Evidence Flashcards
Relevance
Relevance
To be admissible, evidence must be both logically and legally relevant. Relevant evidence is admissible unless another rule provides otherwise.
Logical Relevance
Evidence is logically relevant if it has any tendency to prove or disprove a material fact. (In CA, the material fact must be in dispute).
Legal Relevance
Evidence is legally relevant if its probative value is not substantially outweighed by a danger of unfair prejudice, confusing the issue, misleading the jury, or wasting time.
Relevance
CA Proposition 8
Under Proposition 8 of the California Constitution, all relevant evidence is admissible in a criminal trial, with several special exemptions.
Policy Exclusion
Subsequent Remedial Measures
Evidence of subsequent remedial measures is not admissible to show culpability or negligence [for public policy reasons].
Policy Exclusion
Evidence of Liability Insurance
Evidence of liability insurance is not admissible to prove culpability [for public policy reasons].
Policy Exclusion
Offers to Pay Medical Bills
Evidence of paying or offering to pay medical expenses is not admissible to prove liability for injury [for public policy reasons].
Policy Exclusion
Offers to Settle
Offers to compromise and statements made during settlement negotiations are not admissible to prove the claim’s validity or amount [for public policy reasons].
Physical & Documentary Evidence
Authentication of Evidence (General Rule)
All evidence must be authenticated before being admitted, i.e., a party must prove that the item is what the party purports it to be.
Physical & Documentary Evidence
Authentication of Evidence (Physical Evidence)
Physical evidence may be authenticated through:
(a) W testimony, or
(b) a substantially unbroken chain of custody.
Physical & Documentary Evidence
Authentication of Evidence (Voice Recordings)
Voice recordings may be authenticated by anyone who has:
1. heard the person speak, and
2. identified the recorded person as the speaker.
Physical & Documentary Evidence
Best Evidence Rule
- To prove the contents of the writing, a party must provide the original document (or reliable duplicate/photocopy).
- In CA, this rule is called the Secondary Evidence Rule.
- Under the FRE, handwritten duplicates are not admissible. In CA, handwritten duplicates are admissible.
Character Evidence
Character Evidence (General Rule)
- Generally, character evidence is not admissible to show propensity (that a person acted in conformity with a character trait on a particular occasion).
- However, character evidence is admissible:
(a) for non-propensity purpose, or
(b) when the character is “at issue” (e.g. defamation, child custody cases)
Character rules can overlap with impeachment rules when a witness is on the stand. If the purpose for the character evidence is to prove that a W is untruthful -> impeachment rules, if it is for any other purpose -> character evidence rule.
Character Evidence
Character Evidence (Criminal Case)
- D’s Character: The prosecution cannot present evidence of the D’s character, unless the D first “opens the door” and provides evidence of the D’s good character or the V’s bad character for that character trait
- V’s Character: The prosecution cannot present evidence of the V’s character, unless the D first “opens the door” and presents evidence of the V’s bad character for that character trait.
- V’s Character (Homicide): Under the FRE, in a homicide case, the prosecution may offer evidence of the V’s character for peacefulness only if the D claims the V was the aggressor (self-defense).
Character Evidence
Methods of Proving Character
- Opinion and reputation evidence are admissible on both direct and cross. Specific acts are admissible only on cross.
- In CA, in a criminal case, all types of evidence are admissible on both direct and cross to prove the V’s conduct.
Character Evidence
Prior Bad Acts
- Evidence of prior bad acts is not admissible to show propensity.
- However, it is admissible if it is relevanto to provie motive, identity, mistake, intent, common scheme, or knowledge.
MIMICK
Impeachment
Prior Inconsistent Statements
- Prior inconsistent statements are admissible to impeach a W’s trial testimony.
- Extrinsic evidence is admissible only if the W is first given an opportunity to explain the statement.*
*Not applicable to statements by a party opponent.
Impeachment
Prior Convictions (FRE)
- Under the FRE, prior felony or misdemeanor convictions involving dishonesty are always admissible to impeach a W.
- All other misdemeanors are NOT admissible to impeach.
- Felonies that **DO NOT **involve dishonesty are admissible to impeach, subject to the court’s balancing.
Impeachment
Prior Convictions (CA)
- In CA, prior felony convictions involving moral turpitude are admissible to impeach.
- Felonies that DO NOT not involve moral turpitude are NOT admissible.
- In CA, in a criminal case, _misdemeanors involving moral turpitude_ are admissible. Otherwise, misdemeanor convictions are not admissible.
- Moral turpitude includes crimes involving lying, violence, sex crime, and extreme reckless.
Impeachment
Specific Acts (“Bad Acts”)
- Under the FRE, W’s specific acts (prior bad acts) that are probative of truthfulness are admissible by questioning him on cross-examination.
