Card Set Information

2013-02-14 02:09:58

Bar Exam Evidence
Show Answers:

  1. Relevance - What is considered relevant evidence 
    Evidence is relevant if it has any tendency to make a fact more probable than would be the case without the evidence
  2. Relevance - What are Reasons to exclude otherwise relevant evidence (6)
    • Court determines probative value is substantially outweighed by:
    • a. Danger of unfair prejudice
    • b. Confussion of issues
    • c. Misleading Jury
    • d. Undue Delay
    • e. Waste of Time
    • f. Unduley Cummulative
  3. Relevance - Similar Occurances cant be used to show D is guilty of current crime but can be used for other purposes (8)
    • Generally evidence of past conduct not admitted to prove current conduct. Sometimes it is of probative value:
    • 1. Causation
    • 2. Prior False Claim
    • 3. Similar injuries
    • 4. Previous similar act - to prove intent
    • 5. Rebutting claim of impossibility
    • 6. Habit
    • 7. Business Routine
    • 8. Industry Customs
  4. Relevance - Similar Occurances - What situation would P's Accident history be admitted
    • Generally: not admissable because it shows nothing other than P is accident prone.
    • Exception: if the cause of P's injury is in question (like if he has a hurt back and you want to show he hurt it in a prior accident)
  5. Relevance - Similar Occurances - What purposes would it be permissable to show that there were other Accidents caused by same event or condition (3)
    • May be able to show prior accidents for the limited purpose of showing:
    • 1. Existance of a dangerous condition
    • 2. Causation of accident
    • 3. Prior Notice to D
  6. Relevance - Similar Occurances - How is prior similar conduct used to show Intent (example Gender Discr)
    • Prior similar conduct may be admitted for limited use to show an intent on a later occasion.
    • Example: In a gender discrimination suit, can show D never hired women in the past in order to establish his present intent.
  7. Relevance - Similar Occurances - What circumstances can you bring in Comparable sales prices
    You can show the selling price of similar property to establish the value of your property
  8. Relevance - Similar Occurances - Is evidence of a Habit admissable/for what, and how is that different than similar occurances
    Habit is a repeditive response to a particular set of circumstances.  It is not about a persons general disposition, but rather the guy runs the red stop sign every single morning.
  9. Relevance - Similar Occurances - When is it appropriate to show Industrial Custom of Care
    Can use evidence of how others in the industry handle a situation in order to establish a standard of care for D.
  10. Policy-Based Exclusions - When can/cant you admit evidence that a person has Liability Insurance
    Evidence of insurance not admissable to show fault or negligence.  However, it may be used to show ownership or control if that is in issue.
  11. Policy-Based Exclusions - When can/cant you show that D has made Subsequent remedial measures
    Inadmissable: to show negligence, product defect, culpability.

    Admissable: to show control or feasibility, but only if in dispute.
  12. Policy-Based Exclusions - What can be admitted from discussions of Settlements of Disputed/undisputed Claims
    Cannot use offers or statements of fact said in settlement negotitations. Only applies if there is a true dispute (cannot say I am guilty dont sue if I pay you $10k) - can be a dispute of just damages

    You can show the a settlement occured between D and W, for the purpose of showing W is biased.
  13. Policy-Based Exclusions - Settlements of Disputed Claims - Can Regulatory Agencies admit evidence of prior settlement talks with D
    Civil Settlements with regulatory agency can be disclosed and used in a criminal prosecution.
  14. Policy-Based Exclusions - Settlements of Disputed Claims - Can P admit evidence discovered in Plea Bargaining
    Offer/acceptance/withdraw and nolo contendre cannot be admissable at trial.

    But Plea of Guilty, not withdrawn, can be used at a subsequent litigation, based on the same facts under Party Admission.
  15. Policy-Based Exclusions - Settlements of Disputed Claims - What evidence can/cant be admitted arising from discussions to Offer to Pay Medical Bills
    Cannot offer evidence that D offerred to pay medical bills.  But can admit evidence of other speech like "I ran the red light, I'll pay your medical".  Party admission, just strip the part about medical bills.
  16. Character Evidence - Criminal Case - When Can Prosecuter admit evidence of D's Character. What 3 ways can P introduce character evidence
    Not admissable by P in his case in chief.  But if D opens the door durring his case, then:

