Evidence 2 Flashcards
Question Forms
Leading Compound Q Calls for narrative/speculation Argumentative Assumes facts not in evidence Non-responsive Relevance Draws conclusion Harassing the W Hearsay
Prop 8
Proposition 8 is part of the CA constitution applies to CA criminal cases. Under Prop 8 all relevant evidence is admissible unless the evidence falls within an exemption. However the judge can nevertheless exclude the evidence under CEC 352
CA allows admission of felonies or crimes involving moral turpitude. Moral turpitude involves crimes of dishonesty or anything that shows “a general readiness to do evil.”
352: Discretion of Court to exclude evidence if its probative value is substantially outweighed by the probability that its admission will: undue consumption of time, create substantial danger of undue prejudice.
Logical Relevance
Under the Federal Rules of Evidence (FRE) evidence is logically relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probably than it would be without evidence. CEC requires fact in consequence to be in dispute to be relevant.
Legal Relevance
Logically relevant evidence may be excluded if the probative value of the evidence is substantially outweighed by its prejudicial effect. If the court finds the probative value of the evidence outweighs its prejudicial effect, the evidence should be admitted.
Prop 8 gives the judge discretion to exclude relevant evidence.
Subsequent Remedial Measures
Evidence of repairs of other precautionary measures made following an injury is inadmissible to prove negligence (and defect under FRE) but may be admissible to prove ownership and control. The purpose of the rule is to encourage making such repairs. CA, it is admissible to prove defective design in SL case.
Offers to Settle
Evidence of compromises or offers to compromise are inadmissible to prove liability for a claim. Public policy favors the settlement of disputes without litigation and settlement would be discouraged if either side were deterred from making offers by fear it would later be used against them as evidence at trial. Nb. Plea itself is admissible
Offers to Pay Medical Expenses
Evidence offered to pay the injured party’s medical expenses in inadmissible to prove liability for the injury, but related stmts are admissible. Under CEC, both the offer to pay AND the admission of facts are inadmissible to prove liability.
Liability Insurance
Evidence that person was insured against liability is inadmissible to prove whether the person acted negligently because a contrary law might discourage persons from carrying insurance. The only exceptions are when evidence of insurance is admissible to prove ownership or control or to impeach a witness as party of an admission
Expression of Sympathy
Under CA law, expressions of sympathy are inadmissible to prove negligence or fault.
Character Evidence
Criminal Character Character Habit D opens the door Impeachment
Criminal Character
In a crim case under the FRE and the CEC and Prop 8, the prosecution cannot initiate evidence of a D’s bad character merely to show that the D was more likely to commit the crime charged unless the D first puts character at issue.
Character
Character evidence describes a person’s disposition in respect to general traits. It is a general stmt about someone’s traits that casts a moral judgment. It is inadmissible to prove the person acted in conformity unless an exception applies. MIMIC
Habit
Admissible to show the person acted in accordance with habit on the occasion in question
D opens the door to Character
D can open the door with reputation and opinion evidence as well as specific instances of conduct of the victim in self-defense claim. Traits must be pertinent, honest is not pertinent to battery
Impeachment
To impeach a witness means to attack the credibility or veracity of the witness. Under the CEC, litigants in both civil and criminal cases can use any felony convictions to impeach a witness whether or not it involves dishonesty, subject to three things:
1) conviction has not been expunged,
2) felony must involve a crime of moral turpitude and
3) even after Prop 8, the trial court has discretion to prohibit admission if the prejudice is substantial.
Under FRE, a party may not bolster or accredit the testimony of her W until the W has been impeached.
In criminal cases, under Prop 8, both the prosecutor and the D may bolster a W’s credibility before it has been attacked.
Personal Knowledge
A witness must have personal knowledge of the matter about which he is to testify
Lay Opinion
Under the FRE, lay opinion must be helpful to the jury and not based on specialized knowledge. Under the CEC lay opinion may be based on specialized knowledge
Expert Opinion
An expert witness may state an opinion if 1) the subject matter is appropriate for expert testimony (specialized knowledge that would be helpful to a jury), 2) the expert is qualified as an expert (credentials/ experience), 3) the expert posses reasonable probability regarding his opinion (cannot be mere guessing or speculation) and 4) the opinion is supported by a proper factual basis (may be material studied before or during trial, provided that the material relied upon is the type upon which an expert in that field would reasonably rely in forming such an opinion).
Under FRE, reliability factors: 1) publication/peer review, 2) error rate, 3) tests and ability to be re-tested, 4) reasonable level of acceptance. CA opinion must be passed on principles generally accepted by experts in the field.
Best Evidence Rule
Where the knowledge of a witness concerning a fact results from having read it in a document or the contents of a legally significant document are disputed. The Original must be produced.
This rule requires that in proving the contents of a writing, the original must be produced or shown to be unavailable.
Authentication
A stmt over the phone or documentary evidence must be authenticated. Documentary evidence must be authenticated with proof supporting it is what the proposing party claims it to be. Voice may be authenticated by anyone who has heard the voice. A phone call may be authenticated by corroborating evidence of what number was called and the content of the person speaking was specialized knowledge only the declarant would know.
A substantially unbroken chain of custody must be established for facially indistinguishable items (eg. coke bag)
Hearsay
Hearsay is an out of court stmt offered to prove the truth of the matter asserted. Hearsay is inadmissible without a valid exception.
Rule against HS is exempt from Prop 8
Double Hearsay
Where multiple levels of hearsay in one piece of evidence, all levels must have a valid exception to be admissible.
Non Hearsay
Statements made for their effect on the reader or listener are not hearsay.
• Verbal Acts or Legally operative facts (e.g. defamation; offer/acceptance; conspiracy, misrepresentation, waiver, bribery, permission)
• Effect on the hearer or reader (to prove notice in negligence case)
• Circumstantial Evidence of declarant’s state of mind
• Nonhuman declarations (animal or machine)
Prior Inconsistent Statement
Under FRE, a prior stmt by a witness is nonhearsay if: the prior stmt is inconsistent with the declarant’s in court testimony and was given under oath at a prior proceeding
Prior Consistent Statement
The prior stmt is consistent with the declarant’s in court testimony and it is offered to rebut a charge that the witness is lying or exaggerating b/c of some motive and the stmt was made before any motive to lie or exaggerate
Prior Identification
One of identification of a person made after perceiving him. CA also requires that it was made while fresh in mind and confirm it was his opinion when made.
Admission by Party Opponent
An admission is a stmt made or act that amounts to a prior acknowledgment of a relevant fact. Need not be against interest.
A stmt amounting to prior acknowledgement by a party of a relevant fact is admissible nonhearsay under FRE.
CA follows traditional common law and calls this an exception to hearsay rule.
