Mbe Evidence (Pmbr)

Front 1

definition of relevancy

Back 1

that which has the tendency to make the existence of any fact that is of consequence to the determination of the action more/less probable than it would be w/o the evidence

Front 2

foundation required to introduce evidence of absence of prior accidents at a particular location (2)

Back 2

place was used:
1. a substantial number of time
2. under substantially the same conditions

Front 3

foundation required to introduce evidence that product was used repeatedly w/o fail (2)

Back 3

1. conditions under which the product was used were identical to that existing at time of accident;
2. witness would have heard if there had been any accidents

Front 4

foundation required to introduce evidence that condition was not dangerous (3)

Back 4

1. condition was substantially the same on the day of P's incident as it was during the period described
2. sufficient traffic over the condition over a period of time sufficient to provide an opportunity for such accident to have occurred; and
3. witness was likely to have heard of such accidents had they occurred

Front 5

when are prior tort claims filed by a party admissible

Back 5

only to show prior plan/scheme, otherwise 403 violation

Front 6

when are prior K's admissible
1. between parties
2. w/third parties

Back 6

between parties: admissible to clarify ambiguity or party intent in K at issue if conditions at the time prior to K took place were substantially similar to K at issue

with third party:
1. to show trade usage, NOT intent of current parties

Front 7

when may relevant evidence be excluded (6)

Back 7

if its probative value is substantially outweighed by the danger of
1. unfair prejudice
2. confusion of issues
3. misleading jury
4. undue delay
5. waste of time
6. needless presentation of cumulative evidence

Front 8

character evid. in civil case:
1. rule
2. exceptions (4)

Back 8

1. character evidence is inadmissible to prove conduct in conformity therewith on a particular occassion

2. exceptions:
-defamation
-child custody
-self-defense
-negligent hiring/selection

Front 9

only two instance character evidence is admissible in rape cases

Back 9

1. behavior w/ other persons which would explain signs of rape
2. proves consent

Front 10

scope of character evidence available to D to attack victim

Back 10

all three

Front 11

what is opening the door?

Back 11

D, in criminal case, may offer reputation/opinion evidence of character to prove innocence, but it must bear on innocence

Front 12

what is available to prosecution once D opens the door (2)

Back 12

1. rebut with character evidence in kind (reputation/opinion)

2. attack the credibility of D's character witness with specific acts

Front 13

define MIMICR?

Back 13

circumstantial evidence offered by the prosecution usually brought in rebuttal, and specific trait to be proved must be at issue

Motive
Intent
Absence of Mistake
Identity
common Plan/Scheme
Rebut the element of a Defense

(i.e. unconvicted bad acts)

Front 14

when is MIMIC prohibited?

Back 14

to prove the disposition of the crime

Front 15

when is evidence of subsequent remedial measures admissible (3)

Back 15

1. ownership/control
2. feasibility of precaution if controvered
3. impeachment

Front 16

when are offers to settle admissible? (3)

Back 16

1. prove bias/prejudice of a witness
2. controvert a contention of undue delay
3. prove obstruction of justice

Front 17

may you sever:
1. offers to settle
2. offers to pay medical bills

Back 17

1. NO
2. YES

Front 18

What re pleas are inadmissible? (3)

Back 18

1. offers to plead guilty
2. withdrawn guilty pleas
3. pleas of nolo contendre

Front 19

what re pleas are admissible (4)

Back 19

1. anytime to impeach
2. prosecution for impeachment
3. an actual, certified guilty plea
4. final judgment entered following guilty plea

Front 20

when is evidence of liability insurance admissible? (3)

Back 20

1. agency
2. ownership/control
3. bias/prejudice

Front 21

what is a statement?

Back 21

oral, written, or nonverbal HUMAN conduct intended to be an assertion

Front 22

who is the declarant?

Back 22

the person who makes the statement

Front 23

what is hearsay?

