Evidence Flashcards
CA Prop. 8
Under Prop. 8 of the CA Constitution, any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under the CA Evidence Code (CEC) 352, which gives a court discretion to exclude relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice.
Logical relevance
Evidence is relevant if it has a tendency to make a fact more or less probable.
In CA, it must be relevant to a disputed fact.
Legal relevance
Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
Opinion testimony
Opinion testimony is permitted if a witness has personal knowledge and are willing to take an oath.
When are lay opinions permitted
Permitted if based on W’s perception and helpful to understand W’s testimony
When are expert opinions permitted
Permitted if the subject matter is technical or specialized and the expert’s opinion will help the trier of fact understand the evidence/facts.
Daubert test
Under the Daubert test, experts must be 1) qualified, 2) testimony based on facts/data, 3) based on reliable principle/methods, and 4) reliably applied to case facts.
CA Frye test
requires a showing that the expert’s scientific theory is generally accepted as valid and reliable in the relevant field.
Authentication
Tangible evidence must be authenticated, meaning there must be evidence to support a finding that the thing is what the party claims it is.
Best evidence rule
When attempting to prove the contents of a document, the original or a reliable duplicate must be produced if 1) W is relying on the doc to testify, or 2) the contents of the doc are at issue.
In CA, this rule is called the secondary evidence rule.
Character evidence to prove conduct in conformity with character rule
Evidence of a person’s general behavior or past acts is inadmissible to prove conforming conduct.
Exception to character evidence to prove conduct in conformity with character rule
An exception exists in both civil and criminal cases when character is an essential element of a claim or defense.
In criminal cases, an exception also exists when the D opens the door.
Criminal D opens the door to character evidence by proffering their own good character
D may introduce evidence of their own good character by calling a W to testify as to reputation/opinion. This opens the door for the prosecution to rebut D’s evidence by calling a W to give reputation/opinion evidence about the same trait. The prosecution can also cross examine D’s W about a specific act committed by the D that relates to the trait, but it must be based on good faith and not a hunch.
Criminal D opens the door to character evidence by attacking V’s character
D may introduce reputation/opinion evidence of V’s trait relevant to D’s defense (e.g., self defense). This opens the door for the prosecution to rebut by introducing reputation/opinion evidence that V is not violent. The prosecution can also introduce evidence that D has the same trait that D accused the V of having.
Rape shield exception
V’s sexual behavior is generally inadmissible unless introduced to prove consent, another party is the source of the evidence, or V/D’s previous consensual encounters.
Other purposes of character evidence
Impeachment
Specific prior acts for MIMIC
Impeachment
A party can use a prior conviction or character evidence to impeach the credibility of a W or D.
Prior convictions for impeachment
Prior convictions may be used to impeach depending on the timing and type of conviction. Crimes involving dishonesty or false statements are always relevant regardless of how long ago the conviction was. Other felonies are generally permitted unless 10+ years have passed since the conviction or if prejudice substantially outweighs its probative value.
Specific prior acts of character evidence (MIMIC)
Character evidence may be admissible if it is relevant for a non-character purpose (MIMIC). This includes demonstrating motive, intent, absence of mistake, identity/modus operandi, and common scheme/plan.
Habit evidence
Evidence of a person’s habit is admissible to prove that the person acted in accordance w/ that habit on a particular occasion. A habit must be a consistent repeated response to a specific situation.
Public policy exclusions
Evidence that fall under policy exclusions are inadmissible to prove fault, but generally can be used for other purposes.
Includes: liability insurance, settlement negotiations, offers to pay medical expenses, plea negotiations, and subsequent remedial measures
Admissibility of settlement negotiations under the public policy exclusion
Exclusion includes conduct or statements made in conjunction w/ the settlement offer
Admissibility of offers to pay medical expenses under the public policy exclusion
does not include conduct or statements made in conjunction w/ the offer
Privileges
Attorney-client
Physician-patient (FRE common law, CEC)
Psychotherapist-patient
Spousal
Spousal privileges
Confidential communications
Spousal immunity
Confidential spousal communications
Communications made between spouses in confidence during marriage are privileged in civil and criminal cases.
Spousal immunity
A spouse has the right to refuse to testify in a criminal case against their spouse.
Hearsay
Hearsay is an OOC statement offered for the truth of the matter asserted.
Non-hearsay uses
Verbal acts/Legally operative acts
Effect on listener
State of mind
Verbal act/Legally operative act
Statement offered to prove that it was made.
Effect on listener
Statement offered to show its effect on the person who heard it.
State of mind (non-hearsay use)
Statement offered as circumstantial evidence of the declarant’s mental state.
Hearsay exclusions
Certain prior statements of testifying witnesses
Admissions by party opponent
Prior inconsistent statement
A prior inconsistent statement made under oath can be admitted for its truth.
Prior consistent statement
A prior consistent statement can be admitted for its truth to rehabilitate a W after attack with an inconsistent statement.
Prior statement of ID
A previous OOC identification of a person is admissible for its truth.
Admissions by party opponent
Statements introduced against a party that is their own statement are generally admissible.
Adopted admission
A statement made by someone else that is expressly/impliedly adopted is admissible.
Silent adopted admission
A party silently adopted a statement if they 1) heard & understood, 2) could respond, and 3) a reasonable person would’ve denied the statement.
Vicarious admission
Statements made by someone else authorized to speak on the party’s behalf are admissible. There must first be a preliminary finding of an agency/employee relationship.
Co-conspirator admission
Statements made by a co-conspirator are admissible. There must first be a preliminary finding of a conspiracy.
