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112 Cards in this Set

  • Front
  • Back

Relevant evidence tends to __ or __ a material fact in issue.
prove; disprove
Character evidence is admissible in a civil suit ONLY when proof of a person's character, as a matter of substantive law, is an essential __ of a claim or defense.
element
in a civil trial, proof of specific instance of a person's conduct is admissible when character is __ in issue.
dirrectly
Both manifest and notorious facts are appropriate for __ notice, and under the Fed. Rules, notice must be taken of these types of facts if a party requests.
judicial
An unresponsive answer by witness is subject to a motion to __ by examining counsel, but not by opposing counsel.
strike
one who introduces evidence on a particular subject thereby asserts its relevance and cannot complain, except on grounds other than relevance, if her adversary thereafter offers evidence on the same subject. This is called __ the __.
opening the door
Will state courts take judicial notice of the law of a foreign country?
NO, most will not.

*foreign law is a legislative fact, and legislative facts wont be taken by judicial notice by fed/cts.
if a witness is not __ as an expert, the mere fact that his opinion is supported by a proper factual basis (i.e., personal observation) will not render that opinion admissible.
qualified
The accused in a criminal case can introduce E of his good character to show his innocence of the alleged crime. To do so a criminal ∆ can call a __ witness to testify as to his __ opinion concerning a trait of the ∆ that is involved in the case, so long as the character trait is __.
qualified; personal; relevant
Both character evidence and __ evidence are admissible to show how a person probably acted on a particular occasion.
habit
__ evidence describes one's regular response to a specific set of circumstances, while __ evidence describes one's disposition in respect to general traits.
habit; character
as a general rule, a party may not __ the testimony of his W until the W has been impeached; however if the testimony is __ admissible as character E that it supports the criminal ∆'s case it will be allowed.
bolster; independently
in a Criminal case, the defense does not have to wait until the prosecution puts the ∆'s character in issue before the defense can rebut it; the defense can initiate E of the ∆'s character.
On the other hand, the prosecution cannot make an issue of the ∆'s character __ the ∆ has elected to put his character in issue.
before
the general rule is that the prosecution cannot initiate E of the __ character of the ∆ merely to show that ∆ is more likely to have committed the crime he is accused of.
bad
after a criminal ∆ opens the door; one means of rebutting a ∆'s character E is by calling qualified W to testify to the ∆'s __ reputation for the particular __ involved in the case.
bad; trait
• a W's credibility cannot be attacked by __ E of specific instances of misconduct.
• While any matter that tends to prove or disprove the credibility of a W is relevant for purposes of impeachment, extrinsic E of the W's bad acts is not permitted to attack the W's character for __.
• Unless the misconduct was the basis for a criminal conviction, for which the record of the judgment may be offered, bad acts may only be inquired about during __ examination.
extrinsic; truthfulness; cross
while a ∆ can open the door to E of his bad character by presenting E of his good character, the E must pertain to the __ trait involved in the case.
particular
Hypo: ∆ is on trial for criminal battery. Thus while his capacity for violence has been placed in issue by the ∆, the ∆'s reputation for truthfulness is not __ to whether he has committed battery.
Furthermore, if ∆ has not yet taken the stand as a W he will not have placed his credibility in issue, therefore his reputation for truthfulness __ be offered for impeachment purposes.
relevant; cannot
while it is true that testimony as to a person's reputation in the community may in some way be considered HS (i.e. it reflects what other are saying in the community about the person), reputation testimony is a permissible means of showing character, and in fact its the most __ means of showing character.
common

*reputation testimony is NOT hearsay
an ADMISSION of a Party-Oponent is a stmt offered against a party that is the party's own statement and is __ from the rule against HS.
excluded
Offers to Compromise a disputed claim are inadmissible to prove __ for that claim.
liability
if a ∆ makes an offer to compromise a claim to P before there was yet an actual disputed claim; ∆'s settlement offer is __.
admissible

• for the a settlement offer to be inadmissible, the statement must be made after a disputed claim arises.
where a ∆'s reference to his liability insurance coverage was an intrinsic part of his admission and cannot be readily be severed from it, the rule that bars whether a person has liability insurance when offered to show fault or ability pay [does] or [does not] apply.

ex: ∆ and P are in a wreck and before P says anything, ∆ runs over to P and says, "look if you'll take $500 for the damage, I'm sure my insurance company will pay for it." P sues and wishes to testify as to what the ∆ said.
does not
the "statement against interest" exception to the HS rule requires the declarant to be __ as a W.
unavailable
for offers to compromise a claim to be inadmissible, litigation must at least have been __ before the making of the offer.
threatened
a W may be __ on cross-examination by E that the W is biased or has an interest in the outcome of the case (i.e. E that shows W has a motive to lie).
impeached

*BIAS may be shown by extrinsic E after foundation is laid (1st ask about alleged bias, if denied then show bias w/ extrinsic E)
Prosecutor on cross asks a W, "Isn't it true that the grand jury has indicted you for the same crime as the defendant?"

