Evidence Flashcards
Relevance
(small hurdle but check for each item of evidence)
a. Logical relevance: Evidence must be relevant for it to be admissible. It is relevant if it tends to prove/disprove a material fact
([CA] “a material fact in dispute”)
b. Legal relevance: FRE 403 [CEC 352] applies to balance probative value (PV) w/ risk of prejudice. A judge has broad discretion to exclude relevant evidence if its PV is substantially outweighed by the danger of unfair prejudice (UP) (e.g., gory imagery), confusion of the issues, waste of time (e.g., speculative answer), or misleading the jury
Exclusion for public policy (five with two CA additions)
Relevant evidence may be excluded for public policy reasons below. It may still be admissible for other purposes, e.g., prove ownership/control, impeachment, admission, rebutting non-feasibility, bias
i. Subsequent remedial measure: Evidence of repair or precautions inadmissible to show culpability. Can use to show ownership or control or destruction of evidence, or to rebut claim that precautions were impossible
ii. Settlement offers or negotiation (FRE 408): Inadmissible to prove liability for, or invalidity of, a claim at actual dispute as to validity or amount of liability. Must exclude all contextual statements attached to offer
iii. Offers to pay medical expenses (FRE 409) are inadmissible. Accompanying admissions may be admissible
iv. Withdrawn guilty pleas: Inadmissible as too prejudicial, minimal PV (but can waive inadmissibility)
v. Liability insurance (“I have insurance”) or lack of: Can’t use to show culpability. Can use to show ownership or control, to impeach, or as part of admission
vi. [CA] Expression of sympathy relating to accident V inadmissible in civil cases, other admissions severable
vii. [CA] Mediation statements and writings inadmissible in discovery or proceedings (can waive)
Preliminary facts for Judge to consider
Judge is not limited by evidence rules when determining preliminary facts (e.g., competency) except privileges
Authentication
Best evidence rule ([CA] secondary evidence rule)
Competency of witness
Conditional relevancy
Judicial notice
Rule of completeness
Authentication
Real or written evidence requires proof to support a jury finding that it is what the proponent claims
i. Authentication generally requires witness’s first-hand knowledge or familiarity. Preponderance not needed
ii. Self-authenticating docs: certified public and business records, trade inscriptions ([CA] N/A), official pubs
Best evidence rule ([CA] secondary evidence rule)
To prove the content of a writing or other tangible collection of data relevant to proving some material fact, the original must be introduced if available. Can still be hearsay
i. Applies where content is to be proven or testimony depends on the document (e.g., K, will, deed, X-ray)
Duplicates ([CA] handwriting included) are admissible to the same extent, unless 1) genuineness is at issue (one party contests authenticity), or 2) would be unfair in the circumstances to admit the duplicate in lieu
Original NOT required if: lost or destroyed (unless by opponent bad faith), opponent fails to produce, collateral matter, subpoena ineffective, independent source (personal knowledge), inscribed chattel
Competency of witness
W must 1) have personal knowledge of the matter and 2) affirm/swear to testify truthfully
i. Judge and jurors are not considered competent to testify at trial
ii. [CA] W must also understand the duty to tell the truth. Judge and jurors may testify if no objection
Conditional Relevancy
If relevance depends on a particular fact finding by the jury, the court will admit the evidence after the judge first makes a threshold (and final) determination that a reasonably jury could find the necessary fact
Judicial notice
allows a party to “prove” an adjudicative (non-collateral) fact by the court’s recognition
i. Judge must take judicial notice if a party requests and supplies necessary information
ii. Judicially noticed facts are conclusive in civil cases, but jury may disregard in crim cases ([CA] civil/crim)
Rule of completeness
If a party introduces part of a writing or recorded statement (even if inadmissible hearsay), the other party may require introduction of any other part in fairness (as long as not barred by, e.g., double hearsay)
Character evidence
(susceptible to probative value v. unfair prejudice balance)
Character describes one’s disposition with respect to general traits (good driver, trustworthy, etc.).