- In CA, generally, prior bad acts are NOT admissible, unless the acts involve moral turpitude (Prop 8).
Witness Examination
Lay Witness
- A lay W may only testify to matters of which he has personal knowledge.
- A lay W’s opinion is admissible only if it is:
1. rationally based on the W’s perception, and
2. helpful to the factfinder.
Witness Examination
Expert Witness
Expert testimoby is permitted when:
1. the W is qualified as an expert,
2. the testimony is helpful to the factfinder,
3. the testimony is based on sufficient facts or data,
4. the testimony is based on reliable principles and methods, and
5. the expert has reasonably applied the principles and methods to the facts to the case.
Witness Examination/Presentation of Evidence
Refreshing Recollection
Refreshing a W’s recollection using a document is permitted when:
1. the W once had personal knowledge of the matter,
2. but is unable to recall the matter while testifying.
Judicial Notice
Judicial Notice
- A court may take judicial notice of indisputable facts that are either:
(a) commonly known in the community, or
(b) readily capable of verification and cannot reasonably be questioned. - Under the FRE, judicial notice is conclusive in civil cases, but not conclusive in criminal cases (the jury may or may not accept it as conclusive).
- In CA, judicial notice is conclusive in both civil and criminal cases.
Objections to the form of the question
Assumes Facts Not in Evidence
A question that assumes facts not in evidence is not permitted.
Objections to the form of the question
Leading Question
- A leading question is one that suggests an answer to the W.
- Leading questions are permitted on cross-examination, but not on direct examination.
Objections to the form of the question (answer)
Non-Responsive Answer
A non-responsive answer provides more information than the question asked for and not permitted.
Objections to the form of the question (answer)
Speculation
A W may only testify to personal knowledge and cannot speculate.
Hearsay
Hearsay Definition
- Hearsay is:
1. an out-of-court statement,
2. that is offered to prove the truth of the matter asserted. - Hearsay is ONLY admissible if it falls under an exception.
(Hearsay is an exception to Prop 8.)
Hearsay
Multiple Hearsay
When evidence contains hearsay within hearsay, each level of hearsay must fall within an exception to be admissible.
Hearsay
Statements Offered for Other Purpose
If an out-of-court statement is offered to prove something other than the truth of the statement, it is non-hearsay and admissible.
- Effect on listener (the listener was put on notice of some info)
- Words of independent legal significance (e.g. solicitation, words of defamation, words establishing a K)
- Prior inconsistent statements (impeachment)
- State of mind.
Statements “not for the truth of the matter”, are, by their very nature, not considered testimonial and fall outside the scope of the Confrontation Clause.
Hearsay Exclusions (Admissions)
America Values Peter-Parker
Adoptive Admission
Vicarious Admission
Party Admission (Statements by a Party Opponent)
Hearsay Exclusions (Admissions)
Adoptive Admission
- A person’s silence may constitute an adoptive admission if a reasonable person would have denied the statement.
- An adoptive admission is not hearsay and admissible.
Hearsay Exclusions (Admissions)
Vicarious Admission
Statements by:
(a) an agent or employee made during/within the scope of that relationship; or
(b) co-conspirators during the conspiracy
are not hearsay and admissible.
Hearsay Exclusions (Admissions)
Party Admission (Statements by a Party Opponent)
A statement (admission) by a party opponent is not heasay and admissible.
e.g. All statements made in pleadings; an anonymous letter admitting tax liability sent to the IRS in D’s handwriting; D’s guilty plea to DUI.
Hearsay Exceptions - Declarant Unavailable
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- Former Testimony
- Statement Against Interest
- Dying Declaration
Declarant Unavailable
Declarant Unavailable Requirement
A declarant is deemed unavailable as W if he:
1. is exempted due to privilege;
2. refuses to testify despite a court order (CA: (a) refuses to testify out of fear, or (b) persistently refuses to testify);
3. does not remember the subject matter (CA: total memory loss is required);
4. dead or sick; or
5. his attendance cannot be procured by reasonable means.
Declarant Unavailable
Former Testimony
- Former sworn testimony is an exception to the hearsay rule and admissible, if:
1. the declarant is unavailable;
2. the testimony is offered against a party who was present in the previous trial; and
3. the party had a similar motive and opportunity to cross examine the W in the previous trial.
Declarant Unavailable
Statement Against Interest
- A statement against interest is an exception to the hearsay rule and admissible if:
1. the declarant is unavailable, and
2. it’s a statement against the declarant’s penal, proprietary, or pecuniary interest when made. - In CA, statements against one’s social interests are also admissible.