-this will be allowed on the basis of bias, but NOT for impeachment.

-in order to be allowed on the basis of poor character for truthfulness (impeachment) there must have been a criminal CONVICTION rather than just an indictment.
However prosecutor can impeach the W character for truthfulness on cross by reference to an indictment if the W has been indicted for a crime probative of __, such as perjury, even though there has yet to be a conviction.
truthfulness
any matter that tends to prove or disprove the credibility of a W is __ b/c it affects the weight that the trier of fact should give his testimony.
relevant
E that a husband purchased insurance on his wife's life shortly before her death is __ because it has a tendency t make the husband's murder of his wife more probable than it would w/out the E.

note: this E is relevant b/c it establishes motive for the murder, and facts showing motive for doing an act are circumstantial E that the act was done.
admissible
exclusion of E on the grounds of prejudice is a matter w/in the trial judges broad __.
discretion
E of prior conduct (or misconduct) is specifically __ to show the ∆'s motive.

ex: purchasing life insurance for your wife shortly before she dies.
admissible
the testimony of a now unavailable W given at another hearing under oath is admissible in a subsequent trial as long as there is sufficient similarity of parties and issues so that the opportunity to develop testimony or cross-examine at the prior hearing was __.

In Criminal case, the accused or his attorney must have been __ and have had the opportunity cross at the time the testimony was given.
meaningful

present
there is NO confrontation clause issue to the use of former testimony, as long as the ∆ had an opportunity to cross at the prior hearing and the W is truly __.
unavailable
all preliminary fact questions involving standards of trustworthiness of alleged exceptions to the HS rule are to be determined by the __.
court
Who decides whether a purported business record was made in the regular course of business?
the Court.

-NOT the jury
a party may put Ws on the stand to bolster another W's credibility only when the W's credibility has been __.
attacked
before a writing may be received into evidence, the writing must first be __ by proof showing that the writing is what the proponent claims it is.
authenticated
may a W make an in-court comparison of the contested writing with another writing proved to be genuine?
NO.

-only an expert W or the trier-of-fact can determine the genuiness of a writing by comparing the questioned writing with another writing proved to be genuine.
to be admissible, opinion testimony by a LAY witness must:
(i) be rationally based on the __ of the W;
(ii) be __ to a clear understanding of his testimony or to a determination of fact in issue;
(iii) NOT based on scientific, technical, or other __ knowledge.
(i) perception
(ii) helpful
(iii) specialized
a lay witness who has __ knowledge of the handwriting of the supposed writer may state her opinion as to whether the document is in that person's handwriting.
personal
proper circumstantial evidence of authentication under the REPLY LETTER doctrine requires the proffered document be authenticated by E that it was written in __ to a communication sent to the claimed __.
•The content of the letter must make it unlikely that it was written by anyone other than the claimed author of the writing.
response; author
Present State of Mind Exception to the HS rule:

- a statement of a declarant's then existing state of mind is admissible as circumstantial E tending to show that the __ was carried out.
intent
present state of mind exception concerns the declarant's __ to do something, while the present sense impression exception __ or explains an event the declarant was then perceiving or immediately thereafter.
intent; describes
present sense impressions applies to statements describing or __ an event made while declarant was __ the event or immediately thereafter.
explaining; perceiving
present state of mind exception [does] or [does not] require that the declarant unavailable to testify?
does not
declarant unavailability is only required for:
(i) former __;
(ii) statements __ interest;
(iii) __ declarations;
(iv) statements of personal and __ history
• testimony
• against
• dying
• family
a statement of past physical condition is admissible as a HS exception if made to assist in diagnosing or __ the condition.

• this exception also allows statements of the __ or source of the conditions insofar as reasonably pertinent to diagnosis or treatment.
treating

• cause
re: the "past physical condition" exception, courts have held that in cases of domestic __ abuse, the IDENTITY of the attacker is pertinent for purpose of physical and psychological treatment.
child
Do federal courts recognize any physician-patient privilege?
No.

-unless the fed/ct is applying the law of state that recognizes this privilege.
does the "past physical condition" exception to the HS rule require the declarant to be unavailable to testify?
NO
What is the main reason behind the rule excluding hearsay?
the adverse party cannot effectively cross the W-declarant as to perception, memory, etc. at the time the statement was made.
when an out-of-court statement is introduced for any purpose other than to prove the truth of the matter asserted in the statement, the statement is not __.
hearsay
a Verbal Act (or legally operative fact) is an utterance to which the law attaches legal significance. E of such a statement is not hearsay b/c the issue is whether the statement was __.

