Evidence Flashcards
General Essay Question Format
- Form (In What way is the evidence being introduced?)
- Purpose (What is the purpose for introducing the evidence?)
- Presentation (How is the evidence being presented?)
- Hearsay (Are any out of court statements being introduced?)
Form - Type of Question - Leading Question
No leading questions are allowed unless:
1. Cross-Examination
2. Preliminary Questions
3. Introductory Questions
4. Non-Crucial Matters
5. Refresh Witness Memory
6. Examining Hostile Witness or Adverse Party
Form - Type of Question - Improper Question
- Misleading
- Compound (more than one question within a question)
- Argumentative
- Conclusory
- Cumulative
- Unduly harassing or embarrassing
- Assumes facts not in evidence.
Form - Use of Writing - Present Recollection Revived
Any writing or thing may be used to refresh a witness’s present recollection, requires:
- Witness must state he has forgotten something
- Witness may not read directly from the writing while testifying
- Opposing counsel must be given the opportunity to see the writing and enter it into evidence
- The writing is not admitted into evidence
Form - Use of Writing - Past Recollection Recorded
An exception to the hearsay rule, allowing a memorandum or record of an event to be read into evidence if:
- It is on a matter the witness once knew about but cannot recall well enough to testify fully and accurately
- Was made or adopted by the witness when the matter was fresh in their memory
- Accurately reflects the witness’s knowledge
Purpose - Logical Relevance
Evidence that has any tendency in logic to make a material fact more or less probable than it would be without the evidence. May not be logically relevant if evidence involves some other time, event, person than what is directly involved in the case.
California additionally requires that the material fact actually be in dispute.
Purpose - Logical Relevance - Exceptions
(1) Causation: otherwise logically irrelevant evidence can be used to show cause and effect,
(2) Prior Accidents/Claims: Plaintiff’s prior accidents/claims are not admissible except to show common plan of fraud or if prior accidents relevant on issue of P’s damages. Other accidents involving same instrumentality which occurred under the same/similar circumstances are admissible top show notice/knowledge of municipality and that instrumentality is a danger,
(3) Intent: to infer intent from prior conduct (pattern of discrimination in hiring for example)
(4) Rebuttal of Impossibility, (5) Comparable Sales to Establish Value, (6) Habit Evidence,
(7) Business Routine: admissible to infer at time of event acted in conformity w/ usual bus routine (like habit),
(8) Industrial Trade or Custom: admissible as non-conclusive evidence of standard of care,
Purpose - Legal Relevance
Even logically relevant evidence may be excluded if its probative value is substantially outweighed by (1) danger of unfair prejudice, (2) confusion of the issues, (3) misleading of the jury, (4) undue delay, (5) waste of time, or (6) cumulative evidence.
Purpose - Legal Relevance - Exceptions
(1) Liability Insurance: Is not admissible to show person acted negligently or wrongfully or to show an ability to pay damages. Is admissible to show ownership and control when those elements are at issue; to impeach credibility of a witness by showing interest/bias/motive to fabricate or exaggerate.
(2) Subsequent Remedial Measures: Inadmissible to show negligence, culpable conduct, or product defect. Admissible to show ownership/control when those elements are at issue; to impeach for feasibility of precautionary measures when that is at issue (where D says not way to make product safer).
(3) Settlements: Settlements Themselves, Settlement Offers, and Offers to Plead Guilty in Criminal Cases are Inadmissible to prove fault, liability, or amount of damages. Any admissions of fact, liability, or damage made in the course of offer to compromise a claim disputed as to liability/amount are also inadmissible.
(4) Offer to Pay Medical Expenses: Inadmissible even where not a settlement offer, but admissions of fact accompanying that offer are admissible.
(5) CA Specific: (a) Discussions during mediation, (b) statements related to offer to pay medical expenses, (c) expressions of sympathy in civil actions [related statements of fault are admissible].
Purpose - Legal Relevance - Character Evidence - Civil
Inadmissible: if offered by either party to show that either party acted in conformity with a specific character trait.
Admissible: if character itself is a material issue in dispute (defamation, negligent hiring, deceit/fraud). Can use Specific Acts, Opinion, and Reputation for this purpose.
Purpose - Legal Relevance - Character Evidence - Criminal
Inadmissible: if offered by prosecutor to show that the D has a propensity to commit crimes.
Admissible: if offered by D to show character not in keeping with the offense charged. D may offer a witness who testifies regarding good Reputation or Opinion on a relevant character trait (ex. peacefulness in an assault case). D does not put character at issue just by testifying, only when they put their credibility in issue may they be impeached.
