Evidence Flashcards
Relevance
To be admissible, evidence must be both logically and legally relevant
Logical Relevance
evidence must be a fact of consequence that makes the action more or less probable.
Legal Relevance
relevant unless court determines that probative value is substantially outweighed by unfair prejudice, confusion of the issue, or a waste of time.
Conditional Relevance Categories
Liability Insurance - cannot show culpability, but can show ownership.
Subsequent Remedial Measures - cannot show culpability, but can show ownership.
Settlement Offers - inadmissible (CA + mediation inadmissible)
Offer to Pay Medical Expenses - only related statements admissible (CA all inadmissible)
CA - Expression of Sympathy - inadmissible also.
Reliability
to be admissible, evidence must be from a reliable source.
Competency to Testify
Testifying individual must have:
- Personal Knowledge (perceived thru W’s senses)
- Present Recollection
- Communication, and
- Sincerity
Testimonial Objections
ACC x2 LMU
- Argumentative
- Calls for narrative
- Compound
- Assumes facts not in evidence
- Conclusory
- Cumulative (asked and answered)
- Leading (non on direct, unless adverse W or W needs help)
- Misleading
- Unresponsive
Refreshed Recollection
If W STATES that they “Do not Remember/Recall” then can be shown documentation to refresh.
-Cannot read from document, and opposing counsel can ask to review document also.
Past Recollection Recorded
To ENTER DOCUMENT INTO EVIDENCE AND HAVE W READ from the document, must show following:
- Personal Knowledge of facts,
- Made or Adopted by W when FRESH IN MEMORY,
- Accurate when made, AND
- W CANNOT RECALL on their own.
Lay Witness Testimony
Allowed if W has personal knowledge, rationally related on their own perception, and opinion is helpful to jury.
Expert Witness Testimony
i. Qualified expert (credentials or experience)
ii. Opinion helpful to jury
iii. Believed in by W to reasonable degree
iv. Supported by proper factual basis
v. Based on proper theoretical principals –
FRE: reliable principles reliably applied (published, tested, etc)
CA: “generally accepted in field”
Authentication
All documents, writings, voices, and physical objects must be SUFFICIENT TO SUPPORT A FINDING.
- Handwriting (comparison, lay witness, expert, etc.)
- Ancient Documents found untouched (FRE - 20, CA - 30)
- Self-Authenticating Documents
- Public Records
- Photos
- Machine Generated Documents
Best Evidence Rule
To prove contents of a writing, original not needed unless due to fraudulent reasons. Duplicate allowed (handwritten allowed in CA)
Writing = documents, videos, xrays, audio recordings, disks, data
Character Evidence
Evidence that tends to show that a party’s conduct conformed to their character. This evidence is generally inadmissible in civil cases, and allowed in criminal cases ONLY if Defense opens the issue. Character can be shown by reputation or opinion, and in certain instances can be shown by specific acts.
Character Directly at Issue
if character is directly at issue, character evidence IS ALLOWED, EVEN IN CIVIL CASES.
-I.e. - Fraud, defamation, etc.
Independently Relevant Specific Acts of Misconduct
MIMIC - evidence of other crimes of misconduct are admissible if these acts are RELEVANT to SOME ISSUE OTHER THAN the defendant’s character or disposition. (SPECIFIC ACTS ONLY!!!)
- Motive
- Intent
- Mistake (absence of)
- Identity
- Common plan or scheme
Rape Shield and Sexual Assault
SPECIAL CATEGORY:
Criminal Cases - Specific Acts ONLY, and ONLY to show source of semen and/or prior sex with victim.
Civil Cases - R,O, and S admissible if probative values outweighs prejudice.
Habit
Evidence indicating that there is a regular response to a specific recurring circumstance. MUST BE SPECIFIC!!! Always admissible.
Character of Defendant (FRE)
Only admissible when Defendant opens trait by either:
1) offering good char. trait, or
2) accusing victim of trait (i.e. violence).
Rep. and Op. allowed on direct, S.A. also allowed on cross to show lack of knowledge (i.e., “did you know D did this?”).
Character of Defendant (CA)
Only admissible when Defendant opens trait by either:
1) offering good char. trait, or
2) accusing victim of trait (i.e. violence).
***CA allows S.A. of Def. to show same violent trait as victim.
Rep. and Op. allowed on direct, S.A. also allowed on cross to show lack of knowledge (i.e., “did you know D did this?”).
Character of Victim (FRE)
Defendant can show REP. or OP. evidence of victim to show their innocence.
Rep. and Op. allowed on direct, S.A. also allowed on cross to show lack of knowledge (i.e., “did you know D did this?”).
Character of Victim (CA)
Defendant can show REP. or OP. evidence of victim to show their innocence.
Rep., Op. and S.A. allowed on direct and cross.
Impeachment
A witness may be impeached by any party, including the party calling him, so long as it points to a material matter.
Prior Inconsistent Statement
Opposing party may impeach by showing a prior inconsistent statement of the Witness through cross-examination or extrinsic evidence (another W).
- EE allowed only if W has opportunity to explain.
