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T&D.Edits.MBE.Mix > Mixed Evidence > Flashcards

Mixed Evidence Flashcards

1
Q

When are leading questions appropriate?

A
  1. On cross examination
  2. Hostile or adverse witnesses
  3. Questioning children
  4. Refreshing a witness
  5. Preliminary background matters
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2
Q

When is character evidence admissible in a civil case?

A

Reputation, opinion, and specific acts evidence are admissible for:

  1. Defamation: character of the plaintiff
  2. Child Custody: character of the parents
  3. Negligent Entrustment: character of the entrustee
  4. Negligent Hiring: character of the employee
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3
Q

What forms of character evidence come in a civil case?

A

All three forms are admissible:

  1. Reputation evidence
  2. Opinion evidence

And

  1. Specific acts evidence
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4
Q

What is the scope of medical personnel that are covered by the physician-patient privilege?

A

Privilege only applies to a doctor or personnel that are under the instruction of a doctor.

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5
Q

When does the best evidence rule apply?

A
  1. When testimony is reliant on the writing and not on personal knowledge

or

  1. When the writing has independent significance
    * More Info:* Best Evidence Rule
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6
Q

When can suppressed evidence be used at trial?

A

To impeach the defendant

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7
Q

When is the confrontation clause triggered?

A
  1. Criminal case
  2. Declarant is unavailable

And

  1. Testimonial evidence is being given. Evidence will only be admissible if the defendant is given an opportunity to cross-examine the declarant.
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8
Q

Differentiate:

Testimonial v. Non-testimonial evidence

A

Non-testimonial: declarant’s primary purpose was to obtain police assistance to meet an ongoing emergency

Testimonial: the declarant’s primary purpose is to establish or prove past events potentially relevant to later criminal prosecution

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9
Q

Which privilege is lost upon a divorce?

A

Spousal Privilege

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10
Q

Who is the holder of the marital privilege?

A

Both spouses

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11
Q

The Marital Privilege:

  1. Protects who?
  2. Ends when?
  3. Asserted when?
  4. Who is the holder?
A
  1. Protects communications only during marriage
  2. The privilege survives divorce
  3. The privilege can be asserted in both civil and criminal trials
  4. Both spouses hold the privilege.
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12
Q

The Spousal Privilege:

  1. Protects who?
  2. Ends when?
  3. Asserted when?
  4. Who is the Holder?
A
  1. Protects communications before and during marriage including impressions and observations
  2. The privilege is lost at divorce
  3. It can only be asserted in criminal cases
  4. The witness-spouse is the holder of the privilege
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13
Q

When does marital privilege not exist?

A
  1. A suit between the married parties
  2. When an intentional tort was committed by one on the other
  3. When they are joint participants in a crime
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14
Q

When are prior consistent statements allowed?

A
  1. Declarant testifies at trial
  2. The declarant is subject to cross examination

And

  1. The statement was made before a desire to fabricate arose.
    * More Info:*Prior Consistent Statements
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15
Q

When is the death penalty unconstitutional?

A

When the capital offense was committed before the defendant turned 18 years old.

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16
Q

What standard is the appeal for an exclusion of a scientific expert testimony?

A

Abuse of discretion

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17
Q

What can be objected to at depositions?

When can a lawyer instruct a client to refuse to answer a question at a deposition?

A
  1. Objections can be made to anything objectionable at trial
  2. A lawyer can instruct their client not to answer only if:
    a. The answer contains privileged information

Or

b. There is an order limiting the scope of the deposition.

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18
Q

When can bad act impeachment occur?

A

Any witness may be questioned during cross-examination about unconnected acts bearing on untruthfulness.

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19
Q

Which is a better form of evidence:

Hearsay exclusions v. Hearsay exceptions

A

Hearsay exclusions

20
Q

Can a lay witness testify that someone was intoxicated?

A

Yes, if they are familiar with people being intoxicated.

21
Q

What is the effect of a witness who refuses to take an oath or affirmation?

A

The witness may not testify. The witness is per se incompetent.

22
Q

Who’s statements are covered by doctor-patient privilege?

A

What a person tells their doctor.

