Evidence Flashcards
Structure
FRench ReCIPe for Hot Jam
- Form
*Relevance
*Reliability
*Character
*Impeachment
*Privilege
*Hearsay
&Judicial Notice
CA Prop 8
Tip: Include intro if CA/CA essay only not for FRE only questions
Under Prop 8, or the “truth in evidence” amendment to the CA constitution, all relevant evidence is admissible in CA crim cases, even if objectionable under the California Evidence Code. However, Prop 8 is inapplicable to the confrontation clauses, hearsay, privileges, and best evidence rule
Form Objections
Leading, Non-responsive answer, calls for narrative answer, calls for speculation, argumentative, compound question, assumes facts not in evidence, asked and answered, misleading, harassing/embarrassing, cross-examination, ambiguous, calls for legal conclusion, lack of foundation
Leading
A leading question is improper on direct examination when it suggests to the witness the fact the examiner expects and wants to have confirmed. LEADING Qs are not objectionable on cross-examination
Non-responsive answer
one that provides more information in the answer than what is asked for or does not answer the specific question asked. Motion to strike must be made by examining counsel.
*CA Distinction: motion to strike may be brought by either counsel
Calls for narrative answer
questions that allow a witness to answer by recounting facts rather than asking a series of questions requiring specific answers are not permitted
Calls for speculation
a question that calls for speculation invites or causes the witness to answer on the basis of conjecture
Argumentative
Asked for the purpose of persuading the jury or judge rather than to elicit information. A question may be argumentative in content or tone
Compound question
questions that require a single answer to more than one question are not permitted
Assumes facts not in evidence
questions that include facts that have not yet been admitted into evidence are improper
Asked and answered
objection is appropriate when the witness has already answered the same or similar question by the same attorney
Misleading
A misleading question misstates evidence or misquotes witnesses
Harassing/Embarassing
judge has discretion to prohibit cross-examination that is unduly harassing and/or embarrassing
Ambiguous
An ambiguous question is one that could have more than one meaning
Calls for legal conclusion
questions that ask the witness to state a legal opinion about an issue are not permitted
Lack of foundation
a question lacks foundation when, at time it was asked, the foundation had not been laid that the witness had the requisite knowledge to answer the quesiton
Logical Relevance
Evidence is logically relevant if it tends to prove or disprove a material fact at issue. It must relate to the time, event, or person involved in the present litigation.
Legal Relevance
The court may exclude relevant evidence if its probative value is substantially outweighed by the danger of: (1) unfair prejudice, (2) confusion of the issues, (3) misleading the jury, (4) undue delay, (5) wasting time, or (6) needlessly presenting cumulative evidence
Liability insurance
not admissible to show D’s negligence or ability to pay
*Exception: admissible to show ownership, control, to impeach, or as part of an admission
Subsequent remedial measures
not admissible to show Ds negligence or to show defective design in strict products liability case
*Exception: admissible to show feasibility of precautionary measure, ownership, control or to impeach
*CA Distinction: inadmissible in negligence cases; admissible for stricts product liability cases
Payment or offers to pay medical expenses
not admissible to prove guilt or liability.
*CA distinction: makes inadmissible admissions of fact made in the course of making such payments or offers
Settlement offers
not admissible in civil cases to show Ds liability
*Exceptions: admissible when there is no claim filed or threatened or the amount is not in dispute
*CA Distinction: Discussions during mediation proceedings are also inadmissible
Plea Withdrawn, offers to plea
are not admissible in criminal cases to prove guilt
Expressions in sympathy
*NO RULE IN FRE
*CA Distinction: Inadmissible in civil actions where expressions of sympathy relate to suffering or death of an accident victim.
*exception: Statements of fault/fact made in cconnection with such expressions are not excluded
Similarity of occurences, admissible to prove
Causation, intent, rebut defense of impossibility, comparable sales price to establish value
Habit evidence is admissible if: (1) describes a person’s regular response, (2) to specific set of circumstances, (3) to prove person acted in conformity with the habit on a particular ocassion.