Hearsay exceptions where Declarant is unavailable
Former testimony
Dying declaration
Statements against interest
Family/Personal history
Declarant improperly rendered unavailable
What does it mean if a Declarant is unavailable
they are 1) exempt from testifying due to privilege, 2) refuses, 3) lacks memory, 4) dead/ill, or 5) absent & can’t be subpoenaed.
Dying declaration
Only admissible in homicide and civil cases if 1) individual believes they’re dying, 2) believes death is imminent, and 3) statement relates to death.
Hearsay exceptions where Declarant’s availability is immaterial
Present sense impression
Excited utterance
State of mind
Past recollection recorded
Business records
Public records
Judgment of previous conviction
Learned treatises
Statements for medical diagnosis/treatment
Catch-all
Present sense impression
Statements made while the declarant was perceiving the event or immediately after.
Excited utterance
Statements made relating to the startling event while the declarant was still under the stress of excitement.
State of mind - hearsay exception
Statements of declarant’s then-existing mental, emotional, or physical condition are admissible to prove existence of that condition. Statements of intent can be used to prove action in conformity w/ that intent.
Past recollection recorded
If W has inadequate memory, W can read the record to the jury if 1) W once had knowledge, 2) W prepared the record, 3) record reflects W’s knowledge, and 4) W testifies that they do not remember.
Business records
Business records are admissible if it was made 1) around the time of the event, 2) by a person with knowledge and under duty to report, and 3) as part of the business’s regular practices.
Public records
Public agency records of activities, observations, and factual findings may be admissible as a hearsay exception.
Police reports under the public records exception to hearsay
Police reports used against criminal Ds can only be used to introduce activities.
Judgment of previous conviction
A judgment of a previous conviction can be admitted to prove any fact that was essential to the judgment.
How can a phone call be authenticated?
A phone call can be authenticated by having a party to the conversation testify that: 1) the party recognized the speaker’s voice, 2) the speaker knew facts only certain persons would know, 3) the party dialed a number believed to be the speaker’s and the speaker confirmed that identity upon answering, OR 4) the party dialed a business and they spoke about business regularly conducted over the phone.
How is an ancient document authenticated?
document 1) is at least 20 yrs old when offered, 2) is in a condition that creates no suspicion about its authenticity, and 3) was found in a place where it would likely be if it were authentic.
What is the business counterpart to habit evidence?
The business counterpart to habit evidence is routine practices; evidence of an organization’s routine practice is admissible to prove that the org acted in accordance w/ that practice on a particular occasion.
What kind of character evidence can a criminal D present regarding their good character if its pertinent?
A criminal D may present reputation or opinion testimony, but NOT specific instance of conduct, regarding their good character if that character trait is pertinent to the charged crime.
Collateral-evidence rule
A W may be impeached w/ evidence that contradicts their testimony. However, under the collateral-evidence rule, extrinsic evidence CANNOT be used to impeach a W on a collateral matter.
Treatment of statements in police reports by 3Ps
Statements in police reports by 3Ps who are under no business or legal duty to report do not fall under either business records or public records exceptions and therefore must independently satisfy a hearsay exclusion/exception to be admissible.
Treatment of statements in ancient documents prepared before 1/1/98
Statements in ancient documents prepared before 1/11/1998 are exempted from the rule against hearsay.
Treatment of inadmissible info that an expert relied on
If an expert witness’s opinion relies on otherwise inadmissible facts/data, then that info may be disclosed to the jury ONLY if the court determines that its PV in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect. The fact that the expert relied on it, by itself, is insufficient to make a hearsay statement admissible.
Records read into evidence under the past recollection recorded hearsay exception can only be offered as an exhibit by?
The opposing party
Difference between spousal-immunity and confidential marital communications?
Spousal-immunity relates to MATTERS that occurred BEFORE or DURING marriage.
Confidential marital communications relates to STATEMENTS made DURING marriage.
What is the treatment of privileged communication that was disclosed in state court and is now being offered in federal court?
Federal court will review the federal rules AND law of the state where the disclosure occurred. Whichever law offers more protection determines the effect of the disclosure.
If an expert witness’s opinion relies on otherwise inadmissible facts/data, when may that info be disclosed to the jury?
That info may be disclosed to the jury ONLY if the court determines that its PV in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effects.
How can reproductions (models, drawings, photographs, maps) be authenticated?
Reproduction may be authenticated EITHER by having its creator testify to its reproduction process OR through the testimony of a witness w/ personal knowledge that the reproduction accurately depicts what its proponent claims it does.
What should the court do if a privileged communication was disclosed in state court and is now being offered in federal court?
The fed court will review the fed rules AND the law of the state where the disclosure occurred. Whichever law offers more protection will determine the effect of the disclosure.
CA name for excited utterance exception
Spontaneous statement exception
CA name for present sense impression exception
Contemporaneous statement exception
Rule about testimonial statements under the Confrontation Clause
In a criminal case, testimonial statements (that are hearsay) are inadmissible under the Confrontation Clause b/c D has not had the opportunity to cross examine the declarant.
For purposes of the Confrontation Clause, what is a testimonial statement?
Testimonial statements are those made in preparation of the trial against D.
For purposes of the Confrontation Clause, what is NOT a testimonial statement?
Non-testimonial statements are those made for the primary purpose of seeking medical attention.
CA Character evidence exception for domestic violence
In CA, evidence of D’s prior act of domestic violence is admissible in a criminal case in which D is accused of committing domestic violence.
In CA, what kinds of trials are dying declarations allowed?
All civil and criminal trials
Scope of cross examination
The scope of cross-examination is limited to the subject matter of direct examination AND matters affecting the witness’s credibility.
Leading questions are prohibited on direct examination unless?
1) Witness is a child or adult with difficulty communicating
2) Question is to establish preliminary matter not in dispute
3) Hostile witness
