Evidence Flashcards
What is an opposing party statement?
(Non-Hearsay) – A statement made by a party, offered against that party, and relevant.
What is a prior inconsistent statement?
(Non-Hearsay if Made Under Oath, Otherwise Hearsay Exception) – A prior statement made under oath that is inconsistent with trial testimony. In CA, admissible regardless of whether made under oath.
What is the Residual Exception?
(Hearsay Exception) – A statement with circumstantial guarantees of trustworthiness, offered as evidence of a material fact, and more probative than other reasonably available evidence. In CA, no residual exception exists.
What is a public record?
(Hearsay Exception) – A record of a public office is admissible as a hearsay exception if contains the office’s activities, something observed under a duty to report, or factual findings from an investigation, unless untrustworthy.
In CA, law enforcement records are more broadly admissible.
What is a business records?
(Hearsay Exception) – A record made in the regular course of business by someone with knowledge as part of a regular practice.
What is a past recollection recorded?
(Hearsay Exception, Declarant Unavailable) – If a witness once knew but cannot fully recall a fact, a record made or adopted when the matter was fresh in memory is admissible as a hearsay exception if:
- The witness testifies the record was accurate when made, and
- The record is read into evidence but not received as an exhibit, unless offered by an opposing party.
In CA, the rule is the same, but the writing may be admitted into evidence.
What is a statement for medical diagnosis/treatment?
A statement made for and reasonably pertinent to medical diagnosis or treatment is admissible as a hearsay exception if it describes medical history, past or present symptoms, their inception, or their general cause. Statements made to someone other than a medical provider for treatment purposes (e.g., an employer) are not covered.
In CA, this exception applies only if the declarant is unavailable, except for child abuse or neglect cases.
What is the “then-existing” state exception to hearsay ?
A statement showing the declarant’s then-existing mental, emotional, or physical condition.,
Statements of memory or belief to prove past facts are inadmissible.
What is an excited utterance?
A statement relating to a startling event made while the declarant was still under stress from the event. In CA, called a “spontaneous statement.”
What is a present sense impression?
A statement describing or explaining an event made while or immediately after perceiving it.
In CA, called a “contemporaneous statement” and admissible only if offered to explain the declarant’s conduct while engaged in the conduct.
What is a forfeiture by wrongoing?
A statement is admissible if offered against a party who wrongfully caused the declarant’s unavailability with intent to prevent testimony.
When are statements against interest ?
(Hearsay Exception, Declarant Unavailable) – A statement so against the declarant’s penal, proprietary, or financial interest that a reasonable person would not have made it unless true.
In CA, must be against social interest as well.
What is a dying declaration?
(Hearsay Exception, Declarant Unavailable) – A statement made under belief of imminent death about the cause or circumstances of the declarant’s death.
In CA, admissible in both civil and criminal cases, whereas under FRE, only in homicide prosecutions and civil cases.
What is former testimony?
(Hearsay Exception, Declarant Unavailable) – Testimony from a prior proceeding where the opposing party had an opportunity and similar motive to cross-examine.
In CA, prior testimony is admissible in civil cases even if the opposing party was not involved, as long as a party with a similar interest had the opportunity to cross-examine.
What does the Confrontation Clause say?
It says that testimonial hearsay is inadmissible in criminal cases unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant (Crawford v. Washington).
Non-testimonial hearsay is admissible if it meets hearsay exceptions.
What is Hearsay?
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible unless it falls under a recognized exception.
What is Authentication?
A document must be authenticated by evidence sufficient to support a finding that it is what the proponent claims.
Authentication can be established through witness testimony, chain of custody, distinctive characteristics, or self-authenticating documents.
What is Logical Relevance?
Evidence is logically relevant if it tends to make the existence of any fact of consequence more or less probable than it would be without the evidence.
In California, the fact of consequence must also be in dispute.
What is Legal Relevance?
Evidence is legally relevant if its probative value is not substantially outweighed by the risk of unfair prejudice, confusing the issues, misleading the jury, or wasting time.
When is evidence admissible?
Evidence is admissible if it is both Logically and Legally relevant.
What is does the best evidence rule say about the content of evidence?
