Evidence Flashcards
Master the FRE and CEC for the California bar.
Relevant evidence
Makes fact of consequence more or less probable.
CEC: Fact must also be disputed.
Relevant evidence - similar occurrences
Generally not relevant. Exceptions:
- Similar occurrences to prove causation
- Prior fraudulent claims or preexisting condition to prove claim fraudulent or injury old
- Similar injuries caused by same event/condition to prove existence of condition; D’s awareness; that condition was cause of injury
- Similar acts to prove intent
- Acts to rebut a defense of impossibility
- Comparable sales to establish value.
- Habit evidence to prove action
- Routine business practice to prove action/event
- Industrial custom to prove standard of care
Character evidence - civil cases - offered to prove D’s conduct - admissibility
Inadmissible, unless:
- SIC to prove MIMIC
- Character at issue
FRE: Evidence of prior sexual assault or child molestation admissible in sexual assault or child molestation case
Relevant evidence - policy exclusions
The following relevant evidence is excluded:
- Liability insurance
- Subsequent remedial measures (CEC: admissible in products liability)
- Settlement offers, including accompanying fact statements (CEC: extends to mediation)
- Offers to pay medical expenses, but accompanying fact statements admissible (CEC: both inadmissible)
- Withdrawn pleas/offers (CEC: unclear if overruled by P8)
CEC: Expressions of sympathy inadmissible in civil cases, but accompanying statements of fault admissible
Character evidence - civil cases - instances in which conduct at issue
Examples: Suit for defamation of character Negligent entrustment Child custody disputes Loss of consortium cases
All methods of proving character (OT/RT/SIC) are acceptable when character at issue
Character evidence - criminal cases - offered to prove D’s conduct - how D can open door
D fully opens door by offering evidence regarding his character
D partially opens door by offering evidence regarding V’s character –
- FRE: P can offer evidence D has same trait
- CEC: If D offered evidence of victim’s VIOLENT character, P can offer evidence D has same VIOLENT trait
Character evidence - criminal cases - offered to prove D’s conduct - types of evidence admissible by D, or by P after D opens door
Direct
FRE & CEC: OT, RT
Cross
FRE: OT, RT, SIC
CEC: OT, RT
Character evidence - criminal cases - offered to prove D’s conduct - types of evidence admissible before D puts character at issue
- SIC to prove MIMIC
- Prior sexual assault or child molestation in case of same type
CEC: Also, prior DV or elder abuse in case of same type
Character evidence - criminal cases - offered to prove V’s conduct - how D can open door
D fully opens door by offering evidence regarding V’s character
FRE: D partially opens door in homicide case by offering evidence that V was initial aggressor to support self-defense claim; P can offer evidence of V’s peaceful character (DE: OT/RT; XE: OT/RT/SIC)
Character evidence - criminal cases - offered to prove V’s conduct - types of evidence admissible by D, or by P after D opens door
Direct
FRE: OT, RT
CEC: OT, RT, SIC
Cross
FRE & CEC: OT, RT, SIC
Character evidence - civil cases - rape shield - types of evidence admissible
FRE:
OT, SIC admissible if PV substantially outweighs prejudice
RT admissible if P put reputation in issue and PV substantially outweighs prejudice
CEC:
Generally inadmissible; can offer SIC to show prior sex w/ defendant; can cross-ex and rebut SIC put on by P
Character evidence - criminal cases - rape shield - types of evidence admissible
FRE:
OT, RT inadmissible
SIC admissible to show prior consensual sex w/ D or that someone else was source of semen or injury
CEC:
Generally inadmissible; can offer SIC to show prior sex w/ defendant; can cross-ex and rebut SIC put on by P
Hearsay - definition
An out-of-court statement offered to prove the truth of the matter asserted
Hearsay - admission by a party opponent
FRE: exemption to usual hearsay definition and, thus, not hearsay
CEC: hearsay but admissible under exception.
