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Essay Rules Flashcards > Evidence > Flashcards

Evidence Flashcards

1
Q

California Introductory Paragraph

A

Under Proposition 8 of the California Constitution (hereafter Prop. 8), any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under California Evidence Code (hereafter CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury.

(If it’s a civil case, note Prop. 8 does not apply.)

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2
Q

Evidence Issues

A

F-WRAPH

Form of Question
Witnesses
Relevance
Authentication / Best Evidence
Privileges
Hearsay

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3
Q

Judicial Notice

A

The court’s acceptance of a fact as true without requiring formal proof. Facts are subject to judicial notice if:
i) The fact is generally known within the territorial JX of the court; or
ii) The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

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4
Q

Leading Questions

A

Suggests the answer within the question.

Direct examination: not allowed, unless necessary to develop testimony (preliminary info), witnesses with difficulty communicating, antagonistic witnesses

Cross examination: allowed for questions within scope

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5
Q

Types of improper questions

A

CACAR!

Compound questions
Assumpes facts not in evidence
Calls for conclusion / opinion
Argumentative
Repetitive

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6
Q

Burden of production

A

A party’s obligation to provide sufficient evidence to support proposition of fact.

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7
Q

Burden of persuasion

A

A party’s obligation to convince the factfinder to believe a proposition.

Civil standard: preponderance (clear and convincing for fraud)
criminal: beyond a reasonable doubt

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8
Q

Rebuttable presumption

A

Shifts the burden of production (but not persuasion) to the opposing party.

Bursting bubble theory (FRE): a presumption “bursts” after sufficient evidence is introduced to sustain a contrary finding, so it is no longer preclusive.

No burst: judge instructs jury to accept presumption.

Burst: judge may instruct jury they may (but are not required to) draw conclusion.

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9
Q

Conclusive presumption

A

Treated as rules of substantive law and may not be challenged by contrary evidence, no matter how strong the proof.

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10
Q

Destruction of Evidence Presumption

A

raises a rebuttable presumption that such evidence would have been unfavorable to the party who destroyed the evidence. Proponent must establish:
1) Destruction was intentional
2) Destroyed evidence was relevant
3) Proponent acted with due diligence

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11
Q

Relevance of Evidence

A

Evidence must be relevant to be admissible. It must be both logically and legally relevant.

Logical: Evidence is logically relevant if it is PROBATIVE and MATERIAL.

Legal: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

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12
Q

Character evidence

A

Character evidence is evidence offered to show a person’s general personality traits or propensities. As a general rule, character evidence is generally inadmissible.

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13
Q

Exceptions to Character Evidence Ban

A

i.e., MIMIC

impeachment
essential element

motive
intent
absence of Mistake
Identity
Common plan

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14
Q

Bad character evidence about defendant

A

prosecution can only introduce once door has been opened

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15
Q

Good character evidence about defendant

A

Can be introduced by D (“mercy rule”), but opens door to:
- prosecution to call witness to rebut with reputation or opinion
- prosecution cross-examine D’s character witness with reputation, opinion, or ask about specific bad acts

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16
Q

Bad character evidence about victim

A

D can introduce if relevant to defense, but opens door to: - prosecution to introduce reubttal evidence with reputation or opinion
- prosecution to attack D’s character for same trait with reputation, opinion, or specific acts

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17
Q

Good character evidence about victim

A

Prosecution not permitted to introduce until door has been opened (bolstering)

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18
Q

Habit evidence

A

Habit evidence is evidence of a person’s habit or an organization’s routine. It is admissible to prove that the person or organization acted in accordance with a habit or routine on a particular occasion.

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19
Q

Witness Competence

A

Any person with personal knowledge who gives an oath to testify truthfully is competent to be a witness. A person who is unable to understand the requirement to tell the truth is incompetent.

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20
Q

Lay opinions

A

Permitted when opinion is:
- rationally based on witness’s perception
- helpful to understanding their testimony or making a factual determination
- not based on scientific, technical, specialized knowledge

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21
Q

Expert opinions

A

Permitted when witness is qualified, subject matter is scientific / specialized, and opinion will help the trier of fact. Testimony must be:
i) based on sufficient facts/data
ii) a product of reliable principles and methods
iii) reflection of reliable application of principles

It can be based on inadmissible materials if experts in the field would reasonably rely.

CA DISTINCTION: Requires preliminary showing that new scientific theory or technique has been generally accepted as valid in the field; trial court as gatekeeper.

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22
Q

Impeachment

A

Impeachment attacks the credibility of a testifying witness based on character for untruthfulness, bias, perception, or prior contradictory statements. Any party may attack the credibility of any witness.

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23
Q

Reputation and opinion evidence (impeachment)

A

A witness may testify about the opinion or reputation for another witness’s truthfulness.

