Evidence Flashcards
1
Q
2 types of relevance
A
(1) logical relevance
(2) legal relevance
2
Q
define logical relevance
A
Only relevant evidence is admissible. Evidence is relevant if has a tendency to make a fact at issue more or less probable.
3
Q
define similar occurences
A
Evidence that similar happenings occurred or failed to occur are admissible if the events are substantially similar.
- Used to prove:
o Causation, prior false claims, similar accidents caused by the same condition, rebutting claim of impossibility, industrial custom
4
Q
define habit
A
evidence of a person’s habit or organization’s routine practice are admissible to show that the person or organization acted in this way on a particular occasion. A habit is a regular response to a regular set of circumstances
o Note: Doing something all the time, often reflexive
5
Q
what are the two types of legal relevance
A
(1) judicial discretion
(2) public policy
6
Q
define legal relevance for judicial disrection
A
Under the FRE 403 balancing test, a judge may exclude evidence if the probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, or wasting the court’s time.
(evidence excluded per Rule 403 balancing test)
Relevant evidence is admissible unless any of the following provides otherwise:
the United States Constitution;
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
7
Q
what is the header for evidence excluded on public policy grounds
A
relevant evidence can be excluded on public policy grounds
8
Q
5 areas of public policy exclusions
A
(1) liability insurance
(2) subsequent remedial measures
(3) settlement offers
(4) offer to pay medical expenses
(5) plea discussions
9
Q
what is the rule on liability insurance and the 3 exceptions
A
Liability insurance is not admissible to prove culpable conduct. Insurance may be admitted to:
- show ownership or control
- impeach (e.g., through a showing of bias)
- As part of an admission of liability if hard to sever the statement of having insurance from the admission (e.g., “Don’t worry, my insurance will cover it”)
10
Q
what is the rule on subsequent remedial measures and the 3 exceptions
A
evidence of subsequent remedial measures is inadmissible to show culpable conduct but may be admitted to show
- ownership or control
- rebuttal to denial of feasibility of repair
- destruction of evidence by opposing party
11
Q
what is the rule on civil settlements and the 2 areas it applies to and whether any statements can come in
A
Statements made during civil settlements are not admissible to prove the amount or validity of a claim or to impeach
as well, if any admissions are made, they are not admissible.
remember that there must be a disputed claim for this to apply!
The rule does not require exclusion if the evidence is offered for purposes other than proving or disproving the validity or amount of a disputed claim. For instance, evidence from settlement discussions can be used to prove a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
12
Q
what is the rule on offers to pay medical expenses
A
offers to pay medical expenses are not admissible to prove culpable conduct. statements of admission accompanying an offer may be severed and admitted.
Example: D visits P in hospital and says, “I’ll pay your medical bills, I shouldn’t have dropped that banana peel on the stairs.” The second part of sentence is admissible
13
Q
what is the rule on plea discussions and the 2 exceptions
A
Plea discussions are not admissible to prove culpable conduct. This includes withdrawn guilty pleas, and no contest pleas, but does not extend to a guilty plea that actually went through to conviction. This also includes made during a court proceeding regarding the plea
(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):
(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or
(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.
14
Q
what are the 3 forms of character evidence
A
opinion testimony
reputation testimony
specific acts
o (1) Reputation testimony (“Mary has a reputation for honesty in our community”
o (2) Opinion testimony (“I think Mary is a honest person)
o (3) Specific Acts (see below, e.g., part of crime, or MIMIC)
15
Q
What the 4 form rules for presentation of character evidence?
A
(1) Trial starts with door closed. D can open doors by calling his own character witness or testifying to his character.
(2) On direct, only reputation and opinion evidence is allowed. No questioning on specific acts is allowed.
(3) On cross, specific acts may be inquired into but no extrinsic evidence is allowed.
(4) After D opens the door, prosecution can now call her own character witnesses but is subject to the same rules.
16
Q
What is the rule for character evidence in civil cases and the 4 exceptions where character evidence is admissible?
A
Generally character evidence in a civil trial is not allowed to prove propensity. However, the plaintiff may offer the character evidence where the defendant’s character is an essential element of the claim or defense, where similar acts of defendant’s sexual assault or child molestation case, to prove motive, intent, mistake or absence thereof, identify or plan, or for impeachment purposes.
17
Q
What is the rule for criminal evidence in civil cases and the 4 exceptions where character evidence is admissible?
A
generally, character evidence in a criminal case is not admissible to prove propensity. however, the prosecutor may introduce character evidence:
(1) similar act of defendant in a sexual assault or child molestation case,
(2) to prove motive, intent, mistake or absence thereof, identity, or plan
(3) to impeach
(4) after defendant opens the door
NOTE on similar act of D in a sexual assault or child molestation case
If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause.
