Evidence Flashcards
Relevance
For evidence to be admissible in a court of law, it must be both logical and legally relevant
Logical evidence (FRE)
Evidence is logically relevant if it tends to prove/disprove a material fact
CA logical relevance standard
evidence is logically relevant if it is material to a disputed fact
Legal relevant
Evidence may be relevant if its probative value is substanitally outweighed by danger of unfair prejudice, confusing issues, misleading the jury, undue delay, wasting time or being needlessly cummlative
CA Prop 8
Prop 8 applies to all criminal trials in CA. It’s the Victim’s Bill of Rights and provides that all relevant evidence is admissible, subject to balancing, with exceptions, including 1) the exclusionary rule; 2) the secondary/best evidence rule; 3) hearsay exclusions; 4) rape shield rules; 5) privilege exclusions; 6) limits on prosecutor offering specific evidence prior to defendant opening the door.
CA 352 balancing
when there is a substantive likelihood that the evidence is more prejudicial than probative the court must conduct a balancing test when determining admission
When would relevant evidence by excluded for public policy reasons
subsequent remedial measures
settlement offers or negoitation
offers to pay medical expenses
withdrawn guility pleas
Liability insurance
CA specific- relevant evidence by excluded for public policy reasons
expression of sympathy
mediation statements and writting
Sympathy policy exclusion
, expressions of sympathy are inadmissible but accompanying statements of fault in connection with these statements are admissible.
Competence and Personal Knowledge
Non-expert witnesses must be competent and have personal knowledge of a matter to testify about the matter. Witnesses cannot be physically or mentally impaired and cannot be too young to understand the oath and the need to testify truthfully.
In CA competence is
presumed
Authentication def
A party must prove the item it seeks to admit is actually what the party purports it to be.
Evidence can be authenticated by
witness testimony or evidence of holding in a substantially unbroken chain of custody.
Vocal recognition
A voice may be identified by the opinion of anyone who has heard the voice at any time, even the same day or during current trial proceedings.
Signature recognition
A jury can verify the authenticity of a signature with an appropriate example to compare.
Best Evidence Rule / Secondary Evidence Rule (CA)
A party must provide the original document when testifying to contents of a writing. A photocopy is an acceptable substitute. Oral testimony is allowable only after showing original is not available for some reason other than misconduct.
CA Secondary Evidence rule accepts
accepts duplicates and hand-written evidence of the contents of an original document.
Character evidence
Generally, evidence of a person’s character is not admissible to show propensity. However, character evidence is generally admissible for any non-propensity purpose, such as when character is an ultimate issue in a case (i.e. defamation) or to impeach.
In criminal cases, a defendant may always provide evidence of his own character. Prosecution is not allowed
to do so until the defendant opens the door.
CA exception to D’s character
Prosecution can initate a showing of the D’s act of DV or elder abuse
V’c character
A defendant may provide evidence of the victim’s character to prove the defendant’s innocence - except rape. If so, prosecution can show the victim’s good character for the same trait, or the defendant’s bad character.
In CA for a victim’s character what are the only traits that can be introduce
violent
Sex Offense Cases
A victim’s sexual behavior is inadmissible except 1) to show the defendant and the victim had previous sex, evidencing consent, or by the prosecutor for any reason they deem fitting. This type of evidence cannot be introduced in a civil case.
D’s character - CA only can be proven by what type of evidence and when?
allows reputation and opinion evidence to prove character, whether on cross or direct.
Method of admission - Under the FRE, when character evidence is admissible, it may be proven in the following ways:
on direct by opinion or reputation testimony or
on cross, add speific acts
In CA the ds character may only be proven by
opinion or rep
In CA the v’s character may only be proven by
opinion, rep or specific acts
404b Prior Bad acts
Prior crimes are not admissible to show propensity. However, evidence of prior bad acts may be admissible for other relevant non-propensity purposes, such as proving Motive, Identity, Absence of Mistake or Accident, Intent, a Common Plan or Scheme, Opportunity, or Preparation.
Prior Convictions
Felony or misdemeanor convictions involving dishonesty are always admissible to impeach. Felonies not for dishonesty have a 10-year limit from latter of conviction or release from confinement. Requires probative value/prejudicial effect determination, and proper notice must be given.
In CA prior convictions requires to be tested under which statutes
CEC 352 balancing for moral turpitude crimes, and misdemeanors are admissible under Prop 8.
Prior Inconsistent Statements and when can you use extrinstric evidence
These statements are admissible to impeach. Extrinsic evidence is admissible only if relevant to a material issue and a proper foundation is laid.
CA - Prior Inconsistent Statements
admissible as non-hearsay when offered only to impeach a witness, and whether or not under oath.
Lay witness
is any person that is not an expert. They must take an oath to tell the truth, and have capacity to perceive, recall and communicate. Lay witness testimony cannot be based on specialized or scientific knowledge.
Lay witness - CA
witness must understand the legal duty to tell the truth. They may offer an opinion and tesitfy to scientic and specialized knowledge evidence if it is rationally based on the witness’ perception, and it is helpful to the jury.