Routine Business practice: evidence is admissible to show enttiy conduct in conformity with practice on occassion in question
Industrial custom: evidence is admissible to prove standard of care
Ps prior accidents or Ps claims
is usually irrelevant
*Exception: P has a pattern of filing suits after faked accidents or P has a preexisting condition
Reliability
witness testimony is reliable if witness can testify that he is: (1) competent and (2) has personal knowledge.
Competence
Every witness is presumed competent
*CA Distinction: Witness must also understand legal duty to tell the truth
Personal Knowledge
A witness must have observed the matter and presently recollect the observation
**Present Recollection Refreshed: A witness may use any writing or thing for the purpose of refreshing her present recollection. The writing or thing is not authenticated or offered into evidence.
**Past collection recorded: A witness may read a writing into evidence if: (i) the witness once had personal knowledge of the facts when written, (ii) now cannot remember, (iii) the document was made by the witness, under her direction, or adopted by her, (iv) the document was written at a time when the facts were fresh in the witness’s memory, and (v) the document was accurate when made
Lay opinion is admissible if:
(i) it is rationally based on (ii) the witness’s perceptions, and (iii) it is helpful to the trier of fact
Ex: permitted as to speed of cars, sanity, intoxication, emotions, value of witness’s property
Expert opinion is admissible if:
(i) it is helpful to a jury, (ii) witness must be qualified by the judge *Long term experience is OK does not need degree, (iii) witness must believe in opinion to a reasonable degree of certainty, (iv) opinion must be supported by a proper factual basis, and (v) opinion must be based on reliable principles that were reliably applied
*For (v): FRE Daubert: (1) peer reviewed, (2) tested and is subject to re-testing, (3) low error rate, (4) a reasonable level of acceptance
*CA Distinction: Kelly/Frye: Opinion must be based on principles generally accepted by experts in the field. FRE factors do not apply
Reliability of Docs - Authentication
Physical evidence must be authenticated by: (i) witness testimony by one with personal knowledge the evidence is what it is claimed to be, or (ii) the evidence has been held in a substantially unbroken chain of custody
*Big breaks in chain of custody not OK, small rbeaks ok
Ancient Docs authentication
authenticity is established if: (i) the doc is 20 years old *CA distinction: 30 years old, (ii) does not facially show any irregularities, and (iii) was found in a place where it was expected to be found
Self-authenticated
the following docs do not need to be authenticated by pleading, stipulation, admission, or testimony:
- certified copies of public records
- official publications
- newspapers and periodicals
- trade inscriptions (ie TMs)
- Acknowledged documents
- commercial paper
- certified business records
- family portraits, bibles, birth certificate (photo copy OK)
Best Evidence Rule
**CA Distinction: Secondary Evidence Rule
To prove contents of a writing, the original must be produced if:
(i) testimony is reliant on the writing, or
(ii) it is a legally operated document, unless it is unavailable because the original was lost, or destroyed without bad faith of proponent
- A writing includes docs, videos, x-rays, audio recordings, CDS or tangible collection of data
*Photocopies or duplciates, which are an exact copy of the doc are admissible as the photocopies original unless there is some reason to question accuracy
- Exception: a summary for voluminous records is OK; public records are OK if certified
Character evidence (civil)
In civil cases, character evidence is inadmissible, unless it goes to an ultimate issue, then reputation, opinion, and specific acts are admissible as substantive evidence.
Examples:
*defamation, negligent entrustment, fraud, child custody
Character evidence (crimianl)
In criminal cases, the prosecution may not initiate evidence of D’s bad character merely to show he is more likely to commit the crime charged, unless D puts his character at issue.
*Exception: Prosecution may initiate evidence of D’s sexual misconduct in child molest/sexual assault cases, via reputation, opinion, or specific acts
**CA distinction: Prosecution may initiate evidence of D’s prior acts of domestic violence
Character Evidence - Mercy Rule
allows D to introduce evidence of his good character by reputation or opinion evidence.
