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California Bar > Evidence > Flashcards

Evidence Flashcards

Master the FRE and CEC for the California bar.

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1
Q

Relevant evidence

A

Makes fact of consequence more or less probable.

CEC: Fact must also be disputed.

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2
Q

Relevant evidence - similar occurrences

A

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
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3
Q

Character evidence - civil cases - offered to prove D’s conduct - admissibility

A

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

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4
Q

Relevant evidence - policy exclusions

A

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  • Withdrawn pleas/offers (CEC: unclear if overruled by P8)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

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5
Q

Character evidence - civil cases - instances in which conduct at issue

A 
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

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6
Q

Character evidence - criminal cases - offered to prove D’s conduct - how D can open door

A

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
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7
Q

Character evidence - criminal cases - offered to prove D’s conduct - types of evidence admissible by D, or by P after D opens door

A

Direct
FRE & CEC: OT, RT

Cross
FRE: OT, RT, SIC
CEC: OT, RT

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8
Q

Character evidence - criminal cases - offered to prove D’s conduct - types of evidence admissible before D puts character at issue

A
  • 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

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9
Q

Character evidence - criminal cases - offered to prove V’s conduct - how D can open door

A

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)

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10
Q

Character evidence - criminal cases - offered to prove V’s conduct - types of evidence admissible by D, or by P after D opens door

A

Direct
FRE: OT, RT
CEC: OT, RT, SIC

Cross
FRE & CEC: OT, RT, SIC

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11
Q

Character evidence - civil cases - rape shield - types of evidence admissible

A

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

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12
Q

Character evidence - criminal cases - rape shield - types of evidence admissible

A

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

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13
Q

Hearsay - definition

A

An out-of-court statement offered to prove the truth of the matter asserted

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14
Q

Hearsay - admission by a party opponent

A

FRE: exemption to usual hearsay definition and, thus, not hearsay

CEC: hearsay but admissible under exception.

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15
Q

Hearsay - admission by a party opponent - vicarious admission

A

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

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16
Q

Hearsay - admission of party opponent - adoptive admission

A

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

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17
Q

Hearsay - admission of party opponent - statement by co-conspirators

A

Statement by co-conspirator made during and in furtherance of the conspiracy is treated as admission of party

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18
Q

Hearsay - exceptions for which declarant must be unavailable

A
  • 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
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19
Q

Hearsay - nonhearsay

A

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

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20
Q

Hearsay - declarant’s unavailability defined

A

Unavailable if any of the following:

  1. Declarant exempt from testifying due to privilege
  2. Declarant refuses to testify despite court order (CEC: only if declarant refuses to testify out of fear)
  3. Declarant testifies he cannot remember subject matter of statement (CEC: only if declarant has total memory failure)
  4. Declarant dead or physically/mentally ill
  5. Declarant absent and proponent of statement cannot procure attendance by process or other reasonable means
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21
Q

Hearsay - former testimony

A

Unavail. req!

Hearsay exception if:

  1. Party offered against was party in former action
  2. Former action involved same subject matter
  3. Former testimony under oath
  4. 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

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22
Q

Hearsay - statement against interest

A

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

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23
Q

Hearsay - dying declaration

A

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

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24
Q

Hearsay - statement against party procuring declarant unavailability

A

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

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25
Q

Hearsay - statement describing infliction or threat of physical injury

A

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!

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26
Q

Hearsay - statement of past physical condition or state of mind where at issue

A

Unavail. req!

CEC only: statement of declarant’s past bodily condition or mental state admissible when at issue.

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27
Q

Hearsay - statement of present mental, emotional, or physical condition

A

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

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28
Q

Hearsay - excited utterance

A

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”

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29
Q

Hearsay - present sense impression

A

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”

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30
Q

Hearsay - statement of past or present mental or physical condition made for medical diagnosis or treatment

A

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

31
Q

Hearsay - business records

A
  1. A record of events, conditions, opinions or diagnoses
  2. Kept in course of regularly conducted business activity
  3. Made at or near time of matters described
  4. By person with knowledge of the facts in that record (directly or from someone w/ duty to report)
  5. 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

32
Q

Hearsay - public records

A

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:

  1. Making record was within scope of public official’s duties
  2. Record was made at or near the time of the matters described
  3. Circumstances indicate trustworthiness
33
Q

Hearsay - convictions

A

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.