Expert Witness
– Expert testimony is appropriate only when the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact. The witness must believe the opinion, it must be supported by fact and based on reliable principles.
Expert Witness in CA you use which standards
Kelly / Frye Standard
Daubert / Kumho Standard
Kelly / Frye Standard
where the opinion must be based on principles generally accepted by experts in the field;
Daubert / Kumho Standard
reliability is determined by publication, peer review, error rate, results are tested and have an ability to retest, and the method of determining the opinion has a reasonable level of acceptance in the community.
Consulting expert witnesses
These experts are retained by a party, but not expected to testify. They have a higher standard to meet in order to subpoena and are only discoverable upon a showing of exceptional circumstances under which it would be impractical to the other party to obtain facts by other means.
Who determines if the witness has sufficent knowledge
Judge
If a party asks that observing witnesses be excluded when other witnesses are testifying
judge must comply
Witness competency
Witnesses must testify based on personal knowledge, have an ability to communicate, and take an oath or make an affirmation to tell the truth. In CA, they must also understand the legal duty to tell the truth.
Hyponosis - CA rule
witnesses who have been hypnotized to refresh recollection are disqualified, except in a criminal case, where they were hypnotized by police using procedures that protect against suggestion.
In a crim case, an expert must not tesify
to a criminally accused mens rea
Learned Treatise Hearsay Exception
Information from learned treatises may be admissible if called to the attention of the expert witness upon cross or relied upon during testimony, and it is established as reliable. Statements may be read into evidence and need not be made by the expert. The jury is not allowed to bring them into the jury room because they may read the wrong passages. Admissible whether or not the witness is available.
Hearsay
Out of court statement that is offered to prove the truth of the matter asserted. Only admissible if an exception applies
Multiple levels of hearsay
each level must fall under an exception in order to be admissible
Nonhearsay statements
If a statement is offered to prove something other than the truth of the matter asserted, it is non-hearsay and is admissible.
Common non-hearsay statements include
1) verbal acts of independent legal significance; 2) statements offered to show the effect on the listener; 3) a prior inconsistent statement used to impeach; and 4) circumstantial evidence of the declarant’s state of mind (these show belief, attitude, knowledge or mental state).
A Declarant is considered unavailable
if 1) exempt due to privilege; 2) if they refuse to testify; 3) they do not remember the events in question; 4) death or illness; 5) they can’t be found by reasonable means. In CA, add: If declarant suffers total memory loss or refuses to testify out of fear.
Statement against interest
A statement made against one’s penal, proprietary or pecuniary interest when uttered, and would not have been made by a reasonable person unless they believed it to be true. Applies when declarant is unavailable and has no motive to lie. Must be corroborated in criminal cases. In CA, add societal interest.
Former testimony exception
Testimony given as a witness at a trial or hearing/deposition, is now offered against a party who had an opportunity and similar motive to develop it by direct/cross examination. Requires that the witness is unavailable.
Dying declaration
– In homicide or civil case, statement of declarant made while declarant believed they were dying, made about the cause or circumstances of their death. The declarant must be unavailable but does not need to be dead.
Dying declaration - CA exception
can be used for crim or civil case and Declarant must be dead
Past recorded recollection
– A recollection 1) is on a matter the witness once knew about but cannot recall well enough to testify fully and accurately; 2) was made/adopted while the matter was still fresh on the witness’ memory; 3) accurately reflects the witness’ knowledge. Admissible whether or not the Declarant is unavailable
A past recorded recollection may be read to the jury but may only be recieved as an ehibit if it is from
opponent
Present Recollection refreshed
A witness may examine any item to refresh the witness’ present recollection. Testimony must then be based on their recollection, and not a reading of the item. The adverse party is allowed to inspect the item and introduce relevant portions into evidence.
Statement of party opponet
A prior out of court statement by a party to the current litigation that is used against that party is not hearsay. The statement need not be against the declarant’s interest at the time it was made; it must only be contrary to the declarant’s present interest.
Adoptive admission
A declarant’s silence may constitute an adopted admission if the person heard the statement, remained silent, but a reasonable person would have denied the statement.
.
Unresponsive answer
An answer that goes beyond the scope of the question, or does not answer the question, and is subject to strike.
Vicarious admission
Not hearsay, a vicarious admission is one made by 1) an authorized spokesperson; 2) a principal or agent acting with the scope of their relationship; or 3) co-conspirators. In CA, not admissible in principal/agent situations.
Police sketches
an out of court statement of an unavailable witness and is inadmissible as hearsay if the teller (not the artist) is unavailable to testify.
Prior statements of ID
Statements of the declarant’s prior identifications are considered non-hearsay, however the declarant must testify and be subject to cross examination. A cop present during the declarant’s identification can submit an admissible statement to that effect.
Excitted Utterance / CA - Spontaneous Statement
An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of the excitement. These are admissible whether or not the declarant is available.
