Evidence Flashcards
Logical Relevance
Evidence is relevant if it has a tendency to make a fact more or less probable than without it.
CA: evidence must tend to prove/disprove a disputed fact
Legal Relevance
relevant evidence may be excluded if its probative value is substantially outweighed by its dangers of unfair prejudice
CA: Prop 8 states that relevant evidence shall not be excluded in any criminal proceeding unless subject to an exemption
Subsequent remedial measures
not admissible to prove negligence or culpability.
can be used to prove (1) ownership/control, (2) feasibility of precautionary measures or (3) destruction of evidence
compromise and negotiations
not admissible to provide negligence/culpability. Admissible for other purposes
offer to pay medical expenses
inadmissble to prove liability, but statements that accompany conduct may be admissible
If there’s a statement offering to pay expenses AND admission → admission is admissible but offer is not
CA: Both statement AND offer to pay are inadmissible to prove liability
plea negotiations
generally inadmissible.
Admissible if coupled w/admissible statement and would be fair to admit whole thing
liability insurance
inadmissible to show fault/culpability but can be used to prove (1) ownership/control (2) impeach (3) as an admission
CA: only prohibition is using liability insurance to show insured person acted negligently or wrongfully
Authentication
Authentication of a writing (tangible evidence) is required before it may be received in evidence.
To authenticate, proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it to be.
best evidence rule
original document or reliable duplicate must be produced to prove contents of writing when contents are at issue or witness is relying on contents while testifying. Original not required if lost/destroyed in good faith
CA: Secondary Evidence Rule
rule of completeness
if party introduces part of a statement, the other party may require the introduction of any other part of document in fairness
character evidence (Civil)
Inadmissible to prove person acted in accordance with character on particular occasion. Admissible when character is essential element of claim/defense. Admissible through reputation, opinion and specific acts.
4 cases Character is at Issue: (1) defamation (2) child custody (3) negligent entrustment (4) misrepresentation/fraud
character evidence (criminal)
admissible when defendant “opens the door” with evidence of good character (peacefulness/honesty).
Can only use reputation or opinion evidence to show good character. Can be rebutted with bad character.
bad acts
not admissible to show D’s criminal propensity to prove he committed crime in question.
MIMIC (Motive, Intent, Absense of Mistake, Identity, Common Plan) admissible, can be introduced for other purposes except to prove D committed Crime
habit evidence
person’s particular routine to a specific act. evidence of a persons habit is admissible to prove that person acted in accordance with that habit on a particular occasion
hearsay
out of court statement offered to prove the truth of the matter asserted
nonhearsay
prior statements & opposing party statements
CA: considered hearsay exceptions
Prior Statements
Declarant must testify at present trial to be admissible.
Can’t apply if dead or unavailable witness
prior inconsistent statements
made under penalty of perjury,
admissible to impeach declarant’s credibility and as substantive evidence.
CA: doesn’t need to be under oath
prior consistent statement
admissible to rebut express/implied charge that declarant recently fabricated or acted with improper motive but must be made before declarant had reason to fabricate.
prior statement of identification
prior identification of person after perceiving that person is admissible as nonhearsay substantive evidence even if witness has no memory of identification
CA: memory must be recent
opposing party’s statement
(1) made by party opponent AND (2) offered against party opponent
judicial notice
court can take judicial notice of any adjudicative facts thats not subject to reasonable dispute because its (1) generally known within courts jurisdiction or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
adoptive admission
Opposing party’s silence is considered an adoptive admission if (1) party was present and heard and understood statement (2) party had ability and opportunity to deny statement and (3) reasonable person similarly situated would have denied statement
vicarious admission
statement made by one person imputed to another based on a relationship between them
Hearsay exceptions - declarant unavailable
- statement against interest
- former testimony
- CA: Threat of infliction of injury
- Statement of personal/family history
- Dying declaration
Statement against interest
statement was against declarant’s interest at time it was made AND a reasonable person wouldn’t have made statement unless its true
former testimony
Not hearsay if party against whom testimony is offered had opportunity and similar motive to develop the testimony
CA: Threat to Inflict Injury
made by unavailable declarant not more than 5 years before current proceeding was filed is admissible if circumstances indicate trustworthiness and statement is recorded or made to physician, nurse, paramedic or law enforcement
dying declaration
declarant believed death was imminent AND statement concerns cause/circumstances of death (Only applies in homicide/civil cases)
CA: Declarant must actually be dead + statement must be about what caused death. Applies in all Civil And Criminal Cases
Hearsay - available/unavailable declarant
- Excited Utterance
- present sense impression
- then-existing state of mind
- statement of treatment/diagnosis
- business record
- past recollection recorded/refreshed
- public records
- learned treatises
lay witness testimony
admissible only if (1) rationally based on W’s personal knowledge (2) helpful to clear understanding of W’s testimony or facts at issue and (3) not based on scientific, technological or specialized knowledge
expert witness testimony
admissible only if (1) specialized knowledge is helpful to jury (2) qualified as witness (3) reasonable certainty of opinion (4) based on proper facts/data (5) based on reliable principles and methods
competence of witness
must have (1) personal knowledge and (2) must take oath to testify truthfully
assumes facts not in evidence
assumes facts not yet established
calling for a narrative
asks for a story, not the facts
argumentative
question intends to provoke argument rather than elicit factual response. Not permitted.
