Evidence Flashcards
Relevance
- Evidence is logically relevant if it tends to be material to a disputed fact.
- Evidence is legally relevant unless its probative value is substantially outweighed by the danger of unfair prejudice.
CA Prop 8
Under Prop 8 in criminal trials in CA state courts, all relevant evidence is admissible subject to special exceptions.
Subsequent remedial measures
Evidence of safety measures or repairs performed after an accident are not admissible to prove liability. However, is admissible to establish ownership or control.
Liability insurance
Not admissible to prove liability. Admissible to prove ownership or control, impeachment, or an admission made in conjunction with a statement regarding the possession of liability insurance.
Offers to pay medical expenses
Not admissible to prove liability.
Settlement offers
Not admissible to prove validity, liability, or amount.
Offer to plead guilty
Not admissible but may come in under prop 8.
Expressions of sympathy
Not admissible in civil actions but statements of fault are.
Leading questions
Generally permitted on cross examination, limited to the subject matter of direct.
Competence to testify
Witness must have personal knowledge of the matter.
Present recollection refreshed
Any item may be used to refresh a witness’s memory, once shown the item the witness must testify from memory. The item is not evidence and the adversary has a right to inspect the item, cross examine, and introduce portions into evidence.
distinguish from past recollection recorded (hearsay exception)
Lay opinion testimony
Lay opinion is admissible if rationally based on the witness’s perceptions and is helpful to the trier of fact.
Expert opinion testimony
Specialized knowledge will assist the trier of fact, witness is qualified as an expert, testimony is based on sufficient facts or data, and testimony is the product of reliable principles and methods.
Attorney-client privilege
A client has a right not to disclose any communications that were intended to be confidential with his attorney and were made for the purpose of securing legal services.
Doctor-patient privilege
CEC only: Applies only to communications for the purpose of medical diagnosis and treatment.
Spousal immunity and Marital confidential communications privilege
SI- A spouse may not be compelled to testify against the other spouse. It may only be claimed during marriage and the witness spouse holds the privilege.
MCCP- One spouse may not disclose the confidential communications of the other made during the marriage. Privilege survives divorce. Only applies to statements. One spouse may prevent the other spouse from disclosing. Makes spouse unavailable for hearsay purposes.
CEC-only privileges
- Counselor-victim privilege (sexual assault, domestic violence)
- Clergy-penitent
- News reports may refuse to disclose sources
Character evidence
Civil
In civil court CE is generally not admissible to prove conduct in conformity with that trait. However, when character is at issue and is an essential element of the case it is admissible.
Rape shield provisions
Civil
FRE: Pla puts rep at issue, probative value substantially outweighs prejudice.
CEC: Inadmissible unless to prove prior sexual conduct with the defendant.
Character evidence
Crim
Only def can open the door but once opened the prosecution may rebut. Exceptions:
* FRE - Def offers evidence of victims character, then prosecution may offer evidence that the def has the same character trait.
* CEC - Same but only for the trait of violence.
* For DV and elder abuse cases, other acts are admissible
On direct only reputation and opinion evidence are allowed to show a defendants character. On cross FRE rep, opinion, and specific acts but no extrinsic evidence of specific acts. CEC no specific acts on cross.
On direct FRE reputation and opinion evidence only to show victims character. CEC reputation, opinion, or specific acts. On cross reputation, opinion, and specific acts are allowed to show character.
Remember other purposes for character evidence may be admissible
Other purposes for character evidence
Specific acts may be admissible to show:
1. Intent
2. Prep
3. ID/MO
4. Knowledge of a fact or event
5. Absence of mistake or accident
6. Motive
7. Opportunity
8. Plan
Habit and custom
Show a regular repsonse to a repeated situation.
For persons, habit is admissible to show that the person acted in accordance with the habit on a particular occasion.
For businesses, the routine practice of an organization is admissible to show the practice was followed by the business on a particular occasion.
Impeachment
A witness’s credibility may be impeached by cross-examination, or with the proper foundation, by extrinsic evidence.
Five ways to impeach a witness:
1. Character for truthfulness
2. Prior incoinsistenet statement
3. Bias
4. Sensory or mental defect
5. Contradiction of witness testimony by another witness
Impeaching a witnesses character for truthfulness
Follows character evidence rules regarding forms of evidence (FRE- rep and opinion OK, specific bad acts ok on cross but no exstrinsic evidence). CEC- Civil court prohibits extrinsic evidence crim permits it.
