Evidence Flashcards
Evidence - RELEVANCE
Evidence having any tendency to make the existence of a fact of consequence to determination of the action more or less probable than it would be without the evidence.
Evidence - FORM OF QUESTION OBJECTIONS
- Leading: suggests the answer in the body of the question; okay on cross or hostile/adverse Ws
- Compound: asks 2+ things in same question
- Calls for Narrative: does not give opposing party notice of potentially inadmissible material
- Assumes Facts Not in Evidence
Evidence - NON-RESPONSIVE
W does not answer the question or goes beyond its scope.
Non-responsive portion(s) are subject to a motion to strike
Evidence - CHARACTER EVIDENCE
The use of prior conduct to infer a character trait and then the use of that trait to suggest later conduct in conformity with it.
Evidence - Character - SEXUAL MISCONDUCT EXCEPTIONS
CRIM: In sexual assault cases (or CA elder/dependent/child abuse or DV cases), PBAs of sexual assault are admissible to prove character of sexual predation.
CIVIL: In FED ONLY civil cases for claims based on sexual assault or child molestation, PBAs of sexual assault or child molestation are admissible to prove conduct.
Evidence - NON-CHARACTER PURPOSES
- Common plan or scheme
- Opportunity
- Motive
- Mens Rea (acts not perf’d innocently or negligently)
- Identity of Perpetrator
- Context
- State of Mind of declarant or ∆
Evidence - MERCY RULE
In CRIM cases, ∆ may first offer opinion or reputation evidence of his relevant good character trait.
Prosecution may then:
- rebut with op/rep of ∆’s relevant bad character AND
- inquire into ∆’s character W’s knowledge of ∆’s specific acts inconsistent with that trait
Evidence - VICTIM CHARACTER EVIDENCE
FRE:
- ∆ may first offer op/rep of V’s relevant character trait and prosecution may then rebut with op/rep of V’s good and ∆’s bad relevant traits.
- In HOMICIDE cases, if ∆ claims self-defense and produces evidence V attacked first, prosecution may introduce op/rep of V’s peacefulness.
CEC:
- ∆ can introduce all 3 types of V’s relevant character and prosecution can rebut w/ all 3 of V’s good character.
- If the trait is VIOLENCE, prosecution can also introduce all 3 types of ∆’s violence.
Evidence - RAPE SHIELD LAW
In all CRIM and in CA civil cases, character evidence of a sexual assault V is inadmissible to prove consent UNLESS it is:
1) prior sexual conduct with ∆ or
2) a CA civil claim for loss of consortium
Evidence - HABIT and CUSTOM
The regular practice of responding to a specific situation with specific conduct
Admissible to show that, on a particular occasion, a person/entity conducted him/itself in conformity with the habit/custom.
Evidence - SIMILAR OCCURRENCES
1) Must be used to prove some relevant proposition other than character
2) Circumstances must be substantially similar to the occurrence at issue.
Evidence - POLICY EXCLUSION LIST
1) Subsequent Remedial Measures
2) Offers of Compromise
3) Offers to Pay Medical Expenses
4) Benevolent Gestures
5) Liability Insurance
6) Plea Offers/Withdrawn Pleas
Evidence - SUBSEQUENT REMEDIAL MEASURES
FRE: inadmissible to prove negligence, culpable conduct, or product defect
CEC: inadmissible to prove negligence or carelessness
Evidence - OFFER OF COMPROMISE
CIVIL ONLY
- Requires a dispute as to liability and/or damages
- ENTIRE statement, including any admission in connection, will be excluded
Evidence - OFFERS TO PAY MEDICAL EXPENSES
FRE: only offer itself is inadmissible
CEC: offers, humanitarian gestures, and connected admissions are ALL inadmissible to prove fault
Evidence - BENEVOLENT GESTURES
CEC ONLY
Only gesture itself, not any admissions in connection, will be excluded
Evidence - LIABILITY INSURANCE
Inadmissible to prove negligence or other wrongdoing
Evidence - PLEA OFFERS/WITHDRAWN PLEAS
FRE: inadmissible if made to prosecuting atty only
CEC: inadmissible if made to prosecutor OR non-transporting law enforcement as part of bona fide plea negotiations
Evidence - PRIOR INCONSISTENT STATEMENT
Can be proven extrinsically ONLY if W is given an opportunity to explain or deny them OR hasn’t been excused.
