Evidence Nc Bar

Front 1

The two facts needed for judicial notice?

Back 1

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

Front 2

What is judicial notice?

Back 2

a substitute of proof whereby the court will accept certain facts as true and thus dispense fo need for formal presentation of evidence

Front 3

What is a judically known fact?

Back 3

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

Front 4

What are the two types of judicial notice

Back 4

1. Mandatory
2.Discretionary

Front 5

What is Mandatory Judicial Notice?

Back 5

1. state and federal law
2. indisputable scientific facts (i.e. blood test)

Front 6

What is discretionary judicial notice?

Back 6

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

Front 7

When does the jury must take judicial notice?

Back 7

For civil cases

Front 8

How does judicial notice affect the jury in criminal cases?

Back 8

the jury may take judiical notice.

Front 9

What is relevance evidence?

Back 9

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

Front 10

When is a Plaintiff's accident history admissible?

Back 10

It is admissible only if the cause of the damages is in issue.

Front 11

When is a similar accident relevant and/or admissible?

Back 11

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

Front 12

When is absence of similar accidents admissible?

Back 12

evidence of prior of safety history and absence of complaint is admissible to show defendant's alck of knowledge of any danger

Front 13

When are prior tort claims by a plaintiff admissible?

Back 13

prior tort claims may be admissible to show a common plan or scheme

Front 14

When is relevant evidence not admissible?

Back 14

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.

Front 15

What is Rule 407?

Back 15

Evidence subsequent remedial measures is inadmissible to prove negligence

Front 16

What are the exceptions to Rule 407 Subsequent Remedial Measures?

Back 16

1. to prove ownership
2. to show feasibility of precautions if constested
3. for impeachment

Note: for public policy/humaritian concerns

Front 17

Are offers to settle admissible?

Back 17

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)

Front 18

What are the exceptions to the Settlement Rule 408?

Back 18

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

Front 19

What are the three forms of character evidence?

Back 19

1. opinion
2. reputation
3. specific instances of conduct

Front 20

What is the general rule for character evidence in a civil case.

Back 20

Generally, character evidence is inadmissible to prove conduct in conformity therewith on a particular.

Front 21

What are the exceptions for character evidence in a civil case.

Back 21

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)

Front 22

What is the general rule for character evidence in a criminal case?

Back 22

Generally character evidence is not permissible to show comformity therewith.

Front 23

When can a criminal defendant use character evidence?

Back 23

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))

Front 24

When can a criminal defendant show bad character of the victim?

Back 24

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.

Front 25

What is the general Rule for opinion evidence in rape cases.

Back 25

General rule opinion evidence for rape cases is inadmissible.

Front 26

What are the exceptions to the general rule for rape cases?

Back 26

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

Front 27

What is the general Rule for sexual misconduct for child molestation case?

Back 27

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.

Front 28

What is the NC distinction for child molestation crimes?

Back 28

NC other sex crimes of defendant are liberally admitted when they were directed at the same victim.

Front 29

When can prosecution in a criminal case use other crimes ro bad acts to show the defendant acted in comfority therewith.

Back 29

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

Front 30

What are the methods of proof under M.I.M.I.C?

Back 30

1. by conviction
2. evidence that proves the crime occurred

Front 31

What is Habit evidence Evidence?

Back 31

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"

Front 32

How are privileges used (Rule 501)?

Back 32

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

Front 33

What is the attorney client privilege?

Back 33

Attorney client privilege protects confidential communication both from attorney to client and from client to attorney made during the existence of a protected relationship.

Front 34

What if the "attorney" is not actually an attorney is there still a confindential relationship?

Back 34

Yes, attorney client privilege applies to persons that someone reasonably believes is an attorney.

Front 35

What are the exceptions to the general rule of attorney client privilege?

Back 35

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.

Front 36

What is Doctor-Patient privilege?

Back 36

Protects communications made between doctor and patient(holder) for the purpose of obtaining medical diagnosis or treatment.

Front 37

What are the exceptions to the Doctor-Patient privlege?

Back 37

1. patients puts physical condition at issue

2. criminal proceedings

3. malpractice actions

4. incompetency or commitment proceedings

Front 38

What is the distinction for doctor-patient privilege?

Back 38

In NC, judge may lift physician-patient privilege "if in his opinion disclosure is necessary to proper administer justice.

