CA Evidence Flashcards
In determining relevance the court must balance the probative value of the evidence against its _______________
Prejudicial effect
When is lay opinion admissible?
When a lay witness properly testifies as to their opinion about the condition of a person
Can plaintiff offer proof that defendant offered to pay medical expenses?
Under CEC Both the offer to pay and the admission of the fact is inadmissible to prove liabilty
Hearsay is…?
An out of court statement offered to prove the truth of the matter asserted
Hearsay Exception
What is an admission by a party-opponent?
Admission by a party opponent : an out of court statement by a party that is against the party’s interest and that is admissible against the party
Under the FRE, what is the Principal-Agent hearsay exception?
Statements by an agent concerning any matter within the scope of her agency are not hearsay and are admissible against the principle.
Hearsay Exception
What is the “statement against interest” exception?
Statement against interest is admissible where generally the content of the statement is so prejudicial to the person making it that he would not have made the statement unless he believed the statement was true
Hearsay Exception
What is Excited Utterance?
A statement made during or soon after a startling event while under the stress of excitement
Hearsay Exception
What is Present Sense Impression?
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
What is the general rule regarding admissibility of character evidence in civil cases?
Generally not admissible.
prior convictions are character evidence in the form of a specific act and not admissible in civil cases
Under the CEC & FRE, wen are felony convictions admissible?
admissible to impeach a wittness
Hearsay Exception:
What is a dying declaration?
A statement made by an unavailable declarant who believes death is imminent concerning the cause or circumstance of impending death.
FRE = homicide or civil action CEC: = any kind of case where relevant to know what killed the declarant
Hearsay Exception:
What is the Past Bodily Condition exception?
Statements of past pain, suffering, or medical history including the external cause thereof, made for the purposes of treatment or diagnosis by physician are admissible.
Any other purpose is inadmissible.
In Cali this is only admissible for the declarant is unavailable. And can only be used as evidence of the declarant’s past bodily condition when that itself is at issue
When is the physician-Patient privilege no longer applicable?
- When treatment is questioned
- When addressing statements made to a non medical matter. e.g. patient provides details as to how accident occured
- When the holder of the privilege is dead.
What is Proposition 8?
Proposition 8 is part of the California Constitution and applies to criminal cases.
Under Prop 8 all relevant evidence is admissible unless the evidence falls with an exception
What is the California Spousal Immunity Privilege?
A. one spouse cannot be compelled to testify against the other spouse in any criminal or civil proceeding.
B. Only Witness-Spouse may invoke spousal immunity
C. Can only be claimed during marriage and covers info learned before & during marriage
What is the California confidential marital communications privilege?
Communications made in reliance upon the intimacy of the marital relationship are privileged in both civil & criminal proceedigns.
- Both spouses hold the privilege
- Survives the marriage and covers convo’s made during marriage
Hearsay Exception
What is co-conspirator admissions?
Statements by a co-conspirator in a crime are admissible against a party, as if the party had made the statements herself
What is marital communication privilege?
Under CEC communication made in reliance upon intimacy of the marital relationship are privilege in both civil and criminal cases.
Both spouses hold the privilege . This privilege survives the marriage
What is Logical Relevance?
Under CEC evidence is logically relevant if it tends to prove or disprove a material fact in dispute.
What is California Evidence Code (CEC) 352?
Under CEC 352, a trial judge has discretion to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay or waste of time.
Hearsay Exception
What is an “admission by party opponent”?
an admission is a statement made or act that amounts to a prior acknowledgement of a relevant fact.
The statement need not be against interest.
Hearsay Exception
What is a dying declaration?
Statement made while a declarant was under a settled expectation of impending death (wheather or not she actually died) about the cause or circumstances that gave rise to the expectation.
Cali: the declarant must be dead!
Hearsay Exception
What is a statement against interest?
A statement of a person, now unavailable as a witness and who had personal knowledge for the facts.
The statement goes against the persons pecuniary, proprietary, or penal interest when made.
Collateral facts contained in the statement are also admissible
What is a co-Conspirator Admissions?
Admissions of one conspirator made to a 3rd party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, is admissible against co-conspirators. (must have opportunity to cross-examine)
What is the rule when it comes to Personal Knowledge/Speculation?
A witness must have personal knowledge as to what he/she testifies to.
