Evidence Flashcards
Definition of Hearsay
An out-of-court statement by a declarant offered to prove the truth of the matter asserted.
Who can be a declarant (hearsay)?
Only a person
What can be a statement (hearsay)?
Oral, written, or nonverbal communication intended as an assertion
Not Hearsay to show
(1) Legally operative facts
(2) Effect of recipient
(3) State of mind
(4) Identification if not for the truth of the matter
(5) Impeachment and Rehabilitation
What is Hearsay within Hearsay
Double level each needs an exception
Not Hearsay 801(d)
(1) Prior inconsistent statements made. If made in a prior proceeding may also be substantive evidence
(2) Prior consistent statements to a. rehab a witness or b., demonstrate credibility where they were made before the motive arose to lie
(3) Prior Identification, only if the witness is now testifying
What is required for relevance?
Evidence is relevant if it has a tendency to make a fact more or less probable and that fact is of consequence in the action.
What is the test for relative value?
Relevant evidence is admissible unless its probative value is substantially outweighed by the risk of unfair prejudice.
Elements for Dying Dec?
- Declarant believes death is imminent
- Decalrant’s statement is about the cause of their imminent death
- Declarant is unavailable
- Statement used in homicide of civil case related
When is authentication required?
When any tangible evidence is presented.
What is required for authentication?
Must present sufficient evidence for the court to find the item is what it is claimed to be.
What is the best evidence rule?
The best evidence rule requires the production of the original or a reliable duplicate when the contents of a document are at issue.
Applies to documents, recordings, and photos.
What is the rule on statements against interest?
A statement against interest will be admitted if the person making the statement is unavailable and (1) the statement was against interest, and (2) would not be made by a reasonable person unless true.
What’s the rule for effect on listener?
A statement offered to show the effect on the listener is not hearsay because it is not being offered for the truth of the matter asserted.
What is the rule on subsequent remedial measures?
Evidence of subsequent remedial measures is not admissible to show proof of negligence.
It may be admissible for another purpose.
When is a lay opinion admissible?
Opinions are generally inadmissible by lay witnesses.
They are admissible when:
(1) they are rationally based on the witness’s perception, (2) they are helpful to a clear understanding of the witness’s testimony, and (3) they are not based on scientific or specialized knowledge.
When is expert witness testimony admissible?
When the court determines that the witness’s (1) scientific, technical, or specialized knowledge is reliable, and (2) will assist the trier of fact in understanding the evidence or determining a fact at issue.
What must a witness have to testify?
Personal knowledge, unless they are an expert.
What is the test for witness competency?
- Personal Knowledge, understand the difference between the truth and a lie, give an oath
When is a witness unavailable for hearsay purposes?
- Exempt by privlagee
- Refuses to testify
- Lacks memory of the matter
- unavailable due to death, health, or disability
- absent and cannot be compelled
What is the rule on Prop. 8?
Prop. 8 is part of the California Consitution and applies to all California criminal cases.
under Prop 8 all relevant evidence must not be excluded, however, there are exceptions for hearsay, prejudice, privilege, and due process.
What are the requirements for a business record?
- Made in the regular course of business
- kept in the regular practice
- made at or near the time of events
- by a person with personal knowledge
- who is under a duty to make such records.
What are the requirements under the confrontation clause?
Under the six amendment, a defendant has a right to confront their accuser.