Hearsay - admission by a party opponent - vicarious admission
Statement of authorized spokesperson for party is treated as admission of that party
Additionally –
FRE: Statement by employee of party is admission of party/employer if statement concerned matter within scope of employment and made during employment relationship
CEC: Statement by employee of party is admission of party/employer only where negligent conduct of that employee is basis for party/employer’s liability in the case under respondeat superior
Hearsay - admission of party opponent - adoptive admission
Statement expressly or impliedly adopted or acquiesced to by party is treated as admission of that party
- Silence, other than in the face of police questioning in criminal case, can be admission if party: heard and understood statement, was capable of denying, and reasonably person would have denied
Hearsay - admission of party opponent - statement by co-conspirators
Statement by co-conspirator made during and in furtherance of the conspiracy is treated as admission of party
Hearsay - exceptions for which declarant must be unavailable
- Former testimony
- Statement against interest
- Dying declaration
- Statement against party procuring declarant unavailability
CEC:
- Statement of past physical condition or state of mind where at issue
- Statement describing infliction or threat of physical injury
Hearsay - nonhearsay
Under FRE, following are nonhearsay due to hearsay exemption:
- Prior inconsistent statement
- Prior consistent statement
- Prior statement of identification
- Admission (including vicarious)
Under CEC, these are all hearsay exceptions
Hearsay - declarant’s unavailability defined
Unavailable if any of the following:
- Declarant exempt from testifying due to privilege
- Declarant refuses to testify despite court order (CEC: only if declarant refuses to testify out of fear)
- Declarant testifies he cannot remember subject matter of statement (CEC: only if declarant has total memory failure)
- Declarant dead or physically/mentally ill
- Declarant absent and proponent of statement cannot procure attendance by process or other reasonable means
Hearsay - former testimony
Unavail. req!
Hearsay exception if:
- Party offered against was party in former action
- Former action involved same subject matter
- Former testimony under oath
- Party offered against had opportunity to examine witness
Civil proceedings
FRE: Can be offered against party when predecessor-in-interest was party in former action
CEC: Can be offered against party when litigant with similar motive to examine witness was party in former action
Hearsay - statement against interest
Unavail. req!
Statement is admissible if when made it was against declarant’s:
- Financial interest
- Penal interest
- CEC only: Social interest (would make object of “hatred, ridicule, or social disgrace in the community”)
FRE: if statement offered to exculpate D (e.g., someone else confessed to crime), must be corroborating evidence to admit the statement
Hearsay - dying declaration
Unavail. req!
FRE:
In civil and homicide cases, statement by declarant believing he is about to die that describes cause or circumstances leading to impending death is admissible
CEC:
In all cases, statement by statement by declarant believing he is about to die, and who later does die, that describes what caused death is admissible
Hearsay - statement against party procuring declarant unavailability
Unavail. req!
FRE: In all cases, statement by declarant who is now unavailable is admissible against party who procured unavailability
CEC: In serious felony cases, statement the police recorded (in writing or on tape) by declarant who is kidnapped/killed is admissible against kidnapper/killer, if responsibility established by clear and convincing evidence
Hearsay - statement describing infliction or threat of physical injury
Unavail. req!
CEC only: admissible if made at or near time of infliction or threat; under circumstances indicating trustworthiness; in writing, recorded or made to a law enforcement official or medical personnel
Watch out for Confrontation Clause issues!
Hearsay - statement of past physical condition or state of mind where at issue
Unavail. req!
CEC only: statement of declarant’s past bodily condition or mental state admissible when at issue.
Hearsay - statement of present mental, emotional, or physical condition
Statement of declarant’s then-existing physical or mental condition or state of mind is admissible to show the condition or state of mind
- Memory or belief not admissible to prove fact remembered/believed
CEC: Judges can exclude in suspicious circumstances
Hearsay - excited utterance
Statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition
CEC: Called “spontaneous statement”
Hearsay - present sense impression
FRE: Statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter.
CEC: Statement explaining conduct of the declarant made while the declarant was engaged in that conduct; called “contemporaneous statement”
Hearsay - statement of past or present mental or physical condition made for medical diagnosis or treatment
FRE: Statement of past or present mental or physical condition of declarant or another person is admissible if made for and pertinent to medical diagnosis or treatment
CEC: Statement of past or present mental or physical condition is admissible if made for medical diagnosis or treatment, but only if the declarant is a minor describing an act of child abuse or neglect
Hearsay - business records
- A record of events, conditions, opinions or diagnoses
- Kept in course of regularly conducted business activity
- Made at or near time of matters described
- By person with knowledge of the facts in that record (directly or from someone w/ duty to report)
- It was regular practice of business to make such record.