    • 1. P can cross-exam the W and ask specific Relevant (to the crime) questions about D (but needs to take W word for it - no extrinsic evidence)
    • 2. Can have a W2 testify that W1 has bad character of truthfulness
    • 3. P can call its own witnesses to testify as to the general nature of D's reputation/opinion
  17. Character Evidence - Criminal Case - Can D call character W on his own behalf, what can the W testify to
    • Defendant is able to call charactor witnesses to testify of a relevant character trait by opinion or reputation. 
    • But, he opens the door to P to introduce character evidence that he otherwise is prohibited from.
  18. Character Evidence - Criminal Case - Victim - Can D have W testify about V's character, if so, what can P do
    In D's self defense, he can introduce character evidence of V to show V was the aggressor.  W can only comment on W's reputation for violence and W's personal opinion. D opens the door for P.
  19. Character Evidence - Criminal Case - Victim Character- When/how can Prosecutor discuss V's character
    • If D opens the door to V's Character P can:
    • 1. Introduce W of V's peaceful Character; and
    • 2. May now call witnesses to testify about D's reputation for violence
    • 3. If D enters any evidence against V, not just reputation (like W says V pulled a gun), then P can bring character witnesses for V.
  20. Character Evidence - Criminal Case - Can W testify that V attacked W at a prior time. What Can/cannot the testimony be used for
    • NO: Can only prove character with opinion and reputation, not specific acts
    • However: Can admit the testimony if the purpose is to show that D knew that V attacked W, because then the evidence is to show D's state of mind (fear)
  21. Character Evidence - Criminal Case - Victim - What can/cannot be said about a Rape V Sexual Misconduct
    • Rape Shield Law: Cannot have evidence of V's sexual reputation.  But may admit evidence to show:
    • 1. Specific sexual behavior to show someone else was source of semen
    • 2. Prior sexual activity with D to try to show consent
    • 3. Where exclusion so important it would violate D's due process
  22. Character Evidence - Civil Case - When can the parties in a Civil suit offer Character W
    • No character witnesses for either side. Unless it is an essential element of a claim or defense, then can use reputation, opinion and specific acts.  Like:
    • 1. Negligent hiring: show the character of the employee to establish D was negligent to hire him
    • 2. Defamation: To show that it is true D needs to introduce evidence of P's character
    • 3. Child Custody: Need to show the spouses character
  23. You cannot show D's Other Crimes/Specific Bad acts to show his character to commit the current crime, but what other purposes can you admit them (MIMIC)
    • Cannot use other crimes to show because D did it in the past D must have done it now. But can use for MIMIC in criminal and civil:
    • 1. Motive: Show the cop he killed arrested him 5 years prior
    • 2. Intent: Sold drugs at same corner
    • 3. Mistake/Accident: If defense is mistake then to show it was not a mistake
    • 4. Identity:
    • 5. Common Scheme or plan: - prior act part of this crime
  24. Impeach a Witness - What two ways can you impeach a W
    • 1. Cross-Examination
    • 2. Extrinsic Evidence - need foundation
  25. What are the 6 things that you can admit evidence to Impeach a Witness
    • 1. Prior Inconsistant Statements
    • 2. Bias, Interest Hostility
    • 3. Conviction of a Crime
    • 4. Bad Conduct
    • 5. Opinion or reputation for truth
    • 6. Sensory deficiencies
  26. Impeach a Witness - Can you admit a W Prior Inconsistant Statement
    Can be used for non-hearsay purposes.  Give opportunity to explain
  27. Impeach a Witness - What convicted crimes can you admit in order to impeach W (2)
    • 1. Any crime involving honesty (no discretion)
    • 2. Felony not involving honesty (court discretion) - Less than 10 years
  28. Impeach a Witness - Can you admit evidence to show that a W is Biased
    Bias, interest, hostility.  Give opportunity to explain
  29. Impeach a Witness - How/what can you introduce to show W's Bad Conduct
    • 1. Probative for truthfullness
    • 2. Inquire in good faith
    • 3. Take his word for it, no extrinsic evidence
    • 4. Cannot ask about an arrest
  30. Impeach - Can you Impeach a Hearsay Declarant
    If hearsay is allowed into evidence, you can impeach the out of court declarant
  31. Impeach a Witness - Can you use a W to testify about another W's truthfulness
    Can have a W2 give his opinion or reputation of whether W1 is truthful
  32. Impeach a Witness - How can you use Sensory Deficiencies to impeach a W
    Can show he could not see or hear well enough to be compitent
  33. Impeach a Witness - Once a W has been impeached, how can you rehabilitate their credability (3)
    • You can rehabilitate an impeached witness by:
    • 1. Explanation on Re-direct
    • 2. W2 to testify W1 has a good reputation for truth
    • 3. Prior consistant statement.  Not normally admissable, but is to rehabilitate an impeachment for fabricated bias
  34. What makes a W Competent to testify
    • 1. Personal Knowledge
    • 2. Testify truthfully
    • 3. ability to percieve and communicate
  35. What ways can you Examine a W on the stand(4)
    • 1. Leading Questions
    • 2. Objections
    • 3. Refreshing recollection
    • 4. Past recollection Recorded
  36. Forms of Witness Examinations - What five times can you ask Leading Questions 
    • 1. Cross Exam
    • 2. Preliminary - Get things started
    • 3. W needs help
    • 4. Hostile W
    • 5. Adverse W
  37. Forms of Witness Examinations - What objections can you make for the way an Atty is examining a W (7)
    • 1. Non-responsive
    • 2. leading
    • 3. Calls for a narrative
    • 4. Argumentitive
    • 5. Compound Question
    • 6. Irrelevant
    • 7. Hearsay
  38. Opinion Testimony - When can a Lay Person (rather than expert) give opinion testimony
    • 1. Rationally based on W's perception (speed, appearence, state of emotion, drunk)
    • 2. Helpful to jury
  39. Opinion Testimony - What 4 things are required in order to have an Expert testify
    • 1. Subject Matter is technical
    • 2. W qualified
    • 3. Probable his opinion is true
    • 4. Sufficient factual basis: a) personal observation; b) facts made known at trial; c) facts made known outside trial and reasonably relied on in the field
  40. Cross-Examination -What can you ask the W on cross-examination (2)
    • 1. Related to direct examination
    • 2. Impeachment (bias, interest, conviction)
  41. Testimony - How/why/what do you refresh a W Recollection
    May use writing to jog a persons memory.  Can be any writing. Cannot be read into evidence.
  42. Testimony - Under what circumstances can a W read into evidence his Past recollection recorded (5 requirements)
    • A witness's out of court statement can be read into court (hearsay exception) if:
    • 1. His recollection cannot be refreshed
    • 2. At one time had personal knowledge of the contents of the writing
    • 3. He made or adopted the writing
    • 4. Writing was timely made when fresh in his head
    • 5. Reasonably accurate
  43. Testimonial Privledges - What are the 4 privledge relationships
    • 1. Attorney/Client
    • 2. Doctor/Client
    • 3. Spousal Privledge
    • 4. Confidential Marital Communications
  44. Testimonial Privledges - Spousal Privledge vs. Confidential Marital Communications
    • 1. Spousal Privledge: Must be married at trial. Can't perputrate fraud - belongs to W not D
    • 2. Confidential Marital Communications: Survives marriage - D can invoke it
  45. Hearsay - Definition
    Out of Court Statement offered into evidence to prove the truth of the statement
  46. Hearsay - There are exceptions and exclusions to hearsay, what are the 2 Exclusions
    Not hearsay and can be used to prove the truth of the matter asserted

