Evidence Flashcards
Proposition 8
Proposition 8 provides that “relevant evidence shall not be excluded in any criminal proceedings.” This rule is subject to exceptions including relevance, a complaining witness’s sexual conduct, and the victim exception (unless D opens the door, prosecution cannot offer character evidence of a victim)
Leading Quesitons
Not usually available on direct unless for foundational questions, witnesses unable to testify, or adverse or hostile witnesses. Generally available on cross-examination.
Improper Questions
Compound Assumes Facts not in evidence Argumentative Calls for conclusion/opinion Repetitive
Relevance
Evidence is relevant if it has a tendency in reason to prove or disprove andy (disputed) fact that is of consequence to the determination of the action. In CA, must be a disputed fact. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, undue consumption of time, confusing the issues, or misleading the injury. In CA, relevant evidence shall not be excluded in any criminal proceeding pursuant to Prop 8 unless subject to an exemption.
Character Evidence
Character evidence is admissible when character is an essential element of a claim or crime, such as in defamation, negligent hiring or entrustment, and child custody. Opinion, reputation, and specific instances are allowed.
Habit and Routine Practice
In order for evidence of a person’s conduct to be admissible as habit evidence, the evidence must be sufficiently specific. Habit are particular routine reactions to a specific set of circumstances.
Character: Civil
In a civil case, character evidence is not admissible to prove that a person acted in accordance with that character trait on that particular occasion.
Character evidence is admissible when character is an essential element of the claim, in which case, opinion, reputation, or evidence of a specific instance is allowed.
Civil Prior Bad Acts
Prior bad acts are admissible for non-propensity purposes (MIMIC). Evidence concerning past sexual assault or child molestation by a defendant in a civil sexual misconduct case is admissible.
In CA, evidence of a defendant’s prior sexual assault, domestic violence, or child molestation is inadmissible in a CIVIL sexual misconduct case. Evidence concerning past sexual behavior of a victim of sexual misconduct is admissible to prove consent.
Civil Victim Sexual Behavior
Victim’s sexual behavior is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Victim’s reputation is admissible only when it has been placed in controversy by the victim. The proponent must file a motion with description and purpose at least 14 days before trial, victim must be notified.
CA Civil Victim Sexual conduct
In CA, character evidence of plaintiff’s sexual conduct with D is admissible in a civil action. Character evidence of plaintiff’s sexual conduct with others is not admissible by D in order to prove consent or absence of injury (but to prove source of semen is okay), but is admissible by D for rebuttal purposes.
Evidence of (Defendant) another sexual offense
Evidence of another sexual offense (incident,arrest, or conviction) by defendant is admissible to prove any relevant matter in a case involving sexual assault or child molestation. Proponent must disclose to party against whom it will be offered at least 15 days before trial.
Character Evidence: Impeachment Purposes
Character evidence is admissible for impeachment purposes relevant to the witness’s character for truthfulness, in the form of reputation or opinion testimony.
In CA, credibility may be attacked by reputation or opinion evidence only as to the witness’s character for honesty or veracity.
The credibility of a witness may not be bolstered, evidence of truthful character is only admissible after witness’s character for truthfulness has been attacked. Impeachment without attacking truthfulness does not constitute an attack.
In CA, a criminal defendant can bolster his testimony for honesty and veracity
without any attempt at impeachment by the prosecution.
On cross-examination, a witness may be asked about specific instances of conduct if it is probative of the truthfulness of the witness or another witness about whose character the witness being cross-examined has testified.
Impeachment: Arrest
A witness may not be cross-examined about an arrest solely for attacking truthfulness. A witness may be cross-examined about underlying conduct. Extrinsic evidence is inadmissible to prove a specific instance that attacks/supports truthfulness. Extrinsic evidence of specific conduct admissible to impeach on other grounds (bias).
Impeachment: Crimes
A conviction for a crime involving dishonesty, or a crime punishable by death or imprisonment for more than one year, may be used to impeach any witness, so long as more than 10 years have not elapsed since conviction or release from confinement. Cannot be used if pardoned.
Only admissible against a criminal defendant if its probative value outweighs prejudicial effect.
Can be excluded against other witnesses if objecting party shows its probative value is substantially outweighed.
If more than 10 years, (1) probative value must substantially outweigh prejudicial effect and (2) proponent must give adverse party reasonable written notice of intent to use such evidence.
In CA, evidence of prior felony convictions involving moral turpitude are admissible to impeach a witness in a civil case, unless it has been pardoned, was a perjury conviction that was later dismissed, or if the felon earned a cert of rehabilitation.
May admit a misdemeanor conviction record to prove commission, attempt, or solicitation of a criminal offense or prison term recorded under a hearsay exception for official records.
In CA, evidence of a misdemeanor conviction may be used to impeach a witness in a criminal case using Prop 8. Evidence of a felony conviction may be used to impeach in a criminal case due to Prop 8.
Witness Competence
Generally, every person is presumed to be competent to be a witness. A non- expert witness must have personal knowledge of a matter in order to testify about it. A witness must give an oath or affirmation to testify truthfully. Children may be deemed competent by a judge based on their intelligence, ability to differentiate between truth and falsehood, and his ability to understand the importance of telling the truth.
