Evidence Flashcards
I. Relevancy
Logical Relevancy
Evidence is logically relevant when it tends to make any fact of consequence more or less probable. In CA, the rule is simply, “evidence is relevant if it is material to a disputed fact.”
Legal Relevancy
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one of the following: Unfair prejudice, confusing the issues, misleading the jury, undue delay, waster time, or needless cumulative evidence.
California Prop 8
Prop 8 Applies to all criminal trials in CA. It’s the Victim’s Bill of Rights and provides that all relevant evidence is admissible, subject to balancing, with exceptions, including:
- The exclusionary Rule;
- The secondary/best evidence Rule
- Hearsay exclusions;
- Rape shield Rules
- Privilege Exclusions
- Limits on Prosecutor offering Specific Evidence prior to defendant opening the door.
CA 352 Balancing
When there is a substantial likelihood that the evidence is more prejudicial than probative the court must conduct a balancing test when determining admission. (Include for CA).
II. Character Evidence
Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character trait.
Purpose Offered - Character Evidence
Purpose offered:
a. to show character where character itself is at issue (admissible)
b. To show probably past conduct in conformity with character (not admissible)
c. to impeach
Character - Types of Evidence
a. spec acts
b. opinion
c. reputation
Defendant’s Exception - defendant in a criminal case may introduce evidence of a pertinent character trait of the defendant to prove that he did not commit the crime he is charged with committing. By doing so, however, the defendant thereby “opens the door” to rebuttal “character” evidence by the prosecution.
III. Impeachment
Refers to the introduction of evidence (intrinsic/extrinsic) to discredit the testimony of a witness.
Honesty/Veracity
Prior Bad Act
Witnesses may be cross-examined about a prior bad act involving dishonesty so long as there is good faith basis for asking the question.
Impeachment
1. Honesty/Veracity
A. Prior Bad Act - not admissible to show propensity, okay for non-propensity - motive, identity, intent, common plan, scheme, or preparation.
B. Conviction of Crime - Felony or Misdemaneour involving dishonesty is always okay; otherwise, crimes have a 10-year limit and are subject to a balancing test.
C. Poor Reputation for Truthfulness -always ok if D opened the door w/ Character evidence.
- Bias
Improper motive to testify e.g., financial gain, relation to a party, hatred of a party.
- Prior Inconsistent Statements
Evidence that contradicts the witness’s trial testimony.
- Contradiction
To prove a portion of witness testimony is false or erroneous by establishing that the facts are different from what the witness testified.
IV. Documentary Evidence
Written matter introduced at trial must be relevant, authentic, and comply with the best evidence rule, if applicable (three-prong analysis)
Three Prong for Documentary Evidence
- Relevancy (logical/legal)
- Authentication - writing must be authenticated. To authenticate writing, the proponent must produce evidence showing that the item is what the proponent claims it is.
- Best Evidence Rule - original writing, recording, or photograph is required to prove its content, unless the original is shown to be unavailable, through no fault of the proponent.
Secondary Best Evidence Rule - In CA, duplicates, hand-written evidence, or oral testimony is allowed if the original is unable - Hearsay - Exemptions, Exclusions (Non-Hearsay), Exceptions
- Privileges - Attorney Client, Marriage
- Parole Evidence Rule - bars extrinsic evidence, including prior or contemporaneous oral agreements and prior or contemporaneous written agreements, that contradict or create a variation of a term in writing that the parties intended to be completely integrated.
V. Hearsay
An out of court statement that is offered to prove the truth of the matter asserted. Only admissible if it falls under an exception.
Multiple Levels of Hearsay
Hearsay within hearsay, where each level must all within an exception in order to be admissible.
Out of Court Declarant
A declarant is deemed unavailable if:
- exempt due to privilege
- if they refuse to testify;
- they do not remember the events in question
- death or illness
- they can’t be found by reasonable means.
Out of Court Statement
a. oral
b. written
c. conduct
Offered for the Truth Matter Asserted
If the statement contains an assertion and is logically relevant to prove the truth of the matter asserted, the statement is hearsay.
Exclusions
Non-Hearsay Statements
If a statement is offered to prove something other than the truth of the matter, it is non-hearsay and admissible. Common non-hearsay statements include:
a. Verbal acts of independent legal significance - the statement itself has legal significance (solicitation, defamation, contract)
b. Statements offered to show the effect on the listener - put on notice of some info, obtained knowledge, awareness, or notice.
c. Prior inconsistent statement used to impeach, and - makes a statement that is either consistent or inconsistent, respectively, with a previous statement given at an earlier time such as during a discovery, interview, or interrogation
d. circumstantial evidence of the speaker’s state of mind - Declarant’s then existing mental, physical, and emotional condition.
Non-Hearsay Exemptions (PAPP)
Federal Exemptions
a. Prior inconsistent statements - admission to impeach witnesses.
b. admission of a party opponent - a statement made by the party against declarant interest, party, or opponent.
c. prior consistent statements - a statement made consistent with testimony
d. prior identification - prior statement identifying a person made after perceiving him.
V. Exceptions to Hearsay Rule
1. Dying Declaration (u)
Declarant unavailable, declarant believes death is imminent and certain, statement relates to cause of death, personal knowledge
- Excited Utterance
In CA, Spontaneous Statement
A statement made while declarant under stress or startling event, statement relates to a startling event, personal knowledge
- Present Sense Impression
In CA, Contemporaneous
A statement made contemporaneously with an event or condition, a statement uttered immediately upon perception, or thereafter.
