Evidence Flashcards
Judge’s Preliminary Questions (5)
The judge decides 1) whether there is enough evidence for the jury to make a preliminary fact decision as to relevancy using ALL non-privileged evidence, even if inadmissible, before the evidence can go to the jury 2) whether expert witness is qualified before offering an expert opinion 3) hearsay standards of trustworthiness 4) whether a statement offered as a dying declaration is made under sense of impending death and 5) whether purported business record was made in regular course of business
Jury decides
Whether offered evidence is relevant to the issues (authenticity and personal knowledge)
Limiting Instruction
Evidence may be admissible for one purpose but not another, or admissible against one party but not another. Court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly. The court may exclude the evidence entirely if it determines that, even with a limiting instruction, the probative value of the evidence would be substantially outweighed by danger of unfair prejudice
Presumption in a Criminal Case
The judge cannot instruct the jury that it must find a presumed fact against the accused; the judge must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact.
Burdens of Proof
Civil Cases - pleading party has burden of proof to make prima facie case by preponderance of the evidence. Criminal Cases - pleading party has burden of proof to make prima facie case beyond reasonable doubt
Prop 8
CA Constitutional rule that states all relevant evidence is admissible in a CRIMINAL case, even if objectionable
Prop 8 Exceptions
1) CEC 352 unfair prejudice substantially outweighs probative value 2) confrontation clause 3) hearsay 4) privilege 5) limits on character evidence 6) secondary evidence rule
Logical Relevance
Evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. *CA requires that the fact of consequence must be in dispute
Logical Relevance and Similar Occurences
Evidence of similar occurrences, even if about persons or events other than those directly issue, can still be relevant if 1) it proves causation 2) prior accidents or claims show pattern of fraudulent claim or a preexisting condition 3) it proves intent 4) it rebuts defense of impossibility 5) it is a comparable sale that establishes value 6) it proves a habit 7) it shows a routine business practice 8) it shows an industrial custom
Unfair Prejudice / Probative Value
Rule 403 Probative/Prejudice Balance or CEC 352: Even if evidence is logically relevant, court has discretion to exclude if the probative value is substantially outweighed by unfair prejudice, confusion, misleading jury, undue delay, cumulative (repetitive), or waste of time
Public Policy Exclusions of Relevant Evidence
Evidence of following is inadmissible, even if relevant: 1) Liability insurance 2) Subsequent remedial measures 3) settlements/offers to settle/please 4) Payment or offers to pay medical expenses 5) CEC expressions of sympathy 6) CEC Evidence of immigration status
Liability Insurance Exception
Evidence of Liability Insurance is inadmissible to prove culpable conduct (e.g., Negligence) or D’s ability to pay a judgment, but may be admissible for any other purpose (bias, impeachment, ownership, scope of employment).
Subsequent Remedial Measures Exception
Subsequent Remedial Measures are inadmissible to prove culpable conduct of negligence through defective product design, But admissible for any other purpose (including ownership or control, to rebut defense of no feasible precaution or destruction of evidence). CEC: inadmissible for negligence cases only, but admissible to prove defective design in strict products liability cases.
