Uniform Bar Examination (UBE) Evidence Flashcards

24 sample cards from the Evidence deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What are the requirements for a dying declaration? (FRE 804(b)(2))

   In a homicide prosecution or any civil case, a statement made by a declarant who believed death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. The declarant must be unavailable but need not actually have died.

2. What is a statement against interest, and how does it differ from an opposing party admission? (FRE 804(b)(3))

   A statement that, when made, was so contrary to the declarant's proprietary, pecuniary, or penal interest that a reasonable person would not have made it unless true; requires the declarant be unavailable (and corroboration if exposing to criminal liability and offered to exculpate). Unlike a party admission, it can be made by any unavailable person and must be against interest when made.

3. What is the residual (catch-all) hearsay exception? (FRE 807)

   A hearsay statement not covered by 803/804 may be admitted if it is supported by sufficient guarantees of trustworthiness (considering totality and corroboration) and is more probative on the point than other reasonably available evidence, with reasonable notice to the adverse party.

4. What does the Confrontation Clause bar, under Crawford v. Washington?

   In a criminal case, it bars admission against the accused of testimonial hearsay from a declarant who does not testify at trial, unless the declarant is unavailable AND the defendant had a prior opportunity to cross-examine the declarant.

5. How do courts distinguish 'testimonial' from 'nontestimonial' statements made to police? (Davis v. Washington)

   Statements are nontestimonial when made under circumstances objectively indicating their primary purpose is to enable police to meet an ongoing emergency. They are testimonial when the primary purpose is to establish or prove past events potentially relevant to later prosecution.

6. What is the elements/key feature of the attorney-client privilege?

   A client has a privilege to refuse to disclose, and prevent others from disclosing, confidential communications made to facilitate legal services between the client (or representative) and the attorney (or representative). The privilege belongs to the client and survives the client's death.

7. What is the crime-fraud exception to the attorney-client privilege?

   There is no privilege if the client sought or used the attorney's services to enable or aid the commission of what the client knew or should have known was a crime or fraud. Communications about past wrongdoing remain privileged.

8. What are the two spousal privileges, and how do they differ?

   (1) Spousal testimonial/adverse-testimony privilege: in a criminal case, a witness-spouse may refuse to testify against the defendant-spouse (held by the witness; requires a valid marriage at time of trial). (2) Marital communications privilege: protects confidential communications made during marriage (held by both spouses; survives divorce; applies in civil and criminal cases).

9. What is the psychotherapist-patient privilege? (Jaffee v. Redmond)

   Confidential communications between a patient and a licensed psychotherapist or social worker made for diagnosis or treatment of a mental condition are privileged. Recognized in federal courts; subject to exceptions such as dangerous-patient situations.

10. What are the basic methods of authenticating evidence under FRE 901?

    The proponent must produce evidence sufficient to support a finding that the item is what it claims to be. Methods include witness with personal knowledge, lay opinion on handwriting, expert/comparison by trier, distinctive characteristics, voice identification, evidence about a phone conversation, and public records/process.

11. What items are self-authenticating under FRE 902?

    Items requiring no extrinsic evidence of authenticity, including domestic and foreign public documents under seal, certified copies of public records, official publications, newspapers/periodicals, trade inscriptions/labels, acknowledged (notarized) documents, commercial paper, and certified business records and certified electronic/machine records.

12. What is the chain of custody requirement?

    For evidence that is not readily identifiable or is susceptible to tampering/alteration (e.g., blood, drugs), the proponent must show a substantially unbroken chain accounting for the item's whereabouts from seizure to trial to establish that it is in substantially the same condition.

13. What is the best evidence (original document) rule? (FRE 1002)

    To prove the contents of a writing, recording, or photograph, the original (or a duplicate) is required. It applies when the contents are at issue—e.g., the legal rights/obligations are embodied in the writing, or a witness is testifying based on the writing rather than personal knowledge.

14. When is a duplicate admissible, and when is secondary evidence (e.g., testimony) allowed under the best evidence rule? (FRE 1003-1004)

    A duplicate is admissible to the same extent as an original unless there is a genuine question of authenticity or it would be unfair. Other evidence of contents is allowed if the original is lost/destroyed (not in bad faith), unobtainable, in the opponent's control, or relates only to a collateral matter.

15. What is judicial notice of an adjudicative fact, and its effect in civil vs. criminal cases? (FRE 201)

    A court may take judicial notice of a fact not subject to reasonable dispute because it is generally known within the jurisdiction or can be accurately and readily determined from reliable sources. In a civil case the jury must accept the fact as conclusive; in a criminal case the jury may, but is not required to, accept it.

16. What is the difference between the burden of production and the burden of persuasion?

    Burden of production: a party must produce enough evidence to allow a reasonable trier to find the fact (avoids directed verdict). Burden of persuasion: the party must convince the trier to the required standard (preponderance, clear and convincing, or beyond a reasonable doubt).

17. What is the effect of a presumption in a civil case under FRE 301 (Thayer 'bursting bubble')?

    A presumption shifts the burden of production to the party against whom it is directed; if that party produces sufficient rebutting evidence, the presumption disappears. The burden of persuasion remains on the party who had it originally.

18. What is the rule of completeness? (FRE 106)

    If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing/recording—that in fairness ought to be considered at the same time.

19. How does the court resolve preliminary questions of admissibility? (FRE 104)

    The court decides preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible (not bound by evidence rules except privilege). When relevance depends on a fact (conditional relevance), evidence is admitted upon proof sufficient to support a finding the fact exists.

20. What is the limited admissibility rule, and how is it handled? (FRE 105)

    When evidence is admissible for one purpose or against one party but not another, the court, on request, must restrict the evidence to its proper scope and instruct the jury accordingly (a limiting instruction).

21. What is the difference between a general objection and a specific objection, and the role of an offer of proof?

    A specific objection states the legal ground (preserving only that ground for appeal); a general objection states no ground (preserved only if no ground existed). When evidence is excluded, the proponent must make an offer of proof showing its substance to preserve error, unless the substance is apparent from context.

22. What is the present recollection refreshed vs. the collateral matter rule in impeachment?

    A collateral matter is one not independently provable or relevant except to contradict the witness; extrinsic evidence is barred on collateral matters (you must accept the witness's answer). Non-collateral matters—bias, prior inconsistent statements on material facts, sensory/mental defects, and contradiction on material facts—allow extrinsic evidence.

23. What is the habit evidence rule, and how does it differ from character evidence? (FRE 406)

    Evidence of a person's habit (or an organization's routine practice) is admissible to prove the person/organization acted in accordance with it on a particular occasion. Unlike character, habit is a specific, regular, near-automatic response to a particular situation and needs no corroboration or eyewitness.

24. What is the learned treatise hearsay exception? (FRE 803(18))

    Statements in a published treatise, periodical, or pamphlet on a science/art are admissible if established as a reliable authority (by expert testimony or judicial notice) and called to an expert's attention on cross or relied on during direct. The statements are read into evidence but not received as an exhibit.

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