The original writing, recording, or photograph is required to prove its content unless an exception applies.
California follows the Secondary Evidence Rule, which allows oral testimony or copies unless there is a genuine dispute about accuracy or unfairness in admitting secondary evidence.
What is the federal rule regarding Expert Testimony?
[Helpful, Qualified, Sufficient,Reliable, Application]
Under the Daubert Standard an expert witness may testify if:
(1) The testimony will help the trier of fact,
(2) The expert is qualified in the field,
(3) The testimony is based on sufficient facts or data,
(4) The expert uses reliable principles and methods, and
(5) The expert reliably applies those methods to the facts.
What is the CA rule regarding Expert Testimony?
In California, scientific expert testimony is admissible under the Kelly-Frye standard, which requires that the underlying scientific technique has gained general acceptance in the relevant scientific community.
California Prop 8
Under California law, Proposition 8 (Cal. Const. art. I, § 28(f)(2)) makes all relevant evidence admissible in criminal cases, subject to certain exceptions (e.g., hearsay, privilege, Evidence Code § 352).
What is a prior consistent statement?
(Non-Hearsay) – A prior statement consistent with trial testimony used to rebut a claim of recent fabrication or bias, made before the alleged motive to fabricate arose.
In CA, admissible to support witness credibility even without an allegation of fabrication or bias.
What are exceptions to the best evidence rule?
CLOUD- VOCabulary
Exceptions include:
C – Certified Public Records – Certified copies allowed.
L – Lost/Destroyed – Admissible if not in bad faith.
O – Opponent Admission – Party admits contents of the document.
U – Unavailable – Cannot be obtained through judicial process.
D – Duplicates – Allowed unless unfair or authenticity disputed.
V – Voluminous Records – Summaries permitted if originals available.
O – Opponent-Controlled – Party fails to produce it.
C – Collateral Matters – Not closely related to the case.
When is a statement admissible as due to independant legal significance?
Statements that have independent legal significance, such as contracts, wills, and defamatory statements, are not hearsay because they are not offered to prove the truth of the matter asserted but rather to establish a legally operative fact.
What is the personal knowledge requirment?
A witness must have personal knowledge of a matter to testify about it unless they are an expert witness.
What is required to have capacity to testify?
A witness must have the ability to perceive, remember, and communicate, and understand the duty to tell the truth.
When is a prior bad act admissible?
(Not Hearsay, Character Evidence Rule) A prior bad act is inadmissible to show a person’s character or propensity to commit a crime.
However, it may be admissible to show MIMIC+ purposes.
In CA, the rule is the same, but the court balances probative value against prejudice.
When is a lay witness able to testify?
A lay witness may testify to opinions based on personal knowledge that are rationally based on their perception and helpful to the jury.
What is the exception to the admissibility of character evidence?
Character evidence is generally inadmissible to prove conduct but is admissible in:
Criminal cases – A defendant may offer evidence of their own good character, or attack the victim’s character, allowing the prosecution to rebut.
Homicide cases – If the defendant claims self-defense, the prosecution may introduce evidence of the victim’s peaceful character to rebut claims that the victim was the first aggressor.
Sexual misconduct cases – Prior sexual offenses and domestic violence (CA) are admissible to show propensity.
MIMIC+ purposes – admissible to show a relevant non-propensity purpose.
Habit or Routine Practice – Admissible to show a person or organization acted in accordance with a repeated specific behavior.
What types are evidence are not considered to be relevant?
Offers to pay medical bills
Subsequent Remedial Measures
Offers to Settle
Evidence of Insurance.
They may be admissible for other purposes, such as proving a witness’s bias, ownership, control, or agency.
What is multiple hearsay?
Multiple hearsay is admissible only if each part of the statement falls within a hearsay exemption or exception.
What is a statement showing the effect on the listener?
(Non-Hearsay) – If it is a statement introduced to show its effect on the listener (e.g., notice, fear, or intent) and not to prove an underlying fact.
Are vicarious statements admissible?
(Non-Hearsay) – A statement by an employee/agent is admissible against the employer if made within the scope of employment/agency.
In CA, the employer is bound only if the employee had authority to speak on the matter.
What is a co-conspirator statements ?