Settlements/offers to settle/please exception
All statements and all related statements made in settlements, offers to settle, and certain plea statements (withdrawn guilty pleas, nolo contendere, offers to plead guilty, negotiating pleas) are inadmissible to prove validity or amount of claim or impeach a witness by prior inconsistent statement, UNLESS (1) no claim yet asserted or (2) no dispute as to liability or damages. CEC: any discussions during mediation are also inadmissible
Payment or Offers to pay Medical Expenses Exception
inadmissible to prove liability for injuries, but admissible for all other purposes. Unlike settlements, related statements are admissible. Only exclude offer of payment. CEC: related statements are NOT admissible, all are excluded
CEC Expressions of sympathy exception
Expressions of Sympathy relating to suffering or death of accident victim are inadmissible in civil case, but statements of fault within expression are not excluded
CEC Evidence of immigration status Exception
Evidence of Immigration Status inadmissible or discoverable in civil actions for personal injury or wrongful death. In other civil and criminal cases, just don’t say in open court unless judge already determined this is admissible in camera. No restrictions when immigration status is necessary to prove an element of a claim, offense or affirmative defense
Character Evidence in Civil Cases
Character evidence is inadmissible to prove conduct is in conformity with character, Except in sexual assault or child molestation claims, or if character is in issue (negligent hiring/entrustment, child custody disputes, defamation). If admissible, reputation, opinion, and specific acts are allowed CEC: CA does not have any exceptions allowing defendant’s prior SIMILAR ACTS in civil cases, no specific acts allowed in civil cases
Character Evidence in Criminal Cases to prove Defendant’s Conduct
Trial starts with the door closed to character evidence. Defense can be first to open the door as to his own good character for a trait involved in the case (Reputation + Opinion ONLY NOT specific acts). If Defense opens door to character evidence, then prosecution can offer pertinent character evidence to rebut. On direct, prosecution can rebut with its own witness with evidence of reputation and opinion, not specific acts. On cross, prosecution can ask defendant’s witness about reputation and opinion, but only specific acts to impeach defendant’s witness. CEC: prosecution cannot admit specific acts to rebut.
EXCEPTIONS: Prosecution can open door first if sexual assault or child molestation (prosecution can bring specific acts of other acts of sexual assault or child molestation); CEC: CA also allows prosecution to open the door with similar acts of defendant’s domestic violence & elder abuse
Character Evidence in Criminal Cases to prove Victim’s character
Victim’s door to character evidence begins closed. Prosecution cannot be first to offer evidence; D must first open the door by
(1) offering evidence of V’s character (prosecution may then offer reputation or opinion evidence of V’s character for peacefulness, OR defendant’s bad character for same trait) *CEC: prosecution can only rebut with evidence of defendant brings evidence of victim’s VIOLENT character, and can rebut with evidence of defendant’s VIOLENT character; or (2) in a homicide case, D alleges V attacked first (prosecution can then open the door by offering evidence of victim’s peaceful character). On direct, prosecution can rebut with its own witness with evidence of reputation and opinion, not specific acts *(CEC: specific acts allowed). On cross, prosecution can ask defendant’s witness about reputation and opinion, but only specific acts to impeach defendant’s witness.
Character Evidence and Rape Shield Statutes (Criminal cases)
Evidence of victim’s past behavior or sexual disposition in a rape or sexual assault case is generally inadmissible; Exception: specific acts of V’s conduct admissible only to prove (1) third party source of semen or injury or (2) prior consensual sex between D and V. CEC: opinion, reputation, and specific acts evidence of the victim’s sexual conduct and manner or dress are all inadmissible to prove the victim’s consent, unless the victim’s sexual conduct was with the defendant.
Character Evidence and Rape Shield Statute (Civil cases)
Evidence of victim’s past behavior or sexual disposition in a rape or sexual assault case is inadmissible. Exception: admissible if probative value substantially outweighs unfair prejudice (but only if V put her reputation at issue) CEC: No exclusion for civil cases
Specific Acts of Misconduct are admissible to prove MIMIC
Specific acts of misconduct are inadmissible to prove character or propensity to commit the crime, but admissible for any other purpose such as MIMIC: Motive, Intent, Mistake (absence of), Identity, Common Plan or Scheme
Witness Competency Requirement
Witnesses must pass tests of basic reliability to establish their competency to give testimony, but they are generally presumed to be competent until the contrary is established.