Lack of record can be used to show non-occurrence
Can exclude if untrustworthy
CEC: Does not refer to opinions or diagnoses, but courts admit simple opinions and diagnoses
Hearsay - public records
FRE:
- Record describes activities and policies of the office OR
- Record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases) OR
- Only in civil cases or against the gov in criminal cases: record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy
CEC:
- Making record was within scope of public official’s duties
- Record was made at or near the time of the matters described
- Circumstances indicate trustworthiness
Hearsay - convictions
FRE:
Civil cases: felony conviction admissible to prove any fact essential to the judgment
Criminal cases: felony conviction admissible against D to prove any fact essential to the judgment; against others only for impeachment
CEC:
Civil cases: felony conviction admissible to prove any fact essential to the judgment
Criminal cases: P8 permits P or D to impeach a witness using felony or misdemeanor conviction involving moral turpitude.
CEC:
Civil and criminal cases: Certified copy of judgment of conviction admissible under CEC public records exception.
Hearsay - misc exceptions
- Vital records: records of vital statistics made to public officer pursuant to requirements of law
- Family records: statements of fact found in family Bibles, jewelry engravings, tombstones, etc.
- Market reports: market reports and public compilations relied on by public or persons of a particular occupation
Hearsay - catchall exception
FRE only:
- Circumstantial guarantees of trustworthiness
- Statement is strictly necessary
- Notice given to adversary as to nature of statement
Hearsay - learned treatise
FRE: Admissible to prove anything if treatise is accepted authority in field.
CEC: Only admissible to show matters of general notoriety or interest, meaning this exception is very narrow and almost never applicable.
Hearsay - ancient document
- Document is FRE:20/CEC:30 years old or more, 2. Does not on its face present any irregularities (e.g., erasures)
- Was found in a place of natural custody (i.e., where you would expect such documents to be found)
Hearsay - Confrontation Clause
Crawford v. Washington: CC excludes out-of-court statement if declarant does not testify at the trial, is now unavailable, statement is “testimonial”, and defendant had no chance to cross-examine declarant about statement when it was made.
- Testimonial at least applies to statements made in court and statements made to further a police investigation aimed at producing evidence for a prosecution.
- Statements to police to deal with ongoing emergency are non-testimonial and admission does not violate CC.
Testimony - competency
Must have:
- Personal knowledge
- Present recollection
- Ability to communicate
- Sincerity (e.g., take oath/affirmation)
CEC: Must understand duty to tell truth
Testimony - objections to form
Leading Nonresponsive Calls for narrative Assumes facts not in evidence Compound Speculation Argumentative
Testimony - judge and jurors
Judge and jurors may not testify
Testimony - present recollection refreshed
If witness cannot recall subject of testimony, document or anything else can be used to refresh recollection; opponent can offer into evidence
CEC: opponent can offer into evidence even if witness used to refresh before trial
Testimony - past recollection recorded
- Witness once had personal knowledge of the facts
- Document made by witness, under his direction, or was adopted by him
- Document written or adopted at a time when facts were fresh in witness’ memory
- Document was accurate when made
- Witness now has insufficient recollection to testify as to the matters in document
Testimony - lay opinion
- Rationally based on witness’ perception
- Helpful to factfinder
- FRE: Not based on scientific, technical, or other specialized knowledge
Testimony - expert opinion
- Helpful to factfinder
- Witness is qualified
- Witness believes in opinion to reasonable degree of certainty
- Opinion supported by a proper factual basis
- Personal observation, facts made known at trial, facts not personally known but reasonably relied on by experts in field - Opinion based on reliable principles that were reliably applied
Testimony - lay opinion - admissible opinions
- General appearance or condition of a person
- State of emotion
- Matters involving sense recognition (weight/smell/etc).
