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Bar Prep Summer 2014 > Evidence > Flashcards

Evidence Flashcards

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1
Q

Relevance

A

Evidence that has any tendency in reason to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

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2
Q

Personal Knowledge

A

A witness must have personal knowledge of the events to which they are testifying. Personal knowledge is the ability to perceive or a familiarity with the events because the witness was present when they occurred.

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3
Q

Proposition 8 (CA)

A

Relevant evidence shall not be excluded in any criminal proceeding; however, does not affect any existing statutory rule of evidence related to: privilege, hearsay, 352, or character evidence.

-Primarily applies to witness impeachment through bad acts, and through illegally obtained evidence.

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4
Q

More Prejudicial Than Probative

A

The probative value is outweighed by the prejudicial value, because it could lead to jury confusing or causing the jury to decide the case on emotion rather than facts or law.

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5
Q

Character Evidence, in General

A

Prior conduct, opinion, or reputation that is evidence of a person’s character trait used to prove that, on a given occasion, the person acted in conformity with that trait is inadmissible.

Types: specific instances, opinion, reputation

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6
Q

Character Evidence in Civil Cases

A

CE is rarely admissible in civil cases, except:

FRE: character is at issue (defamation, entrapment, etc) or in a civil suit for sexual abuse, to show that the defendant has a propensity to abuse.

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7
Q

The Mercy Rule (FRE and CA)

A
  1. D: offers relevant, good character evidence (O/R)
  2. P offers relevant, bad character evidence of the same trait of D (O/R)

-A character witness can be impeached by asking about specific acts of the defendant, and whether they were aware of the act and it would change their opinion. Not being used for character, but to show criteria for evaluating truthfulness.

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8
Q

Victim Character Evidence (FRE)

A
  1. D offers bad character evidence of victim (O/R)
  2. P offers the same bad trait of D, or same good trait of victim (O/R)

Homicide + Self Defense: if D claims, and there is evidence, that he acted in self-defense, P can be the first to introduce good character evidence of the victim (O/R)

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9
Q

Victim Character Evidence (CA)

A
  1. D offers bad character evidence of victim (O/R/S)
  2. P offers same good character evidence of victim (O/R/S)

Violence: if D offers evidence of victim’s trait for violence, P can rebut with same bad trait of D, or same good trait (peacefulness) of V (O/R/S)

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10
Q

Rape Shield Laws

A

Prohibit the use of O/R evidence, and evidence of a victim’s prior sexual conduct, to prove the victim’s consent in criminal cases, and in civil cases of sexual harassment, assault, or battery.

CAN be used to show prior sexual conduct with the defendant to prove consent, or for identity purposes (semen belonged to someone else).

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11
Q

Non-Character Purposes

A
  1. Common plan or scheme
  2. Identity
  3. Motive
  4. Opportunity
  5. State of mind
  6. Not an accident
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12
Q

Habit and Custom

A

Habit: repeated response to the same stimulus; habit is for individuals, and custom is for businesses.

Can also have negative custom evidence: when a particular industry does not do something, it is admissible to show that a particular business probably did not do it.

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13
Q

Impeachment by Prior Inconsistent Statements

A

FRE: always admissible to impeach; however, must be made under oath to be used substantively.

CA: can be used to impeach and substantively, regardless of whether made under oath or not

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14
Q

Impeachment by Contradiction

A

Uses evidence of the nonexistence of a fact testified to by a witness, often testified to by others. If impeachment is as to a collateral matter, extrinsic evidence is inadmissible.

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15
Q

Impeachment by Bias

A

A witness who has a bias towards or against one party or the other, or has an incentive to benefit from testimony, can be impeached with evidence of their bias, incentive, or motive, so long as:

  • Given an opportunity to explain or deny, or
  • Not excused from testimony
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16
Q

Impeachment by Prior Bad Acts (FRE)

A
  1. Felonies: any within the past 10 years
  2. Misdemeanors: involving dishonesty
  3. Prior bad acts: involving untruthfulness.

Extrinsic evidence is not admissible to prove the prior bad act, unless it is a certified judgment

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17
Q

Impeachment by Prior Bad Acts

A

PROP 8 MATTERS HERE.

Civil: only felony convictions
Criminal: any felony, misdemeanor, or prior bad act involving moral turpitude.

Prior to Prop 8, could only impeach with a felony in civil and criminal cases.

Always discuss 352, because of potential for jury confusion about what you are using the impeachment evidence for.

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18
Q

Subsequent Remedial Measures

A

Policy exclusion.

FRE: prohibits admission of subsequent remedial measures taken after an accident or similar incident to prove negligence, fault, or damages; permitted to prove ownership/control/feasibility of alternative measures.

CA: permitted in products liability cases to show that the product was defective

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19
Q

Offers of Compromise

A

Conditional language must be present: “if ___, then ___”

–FRE bars use of offers of compromise to prove fault; however, not inadmissible if evidence used for another purpose.

-CA: applies to all offers, settlement conference statements, etc.

