Evidence Flashcards
Forum
CA (Prop 8 - all relevant evidence admissible) or Federal / Civil or Criminal
Sequence of Evidence
determines applicable objections
a. Plaintiff / Prosecution, Defendant
b. Direct, Cross, etc.
If question of counsel is in quotes, consider objections to form of question or to answer
“CL CANS” - 1) calls for narrative, 2) leading, 3) compound, 4) assumes facts not in evidence, 5) non-responsive, 6) speculation
Purpose
What is the purpose for introducing the evidence?
(1) Logical Relevance
(2) Legal Relevance
(3) Character Evidence
Logical Relevance
tends to prove or disprove a fact of consequence in the action
note: CA - disputed fact of consequence
Legal Relevance
probative value of the evidence is not substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative facts
Legal Relevance (public policy exclusions)
liability insurance; subsequent remedial measures; settlement offers; payment or offer to pay medical expenses; guilty pleas; expressions of sympathy (CA - civil only)
Character Evidence
offered to prove element of case (substantively) or impeach?
Character Evidence (civil case)
generally inadmissible to prove negligence, fault, or person’s conduct on a given occasion. BUT, admissible if character is in issue, for impeachment, or to show habit
Character Evidence (criminal case)
admissible for “MIMIC” (Motive, Intent, Mistake, Identity, Common scheme) or for impeachment. But, evidence of ∆’s character to show propensity is inadmissible by P unless and until ∆ “opens door” by presenting evidence of his good character to show innocence
i. If ∆ opens door, P may present evidence of ∆’s character to rebut;
ii. CA DV and Elder Abuse Exception - Evidence ∆ previously assaulted V admissible
Character Evidence (victim’s bad character)
admissible when relevant to show ∆’s innocence
i. Criminal Rape - V’s sex behavior admissible to prove someone other than ∆ is source of physical evidence. Specific instances of sexual behavior between V and accused admissible by prosecution for any reason and by ∆ to show consent
ii. Civil Rape - V’s sex behavior admissible if not excluded by rules or probative value substantially outweighs harm. V’s reputation admissible only if in controversy
Presentation
How is evidence being presented?
(1) Testimonial;
(2) Document;
(3) Judicial Notice;
(4) Burdens of Proof;
(5) Presumptions
Testimonial
Witness must be reliable – competency (age/mental) and personal knowledge
Opinion (Expert)
Must be qualified
Opinion (Expert - FED test)
Daubert/Kumho - 1) publication/peer review, 2) error rate, 3) results tested and can retest, 4) reasonable level of acceptance
Opinion (Expert - CA test)
Kelley/Frye - opinion must be based on principles generally accepted by experts in the field
Opinion (Lay)
generally inadmissible UNLESS 1) rationally based on perception, 2) helpful to understanding, 3) not based on specialized knowledge
Impeachment
(1) Character for truth or veracity; (2) Prior Inconsistent Statements; (3) Bias/Motive; (4) Refresh Recollection; or (5) Recorded Recollection
Impeachment (character for truth / veracity)
Prior felony conviction/crime involving truth (no foundation required)
a. Fed - felonies/misdos involving false statement admissible, if older than 10 years inadmissible unless probative value outweighs prejudice
b. CA - felonies (no misdos) involving “moral turpitude” ok, no ten year requirement, but court must balance
Impeachment (prior inconsistent statement)
need opportunity to explain
Impeachment (bias / motive)
challenge witness’s bias or motive in testifying
Impeachment (refresh recollection)
use anything, show opposing counsel, opposing counsel can admit
Impeachment (recorded recollection)
read writing into evidence (needs proper foundation)
Document Reliability
Authentication and Best Evidence Rule
