Evidence Flashcards
Generally when we are looking for the best evidence rule you want the orginal. What kind of items are related to this rule
Writings, recordings and photographs,
You may use a copy under the best evidence rule if
its authenticated
authentication for best evidence rule means
no evidence of any tampering
when does the best evidence rule apply (2 ways)
when I’m trying to prove the contents of the document itself
you need the document to prove what the witness is testifying about
Counterargument to the best evidence rule
other available evidence can demonstrate
Completeness rule
If one party is admitting part of an overall writing, then the other party can require that the other part of the document.
the orginal recording is not required under the best evidence rule if
the opposing party has control of the original, was put on notice that the original would be a subject of proof at the trial, and fails to produce the original at the trial
hearsay
is an out-of-court statement offered to
prove the truth of the matter asserted
Statements that are not offered for the truth and thus not hearsay
words of offer and acceptance
Libel or slander
Verbal Acts to show motive or notice
Present sense impression
statement that was made while observing fact that is nonemotional
Think of a reporter
Excited Utterance (spontanous statement) and what words need to be included
While under excitement of startling event, a statement made w/o reflection which relates to ([CA] narrates, describes, or explains) the event
IE this is a statement made while I am excited
Shrieked, yelled, yelped
Then existing mental, emotional or physical state of mind
Statements that generally go to intent or emotional or physical statement of mind (pain). Cannot be used to prove statements of memory or belief unless in a will
Business record
Records of acts, conditions, events, transactions, opinions, or diagnoses made at or near the time of event with personal knowledge of matters during regular course of business. Must have a business duty to do it
Example of business record
timesheet
Statement for medical diagnosis or treatment statement for medical diagnosis, or treatment
statements related to past or present symptoms relating to diagnosis or treatment
Recorded rellocation
the witness once knew about this document, but now can’t remember made by the witness or he adopted it
Recorded rellocation may be
read into evidence
absence of business record
look for abscense of business record
Learned treatise
you’re looking at for the learned treatise, if an expert witness is relying on it
Ancient document (hearsay exception)
more than 20 years old and authenticated
Catch all excetion
says any other kind of a statement. Any other statement, that is trustworthy material. And in the interest of justice, we should admit it
Dying Declaration
D must be unavailable but does not need to be dead
D has to believe they are dying
D statement is about why their dying
only applies to homicie or civil case,
Statement against interest
Unavailable declarant where makes a statement, making him or herself look liable or guilty statement against my own interest AND it cannot be a party
Former testimony
Declarant is unavailable and a party in the former case,
the former case is about the same subject matter as the current case.,
made under oath,
they had the opportunity and or motive they had the opportunity and or motive to examine or cross examine the witness
Admissions are considered nonhearsay. What is an admission
statements made by a party
Vicarious admissions
statements made by employees of the company about the liability
Adopted admissions
silence when an reasonable person would have objected
Are jokes adopted admissions
No
Prior consistent statement
1) Prior statement by declarant
2) The same as current testimony
3) To refute charge of fabrication or motive
prior sworn inconsitent statment
a prior statement, made under oath,That’s inconsistent with my current testimony
Prior identification
declarant testifying about an erarlie identification
Right to confront witness
Right to confront a witness concerning an
out-of-court statement depends on if the
statement is TESTIMONIAL
Right to confront witnesses turns on whether
testimonal or not
What is considered nontestimonal
statement made to police during emergency
what is considered testimonal
statement not made during ane mergency
Is Physical and Demonstrative evidence admissiable
yes, generally
Example of physical and demonstrative evidence
scar, limp
Hearsay upon Hearsay
TWO different statements
* NOT Admissible unless both meet an
exception
Logical evidence definition
Evidence must be relevant for it to be admissible. It is relevant if it tends to prove/disprove a material fact ([CA] “a material fact in dispute”)
In CA logal evidence must be
([CA] “a material fact in dispute”)
Legal Relevance applies to the
balance probative value (PV) w/ risk of prejudice. A judge has broad discretion to exclude relevant evidence if its PV is substantially outweighed by the danger of unfair prejudice (UP) (e.g., gore, heroin), confusion of the issues, waste of time (e.g., speculative answer), or misleading the jury
What evidence is excluded due to public policy
subsequent remedial measures
