Evidence Flashcards
Prop 8 Rule Statement
Under Prop 8, the Victim’s Bill of Rights of the California Constitution, all relevant evidence is admissible except for certain exclusionary rule such as rules based on the U.S. Constitution, privileges (e.g. spousal, marital communication, attorney-client), and hearsay.
A court may choose to refuse to admit relevant evidence if the evidence’s probative value would be substantially outweighed by the prejudicial effect, would confuse the issues, or would mislead the jury
Logical and Legal Relevance
Evidence is logically relevant if it tends to prove/disprove a material [disputed] fact.
Legal relevance is found so long as the probative value is not substantially outweighed by the prejudicial effect.
Authentication
A document entered into evidence must be authenticated by a witness with personal knowledge of the document
Public Policy Exceptions
- Subsequent Remedial Measures: Measures taken after an injury are not admissible to show that there was an injury. However, can be shown to demonstrate control or that the fix was possible.
- Offers to Pay Medical Expenses - inadmissible, accompanying admissions may be admissible (but not in CA)
- Settlement Offers- Inadmissible to prove liability for, or invalidity of, a claim at actual dispute. Includes all contextual statements
- Withdrawn guilty pleas- Inadmissible
- Liability Insurance- Can’t be used to show culpability but can show ownership
Best Evidence Rule/Secondary Evidence Rule (CA)
When the contents of a writing are at issues (contracts, records), the original document must be produced.
Machine duplicates are permitted uless the authenticity of the original is disputed. **
Summaries of voluminous writings: If original documents are so voluminous that they can’t be conveniently introduced into evidence, a summary may be introduced through a sponsoring witness.
Original NOT required if: lost or destroyed (unless by opponent in bad faith), opponent fails to produce, collateral matter, unless duplicate authenticity in question
Judicial Notice
Judicial notice is the process of establishing facts without presenting evidence. The court can take judicial notice of facts not subject to reasonable dispute because they are either:
1. **Generally known ** within the jurisdiction, or
2. Capable of accurate and ready determination by a source whose accuracy cannot be reasonably questioned.
FRE:
Civil Cases: Jury must accept; Criminal Cases: May Accept
CA: Mandatory for both under CA
Dying Declaration
A statement made by the declarant, while she:
(1) believed death was imminent,
(2) about the cause or circumstances of her impending death
is a hearsay exception.
- In CA Declarant must be dead
Rule of Completeness
If a party introduces part of a writing/recording, the other party may require introduction of the other documents/rest of the document.
Lay Testimony
Lay Testimony: Testimony must be based on personal knowledge; be helpful to trier of fact; and not based on scientific knowledge/expertise
Expert Testimony
Expert Testimony: is admissible if:
1. Specialized knowledge will assist the trier of fact
2. The witness is qualfied as an expert by knowledge, skill, education, or training
The tesitmony but be the product of reliable principles and methods:
* FRE: *Daubert *MR - from a peer reviewed journal; that is tested (and subject to testing); and is generally accepted by expert’s community
* CA - Kelly/Frye - expert proves underlying theory; that is generally accepted by expert’s community; and applies that theory to their testimony
Confrontation Clause
Under the Sixth Amendment to the U.S. Constitution, prior **testimonial **evidence is inadmissible against a **criminal **defendant unless the **declarant is unavailable **and the defendant has a chance to cross-examine the declarant at the time the statement was made.
Privileges
- Attorney-Client Privilege
- Work Product Privilege
- Physician-Patient (CA only)
- Marital Communication Privilege
- Spousal Testimonial Privilege
Attorney-Clent Privilege
Confidential; communications between attorney and client; for the purpose of receiving legal advic are not admissible.
Exceptions include: crime/fraud, attorney vs client, former joint clients, voluntary disclosure
Work Product Privilege
Work Product Privilege: Documents made in preparation for litigation are privileged, unless substantial need and other side can’t reasonably obtain.