FRE: always admissible to impeach; only admissible for truth if made under oath
CEC: always admissible for both
Evidence - W IMPEACHMENT BY CONVICTION/PBA
FRE:
- Any felony if < 10 years have elapsed since later of conviction or release AND if W is the crim ∆, prosecution shows the probative value exceeds the prejudicial effect
- Misdemeanors involving dishonesty
- PBAs involving untruthfulness (but no extrinsic to prove)
CEC:
- CRIM = any felony
- CIV = felonies, misdemeanors, or PBAs involving moral turpitude (extrinsic okay)
Evidence - AUTHENTICATION
The proponent of a writing/thing/voice must prove sufficient evidence for a judge to find that it is what it purports to be.
Self-Authentication:
FRE: notarized docs, newspapers, trade labels, certified copies of public records, official publications of public authorities, commercial paper
CEC: only certified copies of public records
Evidence - BEST or SECONDARY EVIDENCE RULE
BER (FRE): The contents of a writing must be proved by an original, which includes duplicates
SER (CEC): To prove the contents of a writing, the Code expresses a preference for copies
Evidence - HEARSAY
An out of court statement used to prove the truth of the matter asserted.
Evidence - NON-HEARSAY PURPOSES
1) Why a particular course of action is taken
2) Alive or otherwise conscious
3) Verbal acts
4) Effect on hearer/reader
5) Mens rea
6) Notice
7) Circumstantial evidence of declarant’s state of mind
Evidence - FRE EXCLUSIONS
ADMISSIONS - if true, proves aspect of opposing party’s case
1) Party Opponent
2) Vicarious - w/in course and scope of employment, while employed
3) Co-conspirator - in course and furtherance
4) Adoptive - reas person would object if untrue
5) Authorized - agency issue
PRIOR W STATEMENTS
1) Inconsistent
2) Consistent - need attack on credibility first and stmt must have been before basis for attack arose
3) Of identification - made immediately after perceiving
Evidence - FRE EXEMPTIONS
1) Present Sense Impression
2) Statement for Purpose of Medical Diagnosis or Treatment
3) Former Testimony
4) Dying Declaration
5) Statement Against Interest
6) State of Mind
7) Excited Utterance
8) Business Record
9) Official Record
10) Learned Treatise
11) Commercial List
12) Past Recollection Recorded
Evidence - PRESENT SENSE IMPRESSION
- *FRE ONLY**
1) Explaining or describing an event
2) While perceiving or immediately after
Evidence - STATEMENT FOR PURPOSE OF MEDICAL DIAGNOSIS OR TREATMENT
- *FRE ONLY**
1) Made for purpose of medical diagnosis or treatment
2) Describes pain, cause of pain, medical history, or past or present symptoms
Evidence - FORMER TESTIMONY
1) Declarant unavailable
2) Gave testimony under oath at prior hearing or depo
3) Offered against _____ who had an opportunity and similar motive to cross-examine
- - CRIM: same party
- - CIVIL FRE: same party or predecessor in interest
- -CIVIL CEC: anyone
Evidence - DYING DECLARATION
1) Made while dying
2) With belief death is immediately impending
3) and concerning cause or circumstances of death
FRE - ALSO:
4) declarant unavailable
5) civil action or homicide case only
Evidence - STATEMENT AGAINST INTEREST
1) Declarant unavailable
2) At time of making, statement was so contrary to pecuniary or proprietary interest or so tended to subject him to civil or criminal liability that a reasonable person would not make it unless he believed it to be true
CEC: also includes social interest
Evidence - STATE OF MIND
1) Then-existing state of mind, including mental, physical, or emotional condition
2) Can be used to establish intent or plan of declarant
Evidence - EXCITED UTTERANCE/SPONTANEOUS STATEMENT
EU = FRE; SS = CEC
1) Relates to a startling event
2) Made spontaneously while under the stress of that event
Evidence - BUSINESS RECORDS
1) Made in the regular practice of business
2) Made at or neat the time of the event
3) Custodian of records testifies to record’s identity and mode of preparation
4) Sources of information and time and mode of preparation suggest trustworthiness
Evidence - OFFICIAL RECORDS
Made by a gov’t employee with a legal duty to make such records
Evidence - LEARNED TREATISES
1) Publications on a subject of history, medicine (FRE only), or other science or art
2)
FRE: established as reliable by testimony or admission of an expert or judicial notice
CEC: can only be used to cross if: (1) expert referred, considered, or relied on, (2) admitted into ev, or (3) established as reliable by any expert
Evidence - COMMERCIAL LISTS
Lists and tabulations generally used and relied upon by the public
CEC: or persons in a particular occupation
Evidence - PAST RECOLLECTION RECORDED
Where W has no memory and nothing refreshes, if he testifies that when he made the recording, it was fresh in his memory and accurate, the recording can be read into the record.
