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