Evidence Flashcards

1
Q

Logical Relevance

A

Evidence is logically relevant if it has a tendency to make a fact of consequence more or less probable than it would be without the evidence.

In CA, relevant evidence must also be relevant as to a disputed fact.

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2
Q

Legal Relevance

A

Legal relevance is admissible if its probative value is substantially outweighed by unfair prejudice, delay, confusing the issue, or being repetitive.

In CA, relevant evidence shall not be excluded in any criminal proceeding unless subject to an exemption.

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3
Q

Personal Knowledge/Competence to Testify

A

In order for a witness to testify, they must be competent to do so by having personal knowledge about the matter they are testifying to.

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4
Q

Hearsay

A

Hearsay is an out-of-court statement offered for the truth of the matter asserted. Inadmissible unless an exception or exemption applies. (Prop 8 does not overrule HS).

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5
Q

HS: Party Opponent Exception (Vicarious Statement)

A

A person who works for a party in an employer/employee capacity and makes a statement within the scope of his employment and regarding his duties is an admissible statement against a party opponent.

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6
Q

Character Evidence

A

Character evidence is generalized information about a person’s behavior and is generally inadmissible

HONESTY ALLOWED

Exceptions: directly related to D’s charged offense as long as felony and occurred within 10 years)

CA: recognizes character evidence that relates to domestic violence and elder abuse

May only be introduced once D “opens the door” and introduces positive evidence of reputation or opinion about his traits

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7
Q

Impeachment

A

A witness on the stand may be impeached for their character of truthfulness or untruthfulness and their creditibility

Can be impeached with a variety of evidence

On cross exam, counsel is allowed to ask about specific acts of conduct for the purpose of impeachment, but can only ask about the facts and may not bring extrinsic evidence to prove otherwise.

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8
Q

HS: Business Records

A

Records or memos made in the regular course of business, while still fresh in the entrant’s mind, with personal knowledge or from a reliable source with personal knowledge, and properly authenticated, is admissible.

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9
Q

Best Evidence Rule

A

The BER states that when the contents of a writing are what is trying to be proved, then the best evidence is the writing itself and not testimony about the writing.

Only applies when contents of document are at issue or person testifying is relying on the contents when testifying

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10
Q

Authentication

A

In order for evidence such as emails, docs, or forms to be admissible, they must first be authenticated as being what they saying they are

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11
Q

Secondary Rule (CEC)

A

Similar to FRE’s BER. When a document is being admitted for evidence, it needs to be the original document unless unavailable or destroyed. Copied ok unless question re authenticity

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12
Q

HS Business Record

A

Records entered by someone in the regular course of business about standard procedures

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13
Q

HS Present Sense Impression

A

Statements made while an event is occurring or shortly thereafter will be admissible

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14
Q

HS: Admission by Party Opponent

A

Admissions by party opponents are admissible and an exception to HS under CEC and FRE

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15
Q

Admission - Silence

A

Where a person is accused of an act that a reasonable person would argue or correct is actually silent, admission may be presumed

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16
Q

HS Excited Utterance

A

A statement that is made as a result of a shocking or startling event during or shortly after the event

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17
Q

Multiple HS

A

When a HS statement also contains another HS statement within, each level must be admissible

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18
Q

Statement against interest - CA

A

In CA, a statement against interest is admissible as an exception to the rule against HS if the declarant is unavailable and it at the time it was made, it was against the dec’s pecuniary, penal, proprietary or social interest

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19
Q

Declarant Unavailable if…

A

Dead, mentally incapacitated, refuse to testify out of fear, or cannot recall information resulting from complete memory loss

20
Q

HS: physical or medical diagnosis

A

A statement made to a physician with the purpose of determining a medical diagnosis is admissible but any admission of guilt is severed

(Analyze medical/phd/bsn/rn degree)

21
Q

HS Statement Against Interest

A

A statement made against declarant’s pecuniary, penal, or proprietary interest. The court considers that you would not say these incriminating statements unless they were true. Dec UNAVAILABLE

22
Q

HS Vicarious Admission

A

An admission made by an employee/agent, made while employed by the employer, and within the scope of employment

23
Q

Offers to Settle

A

Offers to settle are not admissible HS because the court wants to encourage out of court settlements and this would discourage people from settling bc people would be afraid it would be used against them in court

24
Q

CA Prop 8

A

Proposition 8 provides that “relevant evidence shall not be excluded in any criminal proceedings.” This rule is subject to a number of exceptions, including privileges authorized by the CEC and hearsay exceptions

25
Q

CA: Scope of A/C priv

A

Unlike FRE, ACP ends when the client’s estate is settled

26
Q

Public record

A

A public record made by an authority under a determined duty of law to do so

27
Q

Confrontation clause

A

Testimonial statements are inadmissible under the confrontation clause because D has not had the opportunity to cross the declarant

