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67 Cards in this Set
- Front
- Back
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the court decides whether evidence is _________ the jury decides _________ of evidence once the evidence is admitted |
1. admissible 2. weight |
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402: all relevant evidence is admissible unless a specific rule ___________ the evidence or limits the admissibility if evidence is ______________ then it is not admissible |
1. excludes 2. irrelevant **remember to ask if the evidence meets relevance AND whether there is a specific rule that will exclude the evidence |
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Evidence must be relevant & to be relevant evidence must meet a 2 part test: |
1. evidence helps in some minimal way to help establish the point it was introduced to established 2. proposition evidence needs to have something to do with the case |
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any piece of evidence can be _____________ if the judge determines that the probative value is substantially outweighed by 3 things |
excluded 1. unfair prejudice 2. confusion of the issues, and 3. waste of time |
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___________ _______ is a process under which a court can relieve a party from presenting evidence to help establish a relevant fact |
judicial notice **counsel requests judicial notice then the judge MUST take the notice when the fact is undisputed |
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1. ___________ only excludes evidence stated in the rule when the evidence is offered to prove the position stated in the rule 2. evidence is offered to prove some other position in the case it doesnt mean that it is _____________, it just means its not excluded by relevancy rule of exclusion |
1. rule of exclusion **so if evidence (say insurance) is offered to prove a position that isn't named in the rule the rule doesnt exclude the evidence from coming in 2. admissible |
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evidence of insurance _________________ to show negligence but may be admissible to show __________ or _________ |
inadmissible bias ownership |
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subsequent remedial measures: |
any measures taken that would have made an earlier injury/harm less likely to happen then the evidence of the measures isn't admissible to prove negligence, culpable conduct or strict liability BUT can be admissible to show ownership or feasible safer condition |
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_______________ offers and ____________ _________ that are made during settlement negotiations are _____________ if offered to prove liability, amount of damage, or to impeach w/prior inconsistent statement or contradiction |
1. settlement 2. factual statements |
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evidence of furnishing, ______ to _____, to offering to _____ __________, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury |
1. promising to pay 2. pay medical ***factual statements ABOUT paying can be admitted |
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any withdrawn plea of _____ will not be admissible in any other subsequent criminal or civil case |
gulty or nolo contendre |
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character evidence is used to show ______, _____, _______, __________ evidence that shows a person is acting with conformity to their character is ________________ |
truthful, dishonest, reckless, careful, aggressive, etc inadmissible |
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3 types of evidence used to establish character: |
1. reputation 2. opinion 3. specific acts |
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a prosecutor can not present evidence of a defendants ___ __________ to help prove the D acted in conformity with his _____ ________ and committed the crime charged |
bad character |
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a D is allowed to present evidence of relevant ___ ______ it that will help establish that the D isn't the kind of person who would have committed the crime charged - what type of evidence can the D use what can prosecution do on rebuttal |
1. good character 2. reputation and opinion on rebuttal the prosecution can only use reputation or opinion |
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when a D presents good character, the prosecutor is allowed to cross-examine the D's character witnesses using what types of character evidence? |
the prosecution can use: reputation opinion specific evidence |
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evidence of a Ds previous crimes or other acts is not admissible in order to show the D acted in conformity with his character, when can previous crimes be used as evidence? |
to show: M - motive I - intent M - mistake (absence of) I - identity C - common scheme, plan **PRIOR CRIME DOESNT HAVE TO BE A CONVICTED CRIME** |
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in a ____ ______ case, the prior acts of similar nature will always be admissible and cab be used for any purpose including showing the D had a propensity to commit the crime |
sexual offense |
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reputation or opinion evidence as to the past sexual behavior on the part of the victim is |
inadmissible |
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in a civil case can you have character evidence |
NO - bcs its usually being offered to show a party acted in a similar way during the event that gave rise to the litigation **exception - defamation and negligent entrustment cases |
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prior similar circumstances will be __________ if offered to show the D probably acted in a similar way |
rejected |
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prior similar occurrences are inadmissible to show party may have acted in the same way BUT a prior tort may be admissible in 4 ways |
1. Dangerous condition - showing an object is dangerous 2. Impossibility 3. Causation 4. Knowledge |
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_______ & ___________ are admissible to show a party acted in conformity with the |