- Admissions of a party opponent
Statement/conduct of a party-opponent offered as evidence against that party.
- Declaration Against Interest (U)
A statement made against one’s penal, proprietary or pecuniary interest when uttered and would not have been made by a reasonable person unless they believed it to be true. Applies when the declarant is unavailable and has no motive to lie.
- State of Mind
7. State of Body
Declarant’s then existing mental, emotional, or physical condition.
Hearsay - All Writing
8. Former Testimony (U)
Oath and opportunity for cross-examination at the prior proceeding, the identity of parties, the identity of issues, declarant unavailable.
- Past Recollection Recorded (A)
Writing prepared or adopted by a witness, the matter was fresh in witness memory, witness vouches for the accuracy of writing, a witness has an insufficient present recollection of facts to testify, personal knowledge. Must be read into evidence.
- Business Record
The record was made at or near the time by or from information transmitted by someone with knowledge, the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit, making the record was a regular practice of that activity, and all these conditions are shown by the testimony of the custodian or another qualified witness or by certification.
- Judgments
The judgment was entered after a trial or guilty plea, but not a solo contender plea. The conviction was for a crime punishable by death or imprisonment for more than a year. The evidence is admitted to prove any fact essential to the judgment, and, when offered by the prosecutor in a criminal case for a purpose other than impeachment, the judgment was against the defendant.
Prior Identification (A)
a previous out of court identification of a person.
Prior Inconsistent Statement (A)
These statements are admissible to impeach extrinsic evidence is admissible only if relevant to material issue proper and foundation is laid.
Prior Consistent Statement (A)
When a prior consistent statements are made in circumstances that give them probative value for purposes of rehabilitating the witness, are non-hearsay because they are not offered to prove the trust what they assert.
Federal Catchall
a. the statement has equivalent circumstantial guarantees trustworthiness
b. evidence of material fact
c. more probative of fact than any other evidence which proponent could produce
d. serves interests of justice; and
e. proponent gives reasonable notice to adverse party in advance of trial as to nature of hearsay.
VI. Privileges
A privilege is a rule of law that protects from compelled disclosure of confidential communications between parties to a protected relationship.
Privileges
MNEMONIC: Relationships Can Create Happiness With Exceptions
Relationship Communication Confidential Holder Waiver Exceptions
Relationship
a. Attorney/Client - Client, Corporate Client
b. Marital Relationship - marital testimonial privilege and the confidential martial communications privilege.
c. Physician/Patient - Patient
d. Psychotherapist/Patient - patient
Communication
Recognize a presumption that disclosure made in the course of privileged relationships was made in confidence.
Confidential
Communication must be confidential and necessary for the accomplishment of a legal purpose.
Holder
Waiver
Exceptions
Flow of Testimony
Objections
Flow of Testimony
- Direct Examination - Leading questions are not permitted unless the witness is hostile. A leading question is framed to suggest desired answers.
- Cross-Examination - Leading questions are usually permitted, and cross-examination is limited to the subject matter of the direct examination.
- Re-Direct - is limited to the subject matter of the cross-examination.
- Re-Cross - is limited to the subject matter of the re-direct.
Objections
*NUCALF
- Narrative - Questions calling for a narrative are too broad (e.g., “ So what happened?”)
- Unresponsive - The witness’s answer is unresponsive to the question.
- Compound - Two questions are contained in one question (e.g., Did you beat your wife & have her make your sandwich?’)
- Argumentative - The question is unnecessarily combative (e.g., Do you expect the jury to believe this nonsense?”)
- Leading - The question itself is phrased to suggest an answer desired.
- Facts - Assumes facts not in evidence (“When did you make you will?” When there is no evidence the witness ever made a will.”)
* NUCALF
Relevancy
- Logical
- Legal
- Limited Admissibility
Character Evidence
- Purpose Offered
a. Char itself in issue
b. probable past conduct
c. to impeach - Type of Evidence
a. spec acts
b. opinion
c. reputation
Impeachment
- Hon/Veracity
a. Prior Bad Act
b. Conv. Crime
c. Poor rep- truthfulness - Bias
- Prior IS
- Contradiction
- Att on Sensory Perceptions
* Hearsay
Documentary Evidence
- Relevancy
- Authentication
- Best Evidence
- Hearsay
- Privileges
- Parol Evidence Rule
Hearsay
- Out of Court - Declarant
- Out of Court Statement
a. oral
b. written
c. conduct - Offered for TMA
- Exclusions - State of Mind, Effect on Listener, Knowledge, Words of Indp. Signficance
- Exemptions FRE
- Exceptions
Hearsay Exceptions
- Dying Declaration
- Excited Utterance
- Present Sense Impressions
- Admission
- Dec Against Interest
- St of Mind
- St of Body
8. Former Testimony 9 Past Rec Rocorded 10. Business Record 11. Official Record 12. Judgments 13. Ancient Documents 14. Learned Treatises
- Family Pedigree
- Rep. Evidence
- Prior ID
- Prior IS
- Prior CS
- Fed Catch-All
- Physical Abuse
- Lay Opinion
Privileges
- Relationship
- Communication
- Confidential
- Holder
- Waiver
- Exceptions
Relationships Can Create Happiness With Exceptions