Mental impressions of ATTORNEY (+ their agents) never discoverable
Physician-Patient (CA only)
Physician-Patient (CA only): confidential; communications; made to doctor/nurse/chiropractor (and the like); for the purpose of treatment/diagnosis are not discoverable
Patient holds the privilege.
Marital Communication Privilege
Spousal Testimonial Privilege
Marital Communication Privilege: A confidential; communication; between spouses; during the marriage, lasts after marriage and held by both spouses - not discoverable
Spousal Testimonial Privilege: The privilege for spouses to refuse to testify against one another, held by the witness spouse
Character Evidence
Character is generalized information about a person’s behavior. Character evidence is generally not admissible to prove the propensity of the defendant.
Direct Examination, reputation or opinion testimony only. Specific acts only allowed on cross-exam (but not in CA)
Civil Case
Not admissible, unless character is at issue (defamation, negligent entrustment, child custody, domestic abuse)
Criminal/Civil
Not admissible, unless MIMIC
Admissible for sex crimes
Rape-Shield statute
Criminal
Defendant or Victim?
Defendant must open door to himself or victim, trait must be pertinent
If defendant, can attack character for the reverse of the trait
If victim, can attack defendant for same trait or can bolster the victim for the reverse of the attack
Habit/Business Routine Evidence is always allowed in
What is character evidence?
Character evidence is any document or testimony offered to prove a person acted in certain way on a particular occasion based on that person’s character. Such evidence is generally inadmissible to prove conformity with the character trait.
Criminal Cases:
D: Can only come in against D if D opens door.
V: D can use to show self-defense; P can respond
Impeachment (Truthfulness)
Impeachment is challenging a witness’s credibility via reputation/opinion evidence.
Specific acts may be asked about only on cross-exam and have to accept answer (i.e. no extrinsic evidence).
Impeachment By Prior Crimes
FRE:
Criminal Conviction for truthfulness - can always come in, so long as not >10 yrs old
Criminal Felony Conviction -
For Defendant: can come in against a criminal D if the probative value outweights the prejudicial effect.
For Witness: Can come in so long as PV is not substantially outweighed by PE.
Criminal Misdemeanor
Can’t use
CA: If felony or misdemeanor is of moral turpitude it comes in
Methods of Impeachment (besides truthfulness)
Impeachment Can Be For:
* Bias
* Prior Inconsistent Statements
* Deficiency of Personal knowledge
Other Crimes Evidence (MIMIC)
Past Crimes (Mimic)
A defendant’s past crimes or other wrongful acts are not admissible to show criminal propensity but admissible as circumstantial evidence of motive, intent, mistake (absence of), identity, and common plan or scheme.
Hearsay
An out of court statement offered to prove the truth of the matter asserted
Non-hearsay
Legally Operative Fact: A statement used to prove that the declarant said something or the statement is the element of a claim (defamatory statement, contract language)
Effect on Listener: (Notice, knowledge, motive) of the listener
Statement of Mind: (insanity, belief) of the speaker
Admission by Party Opponent (general, adoptive, vicarious, co-conspirator): Statements by opponent that is related to the claim.
Adoptive: Silence or conduct where party understood the accusatory statement, could deny, and didn’t even if a reasonable person would have, can be adoptive admission
Vicarious: Employees/agents in the scope of employment/agency
Co-conspirator: statement of a conspirator during the conspiracy, in furtherance of the conspiracy.
Prior Consistent Statement: offered to rebut a charge that witness had motive to lie. Declarant must have testified, be subject to cross, made BEFORE alleged motive to lie.
Prior Inconsistent Statement: To admit for substantive evidence, must have been made under oath previously.
Prior Identification: Prior identificatio of person after perceiving them and able to testify.
Non-hearsay: Admission By Party Opponent
A party admission is a statement made by a party and offered against
him and is admissible. Admissions are excluded from hearsay and
are admissible.