Ex: in an action on a contract, words that constitute the offer or acceptance are not hearsay, b/c they are offered only to prove what was said, and not that it was true.
made
in an action on a contract, words that constitute the offer or acceptance offered only to prove what was said are not hearsay because the statement is a __ act (or __ operative fact).
verbal; legally
the Best Evidence rule applies only when the writing or recording is a legally operative or dispositive instrument or the __ of the W comes from the reading the document or listening to the recording.
knowledge
the Best Evidence rule does NOT apply where the fact to be proved exists __ of any writing or recording, and the W testifying to the fact has knowledge of the fact independent of the recording or transcription.
independently
One means of authenticating a writing is by E describing a process or system used to produce a result and showing that the process or system produces an __ result.
accurate

- i.e., the instrument was accurate and in good working condition.
past recollection record is a HS exception that applies when a W testifying about an event has __ recollection of it, even after consulting a writing of the event. The writing itself may be read into evidence if a proper foundation has been laid for its admissibility.
insufficient
For purpose of the Business Records exception, "business" is defined __ to include churches and other non-profit organizations, but does NOT include a hobby.
broadly
for purposes of the HS rule, a "statement" is an oral or nonverbal conduct by a PERSON intended as an assertion.

-a machine NOT intending to make an __ when it creates a record of an event is NOT a statement.
assertion
prior inconsistent statements are only admissible as SUBSTANTIVE evidence when they are statements of a W who is now testifying at trial and were made under __ at a __ __ or deposition.
oath; prior trial

*of course prior inconsistent statements are also admissible as impeachment E.
the general requirement that an impeached W be given an opportunity to explain or deny an apparent inconsistent statement [does] or [does not] apply to hearsay declarants.
does not
in a Civil trial or a Homicide prosecution, a statement made by a now unavailable __ declarant are admissible.
dying
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to:
prove the truth of the matter asserted.
A HS statement, to which no exception is applicable, must be __ upon appropriate objection.
excluded
statements of a person, now unavailable as a W, against that person's pecuniary, proprietary, or penal interest when made are admissible under what exception to the HS rule?
statement against interest
a W may be __ unavailable because he has testified to a lack of memory of the subject matter to which the original statement to a party relates.
deemed
The privilege against compelled self incrimination can be claimed at any proceeding whether __ or __, at which the W's appearance and testimony are compelled.
civil; criminal
If the testimony __ expose the W to criminal liability, then the privilege against self-incrimination also applies to civil proceedings.
might
to assert the privilege against self-incrimination, must the W's fear of criminal prosecution be reasonable?
NO.

a W may refuse to answer a question, regardless of whether the fear of prosecution is reasonable.
The authenticity of a document is a preliminary fact to be decided by?
the Jury (fact finder)
Any person familiar with an alleged speaker's voice may authenticate a recording of the voice by giving an __ as to its identity.
opinion
__ testimony is appropriate only when the subject matter is one where scientific, technical, or other specialized knowledge would __ to the trier of fact in understanding the E or determining a fact in issue.
Expert; helpful
a Verbal act or Legally Operative fact is most likely to arise in a defamation case or a contract case. The out-of-court statement is not hearsay if it is given to show that the legally actionable statement was __.
made
a Dead Man Act only applies if the facts say the jurisdiction has one.

a typical Dead Man Act provides that a party or person interested in the event, or her predecessor in interest, is __ to testify to a personal transaction or communication with a deceased when such testimony is offered against the representative or successor in interest of the deceased.
incompetent

*note Dead Man statutes only apply to civil cases
for a Dead Man Act to apply there must be both an __ person and a __ party.
interested; protected

note: an "interested" party is one who stands to gain or lose by a judgment in the case.
for a document to be admissible under the Business Records exception to the HS rule, such records must made in the __ course of business--they must be routine.
normal
for the past recollection recorded exception to apply, the W must have once had __ but now has insufficient recollection.
knowledge
Vicarious Admission (party-oponent)

- a statement by an __ concerning a matter within the scope of her agency, made __ the existence of the agency relationship.
agent; during
to qualify as an admission by a party opponent, must the statement have been against interest at the time it was made?
NO
for public policy reasons, E of repairs or other precautionary measure made after an injury is inadmissible to prove __ or __ conduct.
negligence; culpable
Assertive conduct is conduct __ by the actor to be a substitute for words.
intended
Ex: licensee is injured on the ∆ property when a chair he was in collapsed. The property owner thereafter replaced the leg on the broken chair. Was the property owners act of replacing the chair leg "assertive conduct"?
NO,

