Evidence Flashcards
FRE does not apply to
-preliminary questions of fact regarding admissibility
-Grand jury proceedings
-criminal proceedings for issuance of warrants, extradition, bail, sentencing, probation
Judicial Notice
adjudicative facts: subject to judicial notice if the fact is not subject to reasonable dispute because the fact is generally known or can be accurately and readily determined from reliable sources
civil case: must accept noticed fact as conclusive
criminal case: jury may(FRE)/MUST(CA) accept judically noticed fact as conclusive
Scope of cross examination
generally limited to subject matter of direct examination and witness credibility
Leading questions
suggest the answer in the question.
Not permitted in direct unless hostile witness, needed to develop witness testimony,
generally allowed in cross
Improper Questions
leading on direct
calls for conlcusion/opinion
Argumentative
lack of foundation
assumes facts not in evidence
repetitive
compound
[loaferc]
Burden of proof
production: msut produce legally sufficient evidence for each element of a claim
persuasion:
civil: preponderance of the evidence
criminl: beyond a reasonable doubt
Desctruction of evidence
generally raises a rebuttable presumption that the evidence would be unfavorable if the other party establishes the destruction was intentional, the evidence is relevant, and the alleged victim acted with due diligence
PROP 8
California’s constitution was amended to provide that in criminal cases, relevant evidence shall not be excluded unless an exception for hearsay or privilege applies.
Logical relevance
Evidence must be relevant to be admitted. Evidence is relevant if it has any tendancy to make a material fact more or less probable.
CA: evidence is relevant if it has any tendancy to make a material disputed fact more or less probable
Legal relevance
Relevant evidence should be excluded if the probative value is outweighed by unfair prejudice, confusion of the issues, misleading the jury, cumulative evidence.
Curative Admission
Otherwise inadmissible evidence may be admissible to rebut previously admitted inadmissible evidence if there is unfair prejudice
Subsequent remedial measures
Inadmissible to prove liability, fault or defective product
admissible to impeach, show feasibility if in dispute, or prove ownership if in dispute
CA: can be used to show product liability
Compromise offers/settlement negotiations
Inadmissible to provie liability or amount of a disputed claim or to impeach
only admissible to show bias
Offers to pay medical expenses
the offer itself is inadmissible to show liability, but accompanying statements and conduct are admissible
CA: the accompanying statements are not admissible
Plea negotiations
No contest and withdrawn guilty pleas are inadmissble, as well as other statements unless another statement is admitted by the defendant and fairness requires more
Liability Insurance
whether or not one has insurance is inadmissible to show liability, but it is admissible to show agency, ownership, or bias
CA: lack of liability insurance is admissible but having insurance is not
Sexual conduct/rape shield
evidence of sexual behavior of the victim is generally inadmissible except
criminal case: to prove consent or another party is source of evidence
civil case: probative value substantially outweighs unfair prejduce
Conduct of the defendant is admissible in sexual assault and child molestation cases
Character evidence in Civil case
Generally inadmissible to prove a person acted in accordance with that character or trait
Civil cases: admissible only when character is an essential element of a claim or defense
FRE (Not CA): admissible to show previous sexual assault/molestation in current sexual assault/molestation case
Character evidence in criminal case
D’s character:
by prosectution: not permitted to introduce D’s bad character for propensity reasons, but can introduce if D opens the door
Defense can introduce pertinent character traits as being inconsistent, but must be reputation/opinion
Victims character
by defense: D can attack victims pertinent character trait with reputation/opinion evidence (specific acts in CA too)
by prosecution: can rebut when D has introduce evidence of victim’s bad character, including self defense (self defense does not count for this in CA)
Character for truthfulness/untruthfulness
character evidence of a testifying witness’s reputation for untruthfulness is admissible for impeachment
Specific bad acts
not admissible for propensity reasons except past sexual abuse/molestation in current criminal sexual abuse/molestation cases ( civil cases, FRE only)
MIMIC evidence (Motive, intent, absence of mistake, identty, common plan)
but must give notice in writing before trial
Habit evidence
a person’s particular routine (semi-automatic) reaction to a specific set of circumstances is admissible to prove the person acted in accordance with the habit on a pticular occasion
Prior conviction
any crime involving honesty or moral turpitude (CA only): always relevant
felony by witness: probative value must not be substantially outweighed by prejudice
felony by defendant witness: probative value must outweigh prejudice
more than 10 years (FRE only, not ca): probative value must substantially outweigh unfair prejudice
Character for untruthfulness
can inquire on cross exam about specific acts, but extrinsic evidence not allowed if denied
CA: can only be used in criminal cases, extrinsic evidence allowed for collateral matters
Witness competence
as long as they can give oath/affirmation to testify truthfully
Lay witness
must be based in personal perception and helpful to fact finder
no hypnosis unless knew the info before the hypnosis in civil trial
Juror testimony
generally may only testify about extraneous prejudicial information, improper outside influence, mistakes on the verdict form
CA: can provide information on any improproprieties but not how they affected his reasoning
Prior inconsistent statements
Unless there is a hearsay exception, only for impeachment
CA: can be used for substantive and impeachment purposes
Authentication
sufficient evidence for factfinder to find that the item is genuine and what proponet claims it is
physical objects: by testimony, distinctive characteristics, chain of custody
Documents: stipulation, testimony, handwriting verification
self authentication: certified/public records, periodicals
handwriting: by expert, someone familiar, or factfinder comparing to genuine item
oral statements: testimonial
Best Evidence Rule/Secondary evidence rule