Character evidence is generally inadmissible to prove conduct in conformity therewith. (Just because Δ did [specific bad things showing similar character] before does not mean he did [charged act] in this case.)
b. Ways to prove: reputation, opinion (can test basis by asking whether W knows of a particular conduct), specific acts
c. EXCEPTION [crim only]: Δ opens the door or Δ alleges self-defense in homicide – rep/op on direct exam + sp on x-exam ([CA] rep/op/sp on direct or x-exam)
i. Δ opens the door to say Δ is of good pertinent character (W’s testimony puts Δ character in issue)
ii. Δ opens the door to say V is of bad pertinent character (except sexual in rape cases) to show Δ’s innocence
1. [CA] Π can rebut only after Δ’s evidence of V’s violent character (narrower than FRE)
iii. Only then may Π rebut w/ Δ’s bad char (of same trait) or V’s good char w/ sp (x-exam) or rep/op (own W)
1. [CA] Domestic or elder cases: Π can initiate showing Δ’s acts of domestic violence or elder abuse
FRE Character evidence – Types of admissible evidence in criminal case where
* Δ opens the door or
* Δ alleges self-defense in homicide
Reputation or opinion evidence on direct exam
Specific acts on cross-exam
Π can rebut Δ’s character evidence after Δ opens the door to say V is of bad pertinent character to show Δ’s innocence
CEC Character evidence – Types of admissible evidence in criminal case where
* Δ opens the door or
* Δ alleges self-defense in homicide
Reputation evidence, opinion evidence, or specific acts on direct exam or cross-exam
Π can rebut Δ’s character evidence after Δ opens the door with V’s violent character to show Δ’s innocence (narrower than FRE)
Domestic or elder cases: Π can initiate showing Δ’s acts of domestic violence or elder abuse
Hearsay
out-of-court statement [out of this court] made by the declarant offered to prove the truth of the matter asserted. It is inadmissible upon proper objection unless an exemption/exception applies.
i. Out-of-court (OOC) statement may be oral or written, includes assertive conduct, excludes depositions
ii. Multiple hearsay (double hearsay) (X said Y said Z): Admissible only if each level of hearsay is admissible
iii. The statement is not hearsay where the OOC statement is introduced for other purposes, to show: legally operative facts of independent legal significance (e.g., K terms, defamatory words), effect on listener (notice, knowledge, motive), knowledge of speaker, or state of mind (insanity, belief)
Exceptions to hearsay
([CA] fall under “exceptions”) (“prior” statements need declarant’s availability)
i. Prior inconsistent statements
ii. Prior consistent statements
iv. Admissions by party
-Adoptive admissions
-Vicarious admissions
Prior inconsistent statements
To admit a prior statement inconsistent with declarant’s in-court testimony, declarant must be available, and the prior statement must have been given under oath
([CA] oath N/A)
Prior consistent statements
offered to rebut a charge that W has motive to lie/exaggerate. Declarant must testify at trial + be subject to x-exam + statement made before the alleged motive to lie or exaggerate arose
iii. Prior statements identifying a person after perceiving him – must be available to testify at trial
Admissions by party
Statements by opponent (cannot bring own) acknowledging a fact relevant to the case. Statement need not be against declarant’s interest when made, may be opinion or based on hearsay (no personal knowledge needed). Cf. statements against interest (§ IV-b-i-1)
Adoptive admissions
(conduct, or silence where the party understood the accusatory statement + capable of denying + reasonable person would have, if untrue, denied under the same circumstances, e.g., not in police presence—suspect in custody has no duty to speak)
Vicarious admissions
a. Co-parties: Party admissions are NOT admissible against co-Π/Δ
b. Authorized: Statement of a person expressly/impliedly authorized by party to speak on its behalf is admissible against the party
c. Agents: Statement by an agent (e.g., employee) within scope of agency, made during existence of relationship, is admissible against principal
d. Co-conspirators: Statement of any conspirator is admissible against all members of the conspiracy if it was in furtherance of the conspiracy (look for confrontation clause issue)
Hearsay exemption/exception when Declarant is unavailable via PRISM
Statements against interest
Former testimony
Dying declarations
Pedigree/family
Forfeiture by wrongdoing
[CA] Past physical or mental condition (including statement of intention) at issue if it is at issue
[CA] Threat of physical harm
Statement against interest
Interest (pecuniary, penal, proprietary,
[CA] social) when made. The declarant must have had personal knowledge of the facts and awareness that it was against his interest
Collateral matter (evidence solely affecting the credibility of a witness) is admissible
b. [FRE] Against criminal liability, need corroborating circumstances of trustworthiness
Former testimony