Includes statements that are:
* Adoptive: Silence or conduct where party understood the accusatory statement, could deny, and didn’t even if a reasonable person would have, can be adoptive admission
* Vicarious: Employees/agents in the scope of employment/agency (in CA - only where negligence of the employee is at issue)
* Co-conspirator: statement of a conspirator during the conspiracy, in furtherance of the conspiracy.
Nonhearsay: Prior Consistent Statement
Prior Consistent Statement: A prior consistent statement is admissible if offered to rebut a charge of lying.
Nonhearsay: Prior Inconsistent Statement
Prior Inconsistent Statement: A witness may be impeached by a prior inconsistent statement if that statement.
- Extrinsic evidence only permissible if the witness is given an opportunity to explain or deny
Nonhearsay: Prior Identification
Prior Identification: Prior identification (PID) of a person, made after perceiving the person, is substantively admissible if the declarant testifies at
trial.
Hearsay Exceptions (Unavailable Witness)
- Statement Against Interest
- Former Testimony
- Dying Declaration
- Statement of Personal Family History
Hearsay Exception: Statement Against Interest (Unavailable D)
Unavailable
A statement against interest is one made by an unavailable declarant & against her financial or penal interest when made and is admissible as an exception to the hearsay rule.
Hearsay Exception: Former Testimony (Unavailable D)
Former Testimony: testimony given at a (1) prior proceeding under oath; (2) party against whom the testimony is offered was a party in the former action; (3) same subject matter; and (4) opportunity to cross at prior proceeding
Hearsay Exception: Dying Declaration (Unavailable D)
Dying Declaration: A dying declaration is a statement made while the declarant: (1) believes that they will imminently die; and (2) it is about the cause of their death. (Applies to homicide and civil cases under the FRE, any case in CA). (In CA, they actually have to die).
Hearsay Exception: Statement of Personal Family History (Unavailable D)
**Statement of Personal Family History: **Statement concerning births/death where the declaration is a member of the family and thes tatemetns are based on personal knowledge. *
Hearsay Exceptions
(Witness Available or Unavailable)
- Present State of Mind
- Excited Utterance/Spontaneous Statement
- Present Sense Impression/Contemporaneous
- Medical Diagnosis or Treatment Statements
- Business Record:
- Other: Public Records, ancient documents, family records,
Hearsay Exception: Present State of Mind
**Present State of Mind: **Statements of a declarant’s then existing state of mind, emotion, sensation, or physical condition are admissible.
Hearsay Exception:
Excited Utterance/Spontaneous Statement (CA)
(Witness Available or Unavailable)
Excited Utterance/Spontaneous Statement (CA): Excited utterance is a statement made by declarant while, or shortly after, experiencing a stressful or exciting situation, while still under the stress of the event.
Hearsay Exception:
Excited Utterance/Contemporaneous Statement (CA)
(Witness Available or Unavailable)
FRE: Present Sense Impression: A statement made by a declarant (1) while, or shortly after, witnessing something; (2) that describes the thing being witnessed.
CA: Contemporaneous Statement: A statement offered to explain, qualify, or make understandable the defendants’ conduct while it is occuring is admissible.
Hearsay Exception: Business Record
Business Record: A business record requires that it be made (1) for a business purpose; (2) in the regular course of conduct; (3) by a person with personal knowledge; (4) who had a duty to record; and (5) was made timely to the event.
(Witness Available or Unavailable)
Hearsay Exception: Public Record
Public Record: A Public Record is a record made by (1) a public officia;l (2) within the scope of their duties; (3) timely to the event.
Can also be used to show absence if custodian’s diligent search failed
(Witness Available or Unavailable)
Hearsay Exception: Recorded Recollection
Recorded Recollection: A recorded recollection is a statement that was made by a person (1) who had personal knowledge; (2) the record reflects their knowledge; (3) was timely made; (4) who testifies that they can no longer remember the event.
(Witness Available or Unavailable)
Hearsay Exception: Medical Diagnosis/Treatment Statements
A statement made for the purpose of medical diagnosis or treatment is admissible.
(Witness Available or Unavailable)
