Evidence Flashcards
When are police reports allowed to be offered?
Must be factual findings and can be used in a Civil case or against a government agency case.
Police reports of matters observed by police can NOT be used against criminal defendants (CA has no limitation)
Best/Secondary Evidence Rule
NOT hearsay = print outs of machine created data that was not a result of human assertion.
- If a person is testifying completely from the knowledge they obtained from writing, recording, or photo they MUST provide that document to the court because that document is the BEST evidence NOT the person testifying.
- This rule does NOT apply if the witness has personal knowledge of it from memory or memory refreshed, if the writing is a collateral matter, public record, or voluminous record
- An exact photocopy duplicate may be presented instead of the original unless the authenticity of the original is in dispute.
- if no duplicate is available:
1) Proponent offering the alternative evidence MUST show that the original/copy is unavailable at NO FAULT of their own (lost, destroyed, exclusive control of other side, or other side already submitted it)
2) THEN the court will allow alternative evidence, like a person to testify to the contents as secondary evidence
Voluminious Record
1) summary, chart, or calculation can be admitted as SUBSTANTIVE evidence if they are being used to prove the contents of underlying voluminious writing, recordings, or photos that would have independently been admissible, but can not be conveinetly examined in court
2) AND prior to the introduction in trial the documents were made available to the opposing side so if they wanted to they could examine and copy the documents
Judicial Notice
Judicial Notice operates as a substitute for proof as to facts that are matters of common knowledge in the community or are capable of certain verification through easily accessible, well-established sources. The court MAY take judicial notice on their own or if a party motions for it.
Criminal Case = jury MAY but is NOT required to accept the fact as noticed
Civil Case = jury MUST accept the fact as noticed
CA = jury MUST accept the fact as noticed
When is character evidence allowed in a civil case vs. Criminal Case?
Generally, character evidence is not allowed to show propensity, meaning how a person likely acted during the events of the current case. However, character evidence will be allowed if: (a) character is an essential element of the case “at issue” OR (b) for non-propensity purposes, like to show habit.
Character is at issue in CHEWED all 3 types of evidence can be used
C = Child Custody
H = Hiring Negligently
E - Entrustment negligent
W - wrongful death suit
E - exception for FRE: specific acts of sex assault and child molestation to show propensity in civil cases
D - Defamation/Slander (reduce damages for poor reputation + prove defense of truth of the statement)
**Criminal Case: ** = Most courts hold, evidence that defendant is a law abiding character is a pertinent trait and is admissible in any criminal prosecution. Generally, the criminal defendant must first “open the door” with witness testimony regarding the person’s reputation or the witness’s opinion about a relevant character trait in the case. Once the door is open, the prosecution can rebut the SAME trait with their own reputation or opinion witness.
**EXCEPTION **= a prosecutor can open the door first if: (a) in a sexual assault case, (b) child molestation case, (c) domestic violence case, (d) defendant testifies putting his truthfullness at issue, and (e) if defendant attacks victim with a VIOLENT character trait, then prosecution can attack defendent with the same VIOLENT trait (CA: also elder abuse)
Defendant can first open the door with ALL 3 types when character is an essential element of the crime or defense at issue (self defense, entrapment)
When character is only a pertinent trait then only reputation or opinion evidence is allowed (robbery, fraud)
Prior Recollection Recorded
the witness is on the stand and he can not recall and even after looking at the writing, he can still not remember. then he can READ the writing into evidence IF:
1) first-hand knowledge + fresh memory of the event at the time it was recorded
2) vouches the record is accurate
3) read into evidence ONLY
Opponents may admit the writing to impeach or substantively.
Then Existing Present State of Mind
Declarant is making a statement about their OWN present state of mind, mental, emotional, or physical condition AT THAT TIME is admissible to show the condition, state of mind, intent, alibi, plan, motive, design, mental emotional feeling, pain, and bodily health that existed AT THAT TIME
However, statements of memory, belief, or past state of mind to prove something they remembered or believed are not admissible, unless related to a will.
I couldnt have killed her I was going to LA
I couldnt have killed her because I loved her
I am suffering pain/headache right now
NOT VALID = going the next day to apoligize for yesterdays accident
Medical diagnosis treatment
Medical diagnosis treatment: A past or present statement made for the purpose of medical diagnosis or treatment is admissible. The cause of the condition may be included if its pertinent to the treatment, otherwise, it will be excluded along with any statements of fault.
—> Under CA, only a child abuse victims less than 12 years old
If a third person helped obtain the treatment, then they can make the statement.
Present Sense Impression:
CA: contemporaneous statement
Present Sense Impression: Under FRE, Declarants statement describing an event as he was observing it OR immediately thereafter. A few minutes after the event is within the period allowed for this exception to apply.
In CA, a contemporaneous statement is only admissible, if the declarant is giving a play by play explanation of his OWN conduct, without even a one second delay.