*Prosecution can rebut with reputation, opinion, or specific act evidence of D’s conduct when cross-examining witnesses, but no extrinsic evidence is allowed
*Prosecution may introduce bad reputation or opinion evidence for D by calling their own witness, but no specific acts are allowed
*CA Distinction: Prosecution may only rebut by using reputation or opinion evidence
Mercy Rule for Crim Cases Cont.
D may introduce evidence of V’s bad character by reputation or opinion testimony
*Prosecution may use reputation, opinion, or specific acts to show Vs good character
*CA Distinction: D may introduce evidence of Vs bad character by reputation, opinion or specific act evidence
Mercy Rule in Rape Cases
In rape cases, V’s past sexual behavior is admissible, unless, used to prove:
(i) other source of semen
(ii) past consensual sexual activity beween D and V
Mercy Rule to show same trait
Prosecution may offer evidence of a trait of D if D already introduced evidence of that same trait in V
*CA Distinction: Only D’s trait for violence may be shown once D shows V is violent
*Under FRE only, in homicide cases only, may the prosecution show V is peaceful after D has shown V to be violent
Character Cont.
Character evidence is inadmissible to prove propensity for conduct in conformity therewith on a particular occasion. It can be offered by: (1) evidence of specific acts, (2) opinion testimony, (3) or testimony as to the person’s general reputation
EXCEPTION: MIAMI KOPPS
*Motive
*Intent
*Absence of Mistake
*Identity
*Knowledge
*Opportunity
*Preparation
*Common Plan or
*Scheme
Impeachment
the casting of an adverse reflection on the veracity (ie truthfulness) of a witness. A W may be impeached on cross-examination OR by extrinsic evidence (put another W on the stand who will introduce facts discrediting the prior testimony).
- foundation must be laid during cross-x before extrinsic evidence introduced
- A party cannot bolster his own W with prior consistent statements or evidence of good character until that W has been impeached
- No impeachment on collateral matters, waste of time
Impeachment: Bad character opinion/reputation evidence
Can ask a third party about his OPINION as to W’s honesty or about Ws reputation in the community
Impeachment: Specific bad acts
Probative of truthfulness on cross-examination
*Questions must be asked in good faith
*CANNOT ask about arrests and cannot use extrinsic evidence
*CA Distinction: Specific bad acts involving moral turpitude are admissible only in criminal cases, BUT court can balance (extrinsic evidence permitted)
Impeachment: Prior convictions
Proof of prior convictions can be used to impeach (must be conviction, not just arrest/indictment)
Crimes must be either:
* Crime of dishonesty/false statement (any crime) OR
*Not subject to balancing: no judicial discretion to exclude the crime
*CA Distinction: Subject to balancing: judicial discretion (exclude if probative value is substantially outweighed by prejudicial effect)
*Any Felony: even not involving dishonesty, UNLESS it has been 10 years since the date of conviction or date of release from jail *subject to balancing
*CA Distinction: ALL felonies and/or misdemeanors are admissible for crimes involving moral turpitude
*NOTE: cannot use prior convictions if D was acquitted
Impeachment - Defects in Memory or Knowledge
W can be impeached (on cross or via extrinsic evidence) by showing that he has an impaired ability to perceive things (ie bad hearing, wears a hearing aid/glasses, etc.)
Impeachment - Bias/Motive to Lie
Used to show that W has a reason to lie (ie W is related to D, W made plea deal, or D gave money to W)
*Can use extrinsic evidence to show bias IF:
- W is asked about the facts suggesting bias first (lay foundation)
- If that foundation is laid, even evidence that would otherwise be inadmissible can be used for impeachment (ie liability insurance, prior arrests, etc.)