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20
Q

Offers to Pay Medical Expenses and Humanitarian Gestures (FRE/CA)

A

Only the offer to pay medical expenses is excluded; statements and admissions made in connection with an offer to pay are admissible

CA: similarly inadmissible to show fault, unless an admission in conjunction with a benevolent gesture (“I’m so sorry…”)

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21
Q

Liability Insurance

A

Liability insurance is inadmissible to show fault; however, can be used to prove ownership or control.

California permits the absence of liability insurance to show fault.

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22
Q

Hearsay, in General

A

An out of court statement used to prove the truth of the matter asserted.

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23
Q

Non-Hearsay Purposes

A
  1. Conscious or otherwise alive
  2. Course of action
  3. Effect on listener
  4. Verbal acts: words of legal significance
  5. Warning was given
  6. State of mind
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24
Q

Conduct Hearsay

A

Nonverbal conduct is not typically a statement for hearsay purposes; however, under the FRE, the opponent of the evidence has the burden of showing that the actor intended his conduct as an assertion.

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25
Q

Admission by Party Opponent

A

(FRE exclusion, CA exception)

An admission is an assertion that, if true, proves an aspect of a party’s case. The party making the admission does not need to have personal knowledge, and can use what would otherwise be impermissible lay opinion

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26
Q

Adoptive Admission

A

(FRE exclusion, CA exception)

In civil cases, assuming there is a showing that the party heard the admission, if under the circumstances a reasonable person would have protested if the accusation is untrue, silence can constitute an adoptive admission.

27
Q

Authorized Admission

A

(FRE exclusion, CA exception)

Statement is offered against a party, and is a statement by a person authorized by the party to make a statement concerning the subject, and the judge must find that there is sufficient evidence such that the jury could find authority existed

28
Q

Vicarious Admission

A

(FRE exclusion, CA exception)

Involves a statement by an employee admitted against employer, concerning a matter within the scope of employment and during existence of relationship (CA: only has to be considered an admission by employer)

29
Q

Co-Conspirator Admissions

A

(FRE exclusion, CA exception)

A statement is offered against a party, and is a statement by a co-conspirator of a party during the course of and in furtherance of the conspiracy.

Per Crawford: when the prosecution offers testimonial statements against the accused for a hearsay purpose, the prosecution must either produce the declarant for cross-examination, or show unavailability and a prior opportunity to cross-examine

30
Q

Prior Inconsistent Statements

A

(FRE exclusion; CA exception)

May always be used to impeach a witness; may only be used as substantive evidence if given under oath.

31
Q

Prior Consistent Statements

A

(FRE exclusion; CA exception)

Admissible to rebut a charge of fabrication or bias; prior consistent statement must have been made before the reason for the alleged bias or motive arose. Can only be used to rehabilitate a witness after an attack on credibility.

32
Q

Statements of Identification

A

(FRE exclusion; CA exception)

An out of court statement by a witness identifying the accused is admissible if: the declarant is in court and available for cross-examination, and the statement was made after perceiving the person.

33
Q

Present Recollection Refreshed

A
  1. Anything may be used to refresh a witness’ recollection
  2. Witness asked to read writing to themselves
  3. Ask if refreshes recollection
  4. Show to opposing counsel
  5. Can be used to cross-examine
34
Q

Unavailability

A
  1. Exemption due to privilege
  2. Dead or otherwise unavailable due to physical or mental illness
  3. Absent and beyond subpoena power of the court
  4. Absent despite proponent’s reasonable efforts
  5. Refusal to testify despite court order
35
Q

Forfeiture Doctrine

A

Declarant is not deemed unavailable as a witness if unavailability is due to procurement or wrongdoing of the proponent, for the purpose of preventing witness from testifying at trial

36
Q

Former Testimony

A

(Requires unavailability)

Exception, if the party against whom testimony is now offered (or in a civil proceeding, a predecessor in interest) had an opportunity and similar motive to cross-examine

CA: not limited to predecessor in interest in civil cases

37
Q

Dying Declaration

A

(Requires unavailability)

Declarant must be unavailable, the statement concerns the cause and circumstances of the impending death, of which declarant has personal knowledge, and declarant must believe death is imminent.

FRE: admissible in all homicide and civil cases; CA admissible in all cases, and unclear if declarant needs to be dead.

38
Q

Statements Against Interest

A

(Requires unavailability)

A statement that, at the time of its making, was so far contrary to the declarant’s (NOT A PARTY) pecuniary or proprietary interests, or tends to subject them to criminal or civil liability, that a reasonable person would not have made the statement unless it was true.

CA: also includes social interest

39
Q

Excited Utterance (FRE)

A

Statement that relates to a startling event or condition, that was made spontaneously while under the stress of excitement caused by the event.

40
Q

Spontaneous Statement (CA)

A

Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant.

41
Q

Present Sense Impression (FRE)

A

A statement describing or explaining an event or condition, made while the declarant is perceiving the event or immediately thereafter

42
Q

Contemporaneous Statement (CA)

A

A statement explaining ones own conduct, while they are engaging in it.

43
Q

Crime Victim Statements of Threat or Abuse

A

The “OJ” Exception

Statement was made at or near the time of the injury or threat, by an unavailable declarant, describing or explaining the infliction or threat, in writing, recorded, or made to police or medical professionals, under trustworthy circumstances.