(Non-Hearsay) – A statement made by a coconspirator during and in furtherance of the conspiracy.
When is evidence of a Prior Conviction admissible for impeachment?
A witness’s prior conviction is admissible for impeachment if it is a felony or involves dishonesty.
FRE: Felonies are admissible unless prejudice outweighs probative value; if over 10 years old, admissible only if probative value substantially outweighs prejudice. Misdemeanors are admissible only if they involve dishonesty.
California : Felonies involving moral turpitude are admissible unless prejudice substantially outweighs probative value. No strict 10-year rule, but courts consider the conviction’s age.
What are statements against interest?
(Hearsay Exception, Declarant Unavailable) – A statement so against the declarant’s penal, proprietary, or pecuniary interest that a reasonable person would not have made it unless true.
In CA, must be against social interest as well.
What is an adoptive admission?
(Non-Hearsay) – A statement a party adopts as true by words, actions, or silence when a reasonable person would have denied it.
What is a direct party admission?
(Non-Hearsay) – A statement made by a party and offered against that party.
What is MIMIC+Purposes?
Evidence that is otherwise inadmissible to show a party’s character or propensity may be admissible if relevant to:
Motive,
Intent,
Mistake/accident (abscense of),
Identity,
Common plan,
+
opportunity,
knowledge, or
preparation.
In CA, subject to CEC 352 balancing; prior sexual offenses and domestic violence acts are more broadly admissible.
Spousal Testimonial Privilege (FRE & Common Law)
A witness-spouse may refuse to testify against their spouse in a criminal case.
Only the witness-spouse (not the defendant) holds this privilege.
Applies only during the marriage—if the marriage ends, the privilege no longer applies.
Exception – This privilege does not apply if the case involves a crime against the spouse or their children.
Marital Communications Privilege (FRE 501 & Common Law)
Protects confidential communications between spouses made during the marriage, even after divorce.
Either spouse can assert this privilege.
Protects confidential statements but not observations (e.g., what one spouse saw the other wearing).
Judicial Notice
Judicial Notice in Criminal Cases Rule Statement – A court may take judicial notice of facts that are not subject to reasonable dispute because they are (1) generally known within the jurisdiction or (2) easily verifiable from reliable sources (FRE 201(b)).
In civil cases, the jury must accept judicially noticed facts as conclusive.
In criminal cases, the jury may, but is not required to, accept judicially noticed facts (FRE 201(f)).
Judicial notice cannot shift the burden of proof to the defendant.
Are Settlement offers and statements made during compromise negotiations are admissible to prove liability?
Settlement offers and statements made during compromise negotiations are inadmissible to prove liability (FRE 408, CEC 1152).
Under FRE, both the offer and statements of fact made during negotiations are inadmissible.
In CA, only the offer is inadmissible—statements of fact are admissible.
Defamation Character Evidence Rule
In a defamation case, a person can use reputation evidence to show whether the statement was true or false. They don’t need to prove specific examples of past behavior—just that the person has a general reputation for that trait. In California, specific examples of past conduct can also be used. In criminal cases, reputation evidence cannot be used to prove someone acted a certain way.
What can evidence of subsequent remedial measures be used for?
General Rule: Evidence of subsequent remedial measures is not admissible to prove:
Negligence,
Culpable conduct,
A defect in a product or its design, or
A need for a warning or instruction.
Exception: Such evidence may be admissible for other purposes, such as:
Proving feasibility of precautionary measures, if disputed.
Impeaching a witness (e.g., if the manufacturer falsely claims no safer alternative existed).
When may a criminal defendant introduce character evidence?
A criminal defendant may introduce evidence of a pertinent character trait to show they acted in accordance with that trait.
CA allows both reputation and opinion testimony, but also allows specific instances of conduct on cross-examination.
What types of character evidence may a criminal defendant introduce?
Federal : Only reputation or opinion testimony.
California : Allows reputation, opinion, and specific instances of conduct on cross-examination.
When can specific instances of conduct be used to prove character?
Federal : Only when character is an essential element of a charge, claim, or defense (e.g., defamation, negligent hiring, entrapment).
California : Allows specific instances on cross-examination but not on direct.