Excited Utterance:
(CA- Spontaneous Statement)
Excited Utterance: A statement (1) relating to a startling event or condition, (2) while the declarant was personally under the stress of the excitement caused by the event. A slight delay between the event and statement is allowed.
(CA- Spontaneous Statement)
Look for !!!!
Jury vs. Judge
Judge determines whether the evidence is admissible and questions regarding the law
Example: hospital records, expert opinion, impending death of a dying declarant,
Jury determines how much weight should be given to the evidence
Examples: 3rd party was D’s agent or not in signing a contract,
Authentication
- Authentication = Evidence must be authenticated meaning it is what it purports to be before it is admitted, unless it is a self-authenticating certified document.
- Telephone Calls = listener recognizes the speakers voice, the speaker has knowledge of certain facts that ONLY a particular person would have, OR the speaker identified themself
- Writings = only enough evidence to support a jury finding that the evidence is genuine is required, even if the evidence is circumstantial.
- Handwriting = A person with personal knowledge of the writers handwriting OR trier of fact or expert could compare the writing to another similar writing to see if the handwriting is similar
- Reply Letter doctrine = evidence that it was written in response to a communication sent to the claimed author, where the contents of the letter make it unlikely it was written by anyone other than the claimed author
- Report = custodian of the record or another qualified witness can testify to the identity of the record and the method of its preparation, unless the custodian certifies in writing the document is what it purports to be
Lay Opinion
- Must be based on a layperson’s perception and not require specialized knowledge.
- A voice may be identified by the opinion of anyone who has heard the voice.
- Under the CEC, a lay opinion may be based on specialized knowledge.
Outer Hearsay -
The report itself
Business Record
Official Public Record
All document hearsay exceptions: (1) must be relevant, (2) must be authenticated, (3) must have sponsering witness
(B) Business Records: A business record can be admissible if made in the regular course of business or to show it is missing by laying the proper foundation for admitting it. A records custodian with personal knowlege of the record can testify OR certify in writing that the:
(1) record of conditions, opinions, diagnosis, or events (CA- does not allow opinions and diagnosis)
(2)Timely made at or near the time of the matter
(3) Record normally and usually made in the regular course of their business (habit)
(4) Usual business duty of the person to make such an entry
(5) made with information from a person that had first hand knowlege
(6) Party opponent does NOT show it lacks trustworthiness because of the conditions it was made in
(C) Learned Treatise:
(1) only can be read into evidence if
(2) brought to the attention of the expert on direct as a basis for reliance or cross exam
(3) reliable treatise based on any expert testimony or jduges deems it to be under judicial notice
Under CA, to prove generally known facts, historical works, science books, art books, and published maps/charts are admissible as an exception to the hearsay rule IF created by an indifferent person between the parties
(D) Family history: statements of fact concerning the family history (family bible) with a sponsering witness to testify.
(E) Public Records:
1) Public Official duty to report or make the record
2) made at or near time of event described
3) sources of info AND circumstances surrounding it indicate its trustworthy
(F) Ancient Document: more than 20 years old (CA: 30) + same condition + no suspicion + expected place
Abscense of a business record and public record = can also be shown
Expert Opinion
HQ sent a Crab with a CRAPE to give an expert opinion
Expert opinion is admissible if:
(1) Helpful to jury = helpful to the jury to better understand a complicated issue that they can not figure out on their own. They CAN share their opinion about an ultimate issue in the case, BUT can NOT give an opinion on the defendant’s mental state in a criminal case if it’s a required element of the crime or defense.
(2) Qualified: the expert is qualified to share this opinion based on knowledge, skill, experience, training, or education
(3) Reasonably certain as to the correctness
(4) reliable methods and principles used for opinion - CRAPE
(5) application of those methods and principles to the opinion
(6) based on sufficient facts or data: personal knowlege, hypo, observations of prior witnesses
Under the FRE Daubert/Kumho standard, courts look at the following to determine whether to admit expert testimony:
(a) Confirmed testing and can be retested
(b) Reviewed by peers and published
(c) Accepted generally in that fields profession
(d) Proper standard and controls used and maintained
(e) Error rate is low
Under the CA KellY/Frye method, the opinion must be based on generally accepted principles by experts in the field.
Present Recollection Refreshed
(1) Show a witness on the stand ANY item, even if inadmissible if they
(2) can not recall on the stand in order to
(3) Refresh the witnesses memory to stimulate his memory
(4) about something they had
(5) personal knowlege about
(6) Entirely from memory they must then testify.
Opposing Party has:
(1) Right to inspect the item
(2) Admit any portions even if inadmissible
(3) Cross examine witness on it
(4) Even if its inadmissible because Best Evidence Rule and Hearsay rules do NOT apply
(5) Stricken testimony for failure to produce writing in criminal case; judge will issue appropriate order in civil case
Under FRE, if the person uses the report to refresh her memory BEFORE testifying, the court MAY allow the defendant to examin if justice so requires. However, if she uses the report to refresh her memory DURING the testimony, then the court MUST allow the defendant to review the report.