- Voice or hand writing identification
- Speed of moving objects
- Value of own services
- Rational/irrational nature of another’s conduct
- Intoxication
Testimony - expert opinion - federal standard for “reliable principle”
Daubert/Kumho standard for scientific evidence:
- Principle has been peer reviewed and published in scientific journals
- Has been tested and is subject to retesting
- Has a low error rate
- Has a reasonable level of acceptance
Non-scientific opinions: reliability determined by ad hoc looking at facts and circumstances of case
Testimony - expert opinion - California standard for “reliable principle”
Kelley-Frye standard for scientific evidence: Principle generally accepted by experts in the field
Non-scientific and medical opinions: reliability determined based on facts and circumstances of case
Testimony - expert opinion - impeachment
FRE only: can use learned treatise to impeach AND as substantive evidence; relevant portion read into evidence while expert on stand but not admitted
Hearsay - not hearsay
Statement:
- with independent legal significance
- offered to show effect on listener
- offered to show speaker’s (or writer’s) knowledge of facts stated
- offered as circumstantial evidence of state of mind
Testimony - impeachment - prior inconsistent statement
Means: cross exam; extrinsic evidence not on collateral matter
Foundation for extrinsic evidence: witness given opp. to explain/deny AT SOME POINT
In addition to impeachment, PIS can prove truth of matter asserted –
FRE: If under oath at prior proceeding (nonhearsay)
CEC: Regardless of circumstances (hearsay exception)
Testimony - impeachment - bias, interest, or motive
Means: cross exam; extrinsic evidence
Foundation for extrinsic evidence: witness asked about bias, etc. BEFORE INTRODUCTION
Testimony - impeachment - felony conviction - federal
Means: cross exam; judgment of conviction
Foundation for judgment: none
Felony involving false statement: admissible
Felony not involving false statement: admissible subject to balancing
- Criminal defendant impeached: inadmissible unless PV outweighs prejudice
- Other witnesses impeached: admissible unless prejudice outweighs PV
Even if admissible, if more than 10 years since later of conviction or release, felony inadmissible unless PV outweighs unfair prejudice.
Testimony - impeachment - misdemeanor conviction - federal
Means: cross exam; judgment of conviction
Foundation for judgment: none
Misdemeanor involving false statement: admissible
Misdemeanor not involving false statement: inadmissible
Even if admissible, if more than 10 years since later of conviction or release, misdemeanor inadmissible unless PV outweighs unfair prejudice.
Testimony - impeachment - felony conviction - California
Felonies involving “moral turpitude” admissible but court must balance; felonies not involving moral turpitude inadmissible
Most felonies involve moral turpitude; a few do not (e.g., felony battery can be charged for insignificant touching that happens to cause serious injury)
Testimony - impeachment - misdemeanor conviction - California
CEC: misdemeanors inadmissible
P8: in criminal case, misdemeanors involving moral turpitude (lying, violence, theft, extreme recklessness, and sexual misconduct), subject to balancing PV v. unfair prejudice
Testimony - impeachment - bad acts
FRE: x-exam about SIC that bear on truthfulness allowed, subject to court balancing; extrinsic evidence not allowed
CEC: no x-exam or extrinsic evid. involving SIC
P8: in criminal case, relevant SIC allowed through x-exam or extrinsic evidence, subject to balancing PV v. unfair prejudice
- Relevant: SIC involving moral turpitude (lying, violence, theft, extreme recklessness, and sexual misconduct)
Testimony - impeachment - other means
OT/RT regarding truthfulness
- EE allowed
Sensory deficiencies
- X-exam/EE allowed
Contradictory facts
- Cannot be collateral matter
- X-exam/EE allowed
Testimony - rehabilitation - prior consistent statement
Admissible if made before motive to lie arose
FRE: nonhearsay due to exemption
CEC: hearsay but within exception
Hearsay - prior statement of identification
Witness’ statement of ID after perceiving a person (e.g., “that’s the guy who shot me”) is admissible
FRE: nonhearsay due to exemption
CEC: hearsay but within exception, provided:
- Witness’ memory fresh at time of ID
- Witness must confirm in court that he made the ID and it reflected opinion at time
Documentary and real evidence - authentication
Non-testimonial evidence (e.g., writings, photos, guns) must be authenticated by proof showing it is what proponent claims; burden is low: “sufficient to sustain finding”
Documentary evidence - authentication - means
Admission Eyewitness testimony Expert opinion Lay opinion Circumstantial evidence Genuine exemplar Ancient documents rule (FRE:20/CEC:30) Self-authenticating documents
