Mbe Evidence

Front 1

permissible evidence

Back 1

relevant evidence

Front 2

relevant evidence

Back 2

evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence

Front 3

FR exclusion of relevant evidence

Back 3

court may exclude if the probative value is substantially outweighed by unfair prejudice, confusion, or waste of time

Front 4

NV exclusion of relevant evidence

Back 4

court must exclude evidence if the probative value is is substantially outweighed by unfair prejudice or confusion

may for waste of time

Front 5

admissibility of insurance

Back 5

inadmissible to prove culpable conduct

admissible to prove anything else
- Ownership/control
- To impeach credibility of witness by showing interest/bias

Front 6

admissibility of subsequent remedial measures

Back 6

Inadmissible to prove culpable conduct, and defective product design (only in FR, NV admissible)

Admissible to prove anything else
- Ownership/control
- Impeachment: to rebut claim that precaution was not feasible

Front 7

Evidence that a person has previously filed similar tort claims

Back 7

Inadmissible to show the invalidity of the present claim (PV outweighed by UP)

May be used to show:
1. pattern of fraudulent claims
2. preexisting condition

Front 8

admissibility of settlement offers and pleas

Back 8

inadmissible to prove liability or fault

Front 9

For exclusion of settlement offer these factors must exist

Back 9

1. There must be a claim filed
2. Dispute as to liability or damages

Front 10

offer to pay medical expenses

Back 10

inadmissible to prove liability, but additional statements are admissible

Front 11

Possible methods of proving character

Back 11

1. Reputation
2. Opinion
3. Specific Acts

Front 12

collateral source rule

Back 12

compensation from a source other than the tortfeasor is not deducted from the damages the plaintiff can recover from the tortfeasor

Front 13

exceptions to proof of prior accidents or claims

Back 13

1. pattern of fraudulent claims
2. preexisting condition

Front 14

admissibility of routine business practice

Back 14

admissible to show conduct was in conformity with that practice on the occasion in question (habit evidence for businesses)

Front 15

character evidence in civil cases

Back 15

- admissible when character is in issue
- inadmissible to prove conduct

FR- can show prior acts of sexual assault or child molestation to prove conduct

Front 16

prosecution can offer character evidence first to prove conduct in a criminal case when

Back 16

NV- never

FR
1. previous conduct in cases of sexual assault or child molestation

2. defendant has offered evidence of victim's character, prosecution can offer evidence that the defendant has the same character trait

Front 17

defendant can prove character trait in criminal trial by

Back 17

1. reputation
2. opinion

must be pertinent to the crime charged

Front 18

proof of victim's character

Back 18

defense can offer evidence of victim's character

FR
in homicide case, prosecution can offer evidence of victim's peacefulness when defendant claims victim attacked first

Front 19

rape shield statute

Back 19

come back to this

Front 20

specific instances of defendant's bad character can be used to prove

Back 20

Motive
Intent
Mistake, absence of
Identity
Common plan or scheme

Front 21

competency to be a witness

Back 21

1. personal knowledge
2. present recollection
3. communication
4. sincerity

Front 22

sincerity of a witness

Back 22

must take an oath or make an affirmation to tell the truth

Front 23

time of objection

Back 23

must be timely or the objection is waived

Front 24

objections to form of testimony and questions

Back 24

1. calls for narrative
2. unresponsive
3. leading
4. assumes facts not in evidence
5. argumentative
6. compound

Front 25

present recollection refreshed

Back 25

anything can be used

opponent may inspect and offer into evidence anything used to refresh

Front 26

elements of past recollection recorded

Back 26

1. plaintiff once had personal knowledge
2. document was made or adopted by the witness
3. made at a time it was fresh in the witnesses mind
4. document was accurate when made
5. witness now has insufficient recollection to testify

Front 27

lay opinion requirements

Back 27

1. based on the witness' perception
2. rationally based (logical connection between perception and opinion)
3. helpful to the jury

Front 28

expert opinion requirements

Back 28

1. helpful to the jury
2. witness must be qualified
3. witness must believe in the opinion to a reasonable degree of certainty

Front 29

supporting credibility of witness

Back 29

only when the witness' credibility is first attacked

Front 30

prior consistent statements may be used for

Back 30

all purposes (including as substantive evidence) if made before the contradictory event

Front 31

extrinsic evidence for impeachment

Back 31

any evidence other than testimony given at this trial by the witness being impeached

inadmissible to impeach a witness on a collateral matter

Front 32

collateral matter

Back 32

a fact not material to the issues in the case that says nothing about the witness' credibility except to contradict the witness

Front 33

prior inconsistent statements NV rule

Back 33

PIS are not hearsay whether given under oath or not

Front 34

expert degree of certainty

Back 34

must have reasonable degree of certainty

Front 35

expert can base opinion on

Back 35

1. admitted evidence
2. personal knowledge
3. inadmissible evidence that is the type reasonably relied on by professions in that field