Declarant Unavailable
Dying Declaration
- A dying declaration is an exception to the hearsay rule and admissible, if:
1. the declarant is unavailable,
2. he believed his imminent death, and
3. the statement is about the circumstances or cause of his impending death. - In CA, the declarant must actually be dead.
Hearsay Exceptions - Spontaneous, Excited, or Contemporaneous
Mulan and Pocahontas Save Eeyore
- Medical Diagnosis/Treatment Statements
- Present Sense Impression
- State of Mind
- Excited Utterance
Spontaneous, Excited, or Contemporaneous
Medical Diagnosis/Treatment Statement
A statement describes medical history or symptoms (past or present) is an exception to the hearsay rule and admissible if it is made for medical diagnosis or treatment.
Spontaneous, Excited, or Contemporaneous
Present Sense Impression (PSI)
- PSI is an exception to the hearsay rule and admissible.
- A PSI is a statement describing an event and made by the declarant:
(a) while observing the event, or
(b) immediately thereafter. - In CA, this exception is called the Contemporaneous Statement, and it only applies when the statement:
1. is offered to explain the declarant’s own conduct, and
2. was made while the declarant was engaged in such conduct.
Spontaneous, Excited, or Contemporaneous
State of Mind
- Statements of the declarant’s then-existing:
(a) state of mind (i.e. intent, motive, plan), or
(b) emotional, sensory, or physical condition
are an exception to the hearsay rule and admissible. - The exception does not apply to statements of memory or belief.
e.g. “I am leaving later today to visit relatives in a distant state.” (future intent); “I feel nauseated, because my husband poisoned me.” (The first part of the statement was a statement of a then-existing physical condition, the second part of the statement was the declarant’s belief about the reason for that condition).
Spontaneous, Excited, or Contemporaneous
Excited Utterance
- An excited utterance is an exception to the hearsay rule and admissible.
- An excited utterance is a statement made while the declarant was under the stress of excitement of a startling event.
- In CA, this exception is called the Spontaneous Statement.
Hearsay Exceptions - Document
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- Past Recollection Recorded
- Business Records
- Public Records
Document
Past Recollection Recorded
A past recollection recorded is an exception to the hearsay rule and admissible if:
1. the writing was made or adopted by the W,
2. the writing was made while the events were still fresh in the mind of the W, and
3. the W can no longer remember the event.
Document
Business Records
- A business record is an exception to the hearsay rule and admissible if:
1. it is made by a person with knowledge of the matter,
2. it is the regular practice of the business to make such a record, and
3. it is timely made. - In CA, the party introducing the business record has the burden of showing that the record was made under circumstances indicating trustworthiness.
Document
Public Records
The following public records are admissible under the hearsay exception:
1. agency’s record of its own activities,
2. observations made by someone in accordance with his duties by law (except police reports in criminal cases), and
3. factual findings from a legally authorized investigation (only in civil cases).
Hearsay Exceptions - Catch-All
Catch-All Exception
- Under the FRE, a hearsay statement not covered by any exception may be admissible if it is:
1. trustworthy,
2. offered to prove a material fact,
3. more probative than other evidence, and
4. admitting it will best serve the interests of justice. - CA does not have a catch-all hearsay exception.
Confrontation Clause
Confrontation Clause (6th Amendment)
- The 6th Amendment’s Confrontation Clause gives a criminal D the right to confront W against him.
- The use of an out-of-court statement violates the 6th Amendment when:
1. the statement is “testimonial”, and
2. the declarant is unavailable for cross-examination.
Privileges
Privilege & Eavesdroppers
Unknown eavesdroppers DO NOT destroy privilege. However, known or anticipated eavesdroppers WILL destroy privilege.
Privileges
Attorney-Client Privilege
- The attorney-client privilege protects confidential communications between an attorney and client from disclosure if the communication was made to facilitate legal services.
- The privilege does not apply when:
1. the legal services are sought for a crime or fraud, or
2. there is litigation between the attorney and client. - The client holds the privilege, and only the client can waive it.
Privileges
Attorney Work Product
- The attorney work product doctrine protects from disclosure materials prepared by an attorney in anticipation of litigation.
- The purpose of the doctrine is to protect an attorney’s mental impressions, notes, or opinions.
- Work product that does not include the attorney’s mental impressions, notes, or opinions may be discoverable when the opposing party demonstrates a substantial need for the material.
Privileges
Confidential Marital Communications
- One spouse may not disclose the confidential communications of the other spouse made during the marriage.
- Both spouses hold the privilege.
- The privilege applies even after divorce.
Privileges
Spousal Immunity
- A witness-spouse may refuse to testify against his or her spouse (FRE: in a criminal case; CA: in both civil and criminal cases).
- The privilege ends after divorce.