A witness may not speculate answers
What is proposition 8 in Relation to California Evidence?
Prop 8 is part of the California Constitution. Under Prop 8, all relevant evidence is admissible in criminal cases unless the evidence falls within an exception.
Prop 8 preserves judicial discretion to exclude evidence that would be admissible
Hearsay Exception
What is the business record exception?
Writings made in the regular course of business at or near the time of the event by one who is under a duty to record such information is admissible
What is the Best Evidence Rule?
The original writing must be produced
Copies are o.k., as long as certified.
What is Proposition 8 rule on the use of character evidence?
Not allowed to initiate the use of character evidence to prove defendant’s conduct on the occasion in question.
What is vicarious admission?
Non hearsay
Statement of an agent or employee made during the existence of the relationship and concerning a matter within the scope of employment.
CA: only if negligence exposes employer to respondent superior
What is the rule on putting liability insurance into evidence?
Evidence that a person was insured against liability in inadmissible to prove whether the person acted negligently.
Such a law would prevent people from carrying insurance
liability insurance is admissible to show ownership.
What is I wanted to show that defendant offered to pay for medical expenses in a P.I. case?
Under CEC both the offer to pay and the admission of fact is inadmissible to prove liability
Under CEC what is a Contemporaneous Statement?
A statement that the declarant makes to explain, qualify or make understandable something that the declarant is doing at the time statement was made.
California hasn’t a “present sense impression” rule, so the above is used.
What is “excited utterance” called in California?
Spontaneous Statement
What is the CEC Business Record exception in relation to Police Reports?
In California a police report may be admissible against a criminal defendant under the business records exception as long as the sources of information for entries in the record indicate the record’s trustworthiness (certified).
What is the rule when and inadmissible statement is offered to show effect on hearer?
A statement that is inadmissible hearsay to prove the truth of the statement may nevertheless be admitted to show the statement’s effect on the hearer or reader.
What is the FRE & CEC rule on bolstering a witness?
FRE: Witness credibility must be attacked first
CEC: In criminal cases, under Prop 8, either side can bolster a witness credibility at anytime
Under the FRE & CEC who can make a motion to strike testimony?
Under FRE the motion to strike may only be brought by examining counsel
Under CEC, a motion to strike a non responsive answer can be made by any counsel of any party, not just examining counsel.
What are statements offered to Prove Circumstantial Evidence of State of Mind?
Statements by declarant that serve as circumstantial evidence of the declarant’s state of mind are not hearsay. Such statements are not offered to prove the truth of the matter asserted, but only that declarant believed them to be true.
When a a question considered leading?
When on direct it suggests a specific answer.
Evidence is legally relevant if its probative value substantially outweigh the risk of . . .
- Unfair prejudice
- Misleading or distracting the jury
- Confusion of the issues
- Undue Delay
What is hearsay?
An out of court statement offered for the truth of the matter asserted
Why is hearsay generally inadmissible?
Generally inadmissible because the veracity of the witness at the time the statement was made cannot be tested.
What are the 3 elements of hearsay?
- Statement
- Made out of court
- Offered for its truth
What is Character Evidence?
Evidence that tends to suggest a party’s conduct occurred in conformity with their character.
What are the 3 ways character evidence can be offered??
- Evidence of specific acts
- Opinion testimony of a witness who knows the person
- Testimony as to person’s reputation in the community
In order to be admissible evidence must be both ____ & ____?
Logically & Legally Relevant
When is evidence Logically Relevant?
When it tends to Prove or Disprove a material fact of the case.
When is evidence Legally Relevant?
If its probative value outweighs the risk of :
- unfair prejudice;
- misleading or distracting the jury;
- confusion of the issues;
- undue delay
Hearsay is ________________
An out of court statement offered for the truth of the matter asserted
A person’s state of mind, emotion or sensation is admissible as __________________ .
Non-hearsay under the “State of Mind Exception”
What is Judicial Notice?
The court’s recognition of a fact as true
A court may take judicial notice of either Notorious or Manifest Facts.
What are Notorious Facts?
What are Manifest Facts?
Manifest Facts are those easily capable of being verified through sources of unquestionable accuracy
Notorious Facts are those of common knowledge
What is the Public Records Exception to the hearsay rule?
a writing may be admitted into evidence if it was made by a public agency as part of that agencies activities.
