Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

30 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
Logical Relevance
Evidence that has any tendency to make a material fact more probable or less probable than it would be w/o the evidence.
Discretionary Evidence
Even relevant evidence may be excluded if its probabtive 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. cumulative evidece

Note: unfair surprise is not a ground for exclusion of relevant evidence.
Habit Evidence

1. specific detailed conduct

2. recurrence

Look for: always, instinctively, invariably, automatically
Liability Insurance
Not admissible to show person acted negligently or wrongfully or to show ability to pay.

Admissible to show:
1. ownership or control (when disputed)
2. impeach credibility of W by showing interest, bias, motive
Subsequent Remedial Measures
Not admissible to show negligence, culpable conduct, defect, or need for warning.

Admissible to show:
1) ownership/control
2) impeachment - feasibility of precautionary measures
Not admissible to prove fault, liability or amount of damage.

1. There must be a claim
2. the claim must be disputed as to LIABILITY or AMOUNT
Offer to Pay Medical Expenses
Not admissible

However, admission of fact that accompanies nakes offer to pay medical expenses may be admitted.
Character Evidence

(Criminal Cases)
IS admissible under the MIMIC rule

Inadmissible if offered by Π to show that Δ has a propensity to commit crimes

IS admissible if offered by Δ to show his own good character, or the bad character of victim
(W's testimony limited to opinion or reputation)

Is rebutted by calling a rebuttal W whose testimony is limited to opinion or reputation
Character Evidence

(Civil Cases)
IS admissible under the MIMIC rule

Is inadmissible if offered by EITHER party to show that either party in conformity w/that character trait

IS admissible if character itself is AT ISSUE (defamation*, negligent hiring/entrustment) --> may be shown by specific acts, opinion, reputation
Specific Instances of Prior Misconduct

(Criminal Defendant)
Not admissible to show criminal disposition (except n Sexual Assault/Child Molestation - civil as well)

May be admissible to show:
1) Motive
2) Intent
3) Modus Operandi
4) Identity
5) Common Plan or Scheme
Victim Character - Sexual Misconduct Cases
1) no opinion or reputation

2) specific instances allowed only to show
*3rd party source
*prior consensual intercourse
* exclusion violates constitutional rights
General Rule of Authentication
A writing is not admissile until authentication (foundation is laid)

Presumed a forgery
Ancient Document Rule
1) 20+ years

2) regular on its face

3) found in place of natural custody
How much evidence is required to lay a proper foundation?
Enough to justify a jury finding of genuineness.
Self-Authenticating Documents
1) Certified Copies of Public or Business Records

2) Official Publications

3) Newspapers and Periodicals

4) Trade Inscriptions/Labels

5) Acknowledged Documents

6) Signatures on certain commercial documents
Authentication of Photographs
Generally requires only that a W view it and testify that it is a reasonable and accurate representation.

If no W, proponent must show:
1) camera was operating properly
2) time camera was operating
3) how camera/film were handled leading up to court
Best Evidence Rule
Party seeking to prove the content of a writing must either:
1) produce the original document; or
2) give a reasonable explanation for the absence of the original.

Applies to: legally operative documents, when W's sole knowledge comes from document

Does not apply to: facts independent of writing, collateral documents

Modifications: Public Records, Voluminous documents, Duplicates
Dead Man Act
1) interested W
2) W must testify for his interest
3) W must testify against decedent or his reps
4) communications or txs w/D
5) strictly CIVIL
Collateral Matters Doctrine
X-examiner is bound by W's answers re: impeachment of collateral matters.

No extrinsic evidence allowed.
5 Basic Impeachment Techniques
1) Prior Inconsistent Statement

2) Interest, Bias, Motive

3) Prior Conviction of Crime

4) Specific Acts of Deceit or Lying

5) Bad Reputation/Opinion for Truth & Veracity
Unavailability Hearsay Exceptions
1. Declarations against interest

2. Dying declaration

3. Former testimony
Reliability Hearsay Exceptions

(W need not be unavailable)
1. Excited utterances

2. Present sense impressions

3. Bodily condition

4. Present state of mind
Documentary exceptions
1. Past recollection recorded

2. Business records

3. Official records
Catch-All Hearsay Exception
1. Guarantees of trustworthiness

2. strictly necessary

3. notice given to adversary
Notice Trust Necessary

(Admissible Out-of-court statements)
1. Nonassertive conduct

2. Statement not offered for truth

3. Prior Inconsistent Statement Made Under Oath

4. Prior Consistent Statement (to rebut lying/exaggerating)

5. Prior Statement of Identification

6. Admission of party-opponent
Sixth Amendment Right of Confrontation

(Crawford Factors)
6th amd's right to confrontation may render a statement inadmissible, even if it fits an exception.

1. statement is offered against accused in a CRIMINAL case
2. declarant is UNAVAILABLE
3. statement was TESTIMONIAL
4. accused had no opportunity to X-EXAMINE declarant's statement when it was made

Unless it is shown that defendant's wrongdoing prevented declarant from testifying @ trial.
Past Recollection Recorded
If a witness has insufficient memory of an event to enable him to testify fully and accurately, even after consulting a writing given to him on the stand, the writing itself may be introduced into evidence if a proper foundation is laid for its admissibility:
i) the witness at one time had personal knowledge of the facts recited in the writing; ii) the writing was made by or under the direction of the witness or has been adopted by him;
iii) the writing was timely made when the matter was fresh in the mind of the witness; iv) the writing is accurate; and
v) the witness has insufficient recollection to testify fully and accurately.
Parol Evidence Rule
if an agreement is reduced to a writing, all prior or contemporaneous negotiations or agreements are merged into the written agreement.

parol evidence is admissible to establish or disprove a contract attacked on grounds of fraud, duress, or undue influence inducing consent
Prior Testimony
is admissible as an exception to the hearsay rule if the testimony was given under oath;

and the party against whom the evidence is now offered either offered the testimony or had the testimony offered against her at the former trial, and had an opportunity and similar motive to develop the testimony either on direct or cross-examination
Admissibility of Convictions
A misdemanor conviction is hearsay not admissible under any exception.

A felony conviction, on the other hand, is admissible in criminal and civil actions to prove any fact essential to the judgment.

In a criminal case, however, the government may use the judgment for this purpose only against the accused; it may be used only for impeachment purposes against others.