Purpose - Legal Relevance - Character Evidence - Criminal - D Opens Door
A prosecutor may cross-examine D’s witness regarding the basis for her testimony, including whether she knows or has heard of Specific Acts of the D’s misconduct. Must accept witness’s answer and no extrinsic evidence of the prior misconduct is allowed.
Prosecutor may also call another witness to testify to the D’s bad Reputation or their Opinion of D’s character.
Purpose - Legal Relevance - Character Evidence - Victim’s Character in Self Defense
D may offer initial Reputation or Opinion evidence to show V’s character to infer V was the initial aggressor as part of a self-defense plea in homicide or assault cases.
Prosecutor can respond with evidence of V’s good Reputation or evidence of Opinion of D.
Specific Acts which are known to or communicated to D in self-defense situation before the crime is admissible to show fear ( “ I told my friend I was afraid of D because they had stabbed Roger”).
Purpose - Legal Relevance - Character Evidence - Victim’s Character Sexual Misconduct
Criminal: D cannot admit evidence of V’s sexual history to prove consent with Opinion or Reputation evidence. Can use Specific Acts to show a different source of semen or prior consent with D, as excluding this evidence would violate Const. rights.
Civil: Evidence of sexual disposition or behavior only if probative value substantially outweighs danger of harm to the victim and unfair prejudice to the D. D must give notice and an in camera hearing must occur.
Purpose - Legal Relevance - Character Evidence - MIMIC Exceptions
Specific Acts are admissible in both criminal and civil matters where offered to show (1) Motive, (2) Intent, (3) Absence of Mistake, (4) Identity, (5) Common Plan or Scheme
Subject to balancing by Judge
Special rule for sexual assault/child molestation - prior similar acts allowed to show propensity (do not have to be charged) and D doesn’t need to open any doors.
California Constitutional Rule in Criminal Cases - Prop. 8
All relevant evidence is admissible in a criminal case even if objectionable under the Evidence Code
Section 352: unfair prejudice substantially outweighs probative value
Relevance: Prop. 8 only applies to relevant evidence, so if the evidence is not relevant for any reason (character), Prop. 8 is inapplicable and does not permit evidence. However, impeachment evidence of almost any kind is relevant, and thus Prop. 8 can override.
Exceptions: (1) Exclusionary Rules under U.S. constitution, (2) hearsay, (3) Privilege, (4) Limits on Character Evidence, (5) Secondary Evidence Rule.
Presentation - Witness
Witnesses must be competent to testify, demonstrated by the fact that they (1) posses personal knowledge of the matter testified to and (2) swear under oath. CA also requires that the witness confirm they understand their legal duty to tell the truth.
Presentation - Impeachment - Prior Inconsistent Statement
On some prior occasion witness made an inconsistent statement in a formal proceeding and under penalty of perjury.
Presentation - Impeachment - Bias, Interest, Motive
Evidence that a witness is biased or has an interest in the outcome of a suit can be introduced to show that the witness has a motive to lie or exaggerate.
Presentation - Impeachment - Prior Conviction of a Crime (Federal)
Evidence of a criminal D’s conviction, up to 10 years prior, is admissible if the judge rules the probative value outweighs the risk of unfair prejudice. This discretion does not apply if the prior conviction was for a crime involving dishonesty.
Presentation - Impeachment - Prior Conviction of a Crime (California)
Only felonies (without limitation) and criminal misdemeanors involving moral turpitude are admissible under Prop 8, subject to PV/UP balancing.
Presentation - Impeachment - Bad Reputation or Opinion of Witness
Witness can be impeached by another witness testifying to reputation in community for truthfulness if the statement is made in good faith.
Presentation - Impeachment - Specific Instances of Misconduct
A witness may be interrogated upon cross-examination with respect to an act of misconduct relating to truthfulness. Good Faith is required.
CA does not allow this but Prop. 8 might make it relevant in criminal cases, if an act of moral turpitude and provable by any means.
Presentation - Impeachment - Rehabilitation
On redirect, witness may explain or clarify facts brought out in cross-ex.
Good Reputation - When character for truth and veracity has been attacked, other witnesses may be called to testify to the good reputation (for the truth of the statement).
Can also use prior inconsistent statement to rebut charge that the witness is lying because of some motive. can show witness made the prior statement before the alleged motive surfaced. The statement can come in for its truth.
Presentation - Document Reliability - Authentication
Writing is not admissible until it has been authenticated. Foundation must be laid showing the writing is what it purports to be. Writings are not self-authenticating, a testimonial foundation is required which provide sufficient evidence to justify a jury finding genuine.
Direct evidence in the form of admission, eyewitness testimony, handwriting proof (lay witness can testify to handwriting if familiar, expert comparison, jury comparison).
