NCA Evidence flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

Burden of production

The obligation to introduce enough evidence that a reasonable factfinder could find in the party's favor on a given issue.

Preponderance of the evidence

The civil standard requiring the party's evidence to make the fact more likely true than not true, meaning greater than fifty percent probability.

Clear and convincing evidence

An intermediate standard requiring evidence that produces a firm belief or conviction about the truth of the matter asserted.

Reasonable doubt standard

The criminal standard requiring proof so convincing that no reasonable doubt about guilt remains after considering all the evidence.

Judicial notice

A court's acceptance of an adjudicative fact as true without formal proof because it is generally known or readily determinable from reliable sources.

Direct versus circumstantial evidence

Direct evidence proves a fact without inference, while circumstantial evidence requires the factfinder to draw an inference from proven facts.

Relevance test

Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than without the evidence.

Rule 403 balancing

Relevant evidence may be excluded when its probative value is substantially outweighed by unfair prejudice, confusion, delay, or cumulative presentation.

Subsequent remedial measures

Repairs or safety changes made after an injury are inadmissible to prove negligence, but may be used for impeachment or to show control.

Settlement offer exclusion

Offers to compromise and statements made during settlement negotiations are inadmissible to prove liability or the amount of a disputed claim.

Liability insurance exclusion

Evidence that a person carried insurance is inadmissible to prove negligence or ability to pay, but admissible to show agency or bias.

Character evidence prohibition

Evidence of a person's character is generally inadmissible to prove conduct in conformity with that character on a particular occasion.

Witness competency requirements

A witness must have personal knowledge, take an oath or affirmation, and be able to perceive, recall, and communicate the matter.

Lay opinion testimony

A nonexpert may give opinion testimony if rationally based on perception, helpful to the factfinder, and not based on specialized knowledge.

Expert reliability factors

Courts assess expert methodology through testability, error rate, peer review, publication, and general acceptance within the relevant field.

Impeachment by prior conviction

Convictions involving dishonesty are generally admissible to impeach; other felonies require balancing, and misdemeanors are usually excluded.

Prior inconsistent statement

An earlier statement contradicting testimony; if given under oath at a proceeding it is substantive evidence, otherwise it only impeaches.

Bias impeachment

Evidence that a witness has a motive, interest, or relationship affecting favoritism is admissible to attack the witness's credibility.

Leading questions

Questions suggesting the desired answer; generally permitted on cross-examination and for hostile, adverse, or forgetful witnesses.

Hearsay definition

An out-of-court statement offered to prove the truth of the matter asserted, generally inadmissible unless an exception or exclusion applies.

Nonhearsay effect on listener

A statement offered to show its effect on the listener's state of mind or conduct is not hearsay because its truth is not asserted.

Party-opponent statement

A statement by a party, adopted, authorized, made by an agent, or by a co-conspirator in furtherance of the conspiracy is nonhearsay.

Excited utterance

A statement about a startling event made while the declarant is under the stress of excitement, admissible regardless of declarant availability.

Present sense impression

A statement describing or explaining an event made while the declarant perceived it or immediately afterward, admissible as a hearsay exception.

Statements for medical treatment

Statements made for diagnosis or treatment, including past symptoms and their cause, are admissible when reasonably pertinent to treatment.

Business records exception

Records of a regularly conducted activity, made contemporaneously by someone with knowledge, kept in the ordinary course, with proper foundation.

Attorney-client privilege

Confidential communications between client and lawyer for legal advice are protected from disclosure and survive the end of the relationship.

Crime-fraud exception

Attorney-client privilege does not protect communications made to further a crime or fraud, even if the lawyer is unaware of the purpose.

Work product protection

Materials prepared in anticipation of litigation are shielded from discovery; the protection is qualified and can be overcome by substantial need.

Spousal testimonial privilege

In criminal cases, a witness-spouse may refuse to testify against the defendant-spouse during a valid marriage in many jurisdictions.

Clergy-penitent privilege

Confidential communications made to a religious advisor acting in that role for spiritual counsel are protected from compelled disclosure.

Exclusionary rule

Evidence obtained through unconstitutional search, seizure, or coerced statements is excluded, subject to good-faith and inevitable-discovery exceptions.