Evidence Flashcards
Evidence
Roadmap
- Description of Trial At Issue - identify elements of cause of action, crime, and defenses to determine relevance
- Identify Jurisdiction - CA or fed?
- Know when to apply the difference - if DIVERSITY in Fed, may still be CA law
- Address each piece of evidence separately
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1. Relevance
2. Foundation, Personal Knowledge, Presentation
3. Form of Question/Answer
4. Character Evidence
5. Impeachment by Prior Bad Acts/Convictions
6. Hearsay
7. Hearsay Exclusions/Exceptions
8. Opinion Evidence
9. Judicial Notice
10. Prop 8
11. FRE 403/CEC 352
Evidence
Relevance
Evidence is relevant if:
- It has any tendency to make a fact more or less probable than it would be without the evidence and
- The fact is disputed and of conquence to the determine of the action.
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FRE 403
Relevant evidence may be excluded if its probative value is substantially outweighed by undue prejudice, confusion, or delay.
Evidence
Foundation
For testimony to be valid, Witness must have been able to perceive the subject matter to which W is testifying. In addition to personal knowledge, must testify from present recollection.
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Must also make oath or affirmation to tell truth.
Evidence
Questions
Improper questions are subject to objections.
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Leading
A leading question suggestis the answer within the equestion, they are only permitted:
- On cross-examination, and
- On direct examination of an adverse or hostile witness
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Compound
A compund question has either two verbs in the same question, or two independent clauses
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Calls for a Narrative
Presents an open-ended question, which give the other party no notice as to what the witness will say.
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Argumentative
Asks the witness to resolve an apparent contradiction in their testimony.
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Ask and Answer
Repeats question previously asked, except where intervening testimony justifies asking the question again.
Evidence
Answers
Improper answers are subject to motion to strike.
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Non-responsive Answer
Answer that goes beyond the scope of the question. Subject to motion to strike to the extent that the answer is non-responsive.
Evidence
Character Evidence
Admissible Uses
Overview
Generally, evidence of a person’s character, when offered to prove that person engaged in particular conduct, is inadmissible.
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Character at Issue
Character evidence is admissible where character is an essential element of charge, claim, or defense.
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(1) Once Defendant “Opens the Door” to Character Evidence (Mercy Rule)
(2) Prosecutor in a Homicide Case: Victim’s Trait of Peacefulness
(3) MIAMI KOPP (Motive, Intent, Absence of Mistake or Accident, Identity, Knowledge, Opportunity, Preparation, Plan)
(4) Evidence of Habit
(5) Prior Crimes, Wrongs, & Acts
Evidence - Character Evidence
Sexual Assault, Child Molestation, Domestic Violence or Child Abuse
Sexual Assault, Child Molestation, DV, or Child Abuse
Federal Rule:
In civil or criminal case for sexual assault or child molestation, a defendant’s prior bad acts of sexual assault or child molestation are admissible to prove character trait and conduct in conformity with character trait.
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CA Rule:
In a criminal case for sexual assault or child molestation, a defendant’s prior bad acts of sexual assault or child molestation are admissible to prove character trait and conduct in conformity with character trait.
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In criminal case for domestic violence, elder abuse, dependent abuse, or child abuse, defendant’s prior acts of the same type of abuse are admissible to prove character trait and conduct in conformity with character trait.
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Evidence - Character Evidence
Defendant Character (Mercy Rule)
In criminal cases, the defendant may first offer opinion or reputation evidence of defendant’s relevany “good” character trait; then the prosecution may either:
- Rebut with opinon or reputation evidence of relevant character trait or defendant; OR
- Impeach the character witness using evidence of specific acts of defendant inconsistent with trait
Defendant “opens the door”
Evidence - Character Evidence
Victim’s Character
Federal
In criminal cases, once defendant offers opinion/reputation evidence of Victim’s relevant character trait, the prosecutor may rebut with opinion/reputation evidence of:
- Victim’s relevant good character trait, AND
- Defendant’s relevant bad character trait.
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In criminal homicide cases, if Defendant produces evidence that Victim is first aggressor, then prosecutor may opinion/reputation evidence of Victim’s peacefulness
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California
In criminal cases, once defendant offers evidence of Victim’s character, the prosecutor may rebut with evidence of
- Victim’s “good” character, AND
- If Defendant introduces evidence of Victim’s violence, character evidence of Defendant’s violence
Evidence - Character Evidence
Rape Shield
Character evidence is prohibited to prove Victim’s consent for sexual crimes:
- In criminal cases
- In civil cases for sexual harassment, assault, or battery
Evidence - Character Evidence
Specific Acts for Non-Character Purposes
Specific acts of party admissible for noncharacter purposes
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Motive
Intent
Absence of
Mistake or Accident
Identity
Knowledge
Opportunity
Preparation
Plan
Evidence - Character Evidence
Evidence of Habit & Custom
Not character evidence
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Must be:
- Repetitive;
- Predictable; and
- Predictive.
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Evidence of Habit
Admissible to prove that an individual acted in conformity with the habit on a specific occassion.
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Evidence of Custom
Admissible to prove that an organization conformed its operations to custom on a specific occasion.
Evidence - Character Evidence
Similar Occurences
Evidence of similar occurences is admissible when:
- Used to prove relevant proposition other than character, AND
- The similar occurences are substantially similar to the issue in the present case.
Evidence - Policy Exclusions
Policy Exclusions
- Subsequent Remedial Measures
- Offers of Compromise
- Offers to Pay Medical Expenses, Humanitarian Offers
- Liability Insurance
- Withdrawn Pleas
Evidence
