Evidence Flashcards
Proposition 8
For crim matters in CA ct (not civil), discuss Prop 8 (the “Truth in Evidence” amendment to CA).
—> While technically made all relevant evidence admissible in a crim case, even if otherwise objectionable under the CEC (subject to some exceptions) most of its impact has been negated by subsequent statutory elements
Now Prop 8 only has an impact in one area: the credibility of witnesses and impeachment.
CA’s Prop 8 impacts the character of witnesses in criminal trials only.
—> It permits evidence of good character for credibility to be admissible before bad, and allows for specific instances and extrinsic evidence.
Witness on the Stand –> Form of the Question: Leading Questions
Leading questions (questions suggesting an answer) generally NOT allowed on direct.
Except with:
—> Hostile witnesses, adverse witnesses, child witnesses, preliminary background info, and refreshing recollection of witness
Caveat
—> Where the examiner and the witness are on the same side of the case, leading questions are generally NOT allowed.
Witness on the Stand –> Form of the Question: Compound Questions
A compound question is when two or more questions are combined as one question.
- —> Compound questions are not allowed because they can confuse the witness, the judge, and the jury.
- —> Also, it may not be clear for the court record which of the questions the witness is answering.
Witness on the Stand –> Form of the Question: Assume Facts Not in Evidence
The facts which are not in evidence cannot be used as the basis of a question, unless the ct allows the question “subject to later connecting up.”
—-> A ct in the interest of good administration and usage of time may allow the missing facts to be brought in later.
Witness on the Stand –> Form of the Answer: Non-Responsive Answer
A non-responsive answer “occurs when the witness provides info not req’d by the questioning attorney.”
—> In that situation, only the lawyer asking the question may object.
Witness on the Stand –> Form of the Answer: Speculation
Speculation (someone’s idea about what might have happened) is not allowed.
—> A witness cannot jump to conclusions that are not based on what the witness experienced.
Witness on the Stand –> Competency: General Rules (FRE/CA)
General rules of competency
- —> FRE: Every person is competent to be a witness.
- —> CA: A person is disqualified to be a witness if he/she is:
(1) incapable of expressing himself/herself concerning the matter so as to be understood, or
(2) does not understand the duty to tell the truth.
Witness on the Stand –> Competency: Personal Knowledge
Under both FRE and CEC, lay witnesses (not appearing as experts) can testify only about matters of which they have personal knowledge.
—> Must have experienced something through the five senses.
Witness on the Stand –> Competency: Oaths (FRE/CEC)
FRE: Before testifying, every witness must take an oath or affirmation that he/she will testify truthfully.
CEC: Before testifying, every witness must take an oath that he/she will testify truthfully except if he/she is:
(1) a child under the age of 10, or
(2) a dependent person with a substantial cognitive impairment.
- –> May be required only to promise to tell the truth.
Witness on the Stand –> Competency: Interpreters (CA)
The CA Evidence Code contains fairly detailed provisions re: the qualification of interpreters for witnesses who speak no or limited English and for deaf or hearing-impaired witnesses.
Witness on the Stand –> Competency: Judges (FRE/CEC)
Judge
- –> FRE: Presiding judge absolutely barred from testifying as a witness in the trial.
- –> CEC: Presiding judge may testify if no party objects.
Witness on the Stand –> Competency: Jurors (FRE/CEC)
At trial/Pre-verdict:
- –> FRE: A juror may not testify as a witness at trial in front of the members of the jury.
- –> CEC: A juror may testify as a witness in the trial for which he is sitting unless a party objects.
After trial/Post-verdict
- –> FRE: Juror can only provide info re: outside influences that may have affected the verdict, but cannot testify as to how those influences affected their reasoning.
- –> CEC: More expansive than FRE. Jurors can provide info on any improprieties or influences that may have affected the jurors (including those that occurred in the jury room), but still cannot testify as to how those influences affected their reasoning.
Witness on the Stand –> Impeachment: Generally
Impeachment means calling into question a witness’s CREDIBILITY.
—-> Any party, including the party that called the witness, may attack the witness’s credibility.
There are several methods to impeach, including:
(1) Contradiction
- –> Simply means introducing evidence or testimony that contradicts what the witness said.
