Evidence Flashcards
Relevance
Logical
Anything that has a tendency to prove or disprove a material fact (CA disputed fact)
Legal
The evidence is legally relevant if its probative value is not substantially outweighed by the danger if of its prejudicial effect, confusion of issues, misleading the jury or wasting time
Prop 8 in CA
provides that in criminal cases, all relevant evidence is admissible with some exceptions such as hearsay and prejudicial evidence
Public Policy Exclusions (6)
SLOSOC
Subsequent Remedial Measures Liability Insurance Offer to Pay Medical Expenses Settlement Offer Offer to Plead Cal: Expression of Sympathy
Subsequent Remedial Measures
SRM are not admissible to prove culpable conduct
Not admissible except ownership and control, precautions are infeasable, or destruction of evidence
Liability Insurance
Not admissible to show culpable conduct
Except ownership, impeachment, or a statement of fault combined with a statement of possession of liability insurance is admissible
Offers to Pay Medical Expenses
offer to pay medical expenses is not admissible to prove liability for that injury
FRE ONLY, collateral admission of fact is admissible if made with an offer to pay medical expenses
Settlement Offers
An offer to settle a claim and related statements are not admissible to prove the claims validity, liability or amount. Rule only applies to a disputed claim.
CEC ONLY - mediation proceedings are not admissible
Offer to Plead Guilty
An offer to plead guilty to a crime during plea negotiations are not admissible to prove a defendant is guilty, or a consciousness of guilt
PROP 8 - may come in
California Exception
Expressions of sympathy are not admissible in civil actions related to the death or suffering unless with admission
Witness On Stand
CROPO
Competency Role of Judge Objections to Form Present Recollection Refreshed Opinion testimony
Competency
Witness must have personal knowledge of the matter about which he is to testify and must declare that he will declare truthfully
Role of Judge
May call and/or ask questions of any witness
Objections to Form of the Question
NUCALF
Narrative - questions calling of a narrative are too broad
Unresponsive - answer the question, CEC either party can strike
Compound - two questions in one statement
Argumentative - question is unnecessarily combative
Leading - question suggests the answer
Facts - assumes facts not in evidence
Present Recollection Refreshed
technique that allows any item to be used to refresh a witnesses’ memory where their recollection is uncertain. once shown, must testify from memory.
- item may be inadmissible and is NOT evidence
- writing must be produced and inspected
Opinion Testimony - Lay opinion
Lay - admissible if:
rationally based on witness perceptions and helpful to trier of fact FRE = not based on expert knowledge
Opinion testimony - Expert
Requires 5 for expert opinion to be admissible
Specialized knowledge will assist the trier of fact
Qualified as an Expert
Based on reliable facts and data
Product of reliable facts and data
Applied the principles reliably
Opinion BASED on firsthand knowledge, observation of prior witness, or hypothetical question
FRE: daubert- peer review, tested, low error rate, reasonable level of acceptance
CEC: kelley/frye-proponent must prove underlying principles, generally accepted as valid, NOT for medical
Privileges
A,D,Ps,M,CEC
Privilege provides testimonial protection for certain relationships. Fed diversity applies state privilege
Atty-Client - a client has the right not to disclose any confidential communication between the atty and the client relating to their professional relationship
Dr-Patient - at FRE, nothing. CEC only for communications made to medical personnel for medical diagnosis and treatment but not if physical condition in issue or dispute between dr/patient
Psychotherapist- confidential except mental condition in issue, dispute, patient is dangerous, court appointed, or minor
Marriage- see other card
CEC - conselor/victim, clergy/penitent, and news reporters
Marital Privileges
Adverse Testimony - one spouse cannot be compelled to testify against the other spouse
Only claimed during marriage, covers info before and during and witness spouse holds the privilege. FRE - criminal only. Invoking makes spouse UNAVAILABLE
Confidential Communications - a spouse may not disclose the confidential communications of the other made during the marriage. privilege survives marriage but only statements during marriage and both spouses hold privilege. also UNAVAILABLE
Character Evidence
F, C, C, O
Form of character evidence
Civil Court character evidence
Criminal Court character evidence
Other Purposes
Form of Character Evidence
Reputation - testimony regarding one’s reputation in the community
Opinion - testimony regarding the witness’ opinion of the person
Specific Acts - engaged in by the person, which are presented in court
Civil Court, character
generally, not admissible to prove conduct in conformity with that character unless character “at issue”. FRE exception: sex assault and child molest
Rape Shield Provision
disallows evidence of victim’s past sexual conduct. CEC only to prove they had sex
Criminal Court Character evidence
the character trait must be pertinent to the case but the rules differ based on whose character it is
def. character
only the defendant may open the door to evidence of a pertinent character trait but once opened the prosecution may rebut
Exceptions to “open the door” rule
FRE & CEC - “propensity” evidence in sexual assault and child molest
FRE - def offers evidence of of the victim’s character, prosecution can offer same evidence of def’s character
CEC - def offers V was violent, pros can do same
DV or elder abuse can offer same, prior acts
V’s character
only def. can "open door" to V's pertinent character trait, but pros can rebut def offers evidence that V was aggressor, can introduce "def was peaceful"
Form of Evidence - Def’s char.
