensity for sex crimes.
What is the NC distinction for child molestation crimes?
NC other sex crimes of defendant are liberally admitted when they were directed at the same victim.
When can prosecution in a criminal case use other crimes ro 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
What is Habit evidence Evidence?
evidence of the habit of a person or the routine practice of an organization whether corroborated or not and regardless of the presence of eyewitness is relevant to prove conduct in conformity with the habit or routine practice.

Note: MBE look for words "always," and "automatic"
How are privileges used (Rule 501)?
Under Rule 501 privileges are applied in two parts.

1. in diversity cases and cases arising under state law, the privilege of a witness is determined by state law

2. in criminal federal question and cases arising under federal law the privilege of a witness shall be determined by federal common law
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.
What if the "attorney" is not actually an attorney is there still a confindential relationship?
Yes, attorney client privilege applies to persons that someone reasonably believes is an attorney.
What are the exceptions to the general rule of attorney client privilege?
1. suits between attorney client

2. suits between joint clients

3.disputes regarding a clients will after teh clients death

4. communication made in furtherance of a future crime or fraud.
What is Doctor-Patient privilege?
Protects communications made between doctor and patient(holder) for the purpose of obtaining medical diagnosis or treatment.
What are the exceptions to the Doctor-Patient privlege?
1. patients puts physical condition at issue

2. criminal proceedings

3. malpractice actions

4. incompetency or commitment proceedings
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.
What is the Marital Communication privilege?
Protects confidential verbal communication made during marriage in both civil and criminal casess.

Note: Both spouses are the holder.

Note: applies even after the divorce
What is the exception to the marital communication privilege?
1. crimes against the other spouse or children

2. statements made in furtherance of a future crime or fraud
What is the spousal privilege?
Protects all communication regardless of confidentially both before marriage and during marriage in criminal cases.

Note: the witness spouse is the holder
What is the exception to the spousal privilege?
1. crimes against the other spouse
2. crimes against the children of either spouse
What is the NC Deadman statute?
Interested witness incompetent only if testimony concerns oral communication between witness and decedent but waiver occurs if either:
1. decedent's estate representative testifies to subject matter of decedent's oral communication or

2. estate representative introduces other evidence of the oral communication
What is a competent witness?
Under 601 all persons are deemed competent to be a witness.
Can a judge or juror testify in a trial presiding?
No, a judge or a juror cannot testify in the trial in which he is sitting.
Who can impeach a witness?
the credibility of a witness may be attacked by any party including the party calling him
Can collateral evidence be attacked by extrinsic evidence?
No, collateral evidence offered to attack the credibility of a witness may be inquired into on cross instrinsically.

Note: collateral evidence--is evidence not material to the issue at hand.
What is the NC distinction for inquiring about someone's past alcohol use?
In NC, if the state's key witness the defense may go into the witnesses past alcoholic/drug history and ask how it has affected his memory.
What are the five methods of impeachment?
1. competency
2. bias
3. contradiction
4. character
5. prior inconsitent statements
What is 608(a)?
reputation and opinion evidence of the witness's untruthfuness can be used at any time to impeach a witness
When can prior bad acts be used to impeach a witness?
Under rule 608(b) prior unconvicted acts on cross may be inquired into concerning truthfulness, but if the witness denies no other witnesses may be called to contradict the answer (no extrinsic evidence)
When can felony convictions be used to impeach a witness?
Under rule 609(a) felony convictions may be admissible to impeach provided the court determines that the probative value outweighs the prejudicial effect.
When can a criminal conviction be used under 609(b)?
Felony convictions may be admissible to impeach provided the court determines that hte probative value outweighs the prejudicial effect.

Note: must be felony punsihable by death or imprisonment in excess of one year.
What is the NC distinction for 609(b)
There is no balancing test
When are criminal convictions inadmissible?
1. more than 10 years old

Note: court determines the prejudicial effect outweighs the probative value

Note: advance written notice must be given to the opposite party.
Are crimes involving dishonesty admissible?
Yes, Crimes bearing on untruthfulness covnictions of crimes involving dishonest or false statemetns may be used to impeach felony or misdemeanor.
How are prior inconsistent statements used if they are sworn statements?
They come in substantive and for impeachment
Can extrinsic evidence be used for prior inconsistent statements?
No, unless the person is given an opportunity to explain.
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 statemetn admissible wihtout need to confront witness or to give opportunity to explain or deny
What is the NC distinction for cross examination?
Not limited to scope of direct exam; may question the witnss on anything relevant to the case.
What is refresh recollection?
a witness memory can be refreshed by means of either a leading question or a writing either while testifying or before testifying
What can a lay witness testify about?
Under rule 701, a non-expet lay witness may testify in the form of opinion or inferences if the opinons are:
1. rationally based on the perception of the witness

