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Evidence is relevant if it has:
any tendency to make a material fact more probable or less probable.
Relevant is admissible unless excluded by a specific rule or there is:
1. Danger of unfair prejudicie
2. Confusion of the issues
3. Misleading of the jury
4. Undue delay
5. Waste of time
6. Unduly cumulative
Other accidents involving the defendant are admisslbe if the other accident occurred under substantially similar circumstances and:
1. show existence of dangerous condition
3. Prior notice to the D.
Character evidence is inadmissible to prove that:
the defendant, on the day in question, acted in accordance with his character.
Prior similar conduct of a person may be admissible to raise an inference of the person's:
intent on later occasion.
A habit evidence is admissible as:
circumstantial evidence of how the person acted on the occasion at issue in the litigation.
A habit is a:
repetitive response to a particular set of circumstances.
In MA Habit evidence is allowable in only 2 situations:
1. Business routine, or
2. Action against a decedent's estate after the plaintiff introduces evidence of a promise or statement made by the decedent.
Liability insurance is inadmissible for the purpose of:
proving fault or absence of fault.
Liability may be admissible for a relevant purpose such as:
1. Proof of ownership/control of the instrumentality
2. For the purpose of impeaching a witness
Subsequent remedial measures are inadmissible for the purpose of:
proving negligence, culpable conduct, product defect, need for warning.
Subsequent remedial measures may be admissible for some relevant purpose such as:
ownership/control or feasibility of safer conditions if disputed by the defendant.
Evidence of a settlement are inadmissible for the purpose of:
showing liability or to impeach a witness with a prior inconsistent statement.
Settlement offers may, however, be offered:
for impeachment on the grounds of bias.
Statements of fact made during settlement discussion in civil litigation with a government regulatory agency are later admissible in:
criminal cases. MA has not adopted this rule.
A guilty plea is admissible in subsequent litigation:
based on the same facts under the rule of party admissions.
Offers to pay a victim's medical or hospital expenses is:
inadmissible in order to prove liability.
In MA, in addition to offers to pay medical expenses offers of:
sympathy to a victim or his family is inadmissible.
A person's character is relevant ________ in a civil case and ________ in a criminal case.
Evidence of a defendant's bad character to prove conduct is:
inadmissible during the prosecution's case in chief. However the D may introduce evidence of a relevant character trait, thereby opening the door to rebuttal by the prosecution.l
In MA, a D may seek to prove his good character only by:
A Prosecution may inquire into a character witness' knowledge of the defendant's bad acts but may not:
introduce evidence proving that the bad acts occurred.
A criminal defendant may introduce evidence of the victim's:
violent character to prove the victim's conduct was in conformity with his character.
If the defendant introduces evidence of the victim's bad character the prosecution may:
introduce character evidence for either the defendant or the victim.
In a MA criminal case in which the defendant asserts self-defense, the court has the discretion to admit the victim's:
prior specific acts of violence, but in such cases, MA does not allow evidence of the victim's reputation for violence to help prove that the victim struck first.
Under the rape shield law, the following evidence about the victim is inadmissible:
1. opinion or reputation evidence about the victim's sexual propensity, or,
2. evidence of specific sexual behavior of the victim.
A defendant may offer evidence of his own prior knowledge of the victim's bad character for violence in:
either Federal or Massachusetts courts
The exceptions to the rape shield law include:
1. Evidence that someone else was the source of semen or injury to the victim.
2. the victim's sexual activity with the defendant if the defense of consent is asserted
3. Where exclusion would violate the defendant's right of due process
In civil cases, character evidence is generally:
inadmissible to prove conformity with character.
Character evidence is admissible where the character is an essential element:
of a claim or defense and generally occurs in:
1. Tort actions involving negligent entrustment or hiring
3. Child custody disputes
The prosecution, during its case in chief may offer evidence of the defendant's prior bad acts only for (MIMIC):
- Mistake or accident, absence thereof
- Common scheme/plan
MIMIC evidence may also be used in:
In a case alleging specific assault, the defendant's prior specific acts of sexual assault are:
admissible, but only for Federal courts. MA prohibits this.
A document may be authenticated by:
1. Witness' personal knowledge
2. Proof of handwriting
3. Ancient document rule
For a document to be qualified as an ancient document it must be:
1. At least 29 years old
2. Facially free of suspicion
3. Found in a place of natural custody
The following documents are presumed authentic:
1. Official government publications
2. Certified copies of public or private records on file in public office.
3. Newspapers or periodicals
4. Trade inscriptions and labels
5. Acknowledged document
6. Commercial paper
To authenticate a photograph a witness may:
testify that the photograph is a fair and accurate representation of the people or objects portrayed.
The best evidence rule holds that:
a party who seeks to prove the contents of a writing must either produce the original writing or provide an acceptable excuse for its absence.
The best evidence rule applies when:
1. The writing is a legally operative document in the present case
2. The witness is testifying to facts that she learned solely from reading about them in a writing.
A dead man's statute prevents an interested party from testifying regarding:
a decedent's estate distribution.
MA does not have a _____ ______ statute.
Leading questions are not allowed on direct examination unless:
1. Preliminary/Introductory Matter
2. Youthful or forgetful witness
3. Hostile witness
4. Adverse party is witness, or under control of the adverse party
When refreshing recollection, the witness may not read from prepared memorandum and must testify:
on the basis of current recollection.
