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67 Cards in this Set

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the court decides whether evidence is _________


the jury decides _________ of evidence once the evidence is admitted

1. admissible


2. weight

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

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

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

___________ _______ 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

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

evidence of insurance _________________ to show negligence but may be admissible to show __________ or _________

inadmissible




bias




ownership

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

_______________ 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

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

any withdrawn plea of _____ will not be admissible in any other subsequent criminal or civil case

gulty or nolo contendre

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

3 types of evidence used to establish character:

1. reputation


2. opinion


3. specific acts

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

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







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



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**

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

reputation or opinion evidence as to the past sexual behavior on the part of the victim is

inadmissible



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



prior similar circumstances will be __________ if offered to show the D probably acted in a similar way

rejected

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

_______ & ___________ are admissible to show a party acted in conformity with the

habit - a repeated response to a particular set of circumstances




business routine



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

a witness must have __________ ____________

personal knowledge

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

________ _________ 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**

What are the 4 major disqualifications of a witness?

R - no Recollection

O - no Observation


T - no Truthfulness


C - no Communications


_______ ________ a question that suggests an answer to the witness - they are prohibited on direct examination of a witness





leading question





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

_________ 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

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

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

an expert witness needs to have


___________


_________


____________


________________

1. knowledge


2. skill


3. training


4. education


5. experience

expert witness can base their opinion on one of two things

personal observation




hypothetical question

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

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

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**

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**

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**

__________ 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

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

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

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

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

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

a witness can be impeached through testimony of others that the witness has a ______________ in the community for dishonesty or _______________

reputation




untruthfulness

_________ 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

when a witness has been impeached - they can be ________________ or accreditation




3 types of _________ after impeachment

rehabilitation




reputation, specific acts, prior inconsistent statements

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

rehabilitation through specific acts is used through _____________ ___________

specific previous acts that demonstrate a truthful character




**608 specifically excludes such evidence**

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

whenever the offered evidence includes a statement other than the statement made by a witness while testifying, this is a question about

HEARSAY

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

_________ ________ __________ 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

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

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

what is a present sense impression

statement describing or explaining an event or condition made while or immediately after the declarant perceived it

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

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

statements by a doctor or other medical personal reasonably relating to treatment or diagnosis are an ___________ to the _________ rule

exception




hearsay

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**

are business records considered hearsay

no, records that are regularly kept in ordinary business

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



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

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

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