NOTE on Mimic
Notice in a Criminal Case. In a criminal case, the prosecutor must:
(A) provide reasonable notice of any such evidence that the prosecutor intends to offer at trial, so that the defendant has a fair opportunity to meet it;
(B) articulate in the notice the permitted purpose for which the prosecutor intends to offer the evidence and the reasoning that supports the purpose; and
(C) do so in writing before trial–or in any form during trial if the court, for good cause, excuses lack of pretrial notice.
18
Q
what are the rules for after defendant opens the door in criminal case?
A
After the defendant opens the door in a criminal case, the prosecutor may rebut the defendant’s claim as to his honesty or as to his character for peacefulness by use of her own opinion or reputation witnesses, or by questioning on specific acts during cross.
if the defendant claims self defense, the prosecutor may show that the defendant is not peaceful, or the prosecutor can show that the victim is peaceful.
- (4) Rebuttal after D “opens the door” and presents evidence of his good character – either that he is honest or that he is peaceful, whichever is relevant to the case.
o Then, and only then, prosecution may present evidence of D’s bad character regarding the specific character trait mentioned by the D.
o Prosecution may do this by:
Calling their own character witnesses
Cross-examining D’s character witness and asking about specific instances
Example: D calls his own character witness who says D has a reputation for being non-violent. Prosecution on-cross asks, “have you heard that the defendant once attacked his teacher? Did you know he once kicked his friend?”
Note: The trait must be relevant to the crime.
Recall - prosecution can be first offer character propensity evidence in sexual assault or child molestation cases.
19
Q
in a homicide case where defendant asserts self defense, what is the prosecutor allowed to do?
A
offer extrinsic evidence of victim’s trait for peacefulness
(this is an exception to the no extrinsic evidence rule). This is not possible in an assault case.
* Rule: Once D opens door to the victim, he also opens the door to himself.
20
Q
general rule for victims in sexual assault cases?
A
for victims in sexual assault cases, the victim’s character is generally not admissible through specific acts
21
Q
two exceptions in civil sexual assault case?
A
in civil case evidence specific acts may be inquired into to show third party source of injury or to show prior sexual acts were consensual
22
Q
two exceptions in criminal sexual assault case?
A
in criminal case specific acts may be inquired into if
(1) 403 balancing test
(2) victim places own reputation as issue
If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or representative.
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.
23
Q
listen to exam tips on character
A
v. Exam Tips on Character
* When character is at issue, consider if it can be admitted for other purpose
* When character evidence is allowable for other purpose, do 403 balancing test to determine whether the probative value substantially outweighs the risk of unfair prejudice
- Exam Tip – Character Evidence Fact Triggers
o Prior conviction of any kind
o Evidence someone is a liar or a bad person
o Wrongful death or defamation where character is at issue
24
Q
how is foundation laid?
A
Foundation is laid by having a witness with personal knowledge on the item testify in court.
25
Overall rule for authentication?
All tangible evidence must be authenticated by the proponent prior to it being offered into evidence. The proponent must demonstrate through sufficient evidence that the item is what it claims to be. A witness with personal knowledge can authenticate a document through their testimony
26
2 ways to authenticate physical evidence
witness testimony - she recognizes the evidence
chain of custody where proponent shows that the object was held in substantially unbroken condition (need not be perfect)
27
ways to authenticate writings and recordings
a. Admissions, eyewitness testimony, voice identification, handwriting verifications (expert or nonexpert with personal knowledge, or jury with sample comparisons), circumstantial evidence (e.g., postmark, address, etc.), on the basis that it was a reply letter
28
how to authenticate photos and videos
identified by a witness as being a fair and accurate representation
photographer need not testify
29
telephone conversations - 4 different ways to authenticate
(1) party to the call recognizes the speaker's voice
(2) person on the call had knowledge of certain facts
(3) speaker answered phone and identified themselves
(4) speaker who answered business phone talked about business matters
30
3 requirements to authenticate an ancient document
(1) Document in non-suspicious condition;
(2) Document in place such a writing would be kept; AND
(3) Document at least 20 years old
31
Examples of self-authenticating documents
(1) Public documents with a seal
(2) Official publications
(3) Certified copies of public records
(4) Trade inscriptions and labels
(5) Notarized documents
(6) Commercial paper
(7) Business records
(8) Electronic records with certification
32
standard for authentication?
Court finds that there is proof sufficient to support a jury finding that the items are what they are claimed to be
It is not necessary that the court find that the evidence is what the
proponent claims, only that there is sufficient evidence from which the jury might ultimately
do so.
33
judge role - listen
The court makes the initial decision under Rule 104(a) whether the proponent has offered sufficient proof that a reasonable juror could find in favor of authenticity.1 If so, then, under Rule 104(b),2 the jury makes the ultimate determination as to whether the evidence is, in fact, what its proponent claims.3 “Importantly,” as the Fourth Circuit has observed, “the burden to authenticate under Rule 901 is not high . . . . [A] district court’s role is to serve as gatekeeper in assessing whether the proponent has offered a satisfactory foundation from which the jury could reasonably find that the evidence is authentic.”4“In performing its Rule 104 gate-keeping function, the trial court itself need not be persuaded that the proffered evidence is authentic.