Testimony that is now offered against a former party in former action, or a predecessor in interest (civil cases), who had an opportunity to x-exam W at prior/preliminary hearing (including deposition but not grand jury) + similar motive to develop W’s testimony
Dying declarations
(FRE: homicide or civil actions only. CA: all civil or criminal cases)
Declarant must have believed death was imminent (actual death not needed) + statement concerns cause or circumstances of what he believed to be his imminent death
[CA] Declarant must actually be dead + statement concerns what did cause the death
Pedigree/family
Statements concerning personal or family relationship closely associated with W
Forfeiture by wrongdoing
Statements offered against a party who deliberately caused a declarant’s unavailability (e.g., Δ might arrange for a key witness to be murdered)
[CA] Applicable only where declarant was killed or kidnapped by person statement is offered against. Requires C&C evidence (more than standard FRE preponderance)
Two CA only exceptions/exemptions when hearsay declarant is unavailable
- [CA] Past physical or mental condition (including statement of intention) at issue if it is at issue
- [CA] Threat of physical harm: Statement that describes or explains infliction or threat of physical injury on declarant is admissible if 1) made at or near time of infliction or threat, 2) circumstances
indicate trustworthiness, 3) in writing, recorded, made to police or medical personnel
Hearsay exemption/exceptions independent of declarant availability
- Excited utterance
- Present sense impression
- Then-existing state of mind
- Declarations of physical condition
- Business records
- Present recollection revived
- Past recollection recorded
- Public records
-Ancient documents
-Family records
-Learned treatises
-Catch-all: Trustworthy + necessary in interests of justice (probative, material) + notice to adversary
Excited utterance
FRE: “Excited utterance” made w/o reflection which relates to a startling event while under excitement of startling event
CA: “Spontaneous statement” made w/o reflection which relates to, narrates, describes, or explains a startling event while under excitement of event
Present sense impression
“Present sense impressions” of what was perceived at time of event or immediately after
“Contemporaneous statements” explains own conduct made while engaged in conduct
Past bodily condition
FRE Admissible only if made to medical personnel for diagnosis, treatment, or testimony
CEC: Admissible only by child-abuse or child-neglect victim under 12 made to medical personnel for medical diagnosis or treatment
Business Records
Records of acts, conditions, events, transactions, opinions, or diagnoses made at or near the time of event with personal knowledge of matters during regular course of business. Entrant must have had a business duty to make the entry (e.g., not crime witnesses)
[CA] Conclusions, opinions, and diagnoses are not admissible as a business record
b. Requires authentication of record via custodian testimony or written certification
c. Excludes reports prepared for litigation, or by outsider (unless via a different exception)
d. Absence of entry in records: Negative purposes allowed to prove nonoccurrence of matter if it was regular practice to record all such matters, if witness is familiar + diligent search
e. Discretion to exclude if source of information or circumstances indicate lack of trustworthiness (those prepared in anticipation of litigation)
Present recollection revived
Testifying witness can refresh memory by looking at any evidence (no hearsay problem because evidence itself is offered into evidence)
Past recollection recorded
A record that is on a matter 1) testifying witness once had personal knowledge of but now cannot recall well enough (refreshing attempted and fails), 2) was made or adopted by W when the matter was fresh in memory, and 3) accurately reflects W’s knowledge
Public records
A record of public office made w/in scope of duty of public employee, admissible if it sets out
1) activities of office,
2) matter observed pursuant to duty (NOT if police observations in crim case), or
3) factual findings from investigation (in civil case or against gov’t in crim case)
[CA] Admissible if made within scope of duty of public employee, made at or near time of event, and trustworthy source of information
A police record not qualifying as a business record may be admitted under this exception
Absence of public records: Custodian may testify that diligent search failed to find a record to show that the matter was not recorded or did not occur
Prior judgments: Prior felony judgment admissible to prove a fact essential to judgment
Ancient Documents
Statements in 20YO+ document are admissible and self-authenticating ([CA] 30YO+)
Family Records
Statements of fact concerning personal or family history found in family keepsakes
Learned treatises
Statements from reliable authorities ([CA] only facts of general notoriety and interest)
Catch-all
Trustworthy + necessary in interests of justice (probative, material) + notice to adversary
Lay witness testimony