Requirements: 1) Personal Knowledge—W may testify to a fact only if based on sensory perception 2) Present Recollection—W must testify from present recollection, not from a record regarding matters that W once knew but now has forgotten. 3) Communication –W can relate perception; and 4) Sincerity—Oath or affirmation to tell truth. CEC: Extra requirement that witness must understand legal duty to tell truth
Scope of Cross Examination
Cross examination is limited to the scope of direct examination, But judicial discretion to allow further than the scope. Re-direct examination is permitted to address minor new matters raised on cross, but MUST be permitted if there were SIGNIFICANT new matters were raised
Objections
1) Calls for Narrative—questions calls for a narrative 2) Nonresponsive—response to question does not answer question asked, motion to strike 3) Leading—allowed on cross, but not on direct unless adverse/hostile witness or witness needs help 4) Assumes Facts Not in Evidence – “When did you stop abusing your wife?” 5) Argumentative—lawyer not seeking an answer, but trying to make an argument 6) Compound—two questions asked at the same time; can confuse jury since it is unclear answer refers to which question.
Refreshing Recollection
Anything (object/document) can be used to refresh a witness’s memory, but witness cannot read from the document while testifying. No hearsay problem because not being offered into evidence. Safeguards against abuse: if it is a writing the opponent may inspect it and offer it into evidence.
Past Recollection Recorded Hearsay Exception
If refreshing W’s recollection fails (W still can’t remember), a party can get actual document read to the jury as evidence, even though it is hearsay, only if the following foundational elements are satisfied:
1) W once had Personal Knowledge of the facts in the writing; 2) The writing was made by W, under his direction, or adopted by him; 3) The writing was written/adopted when the facts were fresh in W’s memory; 4) The writing is accurate; and 5) W now has insufficient recollection to testify as to matters contained in document.
If requirements are met, Document is read to jury. Document cannot be admitted into evidence as an exhibit unless it is offered by the adverse party.
Lay Opinion Testimony
Admissible if the opinion is rationally based on witness’s perceptions and helpful to trier of fact; can’t be based on scientific or other specialized knowledge, and must tell jury more than if testimony were limited to facts perceived. Acceptable: speed of auto, sanity, intoxication, emotions, value of witness’s property. Not Allowed: legal conclusions, such as whether a contract was formed, whether they acted as an agent
Expert Opinion Testimony
Requirements to be admitted: Hot Quiznos For Certain reliable Penguins - (1) Helpful to jury (used specialized knowledge average juror couldn’t figure out on his own); (2) Qualified (experience, education, training (3) Certainty of opinion; (4) Factual basis of opinion (personal knowledge, facts admitted in trial made known to expert, facts relied upon by other experts in the field); and (5) Reliable Principles applied to the facts based on Daubert Standard - (1) peer reviewed and published; (2) tested and subject to retesting; (3) low error rate; (4) reasonable level of acceptance; Must consider all relevant evidence and alternative theories (CEC: Kelley Frye Standard: Must use generally accepted principles in field).
Expert opinions on ultimate issues are permitted except for testimony concerning defendant’s mental state in a criminal case
Learned Treatise Exception
Admissible to prove anything stated therein if it’s an accepted authority in the field (exception to hearsay). Can be used for impeachment or substantively. Requires an expert witness to testify regarding the text.
CEC: only admissible to show matters of general notoriety or interest. This means it is almost NEVER applied because Learned Treatise will almost always be specialized.
Evidence to support witness credibility
Generally, a party may not bolster or accredit the testimony of her witness until her witness’s credibility has been attacked. If credibility of witness is attacked, a Prior Consistent statement is admissible for ALL purposes if made before the motive to lie or exaggerate (also admissible substantively under hearsay exemption). CEC: also admissible if the witness was impeached with a prior inconsistent statement, and the prior consistent statement was made before the prior inconsistent statement.
Impeachment Methods
1) Contradiction 2) Prior Inconsistent Statement 3) Bias, Interest, Motive 4) Sensory Deficiencies 5) Prior Conviction 6) Prior Bad Acts of Lying without Conviction 7) Character Evidence of Reputation and Opinion Regarding Truthfulness
Impeachment based on Contradiction
Can impeach witness on Cross, or offer Extrinsic evidence to contradict a fact that witness said to impeach on a material matter, but no extrinsic evidence allowed to impeach on a collateral matter