34
Q

Hearsay - misc exceptions

A
  • 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
35
Q

Hearsay - catchall exception

A

FRE only:

  1. Circumstantial guarantees of trustworthiness
  2. Statement is strictly necessary
  3. Notice given to adversary as to nature of statement
36
Q

Hearsay - learned treatise

A

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.

37
Q

Hearsay - ancient document

A
  1. Document is FRE:20/CEC:30 years old or more, 2. Does not on its face present any irregularities (e.g., erasures)
  2. Was found in a place of natural custody (i.e., where you would expect such documents to be found)
38
Q

Hearsay - Confrontation Clause

A

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.
39
Q

Testimony - competency

A

Must have:

  • Personal knowledge
  • Present recollection
  • Ability to communicate
  • Sincerity (e.g., take oath/affirmation)

CEC: Must understand duty to tell truth

40
Q

Testimony - objections to form

A 
Leading
Nonresponsive
Calls for narrative
Assumes facts not in evidence
Compound
Speculation
Argumentative
41
Q

Testimony - judge and jurors

A

Judge and jurors may not testify

42
Q

Testimony - present recollection refreshed

A

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

43
Q

Testimony - past recollection recorded

A
  1. Witness once had personal knowledge of the facts
  2. Document made by witness, under his direction, or was adopted by him
  3. Document written or adopted at a time when facts were fresh in witness’ memory
  4. Document was accurate when made
  5. Witness now has insufficient recollection to testify as to the matters in document
44
Q

Testimony - lay opinion

A
  1. Rationally based on witness’ perception
  2. Helpful to factfinder
  3. FRE: Not based on scientific, technical, or other specialized knowledge
45
Q

Testimony - expert opinion

A
  1. Helpful to factfinder
  2. Witness is qualified
  3. Witness believes in opinion to reasonable degree of certainty
  4. 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
  5. Opinion based on reliable principles that were reliably applied
46
Q

Testimony - lay opinion - admissible opinions

A
  • 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
47
Q

Testimony - expert opinion - federal standard for “reliable principle”

A

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

48
Q

Testimony - expert opinion - California standard for “reliable principle”

A

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

49
Q

Testimony - expert opinion - impeachment

A

FRE only: can use learned treatise to impeach AND as substantive evidence; relevant portion read into evidence while expert on stand but not admitted

50
Q

Hearsay - not hearsay

A

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
51
Q

Testimony - impeachment - prior inconsistent statement

A

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)

52
Q

Testimony - impeachment - bias, interest, or motive

A

Means: cross exam; extrinsic evidence

Foundation for extrinsic evidence: witness asked about bias, etc. BEFORE INTRODUCTION

53
Q

Testimony - impeachment - felony conviction - federal

A

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.

54
Q

Testimony - impeachment - misdemeanor conviction - federal

A

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.

55
Q

Testimony - impeachment - felony conviction - California

A

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)

56
Q

Testimony - impeachment - misdemeanor conviction - California

A

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

57
Q

Testimony - impeachment - bad acts

A

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)

58
Q

Testimony - impeachment - other means

A

OT/RT regarding truthfulness
- EE allowed

Sensory deficiencies
- X-exam/EE allowed

Contradictory facts

  • Cannot be collateral matter
  • X-exam/EE allowed
59
Q

Testimony - rehabilitation - prior consistent statement

A

Admissible if made before motive to lie arose

FRE: nonhearsay due to exemption
CEC: hearsay but within exception

60
Q

Hearsay - prior statement of identification

A

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

61
Q

Documentary and real evidence - authentication

A

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”

62
Q

Documentary evidence - authentication - means

A 
Admission
Eyewitness testimony
Expert opinion
Lay opinion
Circumstantial evidence
Genuine exemplar
Ancient documents rule (FRE:20/CEC:30)
Self-authenticating documents
63
Q

Documentary evidence - authentication - self-authenticating documents

A 
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

64
Q

Real evidence - authentication - means

A

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)

65
Q

Documentary evidence - best evidence rule

A

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

66
Q

Privileges - source

A

FRE: Common law
CEC: Statute; most exempt from P8

Civil suit brought in federal court under diversity jurisdiction, state privilege law applies

67
Q

Privilegs - attorney-client

A

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

68
Q

Privileges - attorney-client - exceptions

A
  • 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
69
Q

Privileges - doctor-patient

A

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
70
Q

Privileges - psychotherapist-patient

A

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
71
Q

Privileges - spousal

A

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

72
Q

Privileges - misc CA privileges

A
  • 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
73
Q

Judicial notice

A

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

California Bar (13 decks)

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