* If multiple similar items (like 75 checks) judge only has to make preliminary finding of authenticity into a small number (e.g., 5)
v. EXAM TIP – Authentication Fact Triggers
* Phone call, especially if voice disguised or muffed
* Signed greeting card found by a third party
* Signature on letter
* Report of any kind
34
What is the Best Evidence Rule
Under the Best Evidence Rule, where the party is trying to prove the content of a writing, photograph, or recording, the original (or a mechanical duplicate) must be provided unless the proponent has good reason.
35
4 reasons deemed satisfactory for court to accept secondary source
(1) Original lost or destroyed at no fault of proponent
(2) Proponent gave notice to other side of need of document but opposing party did not produce
(3) Original cannot be procured through the judicial process
(4) Item collateral
b. Note: Look for legally operative instruments where fact does not exist independently from the writing or where witness’s knowledge based solely from reading a document
36
rule on duplicates and 2 instances were duplicate will not be accepted
Mechanical duplicates are allowed unless
(1) unfair to admit, or
(2) reasonable question as to authenticity
37
judge role in BER
judge decides whether BER is satisifed
38
jury rule in BER - 3 areas
jury decides
(1) Whether a writing ever existed
(2) Whether a writing is the original
(3) Whether other evidence accurately reflects its contents
39
rule on summary of voluminous writings as related to BER
in the case of voluminous writings, the entire document need not be shown to the jury, a witness can provide a summary, though opposing party can see the document and oppose its validity
40
rule for certified copy of public record and BER
certified copy of public record is sufficient and the original need not be produced under the best evidence rule
41
exam tips on documents
vii. EXAM TIP – Documents
* Whenever a document is being introduced into evidence, always analyze 5 issues
a. (1) Relevance
b. (2) Authentication
c. (3) BER
d. (4) Hearsay (watch for double hearsay)
e. (5) Any applicable hearsay exceptions
42
What are the 2 requirements for witness competency (not witness opinion)?
Witnesses are competent to testify if they have
(1) Personal knowledge; AND
(2) Take a sworn oath or affirmation to testify truthfully
* Note: All witnesses presumed competent until otherwise (no age)
Note: In federal diversity action case, state law governs the witness’s competency
Note: Witnesses are not automatically disqualified from testifying just because they have been convicted of a crime or have an interest in the case’s outcome.
Note: The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
43
What are the 3 requirements for lay opinion testimony?
Lay opinion testimony must
(1) Be based on personal knowledge;
(2) Be helpful to the trier of fact; AND
(3) Not be based on scientific or technical knowledge.
o Examples: Sense recognition (taste of drug), general appearance or condition of a person, state of emotion, speed, intoxication, sanity, voice/handwriting ID, property owner opinion on value of property
o Conclusion: The court property admitted the testimony.
44
4 requirements for expert witness testimony
(1) Helpful to the jury;
(2) Qualified as an expert in the field;
(3) Proper factual basis; AND
(4) Used reliable methods and applied them reliably
45
Four Daubert factors under reliability - fourth factor - used for scientific efforts - and four letter mnemonic
TEPA
(1) Testability
(2) Error rate
(3) Peer review
(4) Acceptance in scientific community
46
what is the rule on whether expert can give opinion on an ultimate issue
an expert can give an opinion on the ultimate issue except not for the intent nor mental state of the defendant
47
listen to notes on expert opinion
If evidence inadmissible, that information should not be shared with the jury unless judge allows under 403
An expert may give opinion testimony on direct examination without disclosing the basis of the opinion, unless the court orders otherwise. However, the expert may be required to disclose such information on cross-examination.
An expert's opinion may be based on evidence introduced at the trial and communicated to the expert by counsel, usually in the form of a hypothetical question.
48
Dead Man Statute
A Dead Man Statute applies in state civil cases and prohibits a party from speaking about conversations with the deceased. This statute is not recognized in the FRE.
49
When are federal rules on privilege used versus state rules on privilege?
The common law — as interpreted by United States courts in the light of reason and experience — governs a claim of privilege unless any of the following provides otherwise:
- the United States Constitution;
- a federal statute; or
- rules prescribed by the Supreme Court.
- But in a civil diversity case, state law governs privilege
The FRE has no privilege mentioned in the FRE, so federal common law is used in federal question cases and in federal criminal court.
On the other hand, state rules apply in federal court when there is diversity jurisdiction, or when in state court.
50
Define Attorney Client Privilege
Confidential communications between a lawyer and client for the purposes of legal services are privileged, and the privilege survives death. The client is the holder of the privilege though the attorney can assert it on the client's behalf.