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24
Q

Specific instances (impeachment)

A

Generally inadmissible, but can ask about specific instances on cross if it’s probative of truthfulness (no extrinsic).

CA disstinction: can only ask about specific instances on cross in CRIMINAL CASES.

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25
Q

Criminal convictions for impeachment

A

Conviction for crime of dishonesty: admissible
Conviction for other felony (witness): regular 403 balancing
Conviction for other felony (D): prosecutor must show more probative than prejudicial

10-year rule: if more than 10 years old, must show substantially more probative than prejudicial and give written notice

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26
Q

Prior inconsistent statements for impeachment

A

May be used to impeach if inconsistent with prior testimony.

If using extrinsic evidence, witness must be given opportunity to explain or deny.

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27
Q

Impeachment of hearsay declarants

A

Credibility of declarant may be attacked as if they really testified.

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28
Q

Rehabilitation of impeached witnesses

A

Witnesses may be rehabbed by rebuttal evidence, via:
- Explanation or clarification
- Reputation or opinion evidence of character for truthfulness
- Prior consistent statement offered to rebut express or implied charge that witness lied

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29
Q

Recollection refreshed

A

A witness may examine any item to refresh their present recollection (can’t read from it). Adverse party can:
- Ask for production of document
- Inspect document
- Cross-examine witnesses about document
- Introduce any relevant portion into evidence if they want

30
Q

Authentication

A

All tangible evidence must be authenticated. Authentication is production of sufficient evidence to support a finding that the thing is what the proponent claims it is.

31
Q

Authentication of physical objects

A

Physical objects can be authenticated by:
- Testimony of personal knowledge
- Testimony of distinctive characteristics
- Chain of custody (required for blood samples etc.)
- Witness with personal knowledge that a reproduction is accurate
- Witness to accurate process for things like x-rays and ekgs

32
Q

Best Evidence Rule

A

Applies when:

  • Contents of document are at issue OR
  • Witness is relying on contents when testifying

Requires that the original document or a reliable duplicate be produced to prove the contents of a writing, recording, or photo. Duplicates are admissible if no genuine question of authenticity.

33
Q

Spousal Immunity

A

Spouses may not be required to testify against each other in criminal cases. Applies to events before and during marriage, expires after marriage.

HOLDER: witness spouse, MAY choose to testify

CA DISTINCTION: applies to all cases, not just criminal

34
Q

Marital Communication Privilege

A

Spouses’ communications during marriage are privileged; doesn’t expire.

HOLDER: both spouses

CA DISTINCTION: may be asserted to prevent ANYONE from testifying about a marital communication, including eavesdroppers

35
Q

Lawyer-Client Privilege

A

Protects communications made during or when seeking lawyer services. Exceptions for crime fraud, client dispute with attorney, CA DISTINCTION: when lawyer believes necessary to prevent death or bodily harm

Holder: client

36
Q

Physician-patient privilege

A

State privilege that protects statements made for purposes of obtaining medical treatment, except info that doesn’t relate to treatment, physical condition is at issue in case, patient dispute with physician, waiver. Does not apply in federal court where state law doesn’t apply

HOLDER: patient

CA DISTINCTION: also protects diagnosis from licensed physician in civil cases

37
Q

Psychotherapist Patient Privilege

A

Protects statements made to psychotherapist / social worker, except for court order, mental condition at issue, commitment proceedings, CA DISTINCTION: if patient is a danger and disclosure necessary to prevent harm

HOLDER: patient

38
Q

Subsequent remedial measures

A

Inadmissible to prove liability, fault, or defective product.

Admissible to impeach, show feasibility of repair, prove ownership/control.

39
Q

Settlement offers

A

Inadmissible to prove liability or amount of disputed claim, or to impeach.

Admissible to prove bias, delay, obstruction.

40
Q

Plea negotiations

A

No contest, withdrawn guilty please, statements made during plea ngotiations/proceedings are inadmissible for ANY PURPOSE.

Can be waived.

41
Q

Offers to Pay Medical Expenses

A

Inadmissible to prove liability. Conduct and statements in conjunction are admissible (but not in CA).

42
Q

Liability Insurance

A

Inadmissible to prove liability/fault.

Admissible to show agency, control, bias.

43
Q

Sexual Conduct

A

VICTIM: Generally inadmissible, except if to prove consent (criminal case) or if probative value substantially outweighs (civil).

DEFENDANT: admissible in sexual assault cases (in CA, limited to criminal)

44
Q

Common non-hearsay uses (besides truth of the matter!)