(2) Prior inconsistent statement
(3) Bias, interest, or motive
(4) Prior convictions
(5) Prior bad acts
Witness on the Stand –> Lay Opinion
A non-expert may offer opinion testimony if it is:
(1) Rationally based on the perception of the witness (meaning on the witness’s personal knowledge); and
(2) Helpful to a clear understanding or determination of a fact in issue.
Proper Scope of non-expert opinion (VEMPS)
V = Value of one’s own property
E = Emotional state of others (happy/sad)
M = Measurements (speed of vehicle, height, weight, distance)
P = Physical states (tall/short; healthy/sick)
S = Sensory descriptions (smell, sound, tase, color)
Note: Legal conclusions must be avoided and are inadmissible.
Witness on the Stand –> Expert Opinion
To analyze an opinion offered by an expert (SPOT):
(1) S = Proper Subject matter
- –> Subject matter of opinion must req scientific, technical, or other specialized knowledge that will help the trier of fact to understand the evidence or to determine an issue.
(2) P = Proper Person (Qualified)
- –> Expert must be qualified (have specialized knowledge, skill, experience, training, or education specific to the subject matter)
(3) O = Proper Opinion (Basis of the opinion)
- –> Opinion must be based in suff facts or data
(4) T = Proper Testimony (Offered in proper form)
- –> The testimony about the opinion must be expressed to a reasonable degree of certainty
Witness on the Stand –> Expert Opinion: Basis
3 bases for opinion testimony
(1) Personal knowledge (eg expert conducted exams or tests personally)
(2) Facts presented to the expert at trial
- –> Expert sat in ct and listened to witness testimony or is asked hypo questions
(3) Facts presented to the expert outside of ct (reports, conversations)
- –> Reasonable reliance rule: OOC facts must be of the type reasonably relied upon by other experts in the particular field
Rule 703 Balancing Test for Admission of Underlying Data
- –> Underlying data that is otherwise inadmissible (typically hearsay) at trial CANNOT be revealed UNLESS the proponent shows the probative value of the evidence substantially outweighs its prejudicial effect.
- –> Favors EXCLUSION of the underlying facts UNLIKE Rule 403, which favors inclusion
Witness on the Stand –> Expert Opinion: Opinion on an Ultimate Issue
Generally, an expert may give an opinion/inference which embraces an ultimate issue, but cannot state the opinion as a legal conclusion.
Limitation in Criminal Cases
- –> An expert may not give an opinion as to whether the D did/did not possess the mental state or condition which constitutes an element (or defense) of the crime charged.
- –> Such ultimate issues of law are determined by the jury
Exception
—> An expert may, in a crim case, offer an opinion on whether the D who has pled not guilty by reason of insanity was insane.
Witness on the Stand –> Expert Opinion: Disclosing the Facts or Data Underlying an Expert’s Opinion
Unless the ct orders otherwise, an expert may state an opinion (and give the reasons for it) w/o first testifying to the underlying facts or data, but the expert may be req’d to disclose those facts and data on cross.
Experts may be properly cross-examined as to:
(1) qualifications
(2) subject matter and basis of an opinion; and
(3) compensation
Witness on the Stand –> Expert Opinion: Court-Appointed Expert Witnesses
The ct may, on its own or at the request of either party, appoint expert witnesses.
- –> An appointed expert witness MUST advise the parties of their findings and must submit to a deposition request from either party.
- –> An appointed expert witness MAY be called to testify and be cross-examined by any party.
Relevance Generally –> Admissibility: Test for Relevant Evidence (Rule 401)
Logical Relevance
Relevant evidence is evidence tending to make the existence of ANY fact of consequence to the action more or less probable than it would be w/o the evidence.
Legal Relevance
Req that evidence be not only logically relevant to a fact in issue, but also suff’ly probative to justify its admission despite the prejudice that may flow from admission.
—-> 403 Balancing test
403 balancing test favors admissibility.
- —> Although relevant, evidence may be excluded if any of 6 considerations exists.
- —> Often called “practical relevance.”