FRE Opinion testimony or inferences by lay witness admissible only if 1) rationally based on W’s perception (personal knowledge, 5 senses), 2) helpful to clear understanding W’s testimony or to determining a fact in issue, and 3) not based on scientific, technical, or other specialized knowledge (unless grossly apparent)
CEC: Opinion testimony or inferences by lay witness admissible only if 1) rationally based on W’s perception (personal knowledge, 5 senses), and 2) helpful to clear understanding W’s testimony
Expert witness testimony
Expert witness may testify as to an ultimate issue. May not state an opinion as to criminal Δ’s mental state that is an element of crime or defense, or conclusory legal opinions
FRE: Factors for reliability of expert opinion: 1) Generally accepted in relevant scientific community, 2) peer reviewed (capable of retesting), 3) published, 4) low error rate, 5) generally accepted in relevant field
CEC: Factor for reliability of expert opinion: Generally accepted in relevant field
Impeachment
refers to the casting of an adverse reflection of the truthfulness of a witness to discredit him
Rehabilitation: Show of W’s truthfulness. Impeached W may be rehabilitated on redirect or by EE: W may explain original response; another W may testify to reputation or opinion for truthfulness; pt may show prior consistent statement (only to defeat charge of fabrication) made before time of alleged motive to lie or exaggerate
Impeachment need not positively controvert prior testimony (W2 can say he doesn’t recall what W1 saw)
A witness may be impeached by any party, including his own
[CA] “Moral turpitude”: Defined by a broad “readiness to do evil” standard, e.g., lying, violence, sex crimes, extreme recklessness. NOT: simple assault, drug possession, negligence, unintentional acts
Impeachment by prior inconsistent statements (PIS)
Intrinsic evidence: X-exam (including collateral/non-material matters, e.g., different sock colors, reason for why W was out)
Extrinsic evidence: Non-collateral only: Relate circumstances to recall (may be after PIS admitted to evid) + give W opp to explain/deny + give other side opp to interrogate
Impeachment by Prior bad acts (sp) re: truthfulness (act of lying or deceit)—cross-examiner must inquire in good faith
Intrinsic evidence X-exam (ct has discretion to allow)
Extrinsic evidence: Never admissible (must take W’s answer)
[CA] Not admissible, except in criminal cases (Prop 8) for acts of moral turpitude, via cross-examination and extrinsic evidence, subject to balancing of PV and UP
Impeachment by Prior convictions
- Felonies (if PV > UP)
- Any crime involving dishonesty
- Other crimes within judge’s discretion
- [FRE] Evidence of criminal Δ’s conviction, up to 10 yrs old unless PV»_space; UP (FRE 609)
- [FRE] Evidence of a previous judgment of felony conviction is also a hearsay exception to prove any fact essential to the judgment (FRE 803(22)(C), see Prior judgments above)
- [CA] Only felonies and criminal misdemeanors involving moral turpitude are admissible under Prop 8, subject to PV/UP balancing
Examination of witnesses
The judge (the court) may reasonably control the examination of witnesses and presentation of evidence to effectively ascertain the truth, avoid waste of time, and prevent harassment of witnesses
Bases for objection to form of question:
nonresponsive (answer to different Q or no answer, may be stricken by motion to strike),
Q/A requiring speculation,
Compound question (more than 1 at a time),
Loaded question (assumes facts—answer requires unintended admission: “Have you stopped beating your wife?”),
Argumentative (prompts W to draw legal conclusion),
Calling for a narrative (asks for story, not facts)
The judge may call W upon his own initiative and interrogate any W who testify, as long as no partisanship
Leading questions
i (suggesting the answer, e.g., “Isn’t that correct?”) are not allowed on direct examination
1. EXCEPT to 1) hostile (unwilling) witnesses, 2) adverse witnesses, 3) child witnesses, 4) solicit preliminary background information (“You’re licensed, right?”), or 5) refresh W’s recollection
2. Allowed on x-exam, BUT x-exams are limited to 1) matters brought out on direct exam and inferences naturally drawn therefrom and 2) matters affecting the credibility of the witness
3. Showing W a document to refresh recollection is not “leading”
4. Adverse W generally cannot be asked a leading question by his own attorney on x-exam
PRIVILEGES (Not provided by FRE but governed by common law. In CA, statutory and exempt from Prop 8)
Attorney-client privilege
Spousal testimonial privilege
Marital communications privilege
Physician- (state created—presume N/A in MBE) / psychotherapist-patient privilege:
Attorney Client Privilege
Communication between client and atty (or representative assisting w legal services, e.g., physician examining client) intended by client to be confidential and with purpose to seek legal advice is privileged (may refuse to disclose) indefinitely, even after death, unless waived by client
([CA] ends when estate distributed).