compound question
asks for more than one answer
nonresponsive
doesn’t respond to question asked. answer goes beyond scope of question (“Do you like soda? Yes I love coke.” Asks for yes/no)
leading questions
not allowed on direct examination except to (1) hostile witnesses (2) opposing witnesses (3) child witness (4) solicit background info or to (5) refresh recollection. Allowed on cross-examination
attorney client privilege
communication between attorney and client intended to remain confidential with purpose of seeking legal advice. Can be waived by client.
CA: Privilege exists until waived or client dies and estate no longer exists
exceptions: communications furthering fraud or crime not privileged. Not privileged if reasonable necessary to prevent death or substantial bodily harm
spousal immunity
married persons can’t be compelled to testify against each other in any criminal proceeding. Witness spouse holds privilege. Applies for events before and during marriage. Privilege expires with divorce or annulment.
CA: Applies in criminal and civil cases
Spousal Communication privilege - marital communications
spousal communications during marriage is privileged. Both spouses hold privilege. Privilege begins with marriage and continues indefinitely. Doesn’t applying suing other spouse or charged with crime against each other or children.
CA: Privilege can be asserted to prevent anyone from testifying
work product doctrine
documents prepared in anticipation of litigation are protected unless party seeking disclosure (1) demonstrates substantial need AND (2) can’t obtain info by another means without undue hardship
self-incrimination
5th amendment allows witness to refuse to give testimony that may incriminate him
6th amendment confrontation clause
any out court statement made by unavailable declarants are inadmissible against criminal D unless D has prior opportunity to cross examine declarant at time of statement
role of jury and judge
Judge = rules of law + admissibility
Jury = rules of fact + weight and credibility of evidence
CA Prop 8
Amends the CA constitution such that “relevant evidence shall not be excluded in any criminal proceeding”
recollection recorded
Record may be used as substantive proof & read into evidence if:
- witness once knew but can no longer recall fact
- witness made or adopted record when fresh in mind and
- record accurately reflects witness’s knowledge
refreshed recollection
Item may be used to refresh witness’s memory either before or during testimony if:
- witness once knew but can no longer recall fact and
- item will help witness remember
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.
business record
evidence of a writing made as a record of an act or event is admissible to prove the act or event if it was made in the regular course of a business, made at or near the time of the act or event, the custodian or other qualified witness testifies to its identity and the mode of its preparation, and the proponent establishes that the sources of information and method and time of preparation were such as to indicate its trustworthiness.
present sense impression (CA: Contemporaneous statement)
A statement offered to explain, qualify, or make understandable conduct of the declarant, and made while the declarant was engaged in such conduct, is admissible.
character evidence
Character describes a person’s disposition in respect to general traits, and it is inadmissible to prove a person has a propensity to act in conformity therewith
excited utterance (CA:
spontaneous statement)
made under stress of excitement of startling event by someone w/personal knowledge
then-existing state of mind
statement concerning present intent, motive, plan or emotional/physical conditions
learned treatises
statements that expert witness relied on during testimony
(CA: allows works of historical, scientific, art books and published maps and charts)
effect on listener/recipient
statement showing effect on listener, not offered for truth
opposing party statement
A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party.
An opposing party’s statement need not have been against the party’s interest at the time that it was made.
admission by party opponent
prior out of court statement by party to current litigation that’s used against that party. Statement doesn’t need to be against interest when made, only needs to be contrary to declarant’s present interest
impeachment
W may be impeached on cross examination or with extrinsic evidence
scope of cross examination
generally limited to subject matter of direct examination and credibility of witness but court has discretion to allow
doctrine for curative admissibility
allows otherwise inadmissible evidence to rebut prejudicial evidence when (1) evidence was improperly admitted through no fault of prejudiced party (2) party objected and moved to strike evidence and (3) an instruction to disregard cant remedy prejudice
parole evidence rule
If agreement is complete and final agreement, evidence of prior or contemporaneous agreements are inadmissible.
Exception: clarify ambiguity, prove course of dealings, show fraud/duress/mistake, or show consideration paid
judges as a witness
Can’t testify as a witness if theyre presiding over a trial
juvenile conviction
evidence of the juvenile conviction is never admissible in civil cases to attack witness’s character for truthfulness
Legally Operative Facts - hearsay
A statement offered to prove that the statement was made, regardless of its truth, is not hearsay.