If the probative value is SUBSTANTIALLY outweighed by:
(1) the danger of unfair prejudice, meaning the evidence invites the jury to make a decision on an improper ground
(2) confusion of the issues
(3) misleading the jury
(4) considerations of undue delay
(5) waste of time; or
(6) needless presentation of cumulative evidence
Documents –> Authentication: Generally
Authentication (condition precedent to admissibility) req’s EVIDENCE SUFF to SUPPORT finding that the matter in question is what its PROPONENT CLAIMS.
- —> Suff evidence is that which a reasonable person could find “genuine” by a POTE.
- —> The judge determines admissibility; the jury has the final decision as to how much weight to give
- —> With the exception of voice identification (eg who was on the other end of the line in a phone convo) and evidence describing a process/system (eg a computer based fingerprint analysis machine results), only TANGIBLE evidence needs to be authenticated.
Documentary evidence includes writings such as letters, Ks, books, newspapers, motion pictures, tape recordings, xrays, photos, ancient writings, computer printouts, self authenticating docs, and handwriting specimens.
Documents –> Authentication: Methods
Extrinsic or Intrinsic Methods
- –> Extrinsic: a witness is req’d to authenticate the item
- –> Intrinsic: the item is self-authenticating (no need for a witness)
Extrinsic Authentication (Sponsoring Witness Req’d)
- –> Direct evidence: someone with personal knowledge of (or familiarity w/) the item, or a custodian of records testifies to authenticate the item.
- –> A custodian of records is a person charged in an organization (business or govt) w/ maintaining records of the organization
Test for a photograph or diagram
- –> Must be a fair and accurate representation of what the proponent claims it depicts.
- –> Need not be the actual photographer, merely someone who knows the scene at the relevant time is suff.
Circumstantial Evidence
- –> Chain of custody - commonly for undistinguishable items; witnesses can testify to where item was from the moment that mattered to the moment when offered.
- ————-> Chain of custody also serves to confirm that the item of tangible evidence is in substantially similar condition in which the witness found it; this confirms it was not tampered w/ or materially altered.
- –> Ancient documents rule - old doc (at least 20 yrs old) found in a place where it would likely be found under circumstances suggesting authenticity.
- –> Other distinctive characteristics - distinctive appearance, contents, substance, internal patterns, etc.
Documents –> Authentication: Evidence that Satisfies Authentification Req
- Witness w/ KNOWLEDGE: testimony of a witness w/ knowledge that an item is what it is claimed
- HANDWRITING: non-expert’s opinion that handwriting is genuine based on familiarity w/ it not acquired in litigation
- COMPARISON w/ an AUTHENTICATED specimen by an expert witness or the trier of fact
- Appearance, Contents, Substance, Internal Patterns, or other Distinctive Characteristics: of the item, taken together will ALL CIRCS
- VOICE: an opinion identifying a person’s voice based on hearing the voice previously
- PROCESS/System: evidence describing a process or system and showing that it produces an accurate result
- Cong/SCOTUS: any method of authentication or identification provided by Cong or SCOTUS
Documents –> Authentication: Self-Authenticating Evidence
Extrinsic evidence of authenticity as a condition precedent to admissibility is NOT req’d w/ respect to the following (CONTAC):
(1) Certified docs
- –> docs bearing a seal of the US, or any state, district, commonwelath, etc. (public docs under seal)
- –> certified docs bearing no seal, if a public officer certifies under seal tha tthe signer has official capacity to sign and that the sig is genuine
- –> certified foreign docs: genuineness of the sig and the authorized person’s official position req’d; or
- –> certified copies of (official) public records:
- ————–> must be filed/recorded in a public office and cert’d as correct by either the custodian or other qualified person
- ————–> certified copies of business records
- ————–> certified electronically stored data, w/ notice
(2) Official publications
- —> Books, pamphlets, and other publications issued by a public authority
(3) Newspapers and periodicals
(4) Trade inscriptions
- —> Signs, tags, or labels affixed in the ordinary course of business indicating ownership, control, or origin
(5) Acknowledged docs
- —> Notarized docs
(6) Commercial paper
- —> Negotiable instruments, bills of lading.
- —> Sigs req’d as provided by general commercial law (UCC)
Documents –> Authentication: Handwriting
Special Rules for Handwriting Authentication
- –> By a layperson w/ familiarity (NOT acquired for litigation)
- –> By comparison by an expert w/ person’s known writing sample; or
- –> By comparison by the trier of fact (unique!)