Under CA, court MUST allow the person to see the report either way.
- Statement Against Interest
- Former Testimony
- Dying Declaration
Statement Against Interest
1) unavailable person
2) makes a statement against financial, business, or penal interest (CA: social)
3) with personal knowlege of the facts
4) aware it was against his interest at the time
5) no motive to misrepresent supported by corroborating circumstances that indicate its trustworthiness
6) criminal case - confrontation clause issue
Dying Declaration
1. ONLY for Homicide or civil case (no attempted-murder)
2. Declarant must be unavailable (CA: dead)
3. believe death is imminent
4. about cause of the death
Note in CA, a dying declaration is admissible in any kind of case, civil or criminal, where it is relevant to show what killed the victim. Additionally, unlike the FRE, in CA the declarant must actually be dead to be unavailable.
Former/Prior Testimony
(1) declarant is unavailable,
(2) statement was made under oath
(3) the party who the statement is being used against was a party in the previous trial,
(4) the same issues are involved, and
(5) the parties who it is offered against had the same motive and oppurtunity to cross examine the witness in the previous trial.
(for a civil trial the parties just need to be in privity)
- Work Product Doctrine
- Consultant information
In Federal court, WPD protects ALL materials prepared by an attorney or his agents in anticipation or during litigation, unless the other party can show a substantial need + the equivalent cannot be obtained without undue hardship.
In CA, only applies to materials prepared by the attorney himself in anticipation of litigation, including an Absolute privilege of his mental impressions, research, notes, and opinions. Qualified privilege exists for other materials prepared and discoverable if a substantial need + inability to acquire elsewhere.
Consultant that wont be testifying opposing party can NOT obtain facts or opinions held by an expert retained in anticipation or during litigation purely for consulting and NOT planned to use to testify at trial, UNLESS its impracticable to obtain the information by other means.
Attorney Client Privilege
**Protects communications made for the PURPOSE of obtaining or providing LEGAL ASSISTANCE for the client that are INTENDED to be kept confidential **
* Waiver = disclosure to a third party or in the presence of a known party
* YES waiver = if a person + the lawyer go to prosecutor and REVEAL information about another D then this is NOT confidential because it was disclosed in front of the prosecutor
* NO Waiver = if a person + lawyer go to prosecutor to try and negotiate a deal for a lessor sentence IF they WERE to reveal information then this is NOT a waiver, because the actual information was NOT disclosed.
NOT privleged communication:
- purely factual communications
- clients identity
- existence of attorney client relationship
- clients legal fees and other incidentals
- attorneys fee records and bills
- BUSINESS ADVICE/opinions
Hearsay
Double Hearsay
Hearsay is an out of court statement being offered to prove the truth of the matter asserted and WILL be INADMISSIBLE, unless it falls within an EXCEPTION to the rule.
Hearsay is generally inadmissible because the veracity of the witness at the time the statement was made cannot be tested.
Multiple hearsay is hearsay within hearsay. For the entire statement to come in, all levels of hearsay must be admissible.
FRE: Catch all Hearsay Exception
- material
- trustworthy
- more probative then other evidence that can be reasonably obtained
- in the interest of justice
- Notice to opposing party
Non- Hearsay - 4 priors
- Prior Consistent Statement = once witness has been expressly attacked then refute the idea the witness was lying
- Prior Identification = declarants statement about an earlier identification after perceiving them
- Prior/Past Recollection Recording: is an exclusion to the hearsay rule if:
(1) a witness can NOT sufficiently testify from memory,
(2) but he had firsthand knowledge and fresh memory of the events at the time it was recorded, and
(3) at that time vouches the record is accurate,
(4) witness can read the document into evidence, but the document itself will NOT be entered into evidence. Opponent may admit the writing to impeach or substantively. - Prior Inconsistent Statement to impeach only = if a witness makes a statement at trial, use of prior inconsistent statements made out of court by them will NOT be hearsay when its being used to impeach their present testimony because what is being shown is NOT that the statement is true, BUT to show the witness lacks credibility due to his inconsistent statements. A live witness MUST have the oppurtunity to explain themselves either before or after the evidence is introduced and be subject to cross before being excused + it can come in substantively as hearsay exception IF made under oath at prior trial or deposition [CA: no oath requirement]
MBE TIP = Admissible as non-hearsay, circumstantial evidence, or substantive evidence
Right to Confrontation in Evidence coming in for a criminal case against the criminal defendant
- Testimonial evidence is NOT allowed = not made during an emergency to a police officer
- Non-Testimonial is allowed = statement to the police during an emergency; statement to a family member
Demonstrative or Physical evidence IS allowed = walking with a limp, thumb prints