51
3 exceptions to attorney client privilege
(1) client seeks attorney advice in furtherance of crime or fraud
(2) dispute between attorney and client
(3) 2 parties represented by same attorney and in subsequent litigation
52
Define confidential communications
Communications are confidential when they are not intended to be disclosed to a third party.
Note: Does not apply to physical evidence
Note: Attorney client privilege extends to work product
53
define waiver of attorney client privilege rule
Privilege is not waived if a party inadvertently sends documents to the other side so long as the holder of the privilege "promptly takes reasonable steps to rectify the error"
54
listen
(a) Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver. When the disclosure is made in a federal proceeding or to a federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a federal or state proceeding only if:
(1) the waiver is intentional;
(2) the disclosed and undisclosed communications or information concern the same subject matter; and
(3) they ought in fairness to be considered together.
Disclosure Made in a State Proceeding. When the disclosure is made in a state proceeding and is not the subject of a state-court order concerning waiver, the disclosure does not operate as a waiver in a federal proceeding if the disclosure:
(1) would not be a waiver under this rule if it had been made in a federal proceeding; or
(2) is not a waiver under the law of the state where the disclosure occurred.
55
other privileges
Psychotherapist/social worker privilege
d. (4) Clergy-penitent privilege
e. (5) Governmental privilege
f. (6) Professional journalist
g. (7) Accountant client
56
2 types of marital privilege
(1) marital communications privilege
(2) spousal immunity privilege
57
5 requirements for marital communications privilege
(1) Civil or criminal case;
(2) Confidential communication;
(3) Made during marriage;
(4) Both spouses hold the privilege; AND
(5) Survives the marriage.
58
4 requirements for spousal immunity privilege
(1) Criminal case;
(2) Matters that occurred BEFORE or during marriage;
(3) Privilege belongs only to witness; AND
(4) Spouses married at time of trial.
59
3 exceptions where neither marital privilege applies
(1) Legal actions between the spouses
(2) Crimes against spouse or spouse's children
(3) Joint crime or fraud
iv. Effect: Invoking the privilege makes the spouse unavailable in a hearsay analysis
60
Define self incrimination privilege
The Fifth Amendment provides that no person shall be compelled to be a witness against himself. The right applies in both civil and criminal cases.
61
Physician patient privilege - define all the rules
No federal physician client privilege (except for psychotherapists) exists.
In state courts, the privilege does exist. However, the information is not privileged if:
(1) Party puts physical condition at issue, OR
(2) Dispute between patient and doctor.
62
listen to exam tips on privilege
j. EXAM TIP, essay where privilege is at issue, establish the following:
i. (1) The relationship
ii. (2) That the communication is confidential
iii. (3) Which party holds the privilege
iv. (4) Whether any exceptions apply
63
general rule on impeachment
generally, any party may attack any witness, even their own
64
2 forms of evidence for impeachment
testimony
extrinsic evidence (including outside witnesses)
65
7 ways to impeach
(1) By prior inconsistent statement
(2) By bias
(3) By sensory defects
(4) By contradiction
(5) By reputation or opinion testimony regarding untruthfulness
(6) By convictions involving untruthfulness
(7) By prior bad acts involving untruthfulness
66
is extrinsic evidence allowed for the 7 forms of impeachment?
yes to all of them except for prior bad acts of untruthfulness
and no to any issue that is collateral
give the party a chance to explain or deny
67
define impeachment by prior inconsistent statement
A witness's credibility may be attacked by introducing evidence of the witness's prior inconsistent statement. Extrinsic evidence is allowed so long as the witness is given an opportunity to explain or deny the statement and so long as the issue is not collateral. If the statement was not given under oath (e.g., statement to a police officer), the statement is used for impeachment purposes only.
If the declarant is not available, the foundational requirement that the witness must be able to explain or deny does not apply.
68
under proof of prior convictions for impeachment, what is the rule for crimes regarding dishonesty?
applies to felony and misdemeanor
evidence must be admitted (save for 10 year plus limitation)
i. Any crime (misdemeanor or felony) involving dishonesty or false statement – judge has no discretion to exclude under 403 unless the crime is more than 10 years old (then judge has discretion)
1. Examples: Forgery, perjury, embezzlement.
a. Theft is insufficient, no false statement.
2. Note: No other misdemeanor admissible
69
what is the rule for the other category of any felony punishable by death or imprisonment of more than one year?