The Past Recollection Recorded hearsay exception allows:
a witness to read a list into evidence if the document fails to jog the witness' memory
A lay opinion is admissible if:
1. the opinion is rationally based on a witness' perception
2. the opion must be helpful to the jury in deciding a fact.
In MA, a lay witness may not give direct opinion of a person's:
sanity. The witness may only describe observations of the person's speech and conduct.
An expert witness must have the requisite:
1. Education AND/OR
The proper subject matter for an expert witness is that which is:
scientific, technical, or other specialized knowledge that will be helpful to the jury in deciding a fact.
An expert must have an opinion based on "reasonable degree of probability or reasonable certainty and may draw upon:
1. Personal knowledge of the situation
2. Other evidence in the trial record, made known to experts at trial by hypothetical question; or
3. Facts not in evidence if the out of court material is of a type reasonably relied upon by experts in the field.
In MA, an expert may rely upon facts not in the trial record if such facts would be:
independently admissible in evidence if the person who provided them to the expert were to testify in court.
Expert testimony will be deemed reliable under the Daubert factors of (TRAP):
Testing of principles or methodology
Rate of Error
Acceptance by other experts in the same discipline
Peer review and publication
In federal court a learned treatise may be used during:
either the case in chief or on cross examination.
In MA, generally, a party may use a learned treatise as substantive evidence only:
on cross examination of the opponent's expert.
There is an exception for medical malpractice actions, where parties may use a scientific treatise by a recognized expert as substantive evidence. The proponent must give 30 days pretrial notice of the intent to use such a treatise as substantive evidence.
Opinion testimony is permissible even if it addresses an ultimate issue in a case, unless the ultimate issue is:
regarding the mental state of a criminal defendant in a criminal case.
In Federal court, the scope of cross examination extends to:
1. Matters within the scope of direct examination and
2. Matters that test the witness's credibility
In MA, the scope of cross examination extends to:
any issue or topic relevant to the case and is not limited to the scope of direct examination.
A party is not allowed to bolster the reputation of their own witness until:
after the witness credibility has been attacked.
A witness' prior identification of a defendant is not:
hearsay. But for it to come into evidence the witness must be available for cross-examination.
Under the federal rules, a party may impeach any witness, by:
any method of impeachment.
In MA, a party may not impeach her own witness with evidence of:
the witness's bad reputation for truthfulness or prior convictions.
The two methods of impeachment include:
1. Ask the witness about the impeaching fact with the aim of having the witness admit it, or
2. Prove the impeaching fact with "extrinsic" evidence.
The 7 methods of impeaching a witness include:
1. Prior inconsistent statements
2 Bias, INterest or motive to misrepresent
3. Sensory Deficiencies
4. Bad reputation or Opinion about a witness' bad character for truthfulness
5. Criminal convictions
6. Bad Acts (without conviction) that reflect adversely on the witness' character for truthfulness.
An impeaching fact may be proven with extrinsic evidence unless:
1. It is evidence of prior bad acts without conviction
2. Contradictory facts that are collateral
A prior inconsistent may be admitted both to impeach and as substantive evidence if the statement was made:
orally, under oath and as part of a formal hearing proceeding such as a trial or deposition.
When confronting a witness with a prior inconsistent statement:
the witness must be given an opportunity to explain or deny the prior inconsistent statement.
In federal court a witness must be confronted with alleged bias:
while on the stand. In MA, this is not required.
Conviction of any crime may be used to impeach if:
the prosecution was required to prove a false statement as an element of the crime.
If the conviction of a crime did not require a false statement as part of the prosecution's case-in-chief, than the conviction is admissible only if:
it is a felony.
A conviction is generally not admissible for impeachment purposes if the convictions is:
10 years old from the end of the trial.
In MA any conviction may be used to impeach a witness unless:
1. It has been longer than 10 yrs from the date of expiration of the minimum term of imprisonment, unless the witness was convicted of another crime within 10 years of the time the witness testified.
2. If no prison term, than the felony conviction cannot be used for impeachmentafter 10 years from date of conviction unless witness was subsequently convicted of another crime
3. If the felony conviction resulted in a suspended sentence, it cannot be used for impeachment after 10 years from the date of sentencing unless witness was convicted of another crime.
In MA, any misdemeaner cannot be used for impeachment after:
5 years from the date on which sentence was imposed unless the witness was subsequently convicted of another crime within 5 years of the time the witness testifies.
Proof of a prior bad act with extrinsic evidence may be allowed if:
it is being admitted not to prove truthfulness, for example, bias.
In MA, impeachment with bad acts in the absence of conviction:
is not allowed unless to show bias.
In Federal Court, prior bad acts may not be proved with:
extrinsic evidence, only inquiry on witness stand.
Extrinsic evidence of contradictory statements is not allowed if:
the fact at issue is collateral (i.e. the fact has no significant relevance to the case or to the witness's credibility).
In Federal court actions arising under federal substantive law, privileges are governed by:
the principles of the common law as they may be interpreted by the federal courts.
In federal court actions based on diversity of jurisdiction, the federal court must apply privilege law of:
the state whose substantive law is applicable.
The attorney client privilege applies to:
confidential communications between attorney and client made during professional, legal consultation, unless privilege is waived by the client or an exception is applicable.
The exceptions to the attorney client privilege include:
1. Future crime or fraud
2. Client puts legal advice at issue in a case.
3. A dispute between an attorney and client
A witness may not immunize factual knowledge by:
discussing it with his attorney.
The physician patient privilege, for MBE, protects:
confidential communication nor information acquired from the patient for the purpose of diagnosis or treatment of a medical condition.
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