Back 23

an out of court statement offered to prove the truth of the matter asserted

Front 24

What is the approach for every hearsay problem (3)

Back 24

1. statement?
2. declarant?
3. purpose for evidence?
-for truth> H > apply exceptions
-not for truth > apply non-H

Front 25

what two requirements must be met to use prior statements as non-hearsay every time? (2)

Back 25

declarant is
1. unavailable
2. subject 2 cross

Front 26

what are the non-Hearsay categories (4)

Back 26

1. Prior Statements
2. Admissions
3. Verbal Acts
4. Non-assertive conduct

Front 27

what are the PRIMARY Hearsay exception where unavailability is not required (7)

Back 27

1. Present-sense impression
2. excited utterance
3. statement of past physical/mental condition
4. statement of present physical condition/mental
5. past recollection recorded
6. business records
7. public records

Front 28

what are the SECONDARY hearsay exception where unavailability is not required (7)

Back 28

1. vital statistics concerning births, deaths, or marriages
2. religious records
3. family records such as statements made in family bibles, portraits, engravings on tombstones
4. ancient documents (20+ yrs)
5. learned treatises
6. final judgments entered after guilty pleas
7. catch-all

Front 29

what are the hearsay exceptions requiring unavailability (3)

Back 29

1. former testimony
2. dying declaration
3. declaration against interest

Front 30

requirements for prior inconsistent statements when used to impeach (3)

Back 30

declarant must be available and subject to cross
AND
you must give D to explain the inconsistency FIRST

Front 31

requirements for prior consistent statements (2)

Back 31

declarant must be available and subject to cross

Front 32

requirements for prior identifications (2)

Back 32

declarant must be available and subject to cross

Front 33

treatment distinction between prior sworn/unsworn inconsistent statements

Back 33

sworn: are admissible substantively and to impeach

unsworn: are admissible only to impeach

Front 34

when are prior consistent stmts available

Back 34

to substantively rebut a charge of recent fabrication or improper influence

Front 35

what is a prior identification

Back 35

a prior statement (not a mere observation) made following perceiving it

Front 36

types of admissions (6)

Back 36

1. party-opponent
2. judicial
3. adoptive
4. vicarious
5. co-conspirator
6. guilty plea

Front 37

when are admissions of a party-opponent admissible and how may it be used

Back 37

it is the statement of a party against his own interest and it may be used substantively

Front 38

what is a judicial admission?

Back 38

matters to which a party has stipulated on the record and are conclusive in the proceeding in which they were made

Front 39

what are adoptive admissions and what is the one big exception?

Back 39

1. evidence of conduct of a party which reasonably supports an inference unreasonably inconsistent with the party's trial contentions (silence/conduct)

2. exception: post-Miranda D

Front 40

what are the elements of a vicarious admission (2)

Back 40

1. made during the existence of the relationship
2. concerning a matter within the scope of employment

Front 41

what is the scope of use for a guilty plea as an admission

Back 41

the prior crime must be relevant to the current tort

Front 42

what are the types of verbal acts (2)

Back 42

1. transactional words of a deed/will
2. tortious words: actual words of libel/slander in a defamation action

Front 43

why are verbal acts non-hearsay

Back 43

they are not used for the substance of the statement; instead, they are used for the effect on the listener/transaction/element

Front 44

what hearsay exceptions do no require the declarant to be known or available (2)

Back 44

1. excited utterance
2. present sense impression

Front 45

what is a present sense impression?

Back 45

statement describing or explaining an even/condition made while the declarant was perceiving the event/condition or immediately thereafter

Front 46

what is an excited utterance?

Back 46

a statement relating to a startling event/condition made while the declarant was under the stress of the excitement caused by the even/condition

Front 47

three types of statement of mental/physical condition (3)

Back 47

1. statement of intent
2. statement of pain
3. statement of bodily health

Front 48

limits of statement of intent

Back 48

only applies to declarant

Front 49

1. what is a statement of bodily health/physical condition

2. who can it be made to

3. who can make it

Back 49

any patient statement on a hospital record used for the purpose of diagnosis.

2. it can be made to anybody

3. it can be made by anybody, not just the patient

Front 50

re. past recollection recorded what are the

1. requirements (3)

2. limits on admission

Back 50

1.
-writing must be authenticated
-witness must have had knowledge about the matter
-writing itself was either made or adopted by witness at the time it was fresh in her memory

limits on admission: writing itself may not be admitted w/o consent of adverse party

Front 51

elements of business record exception (5)?