Documents –> Authentication: Telephone Conversations
- –> Call to number assigned to person and circumstances show person answering is the one called.
- –> Call to number assigned to business and reasonably related business was transacted.
Documents –> Authentication: Voice
Special Rules for Voice Authentication
—> Opinion of person who has heard speaker at any time, even if familiarity is acq’d for the litigation.
Documents –> Best Evidence Rule
To prove the content of a writing, recording, or photo, the ORIGINAL writing, recording, or photo is req’d, except as otherwise provided by these rules/Congress.
Best Evidence Rule = covers every tangible process to record works, pics, and sounds
Applies ONLY where contents of a writing are in issue; 2 main situations:
(1) Legally operative docs
- —> where the writing has independent legal sig (ie the writing itself creates/destroys a legal relationship)
- —> Exs: K, will, deed, mortgage, lease, DL, movie in obscenity action, photo in porn action, written libel, divorce decree.
(2) Document-dependent testimony
- —> where the testimony is reliant on the writing, not on personal knowledge
Documents –> Best Evidence Rule Exception - Independent Source Rule
Independent Source Rule
- —> Where a fact to be proved has a source independent from the writing (ie the fact occurred regardless of whether the writing exists), then the contents are NOT in issue and the BER does not apply.
- —> Exs: sales receipt (not req’d to prove goods/services paid for); birth cert (not req’d to prove fact/DOB); death cert; marriage cert
- —> Caveat: if the receipt or cert is offered as evidence to prove a birth, death, sale, etc. then the original must be produced absent goods cause.
Documents –> Best Evidence Rule: Admissibility of Duplicates
An original includes either the original itself or a duplicate.
—> Duplicates are admissible so long as there is no issue w/ authenticity (BER).
3 substitutes for original:
(1) duplicate (photocopy)
(2) certified copy of public record (803 [8])
(3) summaries of voluminous records (1006)
Documents –> Best Evidence Rule: Admissibility of Other Evidence of Content
The original is NOT REQ’D and other evidence of the contents of a writing, recording, or photo is admissible (CLOTS) if:
(1) COLLATERAL
- —> Where the writing, recording, or photo is NOT closely related to a CONTROLLING ISSUE (ie witness merely refers to a writing but not to prove contents)
(2) LOST
- —> All originals have been lost or destroyed UNLESS the proponent lost/destroyed them in BAD FAITH
(3) OPPONENT
- —> The opponent has possession of the original and has REFUSED to deliver it (even on notice by pleadings or by the ct)
(4) TESTIMONY or ADMISSION by opponent
(5) SUBPOENA
- —> The original cannot be obtained by any available judicial procedure.
Documents –> Best Evidence Rule: Copies of Public Records to Prove Content
The contents of an official record may be proved by copy, certified as correct, or by witness testimony upon comparison w/ the original.
Documents –> Best Evidence Rule: Summaries to Prove Content
The contents of voluminous writings, recordings, or photos that cannot conveniently be examined in ct may be presented in the form of a chart, summary, or calculation.
- —> Originals shall be made available for examination, copying, or both by other parties at a reasonable time and place.
- —> Ct may also order production in ct.
Foundation
A showing that the originals themselves would be admissible hearsay (substantive evidence) under either an exception or exclusion.
—-> The opponent must be given reasonable pretrial access.
—-> Authentication: summaries must be properly authenticated by the preparer
Documents –> Best Evidence Rule: Testimony or Statement of a Party to Prove Content
Contents of a writing may be proved by testimony, deposition, or admission of the opposing party w/o accounting for the non-production of the original writing because (usually) it is not in their possession.
Witnesses on the Stand –> Mode and Order of Examining Witnesses and Presenting Evidence
Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility.
—> The ct may allow inquiry into additional matters as if on direct examination
Witnesses on the Stand –> Impeachment: Witness’s Prior Inconsistent Statement - Admissibility
When a PINS is offered solely for impeachment, the PINS is NOT admissible substantively (meaning to be believed) and cannot be used for any purpose other than the impact on the witness’s credibility.
