Evidence Flashcards
BARBRI California Bar Review W14 rules of law to be memorized for recitation on essays.
Best Evidence Rule
To prove the terms of a writing (including a recording, photograph, or x-ray), the original writing must be produced of the terms if the writing are material. Secondary evidence of the writing (e.g., oral testimony) is admissible only if the original is unavailable.
Spousal Immunity Privilege
Under the CEC, one spouse cannot be compelled to testify against the other spouse in any criminal or civil proceeding. Only the witness-spouse may invoke spousal immunity. The privilege can be claimed only during marriage, but covers information learned before and during the marriage.
Confidential Marital Communications Privilege
Under the CEC, communications made in reliance upon the intimacy of the martial relationship are privileged in both civil and criminal proceedings. Both spouses hold the privilege to prevent the other from disclosing a confidential marital communication. Unlike the spousal immunity privilege, the marital communications privilege survives the marriage, but covers statements made only during the marriage.
CA Proposition 8
Proposition 8 is part of the CA Constitution and applies to criminal cases. Under Prop 8, all relevant evidence is admissible unless the evidence falls within an exemption.
Leading Questions
Leading questions are not allowed on direct examination. A leading question is one that suggests the answer.
Logical Relevance
Under the CEC, evidence is logically relevant if it tends to prove or disprove a material fact in dispute.
Non-Responsive Answers
A non-responsive answer provides more information than what is asked for.
Hearsay
Hearsay is an out of court statement used to prove the truth of the matter asserted.
Non-Hearsay (admissible as substantive evidence) & Hearsay Exceptions
FRE NON-HEARSAY
Admissions by Party-Opponent
Prior Statements by Witness
HEARSAY EXCEPTIONS Ancient Documents Business Records Co-Conspirator Admissions Excited Utterance Family Records Market Reports Official Records/Writings Past Recollection Recorded Physical Condition Present Sense Impression Present State of Mind Property Interest Documents Reputation Treatises
DECLARANT UNAVAILABLE Dying Declaration Former Testimony Personal or Family History Statement Against Interest Statement Offered Against Party Procuring Declarant's Unavailability
Admission by Party Opponent
An admission is a statement made or act that amounts to a prior acknowledgement of a relevant fact. The statement need not be made against interest. The statement does not require personal knowledge, may be an opinion, and may be predicated on hearsay.
- CA common law hearsay exception
- *FRE non-hearsay
Prior Statements by a Witness
*FRE non-hearsay if the prior statement is: inconsistent with the declarant’s in-court testimony and was given under penalty of perjury at a prior proceeding; consistent with the declarant’s in-court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive AND the statement was made before any motive to do so arose; or one of identification of a person as someone the witness perceived earlier.
Ancient Documents
Document of twenty years or older.
Business Records
Writing made in the regular course of business, consisting of matters within the personal knowledge of one with a business duty to transmit, that is made near the time of the event, and is authenticated. Lack of such writing may be used to show nonoccurence of the event.
Co-Conspirator Admissions
Admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators. However, there must have been an opportunity to cross-examine the hearsay declarant.
Excited Utterance
Statement made while under the stress of the excitement of a startling event, before the declarant had time to reflect upon it.
Family Records
Statements of fact found in family Bibles, jewelry engravings, tombstones, etc.
Market Reports
Market reports and public compilations generally relied on by the public or persons of a particular occupation.
Official Records/Writings
Records setting forth the activities of the office/agency; recordings of matters observed pursuant to a duty imposed by law, EXCEPT police observations in criminal cases; or in civil actions and against the government in criminal cases, records of factual findings resulting from an investigation authorized by law; vital statistics; judgements. The writing must have been made by and within the scope of duty of the public employee and it must have been made at or near the time of the event.
Certification or testimony from the public record custodian that she has diligently searched and failed to find a record is admissible to prove that the matter was not recorded, or inferentially, that the matter did not occur.
Past Recollection Recorded
Writing by a witness who cannot now remember the facts, made while the facts were fresh in her mind; the writing itself is not admissible, it must be read to the jury.
Physical Condition
A spontaneous declaration of present bodily condition or physical symptoms is admissible.
**FRE: Generally, declarations of past physical condition are inadmissible unless made for the purpose of diagnosis/treatment; including cause/source statements.
Present Sense Impression
Comments made concurrently with the sense impression of an event that is not necessarily exciting may be admissible if there is little time for calculated misstatement and the contemporaneous nature of the statement makes it reliable.
Present State of Mind
A statement of one’s then existing state of mind, emotion, sensation, or physical condition is admissible when SOM is material issue or to show subsequent acts of declarant. Usually introduced to establish intent.
Property Interest Documents
Statements in a document affecting an interest in a property such as a deed or will.
Reputation
Reputation evidence concerning a person’s character, a person’s personal or family history, land boundaries, or a community’s general history.