D is witness - admit if probative value outweighs prejudicial effect
Any other person is witness - admit if passes 403
70
what is the limitation on remoteness rule
for all crimes greater than 10 years old, measured by the date of conviction or date of release from confinement, whichever is greater, the conviction shall not be admitted unless reverse 403
71
2 occasions where pardons cannot be used to impeach
(1) where pardon based on rehab and no subsequent felony conviction
(2) where pardon based on innocence
Note: Juvenile convictions not admissible
Note: Conviction obtained in violation of one’s Constitutional rights is not admissible
72
listen
* Recall: Impeachment of a Hearsay Declarant
a. Can be impeached to same extent as another witness
b. Difference: Hearsay Declarant need not be given opportunity to explain or deny a prior inconsistent statement (made by another) (no foundation required)(the other person is dead)
73
Rule for rehabilitation of a witness
If a witness is impeached on cross examination, the opposing party can attempt to rehabilitate the witness through various means, including by introducing a prior consistent statement if the witness was attacked on the basis of lying or improper motive or a faulty memory. However, bolstering a witness's credibility is not allowed until after a witness's credibility has been attacked.
74
listen - impeachment evidence fact triggers
* EXAM TIP – Impeachment Evidence Fact Triggers
a. Witness on the stand
b. Character evidence at issue
c. Prior conviction of any kind
d. Prior bad behavior (e.g., sell drugs, accused of sexual misconduct, bad driving, accused of excessive force)
75
define present recollection refreshed and the key point
Present recollection refreshed allows a witness who cannot recall information to have his memory refreshed by virtue of being shown a document or other evidence. After the witness is shown the item, the witness must testify from his memory. The item is not considered evidence and may otherwise be inadmissible. The opposing party may examine the item, cross-examine on the item, and may introduce the item into evidence.
76
4 requirements for past recollection recorded
(1) Witness does not testify or cannot recall;
(2) Events fresh in memory and accurate at time made or adopted;
(3) Document does not refresh the witness's memory; AND
(4) Document recorded into the record, but not admitted into evidence unless by the opposing party.
77
rule on judicial notice 2 situations
A judge may take judicial notice on their own initiative so long as the fact is:
(1) Generally known within the jurisdiction, OR
(2) May be verified from an accurate source.
In civil cases, the jury must accept the fact, while in criminal cases, the jury may not accept the fact. Judicial notice can occur at any time, even on appeal
78
judicial notice regarding federal law, state law, foreign law, municipal ordinance
A judge must take notice of a federal or state law, while a judge may take notice of a foreign or municipal law.
NOTE: A judge has full discretion on whether to accept a legislative fact
79
rules on burden of proof
The burden of production - the burden to produce the evidence, is one the plaintiff or prosecution must meet.
under the burden of persuasion, the facts must be sufficient to establish the case
civil case - preponderance of evidence
criminal case - beyond reasonable doubt
80
what is a presumption and its effect in civil and criminal cases?
Presumptions are inferences that the jury must draw from a set of facts (e.g., death following a 7 year absence). In a civil case, the presumption shifts the burden of production to the opposing party. There are no mandatory presumptions in a criminal case. The judge may only instruct the jury that it may give attention to the presumption.
In civil cases where the federal court’s jurisdiction is based on the diversity of citizenship of the parties (meaning the parties are from different states or countries), the rule states that state law governs the effect of presumptions.
81
listen to sample presumptions
a. Common presumptions: mail delivery, death following a 7 year absence, presumption against suicide in a civil case in wrongful death suit, in a case involving legitimacy, there is a presumption of legitimacy, in both civil and criminal cases there is a presumption that people are not insane
* Invoking privilege against self incrimination – It is ok for the jury to draw an adverse inference from a civil party’s invocation of the privilege
82
define rule of completeness
When a portion of a writing is admitted, the opposing party may introduce into evidence the remainder of the writing when in fairness it should be considered at the same time
v. Limited Admissibility
* Evidence may be admissible for a limited purpose and instruct jury to ignore evidence for the other purpose (limiting instruction)
83
to properly preserve for an appeal, what must an attorney do if judge erroneously admits evidence?
timely object on the record and state the specific grounds for the objection
84
to properly preserve for an appeal, what must an attorney do if a judge denies the admissibility of evidence?
make a timely offer of proof on the record and state what the evidence would have been had it been admitted
85
define plain error
if an attorney fails to object the court may still take notice of the error if it is plain error - impacting one's substantial rights
86
define hearsay
Hearsay if an out-of-court statement offered to prove the matter asserted. Hearsay is inadmissible unless an exception applies.
87
under 'offered to prove the truth of the matter asserted' - what if it is is offered to prove something else? what are the other 3 things it might prove that are unrelated to the truth of the matter asserted?
(1) Effect on listener or reader
(2) Impeachment/rehabilitation
(3) Legally operative facts
88
on proving the effect on the listener or reader - what are some examples?
- statement that gave one notice
- statement that gave one knowledge
- statement to show one's mental state (i.e., I am Dracula)
- statement to show motive?
2. Example: Police officer hears description over radio, police officer reads note describing robber – shows officer reasonably believed the plaintiff was an armed robber – on MBE this will be the defense of the officer
3. He said “I am Dracula” – circumstantial evidence that D is insane.
a. Compare to he said “I feel like killing someone”. This is not circumstantial evidence. Hearsay, inadmissible unless other exception applies.
iii. (3) Legally operative facts (e.g., words of contract, words of defamation, words of solicitation)
Note: A testifying witness own out-of-court statement can be hearsay. Don’t be fooled by wrong answer choices like “Not hearsay because it is the witness’s own statement”. Example: Prosecutor asks witness, “What did you tell the police?” Witness says, “I told the police that...” this is hearsay.
