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.
Treatises
Statements from authoritative works are admissible if called to the attention of an expert witness and established as reliable authority.
Dying Declaration
*CA: A dying declaration is admissible in any kind of case, civil or criminal, where it is relevant to show what killed the declarant. The declarant is only considered unavailable if dead.
**FRE: In a homicide prosecution or a civil action, a statement made by a now unavailable declarant is admissible if the declarant believed her death was imminent; and the statement concerned the cause or circumstances of what she believed to be her impending death. FRE allows grounds of unavailability other than death.
Former Testimony
The testimony of a now-unavailable witness, given at a trial or hearing, or in a deposition is admissible if: the party against whom the testimony is offered, or in a civil case, the party’s predecessor in interest (e.g., grantor/grantee) was a party in the former action; the former action involved the same subject matter (causes of action need not be identical); the testimony was given under oath; and the party against whom the testimony is offered had an opportunity at the prior proceeding to develop the declarant’s testimony (i.e., by direct, cross, or redirect examination).
Personal or Family History
Statements by a now unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that: the declarant is a member of the family in question or intimately associated with it; and the statements are based on the declarant’s personal knowledge of the facts or her knowledge of family reputation.
Statement Against Interest
A statement of a person, now unavailable as a witness and who had personal knowledge of the facts, against that person’s pecuniary, proprietary, or penal interest when made, as well as collateral facts contained in the statement, is admissible.
Statements Offered Against Party Procuring Declarant’s Unavailablity
The statement of a person now unavailable as a witness is admissible when offered against a party who has engaged or acquiesced in wrongdoing that intentionally procured the declarant’s unavailability.
Personal Knowledge/Speculation
A witness must have personal knowledge as to what she testifies to. A witness may not speculate answers. Speculation occurs when the witness is guessing at the answer and has no personal knowledge of the answer. A witness can only answer to what she personally knows.
Unavailability
A declarant is unavailable if she: is exempt from testifying because of privilege; refuses to testify despite a court order; does not remember the subject matter; is unable to testify due to death or physical/mental illness; is absent beyond the reach of a court subpoena and the proponent is unable to procure her attendance by reasonable means.
Relevance
Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.
Discretion to Exclude Relevant Evidence
Even if evidence is relevant, the court has discretion to exclude if if the probative value is substantially outweighed by unfair prejudice, confusion, or waste of time.
Character Evidence in CIVIL Case
Character evidence is inadmissible to prove conduct except where civil claim is based on sexual assault or child molestation; then prior acts of SA/CM are admissible to prove conduct in this case.
Character Evidence in CRIMINAL Case
“Open Door Rule”
In criminal cases, character evidence may be admissible to prove conduct (character won’t ever be in issue).
Defendant’s character cannot be attacked by the Prosecution unless Defendant opens the door first (SA/CM excepted). Once open, Reputation and Opinion evidence can be offered on direct, but NOT Specific Instances evidence; and only to show a pertinent character trait. On cross, any party can use any means (Reputation, Opinion, Specific Instances. Specific instances of Defendant’s bad conduct may be admitted to prove anything other than character (MIMIC).
Victim’s character can be attacked in two ways:
1) If Defendant offers evidence of victim’s character, Prosecution can rebut
2) In a HOMICIDE case, if Defendant offers evidence that VICTIM ATTACKED FIRST, Prosecution may offer evidence of victim’s character for PEACEFULNESS. On direct, Reputation and Opinion ONLY; on cross, any including Specific Instances.
Rape Shield - CRIMINAL
Reputation and Opinion evidence is inadmissible. Specific Instances of VICTIMS’s conduct are admissible ONLY to prove
1) Third party is the source of semen or injury
2) Prior acts of consensual intercourse between D and V.
Rape Shield - CIVIL
Reputation, Opinion, and Specific Instances are all admissible is the probative value substantially outweighs unfair prejudice; AND in the case of Reputation evidence, the PLAINTIFF put her reputation in issue.