Back 51

record itself must have been prepared
1. by the custodian or another person with knowledge
2. at or near the time of the event
3. by somebody with a duty to report
4. in the ordinary course of a regularly conducted business
5. and were not prepared for litigations

Front 52

elements of public record exception (2)

Back 52

1. personal knowledge
2. official duty to report

Front 53

when are learned treatises admissible (2) and how may they be utilized

Back 53

admissible if
1. found to be authoritative by expert testimony or judicial notice
2. relied on the expert on direct

Front 54

when are declarants unavailable for hearsay purposes (5)

Back 54

1. assertion of privilege
2. refusal to testify
3. lack of memory
4. absence due to death, illness, or injury
5. absence from the court's jurisdiction

Front 55

requirement for using former testimony, given at an earlier proceeding, by a now, unavailable witness, against a current party or successor in interest

Back 55

1. party against whom the testimony is brought against had an opportunity to cross examine the declarant at the earlier proceeding and had similar motives

Front 56

requirement for using former testimony against a current party who was not a party to the prior litigation (include three examples)

Back 56

if the former testimony was offered against a predecessor in interest of the present party
1. legatee follows testator
2. buyer follows seller
3. estate representative

Front 57

does former testimony require identity of the parties?

Back 57

no

Front 58

what are the ONLY times dying declaration may be used? (2)

Back 58

1. criminal homicide (non-attempt)
2. civil

Front 59

what is a dying declaration

Back 59

declaration made by an unavailable declarant while under an imminent belief of death concerning the cause or circumstances of the purportedly imminent death

Front 60

what is a declaration against interest?

Back 60

statement of an unavailable NON PARTY which is against interest, with personal knowledge,when made

Front 61

how to dissect multi-layered hearsay? (2)

Back 61

1. get prior document containing hearsay statement in w/ business public document exception

2. get hearsay statement itself in

Front 62

what is the minimum competency test? (2)

Back 62

1. personal knowledge
2. declaration to testify truthfully

Front 63

what is the ONLY limitation to witness competency

Back 63

everybody is competent except where state law supplies the rule of decision (i.e. diversity)

Front 64

when is an interpreter considered competent to testify? (2)

Back 64

must take oath to testify truthfully and qualify as expert witness

Front 65

may the attorney, judge, or juror be called as a witness?

Back 65

only the attorney

Front 66

What is the most important rule concerning impeachment?

Back 66

You cannot impeach somebody until they have testified, otherwise it defeats the purpose

Front 67

reasons you would want to impeach you own witness (3)

Back 67

1. hostile witness
2. W is positively harming your case
3. adverse witness rule

Front 68

what is the adverse witness rule?

Back 68

if one party calls the opposing party as a witness:
1. the witness may be immediately impeached by the calling party; and
2. the witness may be subject to direct examination by her own counsel

Front 69

what is the collateral matter rule

Back 69

collateral evidence offered to attack the credibility of a witness may be inquired into on cross examination of the witness intrinsically, not extrinsically

Front 70

methods of impeachment (6)

Back 70

1. sensory defects
2. bias
3. bad acts
4. juvenile adjudications
5. convictions, not subject 2 pardon
6. crimes re untruthfulness

Front 71

sensory defect impeachment (purpose, manner, foundation requirements, limits)

Back 71

1. purpose: goes to W credibility
2. manner; (I OR E) either questioning W's inability to perceive, preserve, or remember
3. foundation: prior questioning before introducing extrinsic evidence
4. limits: NO RELIGION

Front 72

bias impeachment (manner, foundation, limits)

Back 72

manner: (I or E) show that W has
1. interest in outcome
2. economic/material hardship
3. hostility or favoritism
4. fee paid to an expert witness

foundation: must ask W about facts that are at the basis of bias

limit: No collateral matters!

Front 73

prior, unconvicted bad act impeachment limits (2)

Back 73

1, unconvicted bad acts must concern truthfulness
2. I only: NO EXTRINSIC EVIDENCE

Front 74

impeachment using a felony conviction or a crime bearing on untruthfulness limits (3)

Back 74

1. must be punishable by death/imprisonment of over a year
2. if over 10 yrs old, advanced notice and 403 clearance required
3. must clear a 403 test

Front 75

two methods to impeach using a conviction

Back 75

1. intrinsically
2. certified copy of the conviction

Front 76

limits re juvenile adjudications (2)

Back 76

1. no use against D
2. if used against W, up to court's discretion

Front 77

impeachment using prior inconsistent statements (foundation, limits)

Back 77

foundation: W need only be given an opportunity to explain/deny stmt at ANYTIME

limits: collateral matter rule applies

Front 78

three forms of authentication generally?