89
4 exemptions to hearsay - not even hearsay
(“the evidence is admissible because an exclusion applies”)(Or, “non hearsay”)(evidence will prove substance)
(1) Prior inconsistent statement of a testifying witness where the prior statement was made under oath
(2) Prior consistent statement of a testifying witness
(3) Prior identification by a testifying witness
(4) Admission
90
4 kinds of admission
- party opponent admission
- adoptive admission
- vicarious admission by an authorized spokesperson, agent/employee made in course of employment, by partner in a partnership, by co-conspirator attaches to all
91
3 requirements for adoptive admission by silence
(1) party heard and understood it;
(2) party capable of denying it and didn't; AND
(3) reasonable person would have denied.
note - subject to right to remain silent
note
Express or implied adoption of another’s statement
Example: “Yeah that’s right.”
92
2 requirements on co conspirator statement
(1) made in furtherance of the conspiracy; AND
(2) made during conspiracy.
93
rule on confrontation clause
Where a statement is testimonial, not made during an emergency and made in response to an investigation, the defendant has the right to confront the witness either when the statement was made or during the proceeding, or else the statement will not be allowed in. If portions of the statement can be redacted to remove prejudice to the defendant, this is sufficient.
Includes affidavits, DNA results, written reports of forensic analysis
b. Note: Confrontation Clause rights may be forfeited if the defendant commits a wrongful act intended to keep the witness from testifying at trial
94
Exceptions - name the first set of 5 normal ones
(1) excited utterance
(2) present sense impression
(3) then present state of mind or physical condition
(4) statements made for the purpose of medical diagnosis/treatment
(5) past recollection recorded
95
exceptions - name the second set of 5 dealing with documents
(6) Business records
(7) Public records
(8) Ancient documents
(9) Property document
(10) Treatise or periodical
96
exceptions - name the last set of 5 dealing with unavailable witnesses
(11) Former witness testimony
(12) Dying declaration
(13) Statement against interest
(14) Forfeiture by wrongdoing
(15) Statement of family history
97
define the hearsay exception for medical diagnosis
A statement given for the purpose of medical diagnosis or treatment is admissible, though no statements of fault will be admitted.
Example: “My back is killing me. I was hit by a car.”
98
define the hearsay exception for excited utterance - 2 requirements
A statement that is:
(1) Related to a startling event; AND
(2) Made while in the excitement caused by the event.
99
define the hearsay exception for present sense impression - 2 requirements
A statement that is:
(1) Made during or immediately after the event; AND
(2) Describes the event.
100
define the hearsay exception for then existing state of mind or physical condition
Statements of a then existing state of mind or physical condition are admissible. This would include statements of intent or plan, and would not include statements of memory, or belief.
Note - look for present tense verbs
a. Admissible if includes intent, plan, current pain, etc.
b. Mental Example: “I intend to do it” or “I plan to” or “I’m going to”
c. Physical Example: “My back is killing me.” “My head hurts.”
d. Note: Does not include past tense verbs, or statements of memory, or statements of belief. “I remember D shot victim”, “I believe D did it.”
101
define the hearsay exception for past recollection recorded
A past recorded recollection is an exception to the hearsay statement.
102
define the hearsay exception for business records and its 3 elements
(1) Record kept in the course of regular business activity;
(2) Made during or near the time of the event; AND
(3) Matter within personal knowledge or a duty to report.
Notes
Foundation – custodian or other qualified witness must authenticate; opposing party can introduce evidence to show record is not trustworthy, and then record inadmissible
Example: Doctor statement in hospital report admissible here (hearsay within hearsay) – doctor and hospital under business duty
But not patient statement in hospital report b/c patient has no duty.
Note: Police reports are not admissible under this exception.
103
define the 5 types of records considered under the hearsay exception for public records
(1) Activities of an agency
(2) Absence of a record
(3) Duty to report but not in a criminal case
(4) Legal investigation but not in a criminal case
(5) Judgment
Example of #4: Police report in civil case admissible
Sub Rule: Opposing party can introduce evidence to show record is not trustworthy, and then record inadmissible
104
what is the rule for judgments in a criminal case?
they are only admissible against a defendant
Acquittals and no contest pleas cannot come in.
Civil case cannot come into criminal case.
105
what is the rule for the hearsay exception on ancient documents?
Statements within authenticated ancient document prepared before 1998 are admissible
106
what is the rule for the hearsay exception for property documents
Property documents containing a statement of property interest are admissible.