Impeachment - Prior Inconsistent Statements
A party may show (on cross or via extrinsic evidence) that W has, on another occasion, made statement that are inconsistent with present testimony
- Extrinsic Evidence admissible ONLY IF:
W is given chance to explain; AND
The foundation is laid
*Exception: Inconsistent statements by hearsay declarants can be used to impeach DESPITE a lack of foundation
Rehabilitation
An impeached W can explain or clarify facts brought out on cross via a re-direct
*Evidence of bias can be rebutted with evidence of prior consistent statements made before the bias arose
- evidence of bad character can be rebutted with evidence of good character
Attorney-client privilege
(1) a communication between an attorney and client or client-representatives
*CA Distinction: Privilege applies to communications from employees/agent if she is the natural person to speak to the lawyer on behalf of the corporation in the matter, or employer/agent did something for which corp may be liable
(2) intended by client to be confidential
(3) made to facilitate legal services
(4) is privileged in all criminal and civil cases
(5) applies after representation, if lawyer is fired, or after client dies, and
*CA Distinction: Privilege continues after death but not once estate of dead client is distributed and executor is discharged
(6) client is the holder of the privilege, but atty must assert on their behalf
**Exceptions:
(i) Waiver by client
(ii) legal services sought to further what client knew or should have known to be a crime or fraud
*CA Distinction: privilege does not apply if disclosure would prevent crime that would result in death or GBH
(iii) communication relates to alleged breach of duty between lawyer and client
(iv) Two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another
Psychotherapist/Social worker-patient
(1) a communication between psychotherapist and patient, or licensed social worker and client
(2) intended to be kept confidential
(3) made to facilitate the rendition of professional services
(4) is privileged in all civil and criminal proceedings
*CA Distinction: privilege is allowed in crim cases
*CA Distinction: other privileges only in CA: counselor-victim of sexual assault/DV, penitential communications between penitent and clergy, immunity for news report who refuses to disclose services
Exceptions
i) where patient puts physical or mental condition at issue
ii) where professional services sought to aid in crime or fraud
iii) malpractice action
iv) privilege does not apply if psychotherapist has reasonable cause to believe that the patient is a danger to himself or others and disclosure is necessary to end teh danger
Doctor patient
No FRE Privilege; CA Distinction privilege exists
(1) patient has a privilege
(2) to prevent disclosure of information
(3) confidentially conveyed to a physician
(4) for the purposes of obtaining diagnosis or treatment, and
(5) the information was pertinent to diagnosis or treatment
(6) in a civil action only
*Exceptions
(i) where the patient puts physical condition at issue
(ii) where physician’s services sought to aid in crime or fraud or escape capture after a crime or tort
(iii) malpractice action between doctor and patient
CA Distinction: privilege does not apply in criminal cases OR to information that the doctor is required to report to public office (ie gunshot wounds and diseases)
Marital Relationship - Spousal testimonial privilege
(1) in a criminal case
*CA distinction: applies to civil and criminal cases; spouse has privilege not to be called on stand
(2) D’s spouse
(3) has the right to refuse to testify against D
(4) during marriage
(5) regarding any matter before and during marriage, including observarions and impressions
Marital relationship - confidential marital communications
(1) in a civil or criminal case
(2) confidential communications, both verbal and written
(3) made in reliance upon the intimacy of marital relationship
(4) between husband and wife
**both spouses hold the privilege so can prevent the other spouse from disclosing
(5) during the marriage are priviliged
**privileges survive divorce
HS Exemtpions
(1) Statement has independent legal significance: if statement is not offered to prove truth of matter asserted and is legally operative, not HS.
(2) statement offered to show effect on listener: statement offered to show person was on notice of something and may have reacted a certain way is not HS.
(3) Statement is circumstantial evidence of declarant’s state of mind: to show the declarant’s state of mind are not HS if it shows: (1) knowledge, (2) intent, (3) attitude, or (4) belief of declarant
(4) Prior sworn inconsistent statement: if prior, sworn statement, is inconsistent with declarant’s current in-court testimony, it is non-hearsay and admissible for impeachment and substantive evidence
(5) Prior consistent statement: A prior consistent statement with witness’ current testimony is non-hearsay and admissible for impeachment and substantive evidence, if it is offered to rebut a charge of bias or improper motive, so long as prior statement was made before alleged bias came up
(6) Prior ID: non-hearsay if: (1) declarant is currently testifying, (2) subject to cross-examination, and (3) statement was one of ID of a person made after perceiving that person
(7) Admission by party opponent **cluster with statement against interest: an admission by party opponent is an out of court statement or conduct made by a party offered as evidence against him.