2. if the opinions are helpful to the fact finder

3. personal knowledge
What are the requirements for an expert witness?
1. must have special knowledge, skill, training, education or experience

2. the opinion must be helpful or assist the trier of fact in understanding the evidence

3. opinion must be within the expert field of expertise
What can be the basis of the expert opinion?
1. facts perceived by her or made known at or before trial

2. facts reasonably relied upon by experts in a particular field
Can lay and expert witnesses give their opinion on the ultimate issue?
Yes, 704(a) an expert witness (and a lay witness) may give an opinion on an ultimate
Can there be an ultimate issue on criminal cases?
Opinions on ultimate issues in criminal cases 704(b) an expert may not give an opinion as to whether a criminal defendant did or did not have a particular mental state constituting an element of the crime charged or defense thereto.
What is hearsay?
Hearsay is an out of court statement offered for the truth of the matter asserted.
What are the four types of statements that are non-hearsay?
1. prior inconsistent statemetns

2. prior consistent statements

3. Prior identifications

4. Admissions
What is a prior inconsistment statement?
prior sworn statements are admissible both substantively and to impeach.

Note: subject to penalty of perjury at a trial, hearing or other proceeding
What is a prior consistent statement?
these statements are non-hearsay whre offered to rebut a charge of recent fabrication or improper influence.
What is the NC distinction for prior consistent statements?
prior consistent statements are admissible to bolster own witness credibility on direct. (don't need to rebut)
What is prior identification?
a prior statement by a witness of an identification of a person made after perceiving him, the person making the identification is available to testify at the trial or hearing and subject to cross concerning the statement

Note: admitted substantively
What is the NC distinction for prior identification?
Prior ID of a person is admissible but only to bolster witness credibility, not as substantive evidence
What are the types of admissions?
1. admission by a party opponent

2. adoptive admission

3. authorized admission

4. vicarious admission

5. co-conspirator admission
What is an adoptive admission?
evidence of conduct of a party which reasonably supports an inference inconsistent with the party's position is admissible as an admission.
What is a vicarious admission?
statement of an agent or employee made during the existence of the relationship and concerning a matter within the scope of employment
What is a co-conspirator admission?
a statement of a co-conspirator of a party made during the course and in furtherance of the conspiracy
What are verbal acts?
statements whose relevance is independently significant of their truth.
What are the two types of verbal acts?
1. transaction words-actual words of the contract, will or deed

2. tortious words "libel and slander"
What are statements about the state of mind?
indepedently relevant circumstantial evidence may be used as non hearsay to prove the declarant or the listener

1. knowledge
2. intent
3. attitude
4. belief
What is the main factor for 803 exceptions?
they do not require unavailability
What is a present sense impression?
1. a statement describing an event or condition made while the declarant was perceiving the event or condition.

Note: timeframe strict must be while or immediately thereafter
Note: NC 10 minutes is fine.
What is an excited utterance?
a statement relating to a startling event or condition made while the declarant was under the stress of excitement.
What is a statement of present metnal or physical condition?
statements including itent, pain or bodily health

Note: must be a "then existing" present tense not past
What is the excpetion of present tense for the statement of present mental or physical condition?
past mental state regarding a declarant's will
What is a statment of past physical condition?
statements describing either medical history or past or present symptoms may be admissible if they are made for the purpose medical diagnosis or treatment
What is past recollection recorded?
witness memory has failed to be refreshed, the witness may read into evidence statement from a writing if:
1. the witness once had knowledge about the matter and
2. the writing itself must have been either made by the witness or adopted by the witness at the time when it was fresh in her memory.