107
what is the rule for the hearsay exception for learned treatises - 2 part requirement
A learned treatise is admissible so long as the document was:
(1) Presented by a expert witness; AND
(2) The publication is established as a reliable authority.
108
what is the rule for the hearsay exception for former testimony? 3 part requirement
(1) Declarant unavailable;
(2) Former testimony given under oath; AND
(3) In either the same case or, if a separate case, the party against whom the testimony is offered must have had a similar opportunity and motive to develop the case
Example: Expert witness in first plane crash case died. Now estate of second passenger in crash is suing and offering former expert witness testimony. Admissible.
109
what is the rule for the dying declaration hearsay exception - 4 requirements
(1) Declarant unavailable;
(2) Homicide or civil case;
(3) Declarant believes death imminent; AND
(4) Statement relates to cause or circumstance of impending death.
Note: Declarant does not have to be dead, just unavailable.
110
what is the rule for the statement against interest hearsay exception? 4 requirements
(1) Declarant unavailable;
(2) Declarant knew statement was against financial or penal interest;
(3) No motive to misrepresent the facts; AND
(4) In a criminal case, corroboration.
Note: Confrontation Clause may keep statement out of evidence.
111
what is the rule for the hearsay exception of Forfeiture by wrongdoing?
(1) Declarant unavailable; AND
(2) Opposing party intentionally caused declarant to be unavailable.
112
what is the rule for the hearsay exception of personal or family history - 2 requirements
(1) Declarant unavailable; AND
(2) Made by family member or close family friend.
113
What are the 3 requirements for the residual 'catch all' hearsay exception?
(1) Trustworthy;
(2) Strictly necessary; AND
(3) Notice given to opposing party.
114
What are the 5 ways to establish that a witness is unavailable?
(1) Privilege
(2) Death/illness
(3) Court could not procure the witness despite court order
(4) Reasonable means could not procure the witness
(5) Witness cannot recall
115
what is the rule on multiple hearsay?
Each level of hearsay must meet its own admissibility requirements
116
listen to exam tip on multiple hearsay
* Exam Tip – Multiple Hearsay Fact Triggers
o Police report including bystander or witness statement
o Work order containing mechanic’s observations
o Surgical report containing observation by medical personnel
o Witness testifying what another person told him a third party said
o The first level of hearsay is the record itself; second level of hearsay is any information in the record provided by another person
117
do the FRE apply to grand jury proceedings?
NO
and during preliminary hearings, the rules of evidence do NOT apply - judge can look at anything - so long as it does not violate privilege rules
118
flow of testimony
direct - no leading questions
cross - leading questions permitted and keep to scope of direct
redirect - limit to scope of cross
recross - limit to scope of redirect
119
4 exceptions where leading questions allowed on direct?
(1) hostile witness
(2) shy witness
(3) jog memory
(4) lay foundation
120
what is the rule on a jury being asked to testify at trial?
a juror must not testify at trial and if asked to do so, the court must give a party an opportunity to object outside the jury's presence
121
3 things a juror may not testify about
(1) any statements made during deliberation
(2) the effect of anything on their vote
(3) any part of mental state in making decision
122
3 exceptions where juror may testify
(1) extraneous prejudicial information brought to bear
(2) outside prejudicial influence brought to bear
(3) mistake on entering the verdict on the verdict form
123
may the judge call witnesses
Yes, the judge may call witnesses, even expert witnesses, and may ask questions of witnesses
124
6 objections what is the mnemonic and what are the objections
NUCALF
(1) Narrative
(2) Unresponsive
(3) Compound question
(4) Argumentative
(5) Leading question (on direct)
(6) Facts not in evidence
125
listen
(1) Narrative: Questions calling for a narrative are too broad.
(2) Unresponsive: Witness’s answer is unresponsive to the question
(3) Compound Question: Two questions contained in one question
(4) Argumentative Question: Unnecessarily combative (e.g., “Do you really expect the jury to believe this nonsense?”)
(5) Leading Question if on direct
(6) Assuming Facts Not In Evidence
o Exam Tip – Issue Spotting
If you receive a transcript, look for witness competence to testify and go through the 6 potential objections
126
what is the standard for the judge's finding on personal knowledge of a witness, relevance, and authenticity?
Sufficient to support a jury finding
low standard
Then evidence goes to jury and decides whether to accredit it
127
what is the standard for preliminary questions such as whether a dying declaration meets the requirements?
preponderance of the evidence
Note:
The judge can consider all non-privileged evidence when making that determination – the FRE do not apply to the preliminary determinations of fact. Judge can consider otherwise inadmissible evidence (example: Ok for judge to look at inadmissible affidavit from doctor to determine whether dying declarant actually thought he was dying)
128
California Distinctions
129
What is the legal balancing test number for CA?