Documentary evidence - authentication - self-authenticating documents
Copies of public documents (deeds) Acknowledged documents (i.e., documents where the original signature is attested before a notary to be valid) Official publications (government pamphlets) Newspapers, periodicals
FRE only:
Certified business records
Trade inscriptions
Real evidence - authentication - means
Unique object: witness testimony that recognizes object as what proponent claims
Non-unique object: chain of custody
- Little breaks are OK (e.g., drug lab chemist turned back for a moment to answer call)
- Big breaks are a problem (e.g., detective took drugs from D but left at crime scene overnight)
Documentary evidence - best evidence rule
Applies where evidence offered to prove contents of “writing” (any tangible recording of data), i.e.:
- Case turns on contents of legal instrument
- Knowledge obtained from writing
Only certain evidence is admissible:
- Originals
- Duplicates (carbon/photocopy)
- CEC only: handwritten copies
- Testimony regarding contents may be admissible where original lost or destroyed, unless bad faith by proponent of testimony
- Voluminous documents exception
Non-originals not admissible where there is genuine question as to authenticity of original
Privileges - source
FRE: Common law
CEC: Statute; most exempt from P8
Civil suit brought in federal court under diversity jurisdiction, state privilege law applies
Privilegs - attorney-client
Communication between attorney-client or their reps intended by client to be confidential and made to facilitate legal services privileged unless waived by client
Death –
FRE: Survives death of client
CEC: Ends once estate of dead client distributed and executor discharged
Corporations –
FRE: Applies to communications from employees/agents if authorized by corp to make communication to lawyer on behalf of corp
CEC: Applies to communications from employee/agent if natural person to speak to lawyer on behalf of corp in matter OR employee/agent did something for which corp may be held liable and corp instructed her to tell lawyer what happened
Privileges - attorney-client - exceptions
- Professional services sought to further crime or fraud
- Two or more parties consult attorney on matter of common interest and communication is offered by one party against another
- Communication relates to alleged breach of duty between lawyer and client
- CEC only: lawyer reasonably believes disclosure of communication necessary to prevent crime likely to result in death or substantial bodily harm
Privileges - doctor-patient
FRE: Not recognized, comes from state law only
CEC: Exists under CA law
Exceptions:
- Patient puts physical condition in issue
- Professional services sought to aid in crime or fraud or to escape capture after a crime or tort
- In case alleging breach of duty between patient and doctor
- CEC only: in criminal cases; for information doctor required to report to a public office (e.g., GSWs and some communicable diseases); in commitment, competency, or licensure proceedings
Privileges - psychotherapist-patient
Exceptions:
- Patient puts physical condition in issue
- Professional services sought to aid in crime or fraud or to escape capture after a crime or tort
- In case alleging breach of duty between patient and therapist
- CEC only: therapist has reasonable cause to believe patient is danger to himself or others and disclosure necessary to end danger; court-appointed therapist; patient under 16, victim of crime, and therapist thinks disclosure in best interest
Privileges - spousal
Testimonial privilege: spouse may refuse to testify against other spouse as to anything; applies only during marriage
FRE: only in criminal cases
CEC: all cases, and spouse is privileged not even to be called to witness stand
Confidential communication: protects confidential spousal communications made during marriage; continues to apply after marriage
Privileges - misc CA privileges
- Confidential communications between counselor and a victim of sexual assault or domestic violence
- Penitential communications between penitent and clergy
- Immunity from contempt of court for news reporter who refuses to disclose sources
Judicial notice
Taking notice: party must request judicial notice to compel judicial notice and, if not requested, court has discretion to take judicial notice
- CEC only: whether requested or not, court must take judicial notice of matters generally known within jurisdiction
Effect of notice –
FRE: in civil cases, court instructs jury that it must accept fact; in criminal case, court instructs jury that it may accept fact
CEC: in both civil and criminal cases, court instructs jury that it must accept judicially noticed fact