settlement offers or negoitations
offers to pay medical expenses
Withdrawn Guilty Please
Liability Insurance
Expression of sympathy - CA
Mediation of statement of writing - CA
Subsequent remedial measures
Evidence of repair or precautions inadmissible to show culpability. Can use to show ownership or control or destruction of evidence, or to rebut claim that precautions were impossible
Settlement offers or negoitations
Inadmissible to prove liability for, or invalidity of, a claim at actual dispute as to validity or amount of liability. Must exclude all contextual statements attached to offer
Withdrawn guility pleas
Inadmissible as too prejudicial, minimal PV (but can waive inadmissibility
Liability insurance or lack of Can’t use to show culpability but Can use to show
ownership or control, to impeach, or as part of admission
Expressions of sympathy
relating to accident V inadmissible in civil cases, other admissions severable
Mediation statements and writings are inadmissible during
discovery or proceedings
Can you waive mediation statements and writings protection
yes
Authentication
Real or written evidence requires proof to support a jury finding that it is what the proponent claims
What does authentication usually require
first-hand knowledge or familiarity. Preponderance not needed
What are examples of self authenticating docs
certified public and business records, trade inscriptions ([CA] N/A), official pubs
Best evidence / secondary evidence rule
To prove the content of a writing or other tangible collection of data relevant to proving some material fact, the original must be introduced if available. Can still be hearsay
When is the original evidence not required
lost or destroyed (unless by opponent bad faith), opponent fails to produce, collateral matter, subpoena ineffective, independent source (personal knowledge), inscribed chattel
Competnency of witness depends on
1) have personal knowledge of the matter and 2) affirm/swear to testify truthfully
In CA where judges and jurors may testify if there is no objection, FRE says
i. Judge and jurors are incompetent to testify at trial.
who makes the inital conditional relevancy
judge
Judical notice allows a party to
prove” an adjudicative (non-collateral) fact by the court’s recognition
when must a judge take jducial notice
if a party requests and supplies necessary information
Character evidence
one’s disposition with respect to general traits
when is character evidence not allowed
to prove conduct in conformity therewith. (Just because Δ did [specific bad things showing similar character] before does not mean he did [charged act] in this case.)
What is MIMIC Evidence
MIMIC evid
Motive
Intent
Mistake (absence of)
Identity (signature m.o.)
Common plan
what r the 3 ways to prove character evidence
reputation
opinion
speific acts (on cross)
When can you use speific acts on direct
Δ opens the door or Δ alleges self-defense in homicide
In CA you can use rep/op/sp on direct and cross
In CA when the D opens the door and says V is of bad pertient character to show D’s innocence, P can only rebut in CA after
D’s evidene of V’s violent character
When can you bring in on direct evidence of character
when the character is an elment at issue
In what instances is when the character is an element at issue
i. Defamation (B said A is a thief). Defenses: reputation testimony, truth (A is indeed a thief)
ii. Negligent hiring (bring up all traffic offenses of employee)
iii. Negligent entrustment (loan car to someone, should have known not a good idea to lend it)
iv. Child custody (fitness as parent) v. Self-defense: Survivor’s reasonable belief of imminent deadly harm
vi. Entrapment: Δ had no predisposition commit the crime – but raises predisposition element for Π to rebut
What is habit evidence and what should you look for
semi-automatic response to a specific and frequent situation. For an organization, a habit is a routine practice of the org. Look for 2+ occurrences, “always,” “every day,” “frequently,” “instinctively”
when is a statement not hearsay because it being introduced for another purpose
legally operative facts of independent legal significance (e.g., K terms, defamatory words), effect on listener (notice, knowledge, motive), knowledge of speaker, or state of mind (insanity, belief)
In CA what are the two hearsay exceptions if the Declarant is unavailable
threat of physical harm and past physical or mental conditions
Threat of physical harm (CA exception)
Statement that describes or explains infliction or threat of physical injury on declarant is admissible if 1) made at or near time of infliction or threat, 2) circumstances indicate trustworthiness, 3) in writing, recorded, made to police or medical personnel
Present recollection revived
Testifying witness can refresh memory by looking at any evidence (no hearsay problem because evidence itself is offered into evidence)
- Past recollection recorded: A record that is on a matter
1) testifying witness once had personal knowledge of but now cannot recall well enough (refreshing attempted and fails), 2) was made or adopted by W when the matter was fresh in memory, and 3) accurately reflects W’s knowledge
Public records
Records made within scope of duty of a public employee, entered at or near time of event.