CCE 352
130
Define California's Proposition 8 and what is the mnemonic
DR MC SHEEP
Under Proposition 8, all relevant evidence is admissible, even those that are contrary to the California Evidence Code, unless an exception applies. These exceptions are as follows:
(1) D must still open the door before character evidence for the purposes of propensity;
(2) Rape shield provisions
(3) Media privilege from having to disclose a confidential source
(4) Court applies 352 balancing test
(5) Secondary evidence rule
(6) Hearsay exceptions still apply
(7) Exclusionary rules based on the Constitution
(8) Exclusionary rules adopted by CA after 1982
(9) Privileges that existed in 1982
131
What is the CA distinction regarding offers to pay medical bills?
While in the FRE admissions of fact may be severed and come in, such admissions or statements of fact may not come in under the CEC
132
What is the difference between the FRE and CA on whether judges and the jury may testify?
Under the FRE, the judge or jury may not testify
In the CEC, the judge or jury may testify so long as there is no objection
133
On witness competency regarding the oath, what else applies in CA?
Witnesses must understand the "duty to tell the truth"
134
What is the difference between the FRE and CA relative to lay witness testimony?
In the FRE, lay witness testimony may not include that based on scientific or technical knowledge, while in CA, such testimony is allowed
135
What is the difference between the FRE and CA relative to expert testimony?
In the FRE, regarding the reliability of expert testimony, the Daubert test is applied.
On the other hand, in CA, the Kelley Frye test is applied. This standard provides that the opinion must be 'based on scientific principles that are generally accepted in the relevant scientific field'
136
Regarding character evidence, what are the 4 distinctions?
One related to civil cases
one about specific acts
one about opening the door
one about domestic or elder abuse
While in the FRE in a civil case, character evidence is admissible in a sexual assault or child molestation matter, in CA, this exception does not apply.
Also, one can ask about specific acts on direct.
Also, D opening the door to himself does not open the door to the victim.
In domestic or elder abuse, the prosecutor can initiate with character evidence.
137
Difference between BER and CA
In CA, the Best Evidence Rule is referred to as the Secondary Evidence rule, and handwriting is allowed as a duplicate.
138
2 distinctions related to the attorney client privilege?
in federal, the privilege does not apply in case of furtherance of fraud/crime
in federal, privilege survives past death
In CA, privilege also does not apply in furtherance of fraud/crime, but also does not apply if liklihood of substantial bodily injury or death
In CA, privilege extinguishes past distribution of one's estate
139
what is the distinction in spousal immunity?
In FRE, spousal immunity only applies to criminal cases
In CEC, spousal immunity applies to both civil and criminal trials
140
Distinction between FRE bad acts and CEC bad acts?
In FRE, prior bad acts must be related to untruthfulness yet no extrinsic evidence is allowed in
In CEC, prior bad acts must involve moral turpitude, and extrinsic evidence may be allowed in, subject to the CEC 352 balancing test
Moral turpitude – ‘readiness to do evil’ standard (e.g., lying, violence, sex crimes, extreme recklessness). Not simple assault, drugs, negligence, unintentional acts.
141
What is the distinction related to prior inconsistent statements not given oath?
In the FRE, they are only to be used for impeachment while in the CEC, they can be used for impeachment and to prove the truth of the matter asserted.
142
Distinction in allowing in prior convictions as impeachment?
In FRE, any felony can come in subject to who is witness.
IN CEC, felony must involve moral turpitude
143
Distinction between vicarious admissions in FRE and CEC?
In FRE, several types of vicarious admissions that are exempted while in CEC only employer employee case applies and when it the statement is about the employee's negligent conduct
144
what is the distinction related to the excited utterance?
In CEC, it is called a Spontaneous Statement
145
what is the distinction related to the statement against interest?
This still exists in CA but in CA there is an added dimension for a statement a declarant makes that he knows is against his social interest, because it risks making the declarant an object of hatred, ridicule, or disgrace
146
What is the distinction relative to the present sense impression?
In FRE, this is a statement made during or immediately after the event that describes the event
In CA, called Contemporaneous Statement and may ONLY describe his conduct while he is engaging in. Cannot describe anything else.
147
Distinction on whether prior inconsistent statement for hearsay exemption needs to be under oath?
FRE - yes
CEC - no
148
3 distinctions in dying declaration?
FRE - homicide or civil cases only
CEC
- any type of case
- declarant must be dead
- statement must be about DID cause the death
149
Distinction relative to forfeiture by wrongdoing hearsay exception?
In CEC, only applies if declarant is unavailable because he was killed or kidnapped
150
Distinction relative to business records?
In CEC, business records not admissible if they contain statements of conclusions, opinions, and diagnoses
151
Distinction relative to ancient documents hearsay exception
In FRE, documents over 20 years old can come in
In CEC, documents must be 30 years old plus to come in
151
new hearsay exception that FRE does not have?
Statement about Infliction of or Threat of Injury
(1) made at or near time of threat;
(2) trustworthy; AND
(3) Made to and recorded by police or medical personnel.
152
