Evidence Flashcards
What is the probative value of evidence?
The probative value of evidence is its ability to prove something important at trial.
What is initially required for evidence to be admissible?
Under the FRE, to be admissible, evidence must be both:
- relevant – has any tendency to make a fact of consequence to the action more or less probable (logically relevant)
- not unduly prejudicial – its probative value is not substantially outweighed by unfair prejudice (legally relevant)
When is evidence relevant?
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.
This is also referred to as logical relevance.
When may otherwise relevant and admissible evidence be excluded?
Under FRE 403/CEC 352, otherwise relevant and admissible evidence may be excluded if its probative value is substantially outweighed by a danger of:
- unfair prejudice;
- confusing the issues;
- misleading the jury;
- undue delay;
- wasting time; OR
- being needlessly cumulative.
This is sometimes referred to as legal relevance.
What can the court do under FRE 403/CEC 352?
Under FRE 403/CEC 352, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of:
- unfair prejudice,
- confusing the issues,
- misleading the jury,
- undue delay,
- wasting time, or
- being needlessly cumulative.
When is evidence unfairly prejudicial?
Evidence is unfairly prejudicial when it is unnecessary and might cause the jury to improperly sympathize or dislike a party.
What is California Proposition 8?
Under Proposition 8 of the California Constitution, all relevant evidence is admissible in a criminal trial.
What is evidence under Proposition 8 still subject to?
Under Proposition 8, evidence is still subject to CEC 352 balancing regarding unfair prejudice, confusion of issues, misleading the jury, or being needlessly cumulative.
What types of evidence are excluded under Proposition 8?
Exclusionary rules based upon the U.S. Constitution, secondary/best evidence rule, hearsay exclusions, privilege exclusions, evidence barred under rape-shield statutes, and limits on prosecution from offering specific character evidence.
Are subsequent remedial measures admissible to show culpability?
Evidence of subsequent remedial measures is not admissible to show culpability or negligence.
For what purposes can subsequent remedial measures be admitted?
The court may admit such evidence for impeachment or to prove a disputed issue as to ownership, control, or feasibility/impossibility of precautionary measures.
Is evidence of liability insurance admissible to prove culpability?
Evidence of liability insurance is not admissible to prove culpability but may be admitted for other purposes like proving bias/prejudice of a witness.
Is evidence of offers to pay medical bills admissible to prove liability?
Evidence of paying or promising to pay medical expenses is not admissible to prove liability for injury.
Are offers to settle admissible to prove the validity of a disputed claim?
Offers to compromise and statements made during settlement negotiations are not admissible to prove or disprove the validity or amount of a disputed claim.
What is the general rule for the authentication of evidence?
All evidence must be authenticated before being admitted into evidence.
How can physical evidence be authenticated?
Physical evidence may be authenticated through witness testimony or by evidence showing it has been held in a substantially unbroken chain of custody.
What is the Best Evidence Rule?
Under the Best Evidence Rule, a party must provide the original document or a reliable duplicate when a witness testifies to the contents of a writing.
What is the general rule regarding character evidence?
Generally, evidence of a person’s character is not admissible to show propensity.
When is character evidence admissible?
Character evidence is admissible for non-propensity purposes or when ‘Character in Issue’ is an essential element of a charge, claim, or defense.
What is the rule for evidence of prior bad acts?
Evidence of prior bad acts is not admissible to show propensity but may be admissible for other relevant non-propensity purposes.
What is the rule for evidence of habit or routine practice?
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the party acted in accordance with the habit or routine practice.
What are prior inconsistent statements used for?
Prior inconsistent statements are admissible to impeach a witness’s trial testimony.
What is the rule for prior convictions in FRE?
Evidence of prior convictions may be admitted to attack a witness’s character for truthfulness in certain instances.
What is the rule for impeachment by specific instances of conduct?
Under the FRE, a witness’s credibility may be attacked by specific instances of conduct.
What felonies are admissible in a criminal case?
Felonies that do not involve moral turpitude are NOT ADMISSIBLE.
Are misdemeanors admissible under Proposition 8?