habit - a repeated response to a particular set of circumstances business routine |
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A witness must give an ____ to testify truthfully special issue with child witnesses |
oath the judge determines from witnesses that witness can appreciate need to tell the truth but there is no particular way the judge has to do that |
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a witness must have __________ ____________ |
personal knowledge |
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the requirement of personal knowledge also disqualifies a witness who, at the time of the testimony has ___ ______________ of the events about which the witness is testifying |
no recollection |
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________ _________ statute disqualifies a witness from testifying to a transaction with a person who is dead at the time of the testimony |
dead mans statute *on MBE if the answer says "inadmissible under Dead Mans Statute" will not be a correct answer** |
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What are the 4 major disqualifications of a witness? |
R - no Recollection
O - no Observation T - no Truthfulness C - no Communications |
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_______ ________ a question that suggests an answer to the witness - they are prohibited on direct examination of a witness |
leading question |
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in what 3 situations are leading questions allowed? |
1. hostile - leading questions are allowed on direct if the witness is a hostile witness - on the MBE this is always the opposing party or someone closely related to the opposing party 2. necessity - if leading is needed to develop testimony 3. cross-examination - are admissible on cross |
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_________ may be used to refresh the recollection of a witness |
ANYTHING when a doc is used it goes to the opposing party and then she can introduce it if she wants to |
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a lay witnesses testimony is limited to opinion that is 1 of 3 things |
1. rationally based on witness's perception 2. helpful to clearly understand witness's testimony or determine fact in issue 3. not based on scientific, technical, or other specialized knowledge |
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in order to qualify as an _________ ________ they must have 4 basic reqs: subject matter sufficient qualification basis of opinion reliable principles used by the witness |
expert witness |
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an expert witness needs to have ___________ _________ ____________ ________________ |
1. knowledge 2. skill 3. training 4. education 5. experience |
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expert witness can base their opinion on one of two things |
personal observation hypothetical question |
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To assist trial judge to make that decision: the rule: before expert testimony is admissible the scientific principles based on by expert must have been generally accepted in the scientific community |
Frye |
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rule: trial judge must make her own independent determination based on all available info that the expert opinions is based on reliable principles, applied correctly that will assist the jury in the case |
Daubert |
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if a counsel requests for a witness to be ________ the judge must allow it |
exclude ** parties to an action, even if called as a witness, won't be kicked out of court** |
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have an absolute right to ________ __________ every witness who testifies in a case |
cross-examination **if witness dies mid testimony then the cases a mistrial bc the other counsel could not cross0examine** |
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when you are trying to help the credibility of a witness you will use 3 types of evidence |
1. reputation for truthfulness - this evidence will be excluded under 608 2. prior consistent statements - evidence excluded under 403 3. prior specific acts that show truthful nature - inadmissible under 608 ** evidence will be inadmissible UNLESS it cane used for some other legitimate purpose then it can never be kept out** |
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__________ is evidence offered to show that the witness who testified shouldn't be believed what are the 6 common ways to _______ |
impeach 1. prior inconsistent statements 2. bias 3. criminal convictions 4. prior bad acts 5. reputation for untruthfulness 6. contradiction |
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when can impeachment of a witness occur? |
common issue thats test on MBE is can impeachment only take place during cross-examination or whether "extrinsic" evidence can be presented |
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prior inconsistent statements - why is this used in impeachment |
used to show that the witness made previous inconsistent statements with trial testimony - on cross the witness can be asked about inconsistency - can ask any minor OR major inconsistency - extrinsic evidence - minor inconsistency will almost always be excluded --- major inconsistency ALWAYS allowed in |
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evidence that shows any reason the witness might favor the side the witness testifies for is admissible on cross or through extrinsic evidence under the theory of _______ |
bias |
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impeachment on prior convictions: use either _______ or other felonies prior crimes involving dishonesty can ALWAYS be used to impeach with ______ _______ by judge other felonies can be used unless ________ prior crimes can be asked about on _____ or proven though _______ _______ bc there is no foundation req |
crimes involving dishonesty - false statements no discretion judge finds prejudice cross & extrinsic evidence |
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prior bad acts: that don't result in criminal conviction what are the 4 limitations |