Examples of public records that are admissible
activities of the office or agency, description of matters observed pursuant to duty (inadmissible if untrustworthy or [FRE] police observations in criminal case), factual findings from investigation by authority (only in civil cases or [FRE] if used against gov’t in criminal cases)
What r other issues that can arise with public records
if a police record not qualifying as business record, it can be submitted under public records
absecence of public records as long as there was a diligent search
Prior judgeent against a D to prove an essiental document
Anicent documents are excpetions to hearsay because
Statements in 20YO+ document are admissible and self-authenticating ([CA] 30YO+)
Family Records are exceptions to hearsay because
Statements of fact concerning personal or family history found in family keepsakes
When can you use testimonal evidence and impechment
to attack crediability or truthfulness
what can a laywitness Can testify as to opinions or inferences only if testimony is
1) rationally based on perception (personal knowledge, 5 senses),
2) helpful to a clear understanding to determination of a material fact or of his own testimony, and
3) [FRE] not based on scientific, technical or other specialized knowledge (unless grossly apparent)
What requirements must an expert witness meet to be admissible
1) Specialized knowledge helpful to jury, 2) qualified as expert, 3) reasonable certainty of opinion, 4) testimony based on proper facts or data, 5) testimony based on reliable principles and methods.
What are expert reliability factors
1) ) generally accepted in relevant scientific community, 2) peer reviewed (capable of retesting), 3) published, 4) low error rate. [CA] Reliable if generally accepted
what can the expert witness not testify to
conclusory legal opinions, criminal Δ’s mental state if element of crime or defense
What is rehabilitation
Impeached W may be rehabilitated on redirect or by EE: W may explain original response; another W may testify to rep or op for truthfulness; pt may show prior consistent statement (only to defeat charge of fabrication) made before time of alleged motive to lie or exaggerate
exceptions to leading witnesses
) hostile (unwilling) witnesses, 2) adverse witnesses, 3) child witnesses, 4) solicit preliminary background information (“You’re licensed, right?”), or 5) refresh W’s recollection
what are other basis for objection to forms of question
nonresponsive
Q/A requiring speculation,
compound question
loaded question
argumentative calling for a narrative
What is nonresponsive and how do you fix it
(answer to different Q or no answer, may be stricken by motion to strike),
compound question
(more than 1 at a time),
Loaded questions
(assumes facts—answer requires unintended admission: “Have you stopped beating your wife?”),
Argumentive
(prompts W to draw legal conclusion),
Calls for narrative
asks for story, not facts
what are the 4 types of privileges
Attorney-client
spousal testimonal
Martital communications
Physican/pyschotherapist-patient prcillege (State only)
Attorney client privillege
Communication between client and atty (or representative employed to assist in rendering legal services, e.g., physician examines client at atty’s request)
intended by client to be confidential and made with purpose to seek legal advice is privileged indefinitely, unless waived by client ([CA] ends when estate distributed).
Attorney may invoke privilege on client’s behalf.
Voluntary disclosure waives privilege w/r/t/ disclosed material
What are the exceptions to ac privillege
FRE - what client should have known was a crime or fraud, between former joint clients, dispute between attorney and client,
CA-reasonably necessary to prevent death or serious bodily harm
Spousal testimonial which applies to criminal case in FRE it applies to civil/crim in
CA
Spousal priviellge is held by ___ and covers ? How can you waive it
i. Held by witness. Must be married at time of testimony. Covers observations and communications
What are exceptions to the spousal privillege
suits against each other, crime against a spouse or either spouse’s child, joint furtherance of future crime or fraud (spouses are co-Δ)
Martial communication is held by ___ and covers ? How can you waive it
Covers confidential spousal comm’n from during marriage. Waived by known eavesdroppers
Martital communication rule
Privilege not to disclose private communication between spouses (civil/crim)
Spousal testimonal privillege
Privilege not to testify against spouse in criminal cases ([CA] applies to civil/crim)
Physician / psychotherapist patient privilege
Confidential medical communication between professional and patient made with purpose of diagnosis or treatment. Patient holds privilege (doc may claim privilege on patient’s behalf if patient cannot)
Exceptions to Physician / psychotherapist patient privilege
patient puts his condition at issue (e.g., personal injury suit), important to prevent injury to a person, sought to aid planning of crime/tort
6A confrontation clause overrides hearsay and it is
a. Any prior out-of-court testimonial statements by an unavailable declarant are inadmissible against CRIMINAL Δ, unless Δ has had prior opportunity to x-exam declarant at the time of statement, absent forfeiture caused by Δ’s wrongful act intended to keep the witness from testifying
Prop 8 Exceptions (CHOP SUR)
Consiution
Hearsay
Open the door
Privilege
Secondary evidence rule
Unfair prejudice
Rape-sheild statutes