Front 39

What is the Marital Communication privilege?

Back 39

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

Front 40

What is the exception to the marital communication privilege?

Back 40

1. crimes against the other spouse or children

2. statements made in furtherance of a future crime or fraud

Front 41

What is the spousal privilege?

Back 41

Protects all communication regardless of confidentially both before marriage and during marriage in criminal cases.

Note: the witness spouse is the holder

Front 42

What is the exception to the spousal privilege?

Back 42

1. crimes against the other spouse
2. crimes against the children of either spouse

Front 43

What is the NC Deadman statute?

Back 43

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

Front 44

What is a competent witness?

Back 44

Under 601 all persons are deemed competent to be a witness.

Front 45

Can a judge or juror testify in a trial presiding?

Back 45

No, a judge or a juror cannot testify in the trial in which he is sitting.

Front 46

Who can impeach a witness?

Back 46

the credibility of a witness may be attacked by any party including the party calling him

Front 47

Can collateral evidence be attacked by extrinsic evidence?

Back 47

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.

Front 48

What is the NC distinction for inquiring about someone's past alcohol use?

Back 48

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.

Front 49

What are the five methods of impeachment?

Back 49

1. competency
2. bias
3. contradiction
4. character
5. prior inconsitent statements

Front 50

What is 608(a)?

Back 50

reputation and opinion evidence of the witness's untruthfuness can be used at any time to impeach a witness

Front 51

When can prior bad acts be used to impeach a witness?

Back 51

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)

Front 52

When can felony convictions be used to impeach a witness?

Back 52

Under rule 609(a) felony convictions may be admissible to impeach provided the court determines that the probative value outweighs the prejudicial effect.

Front 53

When can a criminal conviction be used under 609(b)?

Back 53

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.

Front 54

What is the NC distinction for 609(b)

Back 54

There is no balancing test

Front 55

When are criminal convictions inadmissible?

Back 55

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.

Front 56

Are crimes involving dishonesty admissible?

Back 56

Yes, Crimes bearing on untruthfulness covnictions of crimes involving dishonest or false statemetns may be used to impeach felony or misdemeanor.

Front 57

How are prior inconsistent statements used if they are sworn statements?

Back 57

They come in substantive and for impeachment

Front 58

Can extrinsic evidence be used for prior inconsistent statements?

Back 58

No, unless the person is given an opportunity to explain.

Front 59

What is the NC distinctions for prior inconsistent statements

Back 59

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

Front 60

What is the NC distinction for cross examination?

Back 60

Not limited to scope of direct exam; may question the witnss on anything relevant to the case.

Front 61

What is refresh recollection?

Back 61

a witness memory can be refreshed by means of either a leading question or a writing either while testifying or before testifying

Front 62

What can a lay witness testify about?

Back 62

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

Front 63

What are the requirements for an expert witness?

Back 63

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

Front 64

What can be the basis of the expert opinion?

Back 64

1. facts perceived by her or made known at or before trial

2. facts reasonably relied upon by experts in a particular field

Front 65

Can lay and expert witnesses give their opinion on the ultimate issue?

Back 65

Yes, 704(a) an expert witness (and a lay witness) may give an opinion on an ultimate

Front 66

Can there be an ultimate issue on criminal cases?

Back 66

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.

Front 67

What is hearsay?

Back 67

Hearsay is an out of court statement offered for the truth of the matter asserted.

Front 68

What are the four types of statements that are non-hearsay?

Back 68

1. prior inconsistent statemetns

2. prior consistent statements

3. Prior identifications

4. Admissions

Front 69

What is a prior inconsistment statement?

Back 69

prior sworn statements are admissible both substantively and to impeach.

Note: subject to penalty of perjury at a trial, hearing or other proceeding

Front 70

What is a prior consistent statement?

Back 70

these statements are non-hearsay whre offered to rebut a charge of recent fabrication or improper influence.

Front 71

What is the NC distinction for prior consistent statements?

Back 71

prior consistent statements are admissible to bolster own witness credibility on direct. (don't need to rebut)

Front 72

What is prior identification?

Back 72

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

Front 73

What is the NC distinction for prior identification?

Back 73

Prior ID of a person is admissible but only to bolster witness credibility, not as substantive evidence

Front 74

What are the types of admissions?