Impeaching with criminal conviction
All crimes involving a false statement are admissible and a judge may not exclude uner the relevance balancing test unless more than 10 years old.
Felony convictions under FRE if witness is criminal defendant, conviction is admissible if probative value outweighs its prejudicial effect. Other witnesses admissible unless prejudicial effect substantially outweighs the probative value.
Felony convictions under CEC are admissible if:
1. Has not been expunged, pardoned, etc.
2. The felony involves moral turpitude
3. Subject to legal relevance balancing test
Under FRE, misdemeanors that are not crimes involving a false statement are not admissible to impeach. CEC civil may not be uses, CEC crim, may be used if crime of moral turpitude.
Old convictions may not be used if it has been ten years from the date unless the probative value substantially outweighs the prejudicial effect.
Rehabilitating an impeached witness
a. must meet the attack
b. can be good character if truthfulness is attacked
c. prior consistenet statement
Bolstering
Evidence supporting a witness’s credibility before it is attacked is prohibited under FRE but admissible under CEC.
Hearsay
An out of court statement offered for the truth of the matter asserted. Hearsay is inadmissible unless an exception applies.
An out of court statement may be nonhearsay when it is not being offered for another reason ie effect on listener or state of mind.
Multiple hearsay
Each level of hearsay must fall within an exception.
Hearsay exceptions - Admissions
A party admission is admissible.
Adoptive admission is when the party knows of its content and manifests belief in it by words or action.
A silent adoptive admission is when someone is accused and a reasonable person would have spoken up.
Hearsay exceptions - Vicarious admissions
A statement made by an employee concerning a transaction withing the scope of the employee relationship. CEC is more narrow where negligent conduct of that employeeis the basis for the employer’s liability.
Hearsay exceptions - Statement of then-existing mental, emotional, or physical condition
Admissible
Hearsay exceptions - Present sense impression
Describes an event made while the declarant was percieving the event or immediately thereafter.
Hearsay exceptions - Excited utterance
Statement relating to a startling event made while the declarant was still under the stress caused by the event.
Hearsay exceptions - Prior inconsistent statement
Substantively admissible (in addition to impeachment) if it was made under oath and the declarant is subject to cross examination.
Hearsay exceptions - Prior consistent statement
Admissible substantively to rebut a charge of fabrication or bias.
Hearsay exceptions - Prior identification
Admissible if declarant testifies.
Hearsay exceptions - Past recollection recorded
If a witness cannot testify from memory a party may introduce a written record of an event. Requires:
1. Firsthand knowledge
2. Fresh in the memory when record was made
3. Witness now has impaired recollection
4. Record was accurate when written
May be read to jury but is not itself admissible evidence.
Hearsay exceptions - Business record
Admissible where a witness establishes that the record was kept in the course of regularly conducted business activity. Requires:
1. Business activity
2. Kept in regular practice
3. Made with someone with personal knowledge
a. must have firsthand knowledge
b. record made by one with a duty to report
4. timeliness (made at time near matters referenced)
Hearsay exceptions - Public records
Admissible if:
* Agency’s record of its own activities
* Matters observed in line of duty under duty to report
* Investigative reports
Hearsay exceptions - Declarant unavailable
- Former testimony - Admissible if had an oppotunity to examine that person and a similar motive to develop the testimony.
- Dying declaration - Made by declarant while believing death was imminent and is concerning the circumstances of his death. CEC must actually be dead.
- Declaration against interest
- Forfeiture by wrongdoing (witness tampering)
Hearsay exceptions - Catch all
Admissible if:
1. trustworthy
2. regards a material fact
3. more probative than other evidence
4. notice is given to the opposing side
Authentication
All evidence must be authenticated. Authentication is proof that the item is what the proponent claims it is.
Ancient documents
Document is in an expected condition considering its age and was found in a place such a writing would be kept and is at least (FRE 20 CEC 30) years old.
Self-authenticating documents
- Certified copies of public records
- Official publications
- Newspapers
- Periodicals
- CEC Sig of notary or domestic public employee
Best evidence rule (Secondary evidence rule CEC)
To prove the contents of a writing, photo, or recording, the original must be produced or a duplicate unless the authenticity is disputed. If unavailable testimony is admissible or a handwritten duplicate.
Summaries of voluminuous writings
Summary may be introduced.