*Distinguish: unlike a statement against interest, an admission need not be against declarant’s interest at time time it is made, thus, even a statement that seems neutral or self-serving at the time it is made made by introduced against party who made it; statement against interest may be made by anyone while admission by party opponent must be made by a party
**CA Distinction: An admission by party opponent is a HS exception not exemption
Hearsay
HS is an out of court statement offered for the truth of the matter asserted. Such evidence is inadmissible, subject to certain exemptions or exceptions. If evidence is nto offered for its truth it is not hearsay and is admissible.
*Statements: Statement: may take the form of assertive conduct but must be made by a human
*out of court
Adoptive admission
An adoptive admission is made when someone remains silent in the face of an accusation if: (i) the party heard and understood the statement, (ii) the party was physically and mentally capable of denying the statement, and (iii) a reasonable person would have denied the accusation
Vicarious admission
Vicarious admissions are admissible non-hearsay statements if they are made by: (i) persons who are expressly or impliedly authorized to make the statement, (ii) agents/employees acting within the scope of employment, during the employment relationship, (iii) co-conspirators during, and in furtherance of, the conspiracy, or (iv) by joint partners in a venture
*CA distinction: Employer is liable for employee’s words only if he is also liable for employee’s negligent conduct.
HS Exception - Declarant must be unavailable
A declarant is unavailable if a privilege applies, he suffers memory loss, he refuses to testify, he is incapacitated, he cannot be found, or he is deceased.
*CA Distinction: Does not include memory loss or refusal to testify
Unavailable declarant - Former testimony
Testimony is admissible if made by an unavailable witness:
(i) testimony was given at an earlier hearing or deposition
(ii) party against whom the testimony is now offered was present earlier
*Civil case: party’s predecessor in interest may be present
(iii) the party against whom the testimony is now offered had the opportunity to develop the testimony (ie cross examine), and
(iv) party against whom the testimony is now offered had a similar motive to develop the testimony
*Grand jury testimony is never allowed because no opportunity to cross-examine
*CA Distinction: In a civil case, a party may introduce former testimony against a party who was not a party in earlier proceeding, so long as:
(1) a party had an opportunity to cross-examine
(2) the former testimony is offered against person who offered it on their behalf, or
(3) the former testimony is offered against a successor in interest
Unavailable declarant - Dying declaration
a statement made by an unavailable witness that concerns the cause or circumstances of his own death or an imminent belief that his death is about to occur is admissible. Declarant need not actually die.
*CA distinction: declarant must actually die, admissible in civil/criminal cases
Unavailable declarant - Statement against interest (cluster with party admission)
a statement made by an unavailable witness, which at the time it was made, was so contrary to the declarant’s pecuniary, proprietary, or penal interest, that a reasonable person would not have made the statement unless it was true.