44
Q

Past Recollection Recorded

A

Only applies when the declarant has no present memory of their statements, but recorded or caused the recording of the statements in writing at a time in the past, when the event was fresh in their mind, and was true and accurate when made.

45
Q

State of Mind

A

Exception for declarant’s then-existing state of mind, including emotion, sensation, or physical condition.

Does not include a statement of memory or belief to prove facts remembered.

46
Q

Statements for Purpose of Diagnosis or Treatment (FRE)

A

Statements made for the purpose of diagnosis or medical treatment, describing medical history or past or present symptoms, pain, sensations, etc. that are pertinent to the diagnosis or treatment.

CA equivalent: then-existing state of mind, and then-existing physical condition

47
Q

Business Records

A

Exception, to the extent that their entry reflects that they are prepared by someone with a duty to enter the record accurately, if writing made:

  1. In the regular course of business
  2. At or near the time of the event
  3. Custodian of records testifies to the record’s identity and mode of preparation, and
  4. Circumstances suggest trustworthiness
48
Q

Absence of Records

A

Absence of records (business or official) when they are ordinarily prepared in the regular practice of business are admissible to show the absence of something

49
Q

Official Records

A

Records created pursuant to an official duty to create such a record. In criminal cases, statements by law enforcement personnel are not admissible as against a defendant.

50
Q

Learned Treatise

A

Includes: published treatises, periodicals, or pamphlets on the subject of history, medicine, science, or art, established as reliable by testimony or admission of expert, or by judicial notice.

Can cross-examine an expert with a learned treatise they did not use, so long as they have established as reliable.

CA: does not extend to medical treatises, and treatise cannot be admitted into evidence itself.

51
Q

Commercial Lists

A

Lists or tabulations generally used and relied upon as accurate by businesses, including but not limited to: directories, market quotations, or other publications.

52
Q

Authentication, in General

A

Authentication is required of writings, photographs, and voices. Can be done by any party familiar with the writing or the person’s voice; can call the number listed in the phone book and then have the person self-identify. Jury is permitted to compare handwriting samples.

  1. Authentication
  2. Best/Secondary Evidence Rule
  3. Hearsay
53
Q

Self-Authenticating Docs

A

FRE: trade labels, certified copies of public records, official documents under seal, notarized documents, newspapers and periodicals, commercial paper.

CA: certified copies of public records, such as judgments.

54
Q

Best Evidence Rule (FRE)

A

Requires the content of a writing to be proved by the original, and not by testimony. Copies constitute originals.

Exception: summary of voluminous documents where the quantity is at issue; writing was destroyed or lost through no fault of the proponent.

55
Q

Secondary Evidence Rule (CA)

A

Retains a preference for the use of copies, rather than testimony, to prove the contents of the writing, unless:

  • Proponent does not have a copy and the original was destroyed without fault of the proponent
  • Not procurable by process
  • Not closely related to the controlling issue
56
Q

Opinion Testimony

A

Any non-exact assessment as the result of deduction from an observation, that cannot be independently verified by repeatable observation.

57
Q

Lay Opinion

A

Lay witnesses can give opinion testimony about issues estimating quantity, value, weigh, measure, time, speed of a car, etc.

Must be rationally based on the witness’s perception, and helpful to understanding the testimony.

58
Q

Expert Opinion

A

Can give expert testimony based on matters or data made known to them before they testify; can be based on inadmissible matter, such as hearsay or hypothetical questions.

An expert is qualified if:

  1. Special knowledge/skill/expertise
  2. Credentials established
59
Q

Judicial Notice

A
  • Civil cases: gives rise to a conclusive presumption
  • Criminal cases: gives rise to an inference; cannot shift burden for Constitutional concerns

Facts subject to judicial notice are those not subject to reasonable dispute, and that are generally known within the territorial jurisdiction or can be readily determined by resort to sources of unquestioned accuracy.

-Courts may take judicial notice sua sponte.

60
Q

FRE Privileges

A

-Privileges governed by federal common law; in federal question cases, only recognize: attorney-client, spousal communications, and psychotherapist/social worker privilege

61
Q

Attorney-Client Privilege

A

Both attorney and client have a right to refuse to disclose the content of communications; however, client can waive the privilege. Extends to all confidential communications (those within relationship are presumed to be confidential), and to statements made in the presence of a 3rd party necessary to the effectuation of the relationship.

62
Q

Spousal Privilege

A
  1. Privilege not to be called as a witness
  2. Privilege not to testify against your spouse

-Privileges only exist during the course of marriage; can be waived unilaterally by either spouse. Extends to things perceived by spouse, if they do not want to testify (broader than marital communications)

63
Q

Marital Communications Privilege

A

A person, whether or not a party, has the privilege to refuse to disclose, or prevent the other spouse from disclosing, a communication made in confidence between that person and his/her spouse.

-Extends to all statements made in the course of marriage, and may be claimed after termination of marriage. Exception: crime/fraud

Bar Prep Summer 2014 (11 decks)

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