Indirect evidence in the form of (1) Ancient Document (anything over 20 years old found in place of natural custody), (2) Solicited Reply Rule (proof that disputed doc came in response to prior communication)
Presentation - Document Reliability - Self Authenticating Documents
Include: (1) Certified copies of public records/business records, (2) Official Publications, (3) Newspapers, (4) Trade Labels, (5) Acknowledged Docs, (6) Signatures on certain UCC docs.
Presentation - Document Reliability - Photos
Are authenticated if any Witness can look at the photo and say its a fair and accurate representation of the thing the photo is offered to depict.
Presentation - Document Reliability - Best Evidence Rule
Requires the party seeking to prove content of a writing (including films, X-rays, and recordings) to either (1) produce the original or (2) account for its absence to justify use of a copy.
Applies to: (1) legally operative docs or (2) where witness’ sole knowledge comes from a doc.
Does Not Apply to: Fact independent of writing (personal knowledge) or collateral docs.
Do Not Need Originals If: (1) facts independent of writing, (2) voluminous records, (3) duplicates (not question as to original or not unfair to other side).
Presentation - Opinion Testimony - Lay Opinion
Admissible if (1) rationally based on witness’s perception, (2) helpful to the trier of fact, and (3) not based on scientific, technical, or other specialized knowledge. CA permits some lay testimony to be based on specialized knowledge at the judge’s discretion.
Presentation - Opinion Testimony - Expert Opinion
Expert opinion or conclusions are admissible where: (1) it offers specialized knowledge helpful to the jury, (2) the expert is qualified, (3) the expert’s opinion is reasonably certain, (4) the opinion is based on proper facts and data, and (5) the opinion is based on reliable principles and methods.
Presentation - Opinion Testimony - Learned Treatise
Exception to Hearsay. Admissible as substantive proof if relied on by expert AND established as reliable authority by testimony of that witness and established by any other expert or judicial notice. Admitted by being read to jury.
Presentation - Judicial Notice
Under the federal rules of evidence, a judge may take judicial notice of certain types of facts. To take judicial notice, the fact must be of the type that is well-established and commonly known.
CA whether requested or not, Court must take judicial notice of matters generally known within the jurisdiction. Also both civil and criminal juries must accept judicially noticed fact.
Burdens of Proof
Burden of Producing - Evidence is on the party who has the burden of pleading.
Burden of Persuasion - is after parties have sustained their burden on production of evidence. Civil is preponderance of evidence or clear/convincing evidence. Criminal is beyond a reasonable doubt.
Presentation - Testimonial Privileges - Attorney/Client
Confidential communications between attorney and client made during professional, legal consultation are privileged from disclosure, unless waived by the client (survives death).
Written Communications between the atty and the client are privileged, as a re documents prepared by the atty for the client and by the client for the atty (Atty Work Product).
Presentation - Testimonial Privileges - Physician/Patient
Confidential communications between a patient and his physician are privileged provided that (1) a professional relationship exists, (2) the information is acquired from the patient during the course of treatment, and (3) the information is necessary for treatment.
Exceptions if (1) patient is not seeking treatment or (2) if patient sues or defends by putting physical/mental condition at issue.
Presentation - Testimonial Privileges - Psychotherapist/Patient
Federal Courts and almost all states recognize a privilege for this type of confidential communication.
CA does not apply the privilege if the provider has reasonable cause to believe the patient is a danger to himself/others and that disclosure is necessary to prevent that danger; does not apply if patient is crime victim under 16.
Presentation - Testimonial Privileges - CA only Privilege
(1) Parent/Child, (2) Accountant/Client, (3) Counselor/Victim of Sexual Assault or Domestic Violence, (4) Clergy/Penitent, (5) Immunity from Contempt of Court for News Reporter.
Privileges in CA terminate when an estate is wound up including the atty/client privilege.
Presentation - Testimonial Privileges - Spousal Immunity
One spouse cannot be forced to give adverse testimony against the other in a criminal case.
(1) Requires valid marriage at time of trial, (2) Protects against any and all testimony, (3) Witness spouse holds the privilege, (4) Applies only in Criminal.
Presentation - Testimonial Privileges - Confidential Marital Communication
A spouse shall not be required (without consent of the other) to disclose a confidential communication made by one to the other during marriage.
(1) Does not required valid marriage at time of trial, (2) Protects only Confidential Communications, (3) Both Spouses hold the privilege, (4) Applies to Criminal and Civil.
Hearsay - General
Any out of court statement being brought into court, offered for the purpose of etsablishing the truth of the matter asserted in that statement.
Hearsay - Exemptions (Not Considered Hearsay) - Statement Not Offered for Its Truth
Verbal acts or legally operative facts (words of contract/defamation); effect on hearer/reader (show notice, knowledge); circumstantial evidence of D’s state of mind (insanity)
Hearsay - Exemptions (Not Considered Hearsay) - Non Human Declarations
For example, testimony about a radar gun or a drug-sniffing dog are not hearsay.