Misdemeanors are ADMISSIBLE under Proposition 8 for crimes involving moral turpitude, subject to CEC 352 balancing. Otherwise, misdemeanor convictions are NOT ADMISSIBLE.
What is moral turpitude?
Moral Turpitude is a broad standard that includes crimes involving lying, violence, sex crimes, and extreme recklessness.
How can a witness’s credibility be attacked under the FRE?
A witness’s credibility may be attacked on cross-examination by questioning him with specific instances of conduct (prior bad acts) ONLY IF the conduct is probative of the witness’s character for truthfulness or untruthfulness.
Is extrinsic evidence admissible to attack a witness’s credibility?
Extrinsic evidence is NEVER admissible to attack or support such instances of a witness’s credibility.
Are prior bad acts admissible in California?
Prior bad acts are generally NOT ADMISSIBLE in CA, but are admissible under Proposition 8 if they involve moral turpitude.
Is bias relevant for impeachment?
A witness’s bias, interest, motive, or partiality is ALWAYS relevant for impeachment.
What is required before extrinsic evidence of bias is admissible?
Most jurisdictions require that the witness be questioned about the bias before extrinsic evidence of the bias is admissible.
What is a lay witness?
A lay witness is any person who gives testimony in a case that is NOT called as an expert.
What are the requirements for a lay witness to be competent?
To be competent, the witness must: (1) take an oath to tell the truth; AND (2) have the capacity to perceive, recall, and communicate.
What must a lay witness’s opinion be based on?
A lay witness may only offer an opinion if it is: (1) rationally based on the witness’s perception; AND (2) helpful to clearly understand the witness’s testimony or to determine a fact in issue.
What are the requirements for expert testimony?
Expert testimony is permitted when: (1) the witness is qualified as an expert; (2) the testimony is helpful to the trier of fact; (3) based on sufficient facts or data; (4) based on reliable principles and methods; AND (5) the expert has reasonably applied the principles and methods to the facts of the case.
What is the Daubert/Kumho standard?
Under the FRE, the Daubert/Kumho standard is based on the methodology’s: (1) testability; (2) publication and peer review; (3) error rate; (4) standards and controls; AND (5) whether it is generally accepted in the field.
What is the scope of cross-examination?
The scope of cross-examination is limited to: (1) the subject matter of the direct examination; AND (2) matters affecting the witness’s credibility.
When is refreshing a witness’s recollection permitted?
Refreshing a witness’s recollection using a document is permitted when the witness once had personal knowledge of the matter but is unable to recall the matter while testifying.
What is judicial notice?
A court may take judicial notice of indisputable facts that are either commonly known in the community or readily capable of verification and cannot reasonably be questioned.
What is hearsay?
Hearsay is (1) an out-of-court statement, (2) that is offered to prove the truth of the matter asserted.
What is required for multiple hearsay to be admissible?
Each level of hearsay must fall within an exception to be admissible.
What are common non-hearsay statements?
Common non-hearsay statements include: (1) verbal acts of independent legal significance; (2) statements offered to show the effect on the listener; (3) a prior inconsistent statement used to impeach; and (4) circumstantial evidence of the speaker’s state of mind.
What is a statement/admission by a party opponent?
A statement/admission by a party opponent is NOT hearsay and is ADMISSIBLE.
What constitutes an adoptive admission?
A person’s silence may constitute an adopted admission if: (1) the person heard the statement; AND (2) a reasonable person would have denied the statement.
What is a vicarious admission?
A vicarious admission is excluded from hearsay under the Statements by a Party Opponent hearsay rule.
What is a prior statement of identification?
A declarant’s prior statement of identification of a person is NOT hearsay if the declarant testifies and is subject to cross-examination about the prior statement.
What are the requirements for a dying declaration?
A dying declaration is an exception to the hearsay rule and MAY ONLY be used in a civil case or a criminal homicide case.
What is a statement against interest?
A statement against interest is admissible when: (1) it’s a statement against the declarant’s penal, proprietary, or pecuniary interest when made; (2) the declarant has firsthand knowledge; (3) a reasonable person would have made the statement only if believed to be true; AND (4) the declarant is unavailable.