Front 36

learned treatise hearsay exception

Back 36

can be admissible to prove anything stated therein if it is an accepted authority in the field

Front 37

prior consistent statement

Back 37

can be used for all substantive and impeachment if made before act in question

Front 38

extrinsic evidence on a collateral matter

Back 38

cannot use, must accept witnesses testimony answer

Front 39

prior inconsistent statement

Back 39

FR- must be given under oath, then can use for substantive and impeachment

NV- prior inconsistent statements are not hearsay- can be used for substantive and impeachment

Front 40

impeachment by conviction of crime and exclusion of evidence

Back 40

1. can show conviction of crime involving false statement- cannot exclude for unfair prejudice

2. felony- may be excluded for unfair prejudice

cannot be more than 10 years from the date of conviction or release unless probative value outweighs unfair prejudice

Front 41

NV opinion and reputation for truthfulness

Back 41

opinion testimony is permitted
reputation testimony is not

Front 42

Hearsay - definition:

Back 42

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

Front 43

Words of independent legal significance:

Back 43

1) contract
2) gift
3) effect of words on the person (warning)

Front 44

Exemptions - admission of party opponent:

Back 44

1) does not have to be against interest
2) not subject to personal knowledge
3) vicarious admissions - authorized spokeperson or employee on mater w/n scope of employment during employment, adoptive admission, co-conspirator in furtherance of conspiracy.

NOTE: admission can be by conduct (attempt to bribe)

Front 45

Exceptions to the hearsay rule - declarant unavailable:

Back 45

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

Front 46

Exceptions - former testimony:

Back 46

admissible if:
1) party against whom offered had a similar motive and an opportunity to examine
2) civil case - party against whom offered was not present at earlier proceeding, but is a predecessor in interest to a party who had a similar motive and an opportunity to examine

NOTE: Grand Jury testimony is NOT former testimony (no opportunity for D to cross-examine)

Front 47

Exceptions - declaration against interest:

Back 47

admissible if at the time made statement was against declarant's financial interest OR would have subjected declarant to criminal liability

NV- also if statement would make the person an object of hatred or social disapproval

Front 48

Exceptions - declaration against interest - offered to exculpate (someone else admitted):

Back 48

there must be corroborating evidence to admit

Front 49

Exceptions - dying declaration:

Back 49

1) must be dying or believe death is imminent
2) describing cause and circumstances of death
3) admissible in civil cases and homicide ONLY

NOTE: NV - admissible in all criminal and civil cases, no subject limitation- all are admissible

Front 50

Payment or offer to pay medical expenses:

Back 50

inadmissible to prove liability

BUT, related statements ARE admissible

Front 51

Exceptions to the hearsay rule - declarant's unavailability immaterial:

Back 51

1) present sense impression
2) excited utterance
3) then-existing physical or mental condition
4) statement made for medical diagnosis or treatment
5) business records
6) public records
7)judgment of prior conviction

Front 52

Excited utterance:

Back 52

1) must relate to startling event
2) when made, declarant was under stress or excitement caused by condition
3) declarant did not have time to reflect

Front 53

Present sense impression:

Back 53

1) must describe or explain an event
2) while declarant is perceiving it or immediately thereafter

Front 54

present state of mind

Back 54

admissible to show state of mind or intent

BUT, not admissible to prove fact remembered or believed

Front 55

Statement for medical diagnosis or treatment:

Back 55

1) can be of present OR past condition
2) can be of someone else's condition
3) only portion relevant to diagnosis or treatment allowed

Front 56

Business records:

Back 56

1) record kept in course of regularly conducted business
2) made at or near time of event
3) by person w/ knowledge
4) it was regular practice of business to make record

Front 57

Public records:

Back 57

1) record describes activities of office
2) record describes matters observed pursuant to duty imposed by law
3) record contains factual findings resulting from investigation authorized by law

FR- criminal case cannot use 2 & 3
NV- criminal case cannot use 3

Front 58

Judgment of prior conviction:

Back 58

admissible in both civil and criminal cases

BUT, not admissible against person other than accused, unless for impeachment

Front 59

Hearsay - "catch all" exception - NV:

Back 59

In Nevada, a statement is admissible if its nature and the special circumstances under which it was made offer assuramces of accuracy not likely to be enhanced by calling declarant, even if he is available.