1. discretionary - judge has discretion whether to allow impeachment through prior bad acts 2. prior bad acts must relate to lack of truthfulness 3. can be asked on cross of witness, regardless of the answer extrinsic evidence will not be allowed to prove bad act 4. all courts require good faith basis for prior bad acts |
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a witness can be impeached through testimony of others that the witness has a ______________ in the community for dishonesty or _______________ |
reputation untruthfulness |
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_________ can be attempted on cross on any point of the witness' testimony, extrinsic evidence that contradicts will not be allowed on minor, unimportant points |
contradiction |
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when a witness has been impeached - they can be ________________ or accreditation 3 types of _________ after impeachment |
rehabilitation reputation, specific acts, prior inconsistent statements |
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rehabilitation through reputation evidence can be used when ___________ has been used to impeach the witness |
evidence of untruthfulness, prior crimes, or prior bad acts has been used for impeachment purposes |
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rehabilitation through specific acts is used through _____________ ___________ |
specific previous acts that demonstrate a truthful character **608 specifically excludes such evidence** |
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rehabilitation through prior consistent statements |
statements that the witness made before testifying that are consistent with what the witness said on the stand can't be used to rehabilitate the witness |
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whenever the offered evidence includes a statement other than the statement made by a witness while testifying, this is a question about |
HEARSAY |
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purpose of evidence is to persuade the court that the facts contained in the out of court statement actually happened -- then the evidence is being offered for the ______ of the _______ asserted |
truth of the matter asserted |
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_________ ________ __________ of a witness that was given at a trial or other legal proceeding is admissible both to impeach and as substantive evidence, they are removed from the definition of hearsay by 801(d) |
prior inconsistent statement |
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any relevant previous statements by a party is admissible against him as an _______, they are never kept out by the hearsay rule statements of the employees are considered an ________ by the employer if they are made in the scope of employment |
admission |
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testimony that someone identified a person outside the courtroom would be the definition of hearsay, how is this removed from the definition of hearsay |
removed IF the person that made the out of court identification is a witness in the current case -the witness doesnt have to be the current witness on the stand for the issue to be brought up they just have to be a witness in the case |
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what is a present sense impression |
statement describing or explaining an event or condition made while or immediately after the declarant perceived it |
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define an excited utterance |
statement relating to a startling event or condition made while the declarant was under the stress or excitement that it caused |
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existing mental, emotional, or physical condition is an exception by showing |
physical - out of court statement about condition that someone can testify to mental - mental issue is an issue in the case then any statement that person made about the mental state will be covered under this exception Hillmon doctrine - statements by the declarant future to show he carried our that intention - use to show court that he engaged in some behavior in the future |
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statements by a doctor or other medical personal reasonably relating to treatment or diagnosis are an ___________ to the _________ rule |
exception hearsay |
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when can recorded recollection meet the hearsay exception? |
the witness: can't remember the event at one time had full knowledge of the event recorded statement was made or adopted by him when he had full knowledge & at that time he believed the recorded statement was true **witness can't remember, previous recorded statement when he could remember is the exception** |
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are business records considered hearsay |
no, records that are regularly kept in ordinary business |
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what are the hearsay exceptions for when the declarant is unavailable bc they are either: dead can't be found outside the jurisdiction witness on stand who refuses to answer legit ? |
former testimony statements against interest statements under the belief of impending death |
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when can former testimony be used in exception to the hearsay rule |
if the witness is unavailable, then his former testimony can be used provided the party against whom the testimony is offered was a party when the witness testified |
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when is statement against interest used as the hearsay exception for unavailable witness |
the witness is unavailable his previous statement confessing to a crime is admissible by the D if there are additional indications of truthfulness on the part of the unavailable witness |
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when can you use a statement under the belief of impending death |
if the witness is unavailable his statement when he believed he was about to die concerning the cause of death is admissible in civil cases and criminal homicide cases |