A
  • Effect on listener
  • Circumstantial evidence of state of mind
  • Legally significant verbal act
45
Q

Non-hearsay categories

A

Opposing party’s statements (including judicial admission, adoptive admission, vicarious statements)

Declarant-witness’s prior statements (prior inconsistent statements, prior consistent statements, prior statements of identification)

46
Q

Opposing party’s statements

A

A statement made by a party to the current litigation is not hearsay when offered by an opposing party. AKA Admission of Party Opponent. Need not be against interest.

Includes judicial admissions (during proceeding); adoptive admission (express or implied); vicarious statements (employee/authorized/co-conspirator)

47
Q

Judicial Admission

A

Admissible as statement of party opponent; made during discovery or stipulation during proceeding, CONCLUSIVE!

48
Q

Adoptive Admission

A

Admissible as statement of party opponent; express or implied adoption of another’s statement.

Silent adoption counts when i) person understood ; ii) person had opportunity to respond; iii) a reasonable person would have denied.

49
Q

Vicarious Statements

A

Admissible as statement of party opponent.

Employee: if within the scope of and during the course of relationship
Authorized speaker: if authorized
Co-conspirator: if during and in furtherance of conspiracy

50
Q

Declarant-witness’s prior statements

A

Admissible nonhearsay. Declarant-witness must TESTIFY at present trial and be SUBJECT TO CROSS.

Includes prior inconsisten statements, prior consistent statements, prior statements of ID

51
Q

Prior inconsistent statement

A

Admissible if made under penalty of perjury (former trial), and declarant-witness testifies at present trial and is subject to cross.

52
Q

Prior consistent statement

A

Admissible (even if not made under oath) to rebut express or implied charge of fabrication or rehab credibility. Declarant witness must testify and be subject to cross.

53
Q

Previous statement of ID

A

Admissible if declarant-witness testifies at present trial and is subject to cross.

54
Q

Hearsay exception categories

A

Declarant unavailable
Declarant availability unimportant

55
Q

Declarant Unavailable Hearsay Exceptions

A

Fred Died So Isn’t So Freely Forthcoming

Former testimony
Dying declaration
Statement against Interest
Statement of Family history
Forfeiture against wrongdoing

56
Q

Former Testimony Hearsay Exception

A

Testimony given as witness if party against whom testimony is offered had opportunity and similar motive to develop testimony by examination.

Admissible if declarant unavailable

57
Q

Dying declaration hearsay exception

A

i) Declarant believes death is imminent
ii) Statement pertains to cause or circumstances of death

Only applies in homicide and civil cases.

CA DISTINCTION: admissible in all proceedings, and declarant must have actually died.

Admissible if declarant unavailable.

58
Q

Statement against interest

A

i) Against declarant’s interest at time it was made
ii) Would not have been made by reasonable person unless believed it to be true

Admissible if declarant unavailable

59
Q

Statement of family history

A

Concerning the declarant’s birth, adoption, marriage, divorce etc. Admissible if declarant unavailable

60
Q

Forfeiture against wrongdoing

A

Party who wrongfully caused declarant’s unavailability FOR THAT PURPOSE can’t object to their statements as hearsay

61
Q

Declarant Availability Doesn’t Matter Hearsay Exceptions

A

Present sense impression
excited utterance
statement of condition
medical diagnosis
recorded recollection
Buinsesss records
public records

62
Q

Present sense impression

A

Statement describing or explaining an event made while or immediately after declarant perceived it

CA distinction: contemporaneous statement = Statement offered to explain conduct of declarant while declarant was engaged in conduct

63
Q

Excited utterance

A

Made about a startling event while declarant is under stress or excitement it caused

CA DISTINCTION: spontaneous statement = i) Purporst to narrate event perceived by declarant and
ii) Made spontaneously while declarant under stress of excitement

64
Q

Medical diagnosis hearsay exception

A

Past or present symptoms, made for medical diagnosis or treatment

CA DISTINCTION: only applies to statements of children under 12 describing abuse or neglect

65
Q

REcorded recollection

A

FACK

Fresh at time
accurate
can’t recall now
knew about it then

66
Q

Business records hearsay exception

A

i) Record kept in course of regularly conducted business
ii) Making of record was regular practice
iii) Record was made at or near the time by someone with knowledge

67
Q

Public records hearsay exception

A

i) Sets out activities of office or agency; OR
ii) Observation of person under duty to report; OR
iii) Factual findings of legal investigation in civil case or AGAINST GOVERNMENT in criminal case

68
Q

REsidual hearsay exception

A

A hearsay statement may be admissible if the statement is supported by sufficient guarantees of trustworthiness and it’s more probative than any other obtainable evidence.

CA has no catchall provision

69
Q

Confrontatino Clause

A

in order the admit an out-of-court testimonial statement of a declarant against a D:
i) Declarant must be unavailable and
ii) D must have had a prior opportunity to cross.

70
Q

Due process & hearsay

A

right to fair trial may prevent application of hearsay rules where unduly restrictive

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