Atty may invoke privilege on client’s behalf. Voluntary disclosure waives privilege to disclosed material
EXCEPTIONS: Comm furthers what client should have known was a crime or fraud, between former joint clients, dispute between atty and client,
[CA] reasonably necessary to prevent death or serious bodily harm
Spousal testimonial privilege
Privilege not to testify against spouse in criminal cases ([CA] applies to civil/crim)
i. Held by witness. Must be married at time of testimony. Covers observations and communications
Marital communications privilege
Privilege not to disclose private communication between spouses (civil/crim)
Held by both. Covers confidential spousal comm’n from during marriage. Waived by known eavesdroppers
EXCEPTIONS to both spousal testimonial and marital communication privileges
suits against each other, crime against a spouse or either spouse’s child, joint furtherance of future crime or fraud (spouses are co-Δ)
Physician- (state created—presume N/A in MBE) / psychotherapist-patient privilege
Confidential medical communication between professional and patient made with purpose of diagnosis or treatment. Patient holds privilege (doc may claim privilege on patient’s behalf if patient cannot)
i. EXCEPTIONS: patient puts his condition at issue (e.g., personal injury suit), important to prevent injury to a person, sought to aid planning of crime/tort
6TH AMENDMENT CONFRONTATION CLAUSE
(overrides hearsay exceptions, check co-conspirator admissions)
a. Any prior out-of-court testimonial statements by an unavailable declarant are inadmissible against CRIMINAL Δ, unless Δ has had prior opportunity to x-exam declarant at the time of statement, absent forfeiture caused by Δ’s wrongful act intended to keep the witness from testifying
i. Testimonial statement: Solicited by the state for the primary purpose of statement during police interrogation was to prove past events potentially relevant to later criminal prosecution
ii. Non-testimonial statement: Primary purpose of statement during police interrogation was to aid police during ongoing emergency
1. However, the emergency can abate during the call, turning the statement testimonial
Prop 8
Prop 8 is part of the CA Constitution. Prop 8 makes all relevant evidence in a CRIMINAL case ADMISSIBLE, even if objectionable under the CEC, UNLESS it falls under certain EXCEPTIONS (CHOP SUR):
i. Constitution
ii. Hearsay
iii. Open the door
iv. Privilege
v. Secondary evidence rule
vi. Unfair prejudice
vii. Rape-shield statutes
Constitution
Exclusionary rules under the U.S. Constitution, e.g., confrontation clause, Miranda violation
Hearsay
Hearsay evidence remains inadmissible, and exceptions to the hearsay rule are still admissible
Privilege
Prosecution is still prohibited from offering evidence of Δ’s or V’s character before Δ opens
Secondary Evidence Rule
CA’s version of best evidence rule still applies
Unfair prejudice
Prop 8 preserves CEC 352, giving judge discretion to exclude evidence if PV less than UP
Rape Shield Statutes
prevent Δ from offering evidence of V’s sexual conduct to prove behavior, unless V’s prior sexual conduct was with Δ. If Π asks V about prior sexual conduct, Δ may x-examine and rebut
