Evidence Flashcards
Outline the issues on evidence Q and the mnemonics
- relevance (logical +legal)
- prop 8
- public policy exception (SOLsymp)
- Witness testimony (competence, lay v. expert, FULCANS objections, MAPSS privileges, Hearsay exceptions
- impeachment (prior IS, bad acts, convictions)
- character (habit of opening the door MIMIC)
- Documents (relevance, authentication, best evidence rule, summaries)
- judicial notice
What is hearsay
Hearsay is an out of court statement offered to prove the truth of the matter asserted. It is inadmissible unless an exception or exemption applies
What are the public policy exceptions and for what purposes are they OK to admit?
SOL symp
- subsequent remedial measures, liability insurance, offers for plea deal, settlements, or medical expenses
NOT admissible to prove culpable conduct, but OK to prove ownership, impeachment, or as part of admission of guilt
Threshold issue for witness testimony
competence: based on first hand knowledge and testified truthfully
steps for testimony analysis
- competence (personal knowledge)
- objections? FULCANS
- expert v. law testimony
- Privileges? MAPSS
- Hearsay
Prop 8 CHOPSUR
Constitutional limits
Hearsay and exceptions
Open the door
Privilege
Secondary evidence rule
Unfair prejudice (legal relevance analysis)
Rape shield statute
MAPSS privilege
Marital communications
Attorney client
Psychiatrist/patient
Spousal testimonial
Self incrimination
Character evidence OK when using for what purpose?
MIMIC
Motive
Intent
Mistake
Identity
Common plan
Spousal testimonial privilege
A spouse cannot be compelled to testify against another spouse while married. Witness holds privilege
Marital communications privilege
confidential communications made during the marriage regardless of whether or not they are still married are privileged. Both spouses hold this privilege
What is a leading question and when are they allowed?
Leading question is phrased to be suggestive of a desired answer.
OK on cross,
OR on direct if: 1) hostile (antagonistic, unwilling), 2) opposing, 3) child, 4) background information (“You’re licensed, right?”), or 5) refresh recollection
witness competent
must have personal knowledge
logical relevance standard
if it tends to prove or disprove a material fact
unresponsive objection
an answer that is unresponsive or does not answer the question being posed is not permitted.
party admission exception (three kinds)
statement made by a party and being offered against him. Can be adoptive (by omission), vicarious (employee made during the course of business), or coconspirator statement (but look at confrontation issue
Excited utterance hearsay exception
statement made by declarant relating to a startling event while still under the stress or excitement caused by the event
statement against interest hearsay exception
statement of a declarant that is against her penal or financial interest when made, must be unavailable
dying declaration exception
statement made by declarant when they believe that death is imminent concerning the circumstances of his impending death. declarant must actually be dead.
medical treatment hearsay exception
statement of declarant’s then existing physical condition is admissible to show the physical condition. CA narrow – if made for medical treatment, must be minor describing child abuse
contemporaneous statement hearsay exception
a statement made by declarant explaining the conduct of declarant while declarant was engaged in that conduct
hearsay document exceptions (PRR, BR, PR, LT)
-past recollection recorded
-business records (records a business event, regular practice to record, made by person with knowledge, near the time of the matter indicated)
-public records (record describes activity of public office, describes matters observed pursuant to duty imposed by law (like police report)
-learned treatise
lay opinion admissible if
rationally based on the witness’s perceptions and is HELPFUL to the trier of fact
expert opinion admissible if
QHOP
Qualified expert
Helpful to jury
opinion based on facts or data
Based on principles and methods generally accepted
authentication
proof that the document is what the proponent claims to be. e.g. handwritten note card, witness must testify that he knew that the person in fact wrote the card
Best evidence / secondary evidence rule. What does it apply to?
the original document must be produced to prove its contents. Duplicates or machine copies OK unless genuineness is in question.
only applies to writings, recordings, photographs
prior bad acts ok when…
about truthfulness and used to impeach
AND
in Crim cases when D opens the door, pba OK only on cross under FRE, OK on direct in CA
what is judicial notice, and what is its effect in crim/civil cases?
court’s recognition of a fact if the fact is generally. known and not subject to dispute. In Crim cases, jury can evaluate. In civil cases, a fact is legally proven is judicial notice
when are prior convictions admissible?
Any crimes of dishonesty OK unless older than 10 years
Otherwise:
Threshold Legal relevance test
FRE: felonies OK to impeach witness
[CA] only felonies and misdemeanors if moral turpitude
When can character evidence be used?
in criminal cases, D must open the door to character evidence.
BUT always OK to show MIMIC (incl preparation, knowledge, opportunity)
Which hearsay exceptions require unavailability of declarant?
(Dying Individuals Find Facts Proving Facts)
- Statements against interest (pecuniary, penal, proprietary, [CA] social) when made.
- Former testimony: Testimony that is now offered against a former party, had an opportunity to x-exam W at prior/preliminary
hearing (including deposition but not grand jury) + similar motive to develop W’s testimony - Dying declarations made under genuine belief of impending death (FRE: homicide or civil actions only. CA: all civil or criminal cases)
b. [CA] Declarant must actually be dead + statement concerns what did cause the death - Pedigree/family: Statements concerning personal or family relationship closely associated with W
- Forfeiture by wrongdoing:
a. [CA] Applicable only where declarant was killed or kidnapped by person statement is
offered against. Requires C&C evidence (more than standard FRE preponderance) - [CA] Past physical or mental condition (including statement of intention) at issue if it is at issue
- [CA] Threat of physical harm: Statement that describes or explains infliction or threat of physical
injury on declarant is admissible if 1) made at or near time of infliction or threat, 2) circumstances
indicate trustworthiness, 3) in writing, recorded
statement against interest
a statement made by an unavailable declarant that is against her penal or financial interest, CA: can be social interest.
independent legal significance hearsay exemption
a statement that itself has independent legal significance (like a email that is the basis of a defamation claim) is not hearsay.