direct ex: no specific acts to show char. , only reputation and opinion cross ex (to rebut) : can use specific acts, but no extrinsic evidence CEC: no specific acts evidence
V’s character
direct ex: FRE only rep and opinion
CEC all three
cross ex: all three
FRE - if def claims V was aggressor, may offer rep of peacefulness
RAPE: no rep or opinion. Specific acts: source of semen is third party, prior acts of consensual with def CEC prior sexual acts to show def reas. believe consented
Other Purpose evidence
I PIK A MOP
intent- to commit the act preparation- to commit the act identity- of the perpetrator, incl. M.O. knowledge- of fact or event absence- of mistake ir accident motive- to commit crime opportunity- to commit the act plan or scheme
Other Circumstantial Evidence
h&c i
habit and custom
impeachment
habit
a regular response to a repeated situation and is admissible to show conduct in conformity.
person- conduct in conformity
business- regular business practice
factors- specific, regular, unreflective
impeachment
a witness' credibility may be impeached by cross exam (or on direct if witness is hostile) or with extrinsic evidence after laying proper foundation. there are five ways to impeach including: character for truthfulness prior inconsistent statement bias sensory defect contradiction of testimony
character for truthfulness
can be shown by rep and opinion, past crimes, past bad acts,
prior inconsistent statement
extrinsic- may be used to to prove the PIS if witness is given opportunity to explain or deny and the proponent of PIS is given an opportunity to interrogate the impeaching witness
FRE: if not under oath, may only be used for impeachment, not substantive
bias
a witness may be impeached by showing of bias, self-interest, or motive
extrinsic evidence allowed if witness opp to explain or deny
sensory or mental defect
a witness may be impeached by showing that his ability to observe or remember is impaired
contradiction of testimony by another witness
can;t concern a collateral matter, only contradicts witness
impeaching witness’ character for truthfulness
rep and opinion allowed
FRE: specific bad acts probative but subject to legal relevance. extrinsic evidence not allowed
CEC: civil prohibits extrinsic and initial cross
crim Prop 8 allows cross ex and extrinsic
impeaching with crim conviction
FRE: all convictions for crimes involving a false statement are admissible and the judge may not exclude unless its over 10 years old then must balance test. misdo’s no. unless false statement. all felonies ok if legal relevant
CEC felony conviction admissible unless
not been expunged, involves moral turpitude, legal relevance
more than 10 years old must legal relevant
rehabbing impeached witness
can show good character if untruthfulness is attacked or prior consistent statement can rebut charge of fabrication or improper motive
bolster
offering evidence of witness’ credibility.