    1. Party Admission: includes adoptive, vicarious (employee), co-conspirators

    2. Prior Statements of Witnesses: a) prior ID's; and b) Inconsistant statements under oath
  47. Hearsay - Exceptions - What are the 4 Categories of Hearsay Exceptions
    • 1. Unavailability Exceptions
    • 2. Reliability Exceptions
    • 3. Documentary Exceptions
    • 4. Books Exceptions
  48. Hearsay - What hearsay exceptions are only admitted if the W is Unavailabe (3)
    • 1. Dying Declaration
    • 2. Declarations against interest
    • 3. Former Testimony under oath
  49. Hearsay - What hearsay exceptions are considered Reliable enough to admit whether or not W is available to testify  (5)
    • Doesn't matter if available
    • 1. Excited Utterance
    • 2. Present Sense Impression
    • 3. Bodily condition
    • 4. Present state of mind
    • 5. Catch all - judge has discretion to allow anything if he thinks it is relaible
  50. Hearsay - What Documents can be admitted as exceptions to Hearsay(3)
    • 1. Business Records
    • 2. Official records
    • 3. Past recollection recorded
  51. Hearsay - What two types of Books qualify for a hearsay Exception
    • 1. Ancient Documents (20 years)
    • 2. Learned Treatises
  52. Documentary Evidence - What 3 issues are raised whenever a document is admitted
    • 1. Authentication
    • 2. Best Evidence Rule
    • 3. Parol Evidence Rule
  53. Documentary Evidence - What types of evidence require Authentication (3)
    • 1. Real Evidence
    • 2. Writings
    • 3. Recordings
  54. Documentary Evidence - What 3 ways can a writing be authenticated
    • 1. Admission of other party
    • 2. Eyewitness Testimony Handwriting Testimony
    • 3. Ancient Document

    X-rays requires testimony that the machine works and chain of title
  55. Documentary Evidence - How do you Authenticate Oral Evidence (recordings) (3)
    • 1. W identifies voice
    • 2. W confirms a telephone call
    • 3. Called the number and the person stated his name
  56. Documentary Evidence - What documents are considered Self Authenticating (4)
    • 1. Certified Copies of Public Records
    • 2. Official Publications
    • 3. Newspapers/Magazines
    • 4. Trade Names (labels)
  57. Real Evidence - How do you authenticate Real/Demonstrative Evidence (3)
    • 1. Authentication: W testifies it is what it purports to be and chain of title
    • 2. Condition: same condition at trial
    • 3. Balance Test: Probative value v. inconvenience, prejudice, indecency
  58. Real Evidence - What is the Balancing test to determine if Real/Demonstrative Evidence is admissable
    Balance Test: Probative value v. inconvenience, prejudice, indecency
  59. Documentary Evidence- When is the only time the Best Evidence Rule is relevant
    Applicable when D is trying to prove what is in the document, like a contract
  60. Documentary Evidence- What can you not use Parol Evidence for
    Prior or contemporanious agreements not admissable to prove the contents of the K