*CA Distinction: Includes statements against social interest if it subjects declarant to hatred, ridicule, or social disgrace in teh community
Unavailable declarant - Statements of personal or family history
A statement made by an unavailable witness is admissible if declarant is a member of the family in question or intimately associated with it and is based on his personal knowledge regarding births, marriages, divorces, deaths or relationships
Excited utterance
*cluster with PSI
A statement relating to a startling event or condition, made while declarant is still under the stress of excitement, that is caused by the event or condition is admissible
CA Distinction: Spontaneous statement
Present sense impression
A statement describing or explaining an event or condition, made while declarant perceived the event or condition or immediately thereafter is admissible
*CA Distinction: Must be a contemporaneous statement (ie statement made while declarant was engaged in that conduct)
*CA Distinction OJ Exception:A statement describing infliction or threat of physical abuse, made at or near the time of injury/threat, that explains the infliction or threat, in a writing/recording made to a police officer or medical professional, is admissible
Statement of bodily condition
a statement of a declarant’s present bodily condition or symptoms, made to a layperson, is admissible
Statement of bodily condition for medical treatment or diagnosis
A statement of a declarant’s past or present bodily condition, when made to a physician, who is treating him, when related to the cause of the injury and not fault, is admissible
- A statement of a declarant’s past or present bodily condition, made to a physician, who was consulted to testify, about the patient’s condition at trial, is admissible
*CA Distinction: Past bodily conditions are only admissible if declarant is a minor. This section applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under 12 describing any act, attempted act, or child abuse or neglect
Present state of mind
a statement of declarant’s presently existing state of mind, emotion or sensation is admissible when the declarant’s state of mind is directly at issue
Past recollection recorded
TIP: raise under reliability > personal knowledge also
TIP: cluster with present recollection refreshed if double hearsay issue
*A written record of an event, made shortly after event occurred, will be admissible if:
(i) the witness once had personal knowledge of facts when written
(ii) now cannot remember
(iii) doc was made by the witness, under her direction, or adopted by her
(iv) doc was written at a time when facts were fresh in W’s memory
and (v) doc was accurate when made
Business record
admissible if:
(i) record was made in routine course of business *record cannot be in anticipation of litigation
(ii) record was made by, or from information supplied, by a person with personal knowledge who is working in the business, and
(iii) the entry was made at or near time of matter
- Record may be admitted to show that particular entry is absent, if such an entry would normally have been made had a particular event occurred
- CA Distinction: does not allow opinions or diagnoses
Public records
admissible if:
(i) record describes activities and policies of public office
(ii) record describes matters observed pursuant to duty imposed by law. or
(iii) record contains factual findings resulting from investigation authorized by law, unless untrustworthy
(iv) admissible in civil cases only, inadmissible in crim cases
*CA distinction: legally authorized investigative reports are admissible in rim cases
Official records
Admissible if:
(i) it is a public record or report (ie birth/death/marriage cert, police report, unless there is a double hearsay issue)
*CA Distinction: police reports are admissible
(ii) records of vital statistics, or
(iii) it is a certified copy of a judgment
*Felony convictions are admissible in criminal actions, but civil judgments are inadmissible in crim actions
*CA Distinction: certified copies of judgments are admissible in civil actions
Learned Treatise
Admissible if:
(i) an expert testifies treatise is authoritative
*if expert refuses to admit publication is authoritative, another witness must establish its as an authority
(ii) either on direct or cross
CA distinction: only admissible to show matters of general notoriety or interest
Ancient docs
Admissible if:
(i) doc is 20 years old (CA: 30)
(i) does not facially show any irregularities, and
(iii) was found in a place where it was expected to be found
Double Hearsay
HS within HS. For the entire statement to come in, all levels of HS must be admissible
*TIP: start with the source of the statement, and work your way to the last person who made the statement
Federal catch-all
the federal court has discretion t admit HS evidence if :
(1) statement is trustworthy
(2) it is strictly necessary to the case, and
(3) there is adequate notice to the other party/
6th AM and Confrontation Clause
Even if HS statement is admissible, the CC may exclude statement if:
(i) declarant does not testify at trial
(ii) declarant is now unavailable
(iii) statement is testimonial
**Testimonial statements are made to further police investigations or aimed at producing evidence or prosecution
*Statements made to police to deal with an on-going emergency are non-testimonial
(iv) D had no opportunity to cross-examine declarant
Judicial notice
judicial notice is the recognition of a fact as true without formal presentation of evidence
*Courts may take judicial notice of indisputable facts that are either:
(1) matters of common knowledge in the community or
(2) capable of accurate and ready verification by resorting to accessible sources of unquestionable accuracy
*Courts must take judicial notice if it is:
(1) requested by a party, and
(2) supplied with necessary information
*If a court takes judicial notice in a crim case, the jury must be instructed the fact is not conclusive and the jury may, at its discretion, accept the judicially noticed fact
*if a court takes judicial notice in a civil case, the jury must accept judicially noticed facts as conclusive
*CA Distinction: Facts that are judicially noticed are conclusive in BOTH civil AND crim cases (however, may be subject to 6th AM challenges)