- —> Example of limited admissibility
- —> On request, proponent must show a written or recorded PINS to the opponent
"Inconsistent" Meaning PINS must be inconsistent w/ the in-ct testimony; may be found by: (1) express contradiction (2) omission; or (3) feigned lack of memory
Witnesses on the Stand –> Impeachment: Witness’s Prior Inconsistent Statement - Extrinsic Evidence
Extrinsic evidence of PINS may be a witness to the PINS or a written PINS.
Admissible only if:
(1) Witness is given a chance to explain or deny the PINS at some point (no specific sequencing req’d)
(2) An adverse party is given an opportunity to examine the witness about the PINS; or
(3) If justice so req’s
Ct may exclude extrinsic evidence of the PINS if:
(1) Witness admits making the PINS (bc the witness admitted making the PINS, there’s no need for extrinsic evidence); or
(2) It involved a collateral matter (meaning a matter that would not be relevant to the trial, except to impeach the witness)
Witnesses on the Stand –> Excluding Witnesses - Rule
At a party’s request or on its own, the ct MUST order witnesses excluded so that they cannot hear other witnesses’ testimony.
This rule does not authorize the following:
(1) a PARTY who is a natural person
(2) an OFFICER or EMPLOYEE of a party that is not a natural person, after being designated as the party’s representative by its attny
(3) a person whose presence a party shows to be ESSENTIAL to presenting the party’s claim or defense; or
(4) a person AUTHORIZED by statute to be present
Witnesses on the Stand –> Impeachment - Bias or Interest
Extrinsic evidence is admissible; includes:
(1) Personal or family hostility or relationship
(2) Business relationship
(3) Confidential informant
(4) Fee arrangement (eg fee paid to expert/informant)
Witnesses on the Stand –> Impeachment - Incapacity / Sensory Defect
Inability to observe, communicate, or remember.
—> Extrinsic evidence is admissible
Documents –> Contents of Writings, Recordings, and Photographs: Functions of the Court and Jury
Finder of fact (usually the jury) decides:
(1) whether the asserted writing (the original) ever existed
(2) whether another writing produced at trial is the original
(3) the accuracy of the writing; and
(4) the jury has the final decision on whether the item is genuine and how much weight to give it.
Character Evidence –> Civil v. Criminal
The general rule is that evidence of a person’s character/character trait is inadmissible to prove that on a particular occasion he acted in accordance w/ that character/trait.
Criminal Cases
While the prosecution may not initially show that the D’s bad character traits to make an inference he is more likely to committed the crime charged, the accused may introduce evidence of character traits inconsistent with the crime charged (honesty/peacefulness).
—–> Once the door is opened by the D, the pros may rebut evidence admitted.
Character Evidence –> Civil v. Criminal - Evidence of Victim’s Character
A criminal D may offer evidence of the V’s pertinent character as circumstantial evidence.
- —-> Commonly, the victim’s violent character to support a claim that the victim was the initial aggressor.
- —-> This BAD character of victim is used to show that the D acted in self-defense.
Permissible method
—–> Reputation or opinion only; NOT specific acts
Prosecutor’s Response
The prosecution may rebut with good character of the victim on the same trait AND can offer the D’s bad character on that same trait, each through reputation or opinion, NOT specific acts.
Character Evidence –> 3 Forms of Character Evidence
Is it character evidence at all? A: CE comes in 3 forms (ROSA)
Reputation
- —> Witness testifies to another’s reputation as to character (everyone thinks V is violent)
- —> Merely the collective opinion of others
- —> Rep evidence is hearsay (the character is offering what ppl told him/her of their view of the other’s character), but a hearsay exception applies (FRE 803 [21])
Opinion
—-> Witness testifies to their opinion of another’s character (I think V is violent)
Specific Acts
- —> Witness testifies to specific acts (specific instances of conduct) of another that reflect the other’s character (I saw V beat up X last week, offered to show V is violent).
- —> To identify when SA being offered as CE, they involve different people, places, times, or events than that which is the subject of the trial.
Character Evidence –> Admissible Purposes (MIMIC)
Whether or not the D in a criminal case introduces evidence of good character, the pros may introduce circumstantial evidence of other crimes, wrongs, or acts for the narrow purpose of proving (MIMIC):
- Motive
- Intent
- Absence of Mistake
- Identity
- Common plan or scheme