Hearsay - Exemptions (Not Considered Hearsay) - Prior Statement by Witness
Prior Inconsistent statements made under oath at a formal proceeding (CA considers this hearsay whenever offered to proof truth of the statement, but it is still admissible as an exception).
Prior consistent statements offered to rebut charge that witness is lying because of motive.
Prior statement of identification by witness.
Hearsay - Exemptions (Not Considered Hearsay) - Admission of Party Opponent
Statement made or act that admits to prior acknowledgement by a party of one of the relevant facts and is now being used against him. Doesn’t have to be against the Declarants interest when made. Can be based on opinion and does not require personal knowledge. Can be a legal conclusion.
Adoptive: Admission by expressly/impliedly adopting/acquiescing to statement of another (Silence will suffice if party remains silent when a reasonable person hearing the statement would have objected).
Vicarious: Statement made by party’s agent/employee concerning a matter within scope of employment made during existence of relationship.
Co-Conspirators: Statement made to a 3rd party in furtherance of a conspiracy to commit a crime/civil wrong at the time when declarant was participating in the conspiracy are admissible against co-conspirators.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Former Testimony
Testimony given at earlier proceeding under oath by person now UNAVAILABLE is admissible if:
(1) In a CRIMINAL matter, the party against whom testimony is offered had meaningful opportunity and similar motive to cross-examine the witness about the same subject
(2) In a CIVIL matter, the part against whom testimony is offered was in privity with party to earlier proceeding who had meaningful opportunity to cross-examine the witness about the same subject.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Statement Against Interest
Statement of a now UNAVAILABLE witness against her pecuniary, property, or penal interest when made (as well as collateral facts in the statement) are admissible. Declarant must have had personal knowledge of the facts and there must have been no motive to misrepresent when statement was made.
CA also includes statements against social interest.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Dying Declaration
In HOMICIDE or CIVIL case, a statement made by declarant while believing death was imminent is admissible. The declarant does not need to die, just be unavailable.
CA allows admission in any type of case.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Statement of Personal or Family History
Statement of a now UNAVAILABLE declarant concerning births/deaths/marriages are admissible provided that (1) declarant is a family member or intimately associated and (2) statements are based on declarant’s personal knowledge of the facts or her knowledge of family reputation.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Reliability - Present State of Mind
Statement of declarant’s then existing state of mind, emotion, sensation, or physical condition. Usually offered to establish person’s intent or as circumstantial evidence that event was carried out.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Reliability - Excited Utterance
Statement relating to a startling event/condition is admissible when made while declarant was still under stress of excitement caused by event/condition.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Reliability - Present Sense Impression
Statement describing an event/condition made while declarant perceived it or shortly thereafter. Does not have to be startling.
CA only admits statements explaining conduct of a declarant made while engaged in that conduct.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Reliability - Physical Condition
Regardless of availability a (1) contemporaneous statement, (2) concerning the declarant’s then existing physical condition or state of mind, including intent or future plans, but (3) not including a statement of memory or belief about a past condition.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Reliability - Statements for Purpose of Medical Treatment/Diagnosis
Regardless of availability, statement made by anyone to a medical professional concerning present symptoms, past symptoms, or general cause of the medical condition, for the purposes of diagnoses or treatment. Does not include statements about fault or identity of wrongdoer.
CA only admits statements of this kind if made by a minor describing an act of child abuse or neglect.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Documentary - Business Records
Police Reports only count as business records in Civil Cases.
(1) A writing made in regular course of business, (2) consisting of matters within the personal knowledge, (3) of one who has a business duty to transmit, (4) made at or near time of event, and (5) properly authenticated.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - Documentary - Public Records
Records setting forth the activities of the office/agency (writing must be made by public employee within the scope of their duty and made at/near time of event).
Recording of matters observed pursuant to a duty imposed by law (except police observations in Criminal Cases).
In civil cases and against government in criminal cases, records of factual finding resulting from investigation authorized by law.
CA Only: Admits records made by public employee if making records was within scope of her duties, made at or near time of event, and circumstances show trustworthiness. Allows for police reports and factfindings even in criminal cases.
Hearsay - Exceptions (Still Hearsay but Admissible Anyways) - CA Specific
Statement Describing Infliction or Threat of Physical Abuse where (1) declarant UNAVAILABLE, (2) made at/near time of injury/threat, (3) describing/explaining the injury/threat, (4) in writing recorded or made to police or other professionals and (5) circumstances seem trustworthy.
Declaration of Past Physical or Mental Condition where (1) declarant is UNAVAILABLE, (2) to prove condition if that condition is at issue in the case. No need to be seeking medical care.
