Evidence 11-20 Flashcards
Voice recordings may be Authenticated by whom?
By anyone who:
Has heard the person speak (either firsthand or electronically);
AND
Identified the recorded person as the speaker.
Priority: Medium
What is the Best EvidenceRule?
A party must provide the original document (or a reliable duplicate) when a witness:
Testifies to the contents of a writing; OR
Testifies to knowledge gained solely from a writing.
FRE: Handwritten duplicates are NOT admissible.
CA: Handwritten duplicates ARE admissible.
*In CA, this rule is called the Secondary Evidence Rule.
Priority: HIGH
Character Evidence
Character evidence may only be offered as circumstantial evidence to prove propensityin what limited circumstances?
Criminal cases – by defendant OR by prosecution if the defendant “opens the door” (unless in CA only: elder abuse or domestic violence);
Victim’s character(except in rape cases) – to prove defendant’s innocence. (In CA, ONLY violent traits);
Homicide cases – if defendant claims victim was the aggressor, the prosecution may offer evidence of the victim’s character for peacefulness. (NOT IN CA);
Sex offense cases – not admissible, unless exceptions apply.
Civil cases – only if sex offense cases exception applies.
In CA, NO exception for sex offense cases.
Priority: HIGH
Character Evidence
Under the FRE, what are the exceptions in Sex Offense Cases that allow character evidence (to prove a victim’s sexual behavior or predisposition) to be admissible?
Civil cases: If its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted only if the victim placed it in controversy).
Criminal cases: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate the defendant’s Constitutional rights.
Priority: HIGH
Character Evidence
How may character evidence be proven under FRE and CA rules?
FRE:
On direct examination, by opinion testimony or testimony of the reputation in the community.
On cross examination of the character witness, by opinion, reputation, or specific acts.
CA:
Defendant’s character may only be proven by opinion/reputation, and victim’s character by opinion, reputation, or specific acts.
Priority: HIGH
Prior Bad Acts may be admissible for NON-PROPENSITY purposes, such as?
Proving:
Motive;
Identity;
Absence of mistake or accident;
Intent;
A common plan or scheme;
Opportunity; OR
Preparation.
Priority: HIGH
What must a proponent show in order to offer Prior Bad Acts as evidence?
That the prior act was committed by a preponderance of the evidence (vague references are insufficient).
AND
That’s its probative value substantially outweighs the danger of unfair prejudice.
When is evidence of a person’s Habit or an organization’s Routine Practice admissible?
To prove that on a particular occasion the party acted in accordance with the habit or routine practice.
*This may be admitted regardless of corroboration or eyewitnesses.
Priority: Low
Extrinsic Evidence of Prior Inconsistent Statements are only admissible to impeach if it’s what?
Relevant to a material issue at trial (other than the witness’s credibility); AND
A proper foundation is shown (witness is given a chance to explain/deny, and the adverse party is given a chance to examine the witness about it).
*BUT, the above limitation is NOT applicable to statements by a party opponent.
*CA = Prior inconsistent statement is admissible as non-hearsay when offered only to impeach a witness. It is also an exception to the hearsay rule.
Priority: Medium
Under the FRE, when is evidence of Prior Convictionsadmissible to attack a witness’s character for truthfulness?
Prior felony or misdemeanor convictions involving dishonesty – a dishonest act or false statement.
In Felonies that DO NOT involve dishonesty, when:
The witness is not a defendant (criminal/civil);
In a criminal case where the witness IS a defendant, BUT the probative value outweighs the prejudicial effect.
*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.
Priority: Medium