Testimonial evidence are those made in preparation of the prosecutorial trial against a D

Non testimonial evidence on the other hand are admissible

28
Q

Secondary Evidence Rule

A

The SER prefers the introduction of original or duplicate copies of a document when the person testifying has first hand knowledge or if there is no other reasonable way to obtain the document in its printed form

CEC 352 balancing test: prejudical/probative

29
Q

HS: Subsequent Remedial Measures

A

A P may not offer evidence of a subsequent remedial repair to prove liability bc this would discourage individuals from making a repair once the problem is identified

POLICY!!!

30
Q

Lay Opinion

A

Lay opinions are admissible to help the trier of fact in its determination of facts and it assists in the determination of how much weight to give testimony.

Lay opinion may include estimates

31
Q

Expert Opinion

A

An expert is one with specialized knowledge in a certain field. The court makes that determination as to whether or not a person is considered an expert

Expert status is based on their education, experience, or training in a certain area

May provide opinions but not legal conclusions

32
Q

A/C Privilege

A

This privilege is created as soon as an attorney takes on the representation of a client

A L has a duty to keep confidential all matters re the client discussed and prepared to advance litigation

Client holds and may waive

Court may compel an attorney to testify to matters protected if necessary

33
Q

Nonresponsive objection

A

Attorneys can make an objection due to non-responsiveness

Look for over answers, yes or no, etc.

34
Q

Improper form objections

A

Compound, Leading, etc

35
Q

Dying declaration

A

A statement qualifies as a dying declaration if the declarant believes death is imminent and if the statement pertains to the cause or circumstances of her death.

Dec must be unavailable but doesn’t have to be dead. Only applicable in criminal homicide and civil cases.

36
Q

Present Recollection Refreshed

A

A witness may examine any item in order to refresh their testimony. Their testimony must be based on the refreshed recollection, not the item itself.

When the item used to refresh is a writing, the adverse party has a right to have the document produced, to inspect it, to cross-examine, and to introduce any other relevant evidence in the document.

37
Q

Spousal Privilege

A

Spousal privilege comprises two distinct privileges: spousal immunity and confidential marital communications. (Proposition 8 does not overrule privileges.)

38
Q

Spousal Privilege: spousal immunity

A

In California, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege. The spousal immunity privilege applies to testimony about events that occurred before and during the marriage. The spousal immunity rule applies to any kind of proceeding, not just criminal cases. The spousal immunity privilege can be asserted only during a valid marriage, the right to assert the privilege expires upon divorce or annulment

39
Q

Spousal Privilege: confidential marital communications

A

Communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. This privilege applies only to communications made during marriage. This privilege applies to civil and criminal cases. Both spouses hold this privilege.

TP: Generally, if the communication is overheard by a third party, the privilege is destroyed. However, the presence of the third party does not destroy the privilege if the first two parties do not know that the third party is present (e.g., an unknown eavesdropper).

40
Q

CA: HS exception: Declaration Against Interest

A

In California, a declaration against interest is admissible if the declarant is unavailable as a witness and the statement, when made: (i) was so far contrary to the declarant’s pecuniary or proprietary interest; (ii) so far subjected him to the risk of civil or criminal liability; (iii) so far tended to render invalid a claim by him against another; or (iv) created such a risk of making him an object of hatred, ridicule, or social disgrace in the community; (v) that a reasonable man in his position would not have made the statement unless he believed it to be true

41
Q

CA: HS exception: Declaration Against Interest

A

In California, a declaration against interest is admissible if the declarant is unavailable as a witness and the statement, when made: (i) was so far contrary to the declarant’s pecuniary or proprietary interest; (ii) so far subjected him to the risk of civil or criminal liability; (iii) so far tended to render invalid a claim by him against another; or (iv) created such a risk of making him an object of hatred, ridicule, or social disgrace in the community; (v) that a reasonable man in his position would not have made the statement unless he believed it to be true

42
Q

CA: HS exception: Contemporaneous Statement

A

In California, a statement offered to explain, qualify, or make understandable conduct of the declarant, and made while the declarant was engaged in such conduct, is admissible.

43
Q

HS exception: Effect on the listener

A

A statement offered to show the effect on the person who heard it is not hearsay

44
Q

HS Spontaneous statement (CA)

A

Excited Utterance

45
Q

Voice Authentication

A

When a statement is made by someone whose voice is only heard, but not seen, it must be authenticated. The voice can be identified by any person who has heard the voice at any time.

46
Q

Habit Evidence

A

Allowed to show the person acted in accordance or routine in a particular circumstance