≠ What the doctor says

23
Q

When a defendant is on trial for child molestation, what acts can be brought in?

A

Specific acts of prior child molestation if the party presenting the evidence gives notice to the other party.

24
Q

When can a police officer search a car after arresting someone?

A
  1. When there is a threat to an officer’s safety

Or

  1. To find offense related evidence
    * More Info:* Search Incident to Arrest
25
Q

What rights apply at grand jury proceedings?

A

Only privileges apply. All other Federal Rules of Evidence do no apply.

More Info: Grand Jury Proceedings - Rights

26
Q

At a criminal trial, when can a witness be impeached with specific acts?

A
  1. Defendant must open the door to character

And

  1. Defendant can only be questioned on specific acts on cross examination
27
Q

When can former testimony be brought into a trial?

A
  1. Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition
  2. The declarant is unavailable

And

  1. In the prior hearing, there was an opportunity and similar motive to develop the testimony
28
Q

When are leading questions not allowed in a cross examination?

A

When a party is called as an adverse witness by the opposition and their attorney is conducting the cross.

29
Q

What precludes jurors from being stricken on account of their race or gender?

A

The Equal Protection Clause

30
Q

What is a Batson challenge?

A

A challenge in jury selection that someone has to be stricken for race or gender.

31
Q

How many peremptory challenges are allowed in federal court?

A

3 strikes

32
Q

When is the judicial notice of a fact mandatory?

A

If requested by a party and supplied with the necessary information.

33
Q

Judicial notice is proper for what type of facts?

A

Facts not subject to reasonable dispute. They must be:

  1. Generally known within the jurisdiction

And

  1. Capable of accurate and ready determination by reliable sources
34
Q

Jury acceptance of judicially noticed facts in:

Criminal Trial v. Civil Trial

A

Criminal: the jury may consider it

Civil: the jury must accept the fact as true

35
Q

When does the completeness doctrine apply?

A

When Party 1 introduces part of a writing, Party 2 can introduce any other part of the writing which in fairness ought to be brought in.

More Info: Completeness Doctrine

36
Q

Differentiate:

Modification v. Novation v. Accord and Satisfaction

A

Modification: same contract, different terms

Novation: same contract, new party or obligation

Accord and Satisfaction: new contract

37
Q

Differentiate:

Offers to settle v. Offer to pay medical expenses

A

Offers to settle: prohibit all admissions made during the offer

Offers to pay medical expenses: only the offer to pay medical expenses is excluded from evidence, it does not exclude any additional admissions.

38
Q

What type of evidence does a jury need to find a breach of a professional duty? What is the exception?

A

A jury needs to hear expert testimony unless the negligence is so grossly apparent that the layman would have no difficulty recognizing it.

39
Q

Procedurally, when does merger apply to crimes?

A

After conviction, at sentencing.

40
Q

When can prior consistent statements be used?

A

To rebut an express or implied charge against a witness of:

  1. A recent fabrication
  2. Improper influence

Or

  1. Improper motive
    * More Info:* Prior Consistent Statements
41
Q

What crimes can be used to impeach a witness?

A
  1. Felony or misdemeanors that involve dishonesty that have occurred in the last 10 years
  2. A felony that does involve dishonesty that has occurred in the last 10 years and is more probative than prejudicial

≠ Misdemeanors that do not involve dishonesty

42
Q

What does crimen falsi mean?

A

Crimes that involve dishonesty

43
Q

Differentiate the rights of an opposing counsel in:

  1. A refreshing recollection
  2. A past recollection recorded
A

Refreshing:

  1. Inspect the document
  2. Cross-examine with the document
  3. Introduce relevant portions into evidence only to impeach

Past Recollection Recorded:

  1. Inspect the document
  2. Cross-examine with the document
  3. Introduce relevant portions into evidence as substantive evidence
44
Q

When a party requests information by interrogatories that requires analyzing information, what does the requested party have to produce?

A

The party receiving the request can specify which of its records contain the information and grant the requesting party access to the records for examination, copying, and analysis.

45
Q

How many interrogatories does each side have in Federal Court?

A

25

T&D.Edits.MBE.Mix (8 decks)

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