Back 74

1. admission by a party opponent

2. adoptive admission

3. authorized admission

4. vicarious admission

5. co-conspirator admission

Front 75

What is an adoptive admission?

Back 75

evidence of conduct of a party which reasonably supports an inference inconsistent with the party's position is admissible as an admission.

Front 76

What is a vicarious admission?

Back 76

statement of an agent or employee made during the existence of the relationship and concerning a matter within the scope of employment

Front 77

What is a co-conspirator admission?

Back 77

a statement of a co-conspirator of a party made during the course and in furtherance of the conspiracy

Front 78

What are verbal acts?

Back 78

statements whose relevance is independently significant of their truth.

Front 79

What are the two types of verbal acts?

Back 79

1. transaction words-actual words of the contract, will or deed

2. tortious words "libel and slander"

Front 80

What are statements about the state of mind?

Back 80

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

Front 81

What is the main factor for 803 exceptions?

Back 81

they do not require unavailability

Front 82

What is a present sense impression?

Back 82

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.

Front 83

What is an excited utterance?

Back 83

a statement relating to a startling event or condition made while the declarant was under the stress of excitement.

Front 84

What is a statement of present metnal or physical condition?

Back 84

statements including itent, pain or bodily health

Note: must be a "then existing" present tense not past

Front 85

What is the excpetion of present tense for the statement of present mental or physical condition?

Back 85

past mental state regarding a declarant's will

Front 86

What is a statment of past physical condition?

Back 86

statements describing either medical history or past or present symptoms may be admissible if they are made for the purpose medical diagnosis or treatment

Front 87

What is past recollection recorded?

Back 87

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.

Front 88

What is the business record exception?

Back 88

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

Front 89

What are statements in ancient documents?

Back 89

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

Front 90

What is the learned treatise exception?

Back 90

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

Front 91

What is the main factor for 804 excpetions?

Back 91

the declarant must be unavailable

Front 92

What is makes a declarant unavailable?

Back 92

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.

Front 93

What is the prior testimony exception?

Back 93

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

Front 94

What is a dying declaration?

Back 94

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

Front 95

What is a declaration against interest?

Back 95

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

Front 96

What is the rule Crawford v. Washington?

Back 96

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

Front 97

What are the forms of authentication?

Back 97

1. testimony based on personal knowledge

2. Distinctive Markings

3. Chain of Custody

Front 98

What is authentication of scientific evidence?

Back 98

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

Front 99

How to authenticate a handwriting?

Back 99

1. by a layperson with familiarity

2. comparison by an expert witness

3. comparison by the trier fact

Front 100

How to authenticate photographs?

Back 100

requires that the photograph be an accurate portrayal of what it depicts

Front 101

What are self authenticating documents?

Back 101

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

Front 102

What is the best evidence rule?

Back 102

to prove the content of the writing, recordings, X-rays, or photo the original is required.

Front 103

How does the dead man statute work in NC?

Back 103

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.

Front 104

What is NC method of establishing expert testimony as reliable?

Back 104

(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

Front 105

What is the qualification of an expert witness in NC?

Back 105

must tender the witness to court for ruling that the expert is qualified.

Front 106

Who determines preliminary questions of admissibility?

Back 106

preliminary questsion of admissibility of evidence are to be determined by the trial judge as a matter of law.

Front 107

In NC, what is the Prosecution's Rebuttal?

Back 107

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.

Front 108

In NC, is it permissible to exhibit a child whenever paternity is in issue?

Back 108

Yes.

Front 109

In NC, are business records self-authenticating?

Back 109

no

Front 110

What is the Prosecution rebuttal in NC?

Back 110

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

Front 111

In NC, when can specific acts of misconduct be used?

Back 111

NC 404(b) allows the admission of other crimes evidence to rebut a claim of entrapment

Front 112

In NC, is it permissible to exihibit a child as an exhibit during paternity suits?

Back 112

yes

Front 113

In NC, are business records self-authenticating?

Back 113

no

Front 114

What is NC Deadman Act?

Back 114

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

Front 115

In NC, what is the rule for expert witness?

Back 115

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

Front 116

In NC, can expert give opion to the ultimate issue in a criminal case?

Back 116

yes

Front 117

In NC, can a witness' testimony be bolstered?

Back 117

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

Front 118

In NC, how are prior inconsistent statements used?

Back 118

NC prior inconsistent statements are admissible to impeach the witness not as substantive evidence.