Front 60

Confrontation Clause:

Back 60

The CC excludes an out of court statement if it is testimonial

Front 61

Confrontation Clause - "testimonial" statement:

Back 61

statements made to further a police investigation aimed at producing evidence for the prosecution

BUT not statements made in an emergency situation

Front 62

Authentication:

Back 62

all real or documentary evidence must be authenticated as genuine and that it is what it purports to be

NOTE: low burden "sufficient to sustain finding" (lower than preponderance of the evidence)

Front 63

Ancient document rule:

Back 63

authenticity established if:
1) document is 20 years or older
2) does not on its face show any irregularities (tempering)
3) was found in place of natural custody

Front 64

Self-authenticating documents:

Back 64

1) certified copies of public docs
2) acknowledged docs (notary)
3) newspapers and periodicals
4) business records
5) trade inscriptions

Front 65

Best evidence rule:

Back 65

applies ONLY when evidence offered to prove CONTENTS of writing if the terms are material(look for a writing of legal significance: deed, will, contract)

Requires original writing (copies acceptable, unless by hand)

Exception: volumnious records can be summarized if originals are available for inspection

Front 66

Best evidence rule - testimony regarding content:

Back 66

admissible where original lost or destroyed, unless bad faith by proponent

Front 67

Privileges:

Back 67

1) attorney-client
2) psychoterapist-patient
3) doctor-patient
4) spousal

NOTE: federal courts do NOT recognize doctor-patient privilege.

Front 68

Attorney-client privilege:

Back 68

a communication between attorney and client or their representatives intended by client to be confidential and made to facilitate legal services is privileged in ALL civil & criminal cases, unless waived by CLIENT

Front 69

Attorney-client privilege - corporations:

Back 69

applies to employees/agents if authorized by corporation to communicate w/ attorney

Front 70

Attorney-client privilege - doctor retained by attorney in PI action:

Back 70

privilege applies to ALL communications b/w doctor, client, and attorney

Front 71

Attorney-client privilege - communication intended to be confidential:

Back 71

Objective standard of intent

Front 72

Attorney-client privilege - death of client:

Back 72

privilege survives death of client

Front 73

Attorney-client privilege - Exceptions:

Back 73

1) legal services sought to further crime or fraud
2) communication relates to alleged breach of duty b/w A and C
3) two or more clients consult on common matter and communication is offered against one of them

Front 74

Spousal testimonial privilege - application:

Back 74

ONLY of parties are married at trial

FRE - applies to criminal cases ONLY

NV - ALL civil & criminal cases

Front 75

Spousal testimonial privilege - definition:

Back 75

permits spouse to refuse to testify against other spouse

Front 76

Spousal testimonial privilege - who owns it?

Back 76

witness owns

Front 77

Spousal confidential communication privilege:

Back 77

protects CONFIDENTIAL communication made during marriage - applies in both civil & criminal cases

Front 78

Spousal confidential communication privilege - who owns it?

Back 78

BOTH spouses

Front 79

Judicial notice:

Back 79

process of establishing facts without presenting evidence

Front 80

Judicial notice - facts appropriate for:

Back 80

facts not subject to reasonable dispute because they are either:
1) generally known within the jurisdiction, OR
2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

Front 81

Judicial notice - procedure:

Back 81

may be requsted by a party or the court has discretion to take judicial notice

Front 82

Judicial notice - consequences - civil cases:

Back 82

court instructs jury it must accept noticed fact as conclusive

Front 83

Judicial notice - consequences - criminal cases:

Back 83

court instructs jury it may, but is not requred, to accept noticed fact as conclusive

Front 84

Physician-patient privilege - exceptions:

Back 84

1) patient has put his physical condition at issue (suit for personal injuries)
2) medical malpractice suit against doctor

Front 85

Professional journalist privilege - NV only:

Back 85

protects journalist from being forced to reveal published or unpublished information and his sources.

Front 86

Relevance - Court discretion to exclude relevant evidence:

Back 86

if probative value is substantially outweighed by unfair prejudice, risk of confusion to the jury, and waste of time

Front 87

Habit evidence:

Back 87

admissible to show that a person acted in accordance with the habit on particular occasion.

Front 88

Character evidence - civil cases:

Back 88

1) evidence of character trait of a party is inadmissible unless it is an issue in the case
a. negligent entrustment
b. defamation

2) if a party testifies, they automatically place their character trait of truthfulness at issue

Front 89

Character evidence - criminal cases - rules:

Back 89

1) the prosecution cannot introduce any evidence of D’s bad character to show that D acted in conformity with that character

2) D is allowed to present evidence of relevant character traits to establish that he acted in conformity with those traits and did not commit the crime – reputation and opinion ONLY

3) If D presents evidence of good character, prosecutor is allowed to introduce evidence of D’s bad character

4) If D testifies, he automatically places his character of truthfulness at issue - "opens door"

Front 90

Expert opinion - reliable principles that were reliably applied - Daubert (FRE ONLY):

Back 90

1) peer reviewed
2) tested & subject to testing
3) low error rate
4) reasonable level of acceptance

Front 91

Expert opinion - reliable principles that were reliably applied - Fry (NV):

Back 91

general acceptance within scientific community

Front 92

Victim's character in sexual misconduct cases (rape) is limited as follows

Back 92

- No opinion/reputation
- Specific instances admissible only to prove
1. third party was the source of sexual crime
2. consent
3. prior consensual acts between the "victim" and the accused