Back 78

1. testimony based on personal knowledge
2. distinctive markings
3. chain of custody

Front 79

requirements for authenticating scientific tests? (3)

Back 79

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 field

Front 80

means to authenticate handwriting (3)

Back 80

1. layperson w/familiarity NOT gained for purposes of litigation
2. comparison by an expert witness
3. comparison by trier of fact

Front 81

means to authenticate telephone conversation made to a residence (2)

Back 81

1. showing that call was made to number assigned by phone co.
2. self-identification

Front 82

means to authenticate telephone calls to a business (2)

Back 82

1. showing that call was made to number assigned by phone co.
2. conversation related to business reasonably transacted

Front 83

requirement to authenticate a photograph

Back 83

must be an accurate portrayal of what it depicts

Front 84

items that self-authenticate (8)

Back 84

1. domestic, public docs under seal
2. certified, foreign public docs
3. certified copies of public records
4. official publications of public agency
5. newspapers and periodicals
6. trade inscriptions
7. notarized inscriptions
8. commercial paper

Front 85

when does BER not apply (3)

Back 85

1. merely to prove writing existed
2. merely to prove that a statement was made
3. where contents of the writing are collateral to the issues being litigated

Front 86

where BER does apply (3)

Back 86

1. writing itself has independent, legal significance
2. writing is offered into evidence to prove an event
3. testimony is reliant on writing, instead of mere personal knowledge

Front 87

where W relies on writing to attest to something, what may stop W in his tracks?

Back 87

hearsay

Front 88

when are duplicates inadmissible?

Back 88

when there is a genuine question re its authenticity

Front 89

when may a document may be considered unavailable

Back 89

if it is in the hands of somebody outside the jurisdiction

Front 90

which third parties preserve/destroy privilege?

Back 90

preserve: those who further some purpose of the relationship (essential)

destroy: easedroppers and non-essential third parties

Front 91

limits on holder privilege

Back 91

it is not absolute bar to questioning; instead, it shapes the questioning to protect privilege

Front 92

when does a client establish privilege and what can't destroy it (2)?

Back 92

1. client seeks professional advice
2. lack of compensation/will to take case does not destroy privilege

Front 93

attorney client privilege: exceptions

Back 93

1. suits between atty/client
2. suits between joint clients
3. disputes re client's will post-mortem
4. communications in furtherance of future crime or fraud

Front 94

atty/client privilege: who is an atty?

Back 94

one who is actually or reasonably believed to be licensed

Front 95

atty/client privilege: what is protected?

Back 95

communications from A/C and C/A NOT work product

Front 96

atty/client privilege: difference between corporate clients in st. and fed. ct.

Back 96

st. court: only high-lvl execs get privilege

fed court: all employees get privilege

Front 97

dr/pt. privilege: what is protected?

Back 97

verbal communications and observations (x-rays/ct scans/lab results)

Front 98

dr./pt. privilege: exceptions (4)

Back 98

1. pt. condition at issue
2. criminal proceedings
3. malpractice actions
4. competency or commitment proceeding

Front 99

exception to psychotherapist/pt rule (2)

Back 99

1. proceeding where mental condition at issue
2. pt. presents immediate threat of harm

Front 100

priest/pennant privilege: who holds?

Back 100

both

Front 101

marital communications privilege: impact of divorce

Back 101

confidential communications remain privileged

Front 102

spousal privilege: impact of divorce

Back 102

entire privilege gone!

Front 103

marital communication privilege: who holds?

Back 103

both spouses

Front 104

spousal privilege: who holds?

Back 104

testifying spouse

Front 105

marital communication privilege v. spousal privilege: what is protected?

Back 105

MCP: confidential, verbal communication made DURING MARRIAGE in both civil/criminal cases

spousal privilege: protects all communications regardless of confidentiality, PRIOR TO AND DURING MARRIAGE

Front 106

MCP v. spousal privilege: exceptions

Back 106

MCP: crimes/fraud and threat to other spouse/kids

spousal: threat to other spouse/kids