What is the Best Evidence Rule?
An original document must be produced if the terms of the writing are to be introduced into evidence.
*Photocopies are considered “originals”
How do you introduce a Writing into evidence?
It must be authenticated.
*Proven that the item is really what it is purported to be.
What is the Business Record Exception?
A Business Record that contains hearsay will be admitted if it was prepared by someone during the normal course of business by someone with personal knowledge of a duty to report the matter contained therein
What is Impeachment?
Attacking the credibility of a witness and their propensity for untruthfulness.
(The casting of an adverse reflection on the veracity of the witness)
When is reputation evidence admissible?
Reputation evidence is admissible to impeach a witness as to their propensity for untruthfulness
What is hearsay?
An out of court statement offered for the truth of the matter asserted
What is the Excited Utterance Exception?
An Excited Utterance is a statement made by a witness as the witness is perceiving or expressing an exciting event.
Such statement are admissible because the spontaneity and excitement of the statement leave little time for the witness to lie.
What is the Present Sense Impression Exception?
- A present sense impression is a statement made as the witness is making an observation or sensing something.
- Present Sense Impression must be made contemporaneously with the event or sensation
- The event is not exciting, otherwise it would be excited utterance
What is Proposition 8 in relation to California Evidence?
Prop 8 is part of the California Constitution. Under Prop 8, all relevant evidence is admissible in California criminal cases unless the evidence falls within an exemption.
Prop 8 preserves judicial discretion to exclude evidence that would be admissible
What is the Business Record Exception?
Writing made in the regular course of business at or near the time of the event by one who is under a duty to record such information is admissible.
What is the Best Evidence Rule?
Original writing must be produced.
Copies are ok as long as certified
What is Proposition 8 prohibition on the use of Character Evidence?
Not allowed to initiate the use of character evidence to prove defendant’s conduct on the occasion in question
What is a Vicarious Admission?
Under FRE, vicarious admission by principal-agent and authorized admission is admissible.
Is admission of Liability Insurance admissible to prove negligence?
Evidence that a person was insured against liability is inadmissible to prove whether the person acted negligently.
Such a law would prevent people from carrying insurance.
Is offering to pay Medical Expenses admissible?
Under CEC both the offer to pay and the admission of fact is inadmissible to prove liability
What is the Present/Circumstantial State of Mind Exception?
Evidence that is not being offered for its truth, but rather to show a present or circumstantial state of mind is admissible as a hearsay exception.
Evidence Rule on Personal Knowledge/Speculation
A witness must have personal knowledge as to what he/she testifies to a witness may not speculate answers.
When is Legally Relevant Evidence excluded?
When the probative value of the evidence is outweighed by its prejudicial effect.
What is the rule on Settlement Offers?
Evidence of compromises or offers to compromise is inadmissible to prove liability for or invalidity of a claim that is disputed as to validity or amount.
Wha tis the Evidence rule onSubsequent Remedial Measures?
Evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, but may be admissible to prove ownership and control.
An Expert Witness may state an opinion or conclusion provided that : 1 2 3 4
- the subject is appropriate for expert testimony
- the witness is qualified as an expert
- the expert possesses reasonable probability regarding his opinion, and
- the opinion is supported by a proper factual basis
What is the Business Record Exception: use of Records as Evidence of No transaction rule?
FRE allow business records to be used to prove the nonoccurrence or the nonexistence of a matter if it was the regular practice of the business to record all such matters. Under this rule, negative evidence showing absence of any entry is admissible.
What is an admission?
A statement or act by one of the parties of one of the relevant facts.
What is probative value?
Evidence which is sufficiently useful to prove something important at trial
What is the rule on “Statements Offered to Show Effect on Hearer”?
A statement that is inadmissible hearsay to prove the truth of the statement may nevertheless be admitted to show the statement’s effect on the hearer or reader.
Rule on Character Evidence:
Prosecution cannot initiate evidence of the bad character of the defendant merely to show that he is more likely to have committed the crime. However, specific acts are admissible if independently relevant to impeach.
What is the “Legal Relevant” language for essay purposes?
If the court finds that the probative value of the evidence outweighs its prejudicial effect, the evidence should be admitted.
Vicarious Admission will be admissible if :
- Authorized, or
2. Party is an agent of employer