- Could be hearsay, but still allowed for limited purpose of impeachment.
Bias, Interest or Motive
evidence of W’s bias or interest in outcome of suit always allowed. Can be shown through cross or EE (but must give W an opportunity to explain).
Prior Convictions
Admissible if a FELONY involving FALSE STATEMENTS or DISHONESTY.
- If FELONY more than 10 years old, inadmissible unless balancing.
- If MISDEMEANOR, inadmissible unless crime of dishonesty.
Prior Specific Acts of Misconduct
A Witness may be interrogated on cross (in good faith) with respect to an act of misconduct if PROBATIVE FOR TRUTHFULNESS. No extrinsic evidence.
Reputation/Opinion for Untruthfulness
Reputation and Opinion may be given by an impeaching Witness to show.
Rehabilitation
Inadmissible unless the Witnesses credibility has been attacked.
Exception - W’s PRIOR CONSISTENT STATEMENT is admissible if the statement was made prior to any motive to fabricate existed.
Hearsay
An OUT OF COURT STATEMENT offered in evidence to PROVE THE TRUTH OF THE MATTER ASSERTED.
Statement (for Hearsay)
Either ORAL or WRITTEN assertions, or NONVERBAL conduct INTENDED as an assertion.
Offered to Prove the Truth of the Matter (for Hearsay)
If the statements truthfulness relies on the declarant’s credibility, it is hearsay.
Opposing Party Statement
An admission of one of the parties, that the other party is offering against them. Can be a:
- Judicial admission (testimonial and in court or pleading)
- Adoptive admission (can be silence if capable of responding and reasonable to respond)
- Vicarious admission (by an agent)
- Co-conspirator admission (made in furtherance of conspiracy)
Prior Identification
An earlier statement of identification after perception by the Witness. CA - must be made will fresh in memory and W’s opinion.
Unavailability
If a Witness is unavailable, hearsay excepts are available to allow prior statements. Must be PRIMA
- Privileged,
- Refuse to testify,
- Ill or dead,
- Memory (lacks current memory), or
- Absent (from court proceeding).
Dying Declaration
If declarant unavailable, statement admissible if:
- made in belief that death was imminent (CA- must have died),
- statement involved circumstances surrounding death.
Statement Against Interest
If declarant unavailable, a statement made that was against the declarant’s financial or penal interest (CA - also social interest) AT THE TIME the statement was made is admissible.
Former Testimony
If an unavailable declarant testified on the topic at issue in a prior court proceeding, admissible if:
- Under Oath,
- Opportunity to question, and
- Motive to cross by previous counsel.
Excited Utterance
An out-of-court statement relating to a startling event, made while under the stress of the event, and before declarant had time to reflect on it.
Present Sense Impression
A statement made contemporaneous to an event, before declarant has time to reflect (think play by play announcer). Does not have to be “exciting”.
State of Mind
A statement of a declarant’s then-existing state of mind, emotion, sensation, or physical condition is admissible to show person’s intent at the time.
Physical or Mental Condition
A spontaneous declaration of present bodily condition is admissible (can be said to anyone).
A statement of past bodily condition can be admissible ONLY if stated to medical personnel for the purpose of treatment. CA - inadmissible unless CHILD stating for ABUSE treatment.
Business Records
Admissible if:
- recorded by a business,
- in the regular course of the business,
- made at the time of the matters described,
- by an employee with PERSONAL KNOWLEDGE, and
- authenticated or certified.
Public Records
Admissible if:
- document describes public activities,
- made within the scope of the duty of the author, and
- pursuant to a duty or in the course of an official investigation.
Confrontation Clause
An out-of-court statement offered against the Defendant will be EXCLUDED under the 6th amendment if:
1) declarant is unavailable,
2) declarant does not testify at trial,
3) D had no opportunity to cross, and
4) statement is testimonial in nature.
TESTIMONIAL = statements made during court proceedings or in furtherance of an investigation (unless during an ongoing emergency).
Attorney-Client Privilege
Confidential communications are inadmissible unless privilege is waived, so long as intended to be confidential and made to facilitate legal services.
Psychotherapist-Patient and Doctor-Patient Privilege
Psychotherapist - same reqs as A/C privilege.
Doctor/Patient - only exists in CA - only for confidential info for purposes of medical treatment (prior to trial).
Spousal Testimonial Privilege
A CURRENT SPOUSE can REFUSE to testify AGAINST a spouse in any criminla proceeding (CA- Crim or Civil).
ONLY AVAILABLE IF: 1) currently married, and 2) used by the Witness spouse (the Defendant spouse cannot prevent testimony).
Marital Communications Privilege
Both spouses can PREVENT the other from testifying to any confidential communications made during the course of their marriage. Can be invoked in Criminal or Civil cases.
Proposition 8
In criminal trials in CA state court, all relevant evidence is admissible. It affects all evidence offered by prosecution or defense. This does not apply to:
- Hearsay
- Privileges
- Character evidence
- Rape Shield
- Best Evidence Rule
- -> CEC 352 balancing also can defeat Prop 8 (probative value is substantially outweighed by a risk of prejudice - judicial discretion is advised).