applies when trying to prove contents of a writing, photograph, or recording
the original document or a reliable duplicate must be produced
exceptions: lost/destroyed, opposign party refuses to produce, alternative proof for party admission
Parol Evidence Rule
bars extrinsic evidence of prior or contemporaneous statements that contradict the written agreement if integrated
exceptions: ambiguities, condition precedent, attack formation, attack enforcement
Refresh Recollection
witness may examine any item to refresh witness’s present recollection, but testimony must be on the refreshed recollection, not the item and only the opposing party can admit the item
Expert witness testimony
must be offered by expert if based on scientific, technical, or specialized knowledge
Daubert:
expert is qualified,
opinion is based on sufficient facts and data
product of reliable methods
the method was reliably applied
must not testify about criminal defendant’s ultimate mental state
Frye: science is generally accepted and reliable in the relevant scientific field
Spousal Immunity
spouses may not be required to testify against each other in a criminal case (or a civil case, CA only)
the witness spouse is the holder and can waive
applies to events before or during the marriage
the privilege terminates upon divorce
Marital communications
confidential communications made during marriage are protected in both civil and criminal cases
both spouses hold the privilege
never expires, but only applies to communications made during marriage
CA: can be used to stop an eavesdropper from testifying, crime fraud exception
Attorney client privilege
confidential communication between client and lawyer for purpose of obtaining or providing legal advice
privilege exists until client waives or death(CA ONLY)
excpetions: crime/fraud, former co-clients
Work product
document prepared in anticipation of litigation is protected unles the praty seeking disclosure has substnatial need and cannot obtain otherwise, but the exception does not apply to mental impressions, etc.
Physician-patient privilege
no federal one
statement must be made to a licensed physican to get treatment or diagnosis, limited to civil cases
psychotherapist patient privilege
patient holds the privilege, but doesn exist if patient’s mental condition is at issue, statemetn is result of state ordered exam.
CA: no privilege if patient is danger to himself others or if less than 16 and a victim
Hearsay
Hearsay is an out of court statement offered for the truth of the matter asserted.
a statement can be oral, written, or assertive conduct
Non hearsay
prior statements: must be present and available to testify
Inconsistent: made under penalty of perjury for impeachment and substantive purposes (CA doesn’t require oath)
consistent: for rebutall only, must be made before Declarant had reason to fabricate (CA: also substantive use)
Prior identification
Opposing party statements
Unavailable Declarant Hearsay exceptions
Former testimony
dying declaration
statement agsint interest
statement of personal/family history
statement against party that caused declarant’s unavailability
Unavailable
not found, dead, not competent, lack of memory (FRE), refuse to testify (CA requires contempt of court),
Former testimony
unavailable,
requires if the opposing party had an oppurtunity and a simila rmotive to develop testimony
dying declaration
unavailable
declarant believes death is imminent
statement pertains to cause of death
need not die (FRE) died (CA)
applies to only homicides and civil cases (FRE) applies to all cases (CA)
Statement against interest
a statement was against a declarant’s proprietary/pecuinary interest and a reasonable person would not have made the statement unless it was true
California includes statments that subject the person to moral condemnation/hatred
Present sense impression (FRE)
statement explaininf or describing an event made while or immediatley after perception
Conemporaneous statment (CA)
statement offered to explain or make understandable the declarant’s current conduct
Excited utterance
statemetn about startling event or condition while declarant is under teh stress that it caused
called spontaneous statement in CA
Statment of mental, emotional, or physical condition
statemetn of then existing state of mind (present intent, motive, plan) or emotional , sensory, or physical conditions (but not the cause)
CA: explicit trustworthiness condition, also will allow past state of mind if unavailable
Statement made fo rmedical diagnosis/treatment
describing medical history or past or present symptoms is not excluded as hearsay if it is made for medical treatment , statements about cause are okay, may be made by close relative,
CA only applies for minors under 12 describing abuse/neglect
Recorded Recollection
if the witness is not able to testify because they do not remember and refreshment is not enough, the record can be admitted if
it was a matter that the witness once knew
the record was made when it was fresh in the witness’s memory
accuratley reflects the witness’s knowledge
and the witness states they cannot recall after consulting the record
Business records
the record must be kept in the course of regularly conducted business,
the making of the record was a regular occurance
record was made at or near the time by someon with knoewldge
CA: does not require that the record was a regular part of pratice
must indicate trustworthiness
Public records
not admissible against a criminal defendant
statement of public office/agency about the agency’s activities or findings from an investigation
Learned treatises
a statement a treatise is not excluded if the expert witness relief on the statment and the publication si a reliable authority
CA: only allows historical works, books of science/art, published maps
Judgment of a previous conviction
final judgment must be entered after trial, the conviction was punishable by death or imprisonment for >1 year, evidence offered to prove anny fact essential to sustain judgment
CA: any felony conviction admisible in any civil action
Confrontation clause
To admit a testimonial statemet against a criminal defendant, the defendant msut have had an opportunity to confront and cross examine the declarant
a testimonial statment is one made for purposes of litigation, emergency statments to police or interrogation are not testimonial
Co conspirator admission
Under the CEC, a statement made by a co-conspirator during and in furtherance of the conspiracy is admissible as an opposing party’s statement against other co-conspirators.