Note: refreshing must have been attempted and failed.
What is the business record exception?
a record or report or acts or events kept in the ordinary course of a regularly conductd business may be admissible if
1. trustworty
2. record itself must have been by either a custodian or a qualified person with knowledge

3. record must have been prepared
What are statements in ancient documents?
am ancient document is one that is more than 20 years old and is admissible if it is found in the place that its supposed to be and if it is authenticated and at least 20 years old
What is the learned treatise exception?
statements contained in published treatise and periodicals are admissible if:
1. they must be authorative
2. must have been iether called to the expert witness attention on cross or relied upon on direct

3. statements are read into evidence and are admissible as substantive evidence
What is the main factor for 804 excpetions?
the declarant must be unavailable
What is makes a declarant unavailable?
1. absence due to death, illness or injury

2. assertion of a privilege

3. refusal to testify

4. lack of memory

5. absence from court's jurisdiction.
What is the prior testimony exception?
testimony given at an earlier proceeding by a now unavailable witness is admissible if the party against whom the evidence is being offered had an opportunity to cross the person at the other proceedingand a similar motive as to one at trial
What is a dying declaration?
declaration made by an unavailable declaratn 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 cases in NC
What is a declaration against interest?
statement of an unavailable non-party which is against interest when made pecuniary or penal.

Note: if it is a declaration against a penal interest if it is offered to exculpate the accused requires that there be corroborating circumstances which clearly indicate the circumstances of the statement

Note: NC all criminal cases, statements against penal interest must be corroborated
What is the rule Crawford v. Washington?
Tesstimonial statements regardless of whether a hearsay exception is satisfied, the 6th amendment right of confrontation prohibits the defendant had no opportunity for cross examination

Following statements are testimonial:
1. at a grand jury
2. prior trial or
3. preliminary hearing and
4. responses made during
What are the forms of authentication?
1. testimony based on personal knowledge

2. Distinctive Markings

3. Chain of Custody
What is authentication of scientific evidence?
1. device in question must be in proper working condition

2. device must be operated by a qualified individual

3. technique must be generally accepted in the scientific
How to authenticate a handwriting?
1. by a layperson with familiarity

2. comparison by an expert witness

3. comparison by the trier fact
How to authenticate photographs?
requires that the photograph be an accurate portrayal of what it depicts
What are self authenticating documents?
1.public documents
2. certified foreign documents
3. certified public records
4. official publications
5. newspasers and periodicals
6. trade inscriptions
7. notarized documents
8. commercial evidence
What is the best evidence rule?
to prove the content of the writing, recordings, X-rays, or photo the original is required.
How does the dead man statute work in NC?
an interested witness is incompetent only if the testimony concerns oral communications between the witness and the decedent

there is waiver if either
a. decendent's estate representative testifies to subject matter of the decedent's oral communication or
b. the estate representative introduces other evidence of the oral communication.
What is NC method of establishing expert testimony as reliable?
(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.
Who determines preliminary questions of admissibility?
preliminary questsion of admissibility of evidence are to be determined by the trial judge as a matter of law.
In NC, what is the Prosecution's Rebuttal?
NC, the prosecution may rebut the defendant's bad character evidence of the victim only with evidence of teh victim's good character for the same trait; the prosecution may not rebut with evidence of the defendant's bad character for the same trait.
In NC, is it permissible to exhibit a child whenever paternity is in issue?
Yes.
In NC, are business records self-authenticating?
no
What is the Prosecution rebuttal in NC?
In NC, the prosecution may rebut the defendant's bad character evidence of the victim only with evidence of the victim's good character for the same trait; the prosecution may not rebut with evidence of the defendant's bad character for the same trait
In NC, when can specific acts of misconduct be used?
NC 404(b) allows the admission of other crimes evidence to rebut a claim of entrapment
In NC, is it permissible to exihibit a child as an exhibit during paternity suits?
yes
In NC, are business records self-authenticating?
no
What is NC Deadman Act?
Four requirements must be met
1. interested person (witness must be w/in one of the classes)

2. testify in own behalf and against deceased

3. oral communication

4. no exceptions to rule apply
In NC, what is the rule for expert witness?
1. the expert's proferred of proof must be sufficiently reliable as an area for expert testimony

2. the witness testifying at trial must be qualified as an expert in that area of testimony

3. the expert's testimony relevant

Note: NC party offering an expert witness must (1) introduce evidence showing tha the witness is an expert and (2) tender the witness as an pert by asking the judge to declare that the witness is an expert
In NC, can expert give opion to the ultimate issue in a criminal case?
yes
In NC, can a witness' testimony be bolstered?
yes. a prior consistent statement of a witness is admisssible to corrobate the testimony of the witness whether or not the witness has been impeached
In NC, how are prior inconsistent statements used?
NC prior inconsistent statements are admissible to impeach the witness not as substantive evidence.