Evidence Flashcards
Logical Relevance?
- Any tendancy to prove or disprove a material fact
- Cal - disputed fact
Same thing.
Legal Relevancy Exclusion?
Probative vs. prejudicial balancing test
Prop. 8 - Victim’s Bill of Rights
Criminal Trials Only - All relevant evidence is admissible subject to few exemptions.
Prop 8. - Victim’s Bill of Rights Exceptions?
DR Mammal Counts SHEEP
* D opens door to character
* Rape shield laws (victim’s character)
* Member of media (confidential sources)
* Court can still balances probative vs. prejudicial and exclude
* Secondary evidence rule
* Hearsay
* Exclusionary rules based on US Constitution
* Exclusionary rules by CA after 1982
* Privileges existing in 1982
Public Policy Exceptions - Subsequent Remedial Measures?
Not allowed except:
* Ownership and control
* Rebut infeasibility
* Other party destroyed evidence
Public Policy Exceptions - Liability Insurance?
Not allowed except:
* Onwership and control
* Impeachment
* Admission
Public Policy Exceptions - Offers medical expenses?
Not allowed except:
* FRE: Admission
* CEC: None
Public Policy Exceptions - Settlement Offer?
Not allowed except:
* Disputed claim/settlement
* CEC: also applies to mediation
Public Policy Exceptions - Offers to Plead?
Not allowed except:
* Cal - Prop 8 allows.
Public Policy Exceptions - Expression of Sympathy?
Not allowed except:
* Admission of fault
Witness Testimony Requirement?
Personal knowledge.
Objection to Form Grounds?
NU CALF
* Narrative
* Unresponsive
* Compound
* Argumentative
* Leading
* Facts not in evidence
Present Recollection Refreshed?
- Witness shown item to refresh
- Witness testifies from memory
Lay Opinion Testimony?
Based on personal knowledge; not scientific or specialized knowledge
Expert Opinion Testimony?
- Assists trier of fact
- Qualifies as expert
- Opinion based on sufficient facts
- Reliable principles (Daubert or Frye)
- Applied principles reliably
FRE - Daubert Expert Test?
- Peer reviewed and published
- Tested
- Known for low error
- Reasonable level of acceptance
CEC - Frye Test
- Generally accepted as valid and reliable in field
Attorney-Client Privilege?
- Confidential communication (intended) for purpose of legal services
- Last until after death (FRE) or estate settled (CEC)
- Exceptions for crime/fraud, dispute with L, or consultation
Doctor-Patient Privilege?
- FRE: None
- CEC: communication made for diagnosis and treatment only
Psychotherapist- Patient Privilege?
FRE and CEC have for confidential communications.
Marital Adverse Testimony (Spousal Immunity)
- Only claimed during marriage but applies to things before and during
- Holder is witness spouse
- Federal - criminal only
- Except cases between spouses
Marital Confidential Communication?
- Claimed during and after marriage but only for things during marriage
- Holder: both spouses (either may invoke)
- Except case between spouses
Four CEC Only Privileges?
- Doctor-patient
- Counselor-victim
- Clergy-penitent
- News reporters (sources)
Three Types of Character Evidence?
- Reputation
- Opinion
- Specific Acts
Character Evidence - Civil Court Rules?
- Not for conduct in conformity
- Except character at issue
- FRE exception for sexual assault/child molestation
- Rape Shield Laws (if P places at issue or in Cal to prove P’s sexual conduct with D)
Character Evidence - Criminal Court Rules for D’s Character?
- D must open door
- Pertinent character trait only
- If D on stand then truthfulness at issue
- P can open door for sex assault/child molestation
- FRE - if D offers V character, prosecution can match for D
- CEC - if D offers V’s violent character only can match
- CEC exception for elder abuse/domestic violence
Character Evidence - Criminal Court Rules for Victim’s Character?
- D must open door
- Pertinent character trait only
- NOT allowed under rape shield rules
Character Evidence - Other Purposes? (I PIK A MOP)
I PIK A MOP
* Intent
* Preparation
* Identity or M.O.
* Knowledge of fact or event
* Absence of mistake/accident
* Motive
* Opportunity
* Plan or scheme
Habit/Custom and Similar Happenings?
Can be allowed.
Impeachment - Character for Truthfulness?
- Reputation and opinon allowed
- Criminal conviction if felony
- Crimen Falsi if less than 10 years
- CEC - misdemeanor if criminal
Impeachment - Prior Inconsistent Statement?
Extrinsic evidence allowed if explained or denied.
Impeachment - Bias?
Extrinsic evidence allowed if explained or denied.
Impeachment Grounds?
- Character for truthfulness
- Prior inconsistent statement
- Bias
- Sensory or mental defect
- Contradiction by another witness
Rehabilitate impeached witness?
- Meet the attack
- Good character if attacked
- Prior consistent statement
Bolster the witness?
FRE: Not allowed
CEC: Allowed
Hearsay?
Out of court statement offered for the truth of the matter asserted.
Nonhearsay Purposes?
- Effect on the listener
- Declarant’s state of mind
- Independent legal signficance (e.g., solicitation, defamation, contract)
Admissions - Excluded from Hearsay?
- Party opponent admission
- Adoptive/Silent Adoptive
- Vicarious (employee or agent in scope)
- Co-Conspiratory (during and in furtherance subject to 6th Amendment, must testify)
Other Witness Hearsay Exceptions?
- Medical purpose diagnois and treatment
- State of mind (then existing)
- Present sense impression (describing event/condition)
- Excited utterance (made under stress during event)
- Prior inconsistent statement
- Prior consistent statement
- Prior identification
Business Record Hearsay Exception Elements?
- Business activity
- Regular practice to keep
- W with firsthand knowledge
- Business duty to report
- Timely
Public Record Hearsay Exception Elements?
- Agency record of own acts
- Matters observed with duty to report
- Ivestigative reports
FRE: not against criminal D
Declarant Unavailable If:
- Privileged
- Death or illness
- Cannot be reasonably procured
- Refuses to testify
- W cannot remember
Declarant Unavailable - Former Testimony Allowed?
- Civil case only
- FRE: predecessor in interest
- CEC: similar interest in prior proceeding dn deposiition in same proceeding allowed
Witness Unavailable - Dying Declarations Elements?
- Regarding circumstances of death
- While believing death imminent
FRE: Civil and criminal homocide only and death not required
Witness Unavailable - Declaration Against Interest?
Financial or penal interest
* CEC adds against social interest
Residual “catch-all” hearsay exception?
- Trustworhty
- Regarding material fact
- More probative than other evidence; AND
- Notice given
Document Authentication?
- Real evidence: distinctive characteristic of chain of evidence
- Deomstrative: fair representation
- Writing/recording by admission, testimony, handwriting, circumstantial ,etc.
- Self-authenticating (business records)
- Ancient Documents - 20 years old and free of suspicion
Best Evidence Rule/Secondary Evidence Rule?
To prove contents, must produce original document or machine duplicates.
Summary of voluminous writings?
May be introduced by sponsoring witness.
Judicial Notice Allowed If:
- Not subject to reasonable dispute;
- Generally known in jurisdiction; and
- Capable of accurate and ready determination.