What are prior statements made under oath?
Prior statements made under oath are admissible if: (1) offered against a party who was present in the previous trial; (2) the same issues are involved; AND (3) the party had the same motive and opportunity to cross-examine.
What is an excited utterance?
An excited utterance is a statement relating to a startling event made while the declarant was under the stress of excitement caused by the event.
What is a present sense impression?
A present sense impression is a statement describing an event made by the declarant while observing the event or immediately thereafter.
What are business records?
Business records are an exception to the hearsay rule, admissible if kept in the regular course of business and made at or near the time of the matter described.
What are government/public records?
Government or public records are admissible if made by and within the scope of duty of a public employee, made at or near the time.
What are the conditions for admissibility of government or public records in California?
Government or public records are admissible if: (1) made by a public employee within the scope of duty; (2) made at or near the time of the act; AND (3) made under circumstances indicating trustworthiness.
This applies to civil and criminal cases, though there may be confrontation clause issues in criminal cases.
What is a past recollection recorded?
A past recollection recorded is a record made on a matter the witness once knew but cannot recall well enough to testify accurately.
It is admissible if: (1) the witness had personal knowledge; (2) the writing was made or adopted by the witness; (3) made while events were fresh in mind; (4) the writing is accurate; AND (5) the witness cannot remember the event.
What is the hearsay exception for statements of state of mind?
Statements of the declarant’s then-existing state of mind (motive, intent, or plan) are an exception to the hearsay rule.
However, statements of memory or belief to prove a fact remembered/believed are NOT admissible unless related to the validity or terms of the declarant’s will.
What statements are admissible for medical diagnosis or treatment?
Statements made for and pertinent to medical diagnosis or treatment are not excluded by the hearsay rule if they describe medical history or symptoms.
In CA, statements about a person’s past physical state are admissible ONLY if made to medical personnel for diagnosing or treating a child-abuse/neglect victim under 12.
What is the hearsay exception for learned treatises?
Statements in learned treatises, periodicals, or pamphlets are an exception to the hearsay rule if: (1) called to the attention of an expert on cross-examination or relied on by an expert on direct examination; AND (2) the publication is established as a reliable authority.
In CA, the exception is limited to historical works, books of science & art, and published maps/charts offered to prove facts of general notoriety.
What are the requirements for ancient documents to be admissible?
Statements in ancient documents are admissible if: (1) prepared before January 1, 1998; AND (2) authenticity is established.
In CA, the document must be more than 30 years old and generally acted upon as true.
What is the catch-all hearsay exception under the FRE?
A hearsay statement is not excluded if it has equivalent circumstantial guarantees of trustworthiness, is offered as evidence of a material fact, is more probative than other evidence, AND admitting it serves the interests of justice.
The proponent must give reasonable notice to the adverse party.
What rights does the Confrontation Clause grant a criminal defendant?
The Confrontation Clause gives a criminal defendant the right to confront witnesses against him.
Use of an out-of-court statement violates this right if the statement is testimonial, the declarant is unavailable, and the defendant had no opportunity to cross-examine.
What is the attorney-client privilege?
The attorney-client privilege protects confidential communications between an attorney and client made to facilitate legal services.
The privilege remains even after the client dies and does not apply if legal services are sought to further a crime or fraud.
What is the attorney work product doctrine?
The work product doctrine protects materials prepared by an attorney in anticipation of litigation from disclosure unless a substantial need exists and equivalent materials cannot be obtained without undue hardship.
In California, absolute privilege applies to materials containing the attorney’s mental impressions.
What is the physician-patient privilege in California?
Confidential patient communications made to a physician for medical diagnosis or treatment are privileged.
The patient holds the privilege and can waive it, especially when the medical condition is placed ‘in issue’.
What are the conditions for spousal privileges regarding confidential marital communications?
Communications between spouses are privileged if made during a valid marriage and intended to be confidential.
The privilege applies even after divorce, but is lost if the content is disclosed to a third party.
What is spousal immunity under the FRE?
A witness-spouse may refuse to testify against their spouse in a criminal case.
This privilege ends after divorce and does not apply in civil cases.
