Evidence Flashcards
Relevant**
CEC/FRE
Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Proposition 8
Under Proposition 8, Relevant evidence only applies to Witness Impeachment rules and impeachment with illegally obtained evidence in violation of 4th, 5th, and 6th Amendments.
If you get a character evidence issue, you should mention that Proposition 8 does not apply to change the character evidence rules.
Relevant evidence shall not be excluded in any criminal proceeding, BUT DOES NOT APPLY TO:
1. Privilege
2. Hearsay
3. Evidence Code Section 352
4. Character Evidence
CEC 352/ FRE 403
The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
Leading Question**
Leading question is one that suggests the answer in the question. Leading questions are permitted on cross-examination and on the examination of an adverse witness or hostile witness.
Non-responsive answer**
Non-responsive answer is one that goes beyond the scope of the question. To the extent that an answer is non-responsive, it is subject to a motion to strike.
Personal Knowledge/Foundation
whether the witness is shown to have personal knowledge - aka “presentation”
An examining attorney may not ask a witness to speculate or hypothesize as to the existence or meaning of a fact.
Compound question
Compound question either has two verbs or two independent clauses in the same question
Calls for a narrative
not stated rule
(“Tell us what happened next …”)
Argumentative question
Argumentative question asks the witness to resolve an apparent contradiction in their testimony
Assumes facts not in evidence
Questions stating facts that was not established by prior evidence
Asked and answered
repeating the questions in the same examination
Improper Questions
not rule
Improper questions are subject to Objections
Improper Answers
not rule
Improper answers are subject to Motion to Strike
Character Evidence
General
The use of prior conduct to infer a trait, and then the use of that trait to suggest or infer that the trait makes it more likely that a party has engaged in particular conduct at issue in the case.
Character Evidence re: civil case
civil case/model answer/skip
[Evidence of a character trait] Character evidence, including specific conduct, is inadmissible in a civil case unless the character trait is in issue.
Character in Issue
Usually, character evidence is inadmissible to prove conduct unless character is in issue. Where character is in issue, all three types of character evidence (opinion/reputation/specific conduct) are admissible.
Civil case - Types of claims character evidence can be admissible
Civil:
1. reputation in a defamation case
2. negligent entrustment
Criminal:
1. entrapment defense
2. hate crimes
3. sexual assault
4. domestic abuse and child abuse
Exception where Character Evidence is Allowed
FRE
Whe the Claim is criminal charge or civil claim based on sexual assault or child molestation, D’s prior bad acts of sexual assault or child molestation are admissible to prove character of predation and thus conduct in conformity with character in current case.
Exception where Character Evidence is Allowed
CEC
The character exception for criminal cases in FRE is the same, but CA does not have an exception for civil actions based on sexual assault or child molestation and is inadmissible to prove propensity. But California does allow similar acts to prove propensity in domestic violence and child abuse cases.
Mercy Rule
FRE/CEC
Under the Mercy Rule in FRE and CEC, criminal defendant must first offered the relevant character evidence, only in the form of opinion or reputation. Then the prosecutor may offered only relevant opinion or reputation character evidence of the defendant’s same bad character.
The prosecutor may also ask the character witness about their knowledge of the defendant’s specific conduct that are inconsistent withwhat they testified about the defendant’s character trait, not to prove those acts or the defendant’s character, but to test and impeach the character witness’s standard of evaluating the defendant’s character trait.
Victim Character Evidence
FRE
Under FRE, the defendant must first offer evidence of the victim’s character evidence, only in the form of opinion and reputation. Then the prosecution can offer evidence of both the victim’s good character and the defendant’s same bad character trait.
In federal cases of homicide prosecutions, when the defendant introduces evidence that plaintiff attacked first, the prosecution may introduce the victim’s peaceable character for the first time, only in opinion or reputation evidence.
Victim Character Evidence
CEC
In California, when the defendant first offered victim’s relevant character evidence, in any three forms (opinion, reputation, or specific acts), the prosecution may introduce all three types of the victim’s good character.
But in California, the prosecution can only offer evidence of the defendant’s same character trait if defendant introduces evidence of the victim’s character for violence. Thus, if the defendant introduces evidence of the victim’s violent character, the prosecutor may also introduce evidence of all three types of the defendant’s character for violence.
Specific Acts - Character Purpose
Not in model answer
Evidence of specific acts is not permitted to prove character (other than in sexual assault or misconduct cases), except: (1) where character is in issue in civil and criminal cases; (2) on cross-examination to impeach a character witness’ credibility—which is not using the evidence as character evidence but to test the character witness’ standard for the defendant’s character trait; and (3) in California, as evidence of the victim’s character and the defendant’s character in response to such evidence of the victim’s violent character.
Specific Acts - Non-Character Purposes
Model Answer
Evidence of specific conduct can be used to prove [non-character evidence], which is a non-character purpose.
List of non-character purposes:
a) Common plan or scheme
b) Identity
c) Motive
d) Opportunity
e) State of mind
f) Defendant’s mens rea
g) Notice
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