Evidence Flashcards
CEC Relevance
Evidence, including evidence relevant to credibility, having any tendency in reason to PROVE OR DISPROVE any disputed fact of consequence to the determination of the action.
Proposition 8
Relevant evidence shall not be excluded in any criminal proceeding, except
(1) character evidence
(2) privilege,
(3) hearsay, and
(4) CEC 352.
Only applies to impeachment and impeachment with illegally obtained evidence.
FRE 403/CEC 352
Relevant evidence may be excluded if its probative value is substantially outweighed by undue prejudice, confusion, or delay.
Only discuss if otherwise admissible, and at the end.
Objections - Form
(1) Leading
(2) Compound
(3) Calls for Narrative
(4) Argumentative
(5) Assumes facts not in evidence
(6) Ask and Answered
Objections - Answers
(1) Non-Responsive - Motion to Strike
Character Evidence General Rule
Evidence of a person’s character, when offered to prove that person engaged in particular conduct, is inadmissible [unless character at issue].
When Is Character At Issue?
Civil - Reputation in defamation
Criminal - Entrapment requirements an absence predisposition to sell (evidence of prior sale admissible)
SA Exception - FRE
In a criminal or civil case for sexual assault or child molestation, D’s prior bad acts of sexual assault or child molestation are admissible to prove character trait and conduct in conformity with that character trait.
SA Exception - CEC
In a criminal ONLY case for sexual assault, child molestation, domestic violence, or child abuse, D’s prior bad acts of all of them are admissible to prove character trait and conduct in conformity with that character trait.
Defendant Character (Mercy Rule)
In criminal cases, D may first offer opinion or reputation evidence of D’s relevant “good” character trait; then prosecution may either:
(1) rebut with opinion or reputation evidence of relevant character trait of defendant; or
(2) impeach the character witness using evidence of specific acts of D inconsistent with trait.
Victim Character FRE
In criminal cases, D may first offer opinion/reputation evidence of V’s relevant character trait; then prosecution may rebut with opinion/reputation evidence of
(1) victim’s relevant good character trait, and
(2) defendant’s relevant bad character trait.
In Homicide - if D claims self defenses and argues that V attacked first, prosecution may introduce opinion/rep of V’s peacefulness.
Victim Character CEC
In criminal cases, D may first offer all three types of character evidence of V’s relevant character trait, then Prosecution can rebut with all three types of character evidence of
(1) “good” character of V, and
(2) if introduced character trait of V is violence, prosecution can also introduce all three types of character evidence of D for violence.
Non-Character Purposes
Specific acts of a party are admissible for noncharacter purposes (i.e., purposes other than proving conformity of conduct to character trait):
(1) Motive
(2) Identity,
(3) Opportunity
(4) Plan
(5) state of mind,
(6) D’s mens rea.
Habit
Admissible to show that the party likely acted in conformity with habit. Requires the repeated same response to the same stimulus.
Custom
Similar fact pattern regarding business practice, the evidence is admissible as a “custom”.
Policy Exclusions
(1) Subsequent Remedial Measures
(2) Offers of Compromise
(3) Offers to Pay Med Expenses
(4) Liability Insurance
(5) Plea Offers
Subsequent Remedial Measures
FRE:
Prohibits admission to prove negligence, fault, or damages, in negligence and product liability cases.
Permits admission for other purposes, like proving ownership, control, or feasibility of precautionary measures or alternate design, if controverted, or impeachment.
CEC:
Prohibits admission to prove negligence or liability.
Permits to prove product defects (and thus that D is liable).
Offers of Compromise
Requires existence of actual dispute as to liability or damages.
The entire statement is excluded, including admissions made with the offer of compromise or settlement negotiation.
Offers to Pay Medical Expenses
FRE:
Excluded BUT admissions made with the offer are admissible.
CEC.
Offers and other humanitarian offers are excluded, AND accompanying admissions are excluded. (E.g., an offer to pay funeral expenses or, after D negligently damages P’s house, an offer to put P up in a hotel.)
Liability Insurance
FRE:
Inadmissible to prove liability or fault, but admissible to prove ownership or control
Absence of liability insurance is inadmissible.
CEC:
Inadmissible to prove liability or fault, but admissible to prove ownership or control
Absence of liability insurance is not necessarily inadmissible – opponent must argue inadmissibility under CEC 352
Offer of Pleas
FRE:
Offers and withdrawn pleas are inadmissible in ALL cases.
CEC:
Same as FRE, but admissible to impeach if they testify inconsistently with the plea.
Hearsay Steps
(1) Define hearsay,
(2) Discuss whether statement was an out of court statement (or there was no true statement at all), then
(3) Discuss whether it is being used to prove its truth or non-hearsay purpose.
Hearsay Rule
An out of court statement used to prove the truth of the matter asserted.
Watch out for: Gestures, “I have insurance to cover you” used to show conscious of liability
Non-Hearsay Purposes
(1) Effect on listener
(2) Verbal Acts
(3) Giving of warning or notice, or consciousness
Hearsay Exclusions
Admissions (Statements) of party opponents
- Admissions
- Vicarious Admissions
- Co‐Conspirator Admissions
- Adoptive Admissions
- Authorized Admissions
Prior Statement of Witnesses:
- Prior Inconsistent Statement
- Prior Consistent
- Prior Idenficiation
Vicarious Admission Difference
FRE: Still employed - Course and Scope
CEC: If employer liability is based on employee liability, and employee makes an admission (respondeat superior)
Prior Inconsistent Statement Difference
FRE:
- Always admissible to impeach
- Admissible for truth ONLY if made under oath
CEC:
- Always admissible to impeach AND for substance
Prior Statement of Identification Difference
CEC: ONLY in criminal cases