FRE: cant bolster until attacked
CEC: can bolster before attack
Hearsay
4 admissions, 4 witness statements, 3 prior statements of available, 4 doc’s, 4 unavailable
out of court statement offered for the truth of the matter asserted
Admissions (CEC exemptions)
p a v co
- party - any statement made by a party and may be offered against him, need not be against interest
- adoptive admission - is a statement made by another where the party knows of its content and voluntarily manifest belief in the truth of the statement by words or action. can be silent
3 . vicarious admission - can arise two ways; explicit (statement made by authorized spokesman) or employee ( scope of relation and made during relation)
CEC: must be the employee who engaged in neg. conduct in respondeat superior case - co-conspirator admission - statement made during the course and in furtherance of the conspiracy. however, confrontation clause prevents a co-conspirator admission if co-conspirator pleads the 5th
4 witness statements
- medical diagnosis or treatment - statement made for medical diagnosis or treatment is admissible. can be made by 3rd person, cause but not fault,
CEC- past statement only for child abuse victim - statement of then-existing mental, physical or emotional condition is admissible
- present sense impression- admissible if describing the or explaining an event and made while declarant was perceiving the event or immediately thereafter
CEC: contemporaneous statement - applies to a statement explaining the conduct of the declarant and made while the declarant was engaged in the conduct - excited utterance - admissible if statement was made regarding a startling event and made while declarant was still under the stress of the event
prior statements of avail. witness (3)
prior inconsistent statement - admissible for substantive if under oath as part of formal proceeding and declarant avail for cross-ex
prior consistent statement- only substantive if offered to rebut a charge of recent fabrication or improper motive
prior identification - made after perceiving the person is substantively admissible if the declarant testifies at trial
document hearsay exception (4)
- past recollection recorded - if a witness cannot testify from memory, then a party may introduce a written record of the event and the record may be read to the jury. req’s
firsthand knowledge of sponsoring witness
events were fresh when record was made
wtness now has impaired recollection
record was accurate when written - business record - admissible where a sponsoring witness establishes the record was kept in the course of regularly conducted business activity
includes events, conditions, opinions (CEC no opinions)
regular practice to keep a record
personal knowledge - made by one with personal knowledge or a business duty to report
made at or near time of matter - public records - admissible if
agency record of own activities
matters observed in line of duty
investigative report with factual findings FRE: cannot use matters observed by police against a criminal def - learned writings - expert must say reliable auth.
CEC: only for facts of general notoriety and interest
unavailable
a witness is unavailable if :
privileged
dead
reas means can’t produce
refuses to testify despite court order (CEC: fear)
unable to remember (CEC: total memory loss)
Unavailable Exceptions (4)
- former testimony - is admissible where the party against whom the testimony is now offered had , during the earlier hearing or deposition, opportunity to examine that person and a similar motive to develop the testimony CIVIL: allows predecessor in interest to have been present CEC anyone with a similar interest, offered against the person who offered on own behalf, predecessor in interest who was present. depo testimony is admissible if given in same action
- dying declaration - admissible where statement made by declarant while believing his death was imminent, and is the cause or circumstances of his death.
FRE: civil and criminal homicide cases, unavailable
CEC: all cases, must be dead - declaration against interest - admissible if it is a statement against pecuniary or penal interest.
FRE: offered to exculpate, must be corroborating evidence
CEC: statement against social interest - forfeiture by wrongdoing- cant make witness unavailable
“things” evidence
authentication -all things must be authenticated as genuine in order to be admitted. authentication is proof that the item is what the proponent claims it is
methods of authentication
real evidence - chain of custody or distinguishing features
demonstrative - must be a fair representation
writings and recordings- can be authenticated by admission, witness testimony, handwriting verification with personal knowledge, sample comparison
self-authenticating -certified copies of public records, official publications, newspapers and periodicals
FRE: business records, CEC: signature of notary
Best Evidence Rule
to prove the contents of a writing the original writing must be produced. machine duplicates are allowed unless authenticity of original is in dispute
unavailable: oral testimony CEC handwritten copy
does not apply if fact ot be proved exists independently of writing
Summaries of Voluminous Writings
So voluminous that they cant be conveniently introduced into evidence, then can get summary through sponsoring witness
Judicial Notice
the process of establishing facts without evidence. court may take judicial notice if not in reasonable dispute, generally known within the jurisdiction, capable of accurate and ready determination from a source that can not be reasonably questioned
FRE: civil jury must accept, Crim jury may accept
CEC: must accept for both