-assertive conduct is conduct INTENDED by the actor to substitute words.
under the Best Evidence rule, where the terms of the wiring are __, the original writing must be produced in proving the terms of the writing.
material
the mere fact that an __ is "self-serving" does NOT form a basis for overruling (or sustaining) the objection.
objection
a statement by a now-unavailable declarant while believing her death was imminent that concerns the cause or circumstances of what she believed to be her impending death is admissible under what HS exception?
dying decleration
a Present Sense impression is a comment made by a person while perceiving an event that is not particularly shocking or exciting that concerns the __ she is observing.
event
to qualify as a present sense impression the declarant statement about the event perceived must be made while perceiving the event or __ thereafter.
immediately
a specific act of misconduct can be elicited only on ____; extrinsic evidence is not permitted.
cross-examination
a criminal ∆ may introduce E of a bad character trait of the alleged victim if it is relevant to the charge or defense, but the type of E is limited to which types of E?
a ∆ may only use REPUTATION or OPINION evidence to show bad character trait of the alleged victim if the E is relevant to the charge or or defense.
is a civil judgment admissible in a subsequent criminal trial?
NO,

-Why: the rule that felony convictions are admissible in a subsequent criminal or civil trial is not applicable to civil judgments b/c of the differing standards of proof.
When impeaching a W by inquiring about specific criminal or immoral acts on cross, is extrinsic evidence permitted?
NO.

- a specific bad act of misconduct offered to attack the W character for truthfulness can be elicited only on cross examination of the W, however if the W denies it, the cross-examiner cannot refute by calling other witness or producing other evidence (<- extrinsic E).
a Declarant is considered UNAVAILABLE for five reasons, what are they.
(i) is exempted by privilege,
(ii) refuses to testify despite court order,
(iii) testifies to lack of memory of the subject matter,
(iv) not present b/c of death or physical/mental illness,
(v) beyond reach of court's subpoena and the proponent unable to procure his attendance by other reasonable means.
The fact that a declarant is incarcerated in another state will suffice as unavailable in a __ case, but not in a __ case.
civil; criminal

*the Confrontation Clause requires a greater showing of unavailability.
Where the P has introduced part of writing, the ∆ would be entitled to cross or introduce rebuttal E as to any other part of the same writing necessary to make it understood. This is b/c the party who opened the door by introducing the original part of the writing has __ any objection to the introduction of other parts.
waived
as to "confidential marital communications" if one spouse voluntarily reveals the contents of the communication to a third party, the spouse who revealed it cannot later claim the privilege and can be compelled to testify.
note: the confidential marital communication privilege does not terminate upon divorce.
Which spousal privilege terminates on divorce or death?
the spousal immunity privilege.
which spousal privilege is held only by the non-party spouse & which is held by both spouses?
spousal immunity = non-party spouse (witness spouse)

marital communication = both spouses
which spousal privilege is this?

-a married person whose spouse is the ∆ in a criminal trial cannot be called as a W by the prosecution, and may not be compelled to testify against her spouse in any criminal proceeding.
spousal immunity
the contents of voluminous writings that are otherwise admissible may be presented in the form of a CHARTS and GRAPHS as long as:
the original documents are available to the other party for examination and copying
official records such as birth, death, and marriage certificates are __-__ when they are certified; the custodian of record need NOT authenticate them in court.
self-authenticating
in a criminal case when the judge takes judicial notice of a fact what must the judge instruct the jury?
the jury must accept the judicially noticed fact as CONCLUSIVE
in a civil case when the judge takes judicial notice of a fact what must the judge instruct the jury?
the fact that has been judicially noticed MAY be accepted as conclusive, but the jury is NOT required to do so.
is a a record of misdemeanor robbery conviction admissible impeachment evidence?
NO, the conviction is misdemeanor and robbery is not considered a crime involving dishonesty.

*robbery is a crime of aggression
while evidence of subsequent remedial measures is not admissible to show fault, it is admissible to show:
-Ownership,
-Control,
-Feasibility of precautionary measures,
-Impeachment
Admissions made by one co-conspirator are only admissible against another co-conspirator if made:
during the course of the conspiracy
Can pre or post-arrest silence be used as a basis for an adoptive admission?
PRE-ARREST silence only
An out of court statement consistent with testimony on the witness stand is admissible for its truth to rebut an inference of bias if the consistent statement was made prior to:
the time the reason for the bias occurred
[Attacking Ws Character for Truthfulness]

Civil or non-∆ Criminal Witnesses may always be impeached by ____ convictions.
FELONY

*10yr rule applies
Juvenile adjudications are admissible if:
(i) offered in a criminal case;

(ii) the adjudication is of a non-∆ W;

(iii) an adult conviction of that offense would also be admissible; &

(iv) the E is necessary to fairly determine guilt or innocence
Juvenile adjudications are NOT admissible in Civil Cases, nor against criminal ____.
defendants
Evidence of a witness’s RELIGIOUS beliefs or opinions is not admissible to attack or support the witness’s credibility.
ex: canNOT impeach a W by showing he does not believe in God.