Present Sense Impression / CA - Contemporaneous ststament
A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
CA - Contemporaneous statement only qualifies if
explaining conduct of declarant made while declarant was engaged in such conduct. These are admissible whether or not the declarant is available.
Business record
A Record 1) made at or near the time of occurrence, or from information transmitted from someone with knowledge; 2) kept in the course of a regularly conducted activity of a business; 3) making that record was a regular practice; and 4) all the above are shown by testimony of the custodian. May be inadmissible if the opponent can show its preparation indicates a lack of trustworthiness.
CA - Business records rule
no opinions or diagnoses, and party introducing has the burden must show trustworthiness. CA does not admit police records as business records (considered hearsay) but allows them as official records. These are admissible whether or not the declarant is available to testify.
Absence of a Record of a regularly conducted activity
Evidence that a matter is not included in a record is admissible if 1) the purpose is to prove matter did not occur or exist; 2) a record was typically kept for that matter; and 3) opponent doesn’t show lack of trustworthiness. These are admissible whether or not the declarant is available.
Public records
are admissible if 1) they set forth the office activities; 2) about a matter observed while under a legal duty to report (except in a criminal case for a matter observed by police); or 3) shows factual findings of a legal
investigation. These are admissible whether or not the declarant is available.
CA - Public records rule
statements made by a public employee in the scope of duty, at or near the time of the act and with no indication of untrustworthiness.
Ancient documents
Prepared at least 20 years ago, kept in a place it would normally be kept and shows no signs of suspicion. In CA – 30 years old or older. These are admissible whether or not the declarant is available.
Then existing mental, emotional or physical condition
A statement of declarant’s then existing state of mind (motive, intent, plan) or emotional sensory or physical condition is an exception to hearsay rule. These are admissible whether or not the declarant is available.
Prior statements made under oath
Admissible if 1) statements are offered against a party that was present in previous trial (but now unavailable, and privity suffices in civil case); 2) same issues are involved; and 3) subject party had an opportunity to cross examine at the previous trial. In CA, privity not required, similar interest is ok.
Confrontation clause
- The 6th Amendment’s Confrontation Clause, applied to the states via the 14th Amendment, gives a criminal defendant the right to confront witnesses against him.
The out-of-court statement even if it falls within a hearsay exception or exemption, violates the confrontation clause when
1) the statement is “testimonial”; 2) the declarant is unavailable to be cross examined at trial; and 3) the defendant did not have an opportunity to cross-examine the declarant before trial.
testimonal statements
Statements made to grand juries, and to police when they are collecting testimony for use at trial, but not when assisting police in an on-going emergency.
Grand Jury rule
A defendant is not entitled to a lawyer inside the grand jury room, and illegally obtained evidence is permissible. Witnesses subpoenaed to appear before a grand jury are entitled to immunity.
Attorney client privilege
A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or the disclosure is impliedly authorized in order to carry out the representation. The client holds this privilege, and it can remain after the client dies.
CA - AC privilege
this privilege does not survive client (terminates when estate is settled) and is permitted if disclosure is required to prevent substantial bodily harm or death (and/or significant fraud/financial crimes per the FRCP).
AC privillege does not apply when
legal services are sought in furtherance of a crime, in litigation between client and attorney, or when joint clients are litigating.
Physican patient privilege
Not recognized in the FRE, but in CA exists for confidential patient communications for statements made during medical diagnosis. Does not apply if the physician/psychotherapist believes the patient is dangerous to himself or others, nor when the doctor is required to report to a public officer – for example, in child abuse cases.
Communication Privilege - H &W elements
Either criminal or civil
Confidential talks between H and W
The couple must be legally married at the time of
communication but survives divorce
Either spouse can refuse to disclose the information or prevent the other spouse from disclosing
Under communication privilege, who must waive in order to waive this privilege
both spouse
Testimonial Privilege
Applies in a criminal case
One spouse has to be called to testify
Must be a legal marriage at the time of testify
Covers anything said before or during the marriage
Ends at divorce
Witness spouse holds the privilege
What are exceptions to the H&W privilege
Statements about future crimes
Any converstations about spousal or child abuse
Statements made for medical dignosis or treatment
Exception only if 1) a statement made for and reasonably pertinent to medical diagnosis or treatment, 2) describes medical history; past or present symptoms, their inception or cause. These are admissible whether or not the declarant is available. In CA, only for child abuse/neglect victims under 12 years old.
Opposing party’s staement
statement made by a partty to the current litigation is not hearsay if an opposing party offers it. Considered nonhearsay
Judical Notice
Undisputed facts may be judicially noticed if they are capable of accurately and readily determined from sources whose accuracy cannot reasonably be questioned; or facts generally known within the territorial jurisdiction of the trial court. The court may accept, but in civil cases, jury must accept facts as conclusive, a criminal case jury may or may not, and in CA, both must accept.
Catch all hearsay exception
- If fitting no other category, a hearsay statement is admissible if 1) the statement provides circumstantial guarantees of trustworthiness; 2) the statement is strictly essential; and 3) notice is given to the adversary of that statement.