Evidence - CEC EXCEPTION LIST
1) Admissions (vicarious - employer liability based on VL and EE makes own admission)
2) Prior W Statements
3) Contemporaneous Statements
4) Spontaneous Statements
5) State of Mind
6) Former Testimony
7) Dying Declarations
8) Statement Against Interest
9) Crime Victim Statements
10) Business Records
11) Official Records
12) Learned Treatises
13) Commercial Lists
14) Convictions
15) Past Recollection Recorded
Evidence - CONTEMPORANEOUS STATEMENTS
CEC ONLY
1) Offered to explain, qualify, or make understandable the conduct of declarant
AND
2) made while engaged in such conduct
Evidence - CRIME VICTIM STATEMENT OF THREAT OR ABUSE
- *CEC ONLY**
1) Declarant unavailable
2) Statement describes or explains a threat or infliction of injury,
3) was made at or near the time of the threat or injury, and
4) was written, recorded, or made to law enforcement or medical personnel under trustworthy circumstances
Evidence - PRESENT RECOLLECTION RECORDED
- NON-HS CONCEPT*
- W doesn’t remember
- would looking refresh?
- show opposing counsel
- let W read to self
- W testifies from memory (as refreshed)
Evidence - LAY TESTIMONY
Must be
1) rationally based on W’s perception and
2) helpful to the jury’s understanding of the testimony
Evidence - EXPERT TESTIMONY
1) Qualified in the subject matter - special knowledge, skill, experience, training, or education
2) Proper factual basis
- - from own observation
- - presented at trial or by hypo, or
- - supplied out of ct and of a type reasonably relied upon by experts in the field
Evidence - JUDICIAL NOTICE
On request of party or sua sponte, ct can take JN of a fact not subject to reasonable dispute in that it is either:
1) generally known in the ct’s territorial jx OR
2) capable of accurate and ready determination by resort to an unquestionably accurate source
Evidence - PROP 8
In CALIFORNIA, relevant evidence shall not be excluded in any CRIMINAL proceeding
BUT, does not apply to:
1) privileges
2) hearsay
3) §352
4) character evidence
Evidence - CONFRONTATION CLAUSE
When prosecution offers TESTIMONIAL statements against ∆ for HS purposes, the declarant must be produced for cross-examination under oath OR prosecutor must demonstrate his unavailability AND that ∆ had a prior opportunity to cross.
Testimonial = solicited by law enforcement with an eye toward use at trial
Evidence - MARITAL COMMUNICATIONS PRIVILEGE
- Protects communications between spouses during a valid marriage and intended to be confidential
- Survives end of marriage
- Held by BOTH spouses
Evidence - SPOUSAL PRIVILEGES
1) Not to be called by a party adverse to current spouse
2) Not to testify against current spouse in any proceeding
- Terminates at end of marriage
- Potentially testifying spouse is only holder
Evidence - PROFESSIONAL COMMUNICATIONS PRIVILEGES
1) Made in course of relationship
2) Intended to be confidential
Waived by disclosure to 3rd person OTHER than one whose presence is reasonably necessary to:
1) accomplish the purpose of the consultation OR
2) further interest of client
Evidence - 403/§352
A court has discretion to exclude otherwise admissible evidence if its probative value is substantially outweighed by the possibility of undue prejudice, delay, or jury confusion
