Evidence Flashcards
Logical Relevance
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.
Legal Relevance
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.
Personal Knowledge/Competence to Testify
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.
Hearsay
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).
HS: Party Opponent Exception (Vicarious Statement)
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.
Character Evidence
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
Impeachment
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.
HS: Business Records
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.
Best Evidence Rule
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
Authentication
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
Secondary Rule (CEC)
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
HS Business Record
Records entered by someone in the regular course of business about standard procedures
HS Present Sense Impression
Statements made while an event is occurring or shortly thereafter will be admissible
HS: Admission by Party Opponent
Admissions by party opponents are admissible and an exception to HS under CEC and FRE
Admission - Silence
Where a person is accused of an act that a reasonable person would argue or correct is actually silent, admission may be presumed
HS Excited Utterance
A statement that is made as a result of a shocking or startling event during or shortly after the event
Multiple HS
When a HS statement also contains another HS statement within, each level must be admissible
Statement against interest - CA
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
Declarant Unavailable if…
Dead, mentally incapacitated, refuse to testify out of fear, or cannot recall information resulting from complete memory loss
HS: physical or medical diagnosis
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)
HS Statement Against Interest
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
HS Vicarious Admission
An admission made by an employee/agent, made while employed by the employer, and within the scope of employment
Offers to Settle
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
CA Prop 8
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
CA: Scope of A/C priv
Unlike FRE, ACP ends when the client’s estate is settled
Public record
A public record made by an authority under a determined duty of law to do so
Confrontation clause
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
Secondary Evidence Rule
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
HS: Subsequent Remedial Measures
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!!!
Lay Opinion
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
Expert Opinion
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
A/C Privilege
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
Nonresponsive objection
Attorneys can make an objection due to non-responsiveness
Look for over answers, yes or no, etc.
Improper form objections
Compound, Leading, etc
Dying declaration
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.
Present Recollection Refreshed
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.
Spousal Privilege
Spousal privilege comprises two distinct privileges: spousal immunity and confidential marital communications. (Proposition 8 does not overrule privileges.)
Spousal Privilege: spousal immunity
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
Spousal Privilege: confidential marital communications
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).
CA: HS exception: Declaration Against Interest
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
CA: HS exception: Declaration Against Interest
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
CA: HS exception: Contemporaneous Statement
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.
HS exception: Effect on the listener
A statement offered to show the effect on the person who heard it is not hearsay
HS Spontaneous statement (CA)
Excited Utterance
Voice Authentication
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.
Habit Evidence
Allowed to show the person acted in accordance or routine in a particular circumstance
