Evidence Flashcards

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1
Q

Relevance

A
  1. Logical
    - prove or disprove a material fact
    - CEC: disputed fact
  2. Legal
    - probative value substantially outweighed by danger of unfair prejudice
  3. Prop 8 (CA Crim Code) - all relevant evidence admissible in criminal trials, except (DR Mammal Counts SHEEP)
    - D must open door to own character evidence
    - rape shield laws limit V’s character
    - media member
    - court may exclude if unfair prejudice&raquo_space; probative
    - secondary evidence rule (best evidence rule)
    - hearsay, unless exception
    - exclusionary rules of CA post-1982
    - privileges
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2
Q

Public policy exceptions

A
  1. Subsequent remedial measures, except:
    - ownership and control
    - precautions infeasible
    - other party destroyed evidence
  2. Liability insurance, except:
    - ownership and control
    - impeachment
    - admission
  3. Offers medical expenses
    - FRE exception: collateral admission gets in
    - CEC exception: none
  4. Settlement offer
    - disputed claim only
    - CEC: applies to mediation also
  5. Offers to plead
    - CA exception: Prop 8 may allow
  6. CA expression of sympathy
    - except: admission of fault
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3
Q

Witness examination

A
  1. Personal knowledge required
    - W must declare will testify truthfully
    - judge can call W and ask questions
    - - CEC: judge can testify unless party objects
  2. Objection: form of the question (NUCALF)
    - narrative (too broad - so what happened?)
    - unresponsive answer
    - compound (2 questions combined)
    - argumentative (do you really expect the jury to believe?)
    - leading (on direct, question suggests answer)
    - assume facts not in evidence
  3. Present recollection refreshed
    - W shown item to refresh
    - W then testifies from memory
    - other side has right to inspect, introduce into evidence
  4. Lay opinion
    - rationally based on W’s perceptions and helpful to trier of fact
    - FRE: not scientific or specialized knowledge
  5. Expert opinion
    - assists trier of fact
    - W qualified as expert (knowledge, skill, training, experience, education)
    - opinion based on sufficient facts
    - reliable principles used
    - - FRE: Daubert standard
    - – peer reviewed and published
    - – tested
    - – low error rate
    - – reasonable level of acceptance
    - - CEC: Kelly/Frye standard
    - – underlying scientific theory
    - – generally accepted as valid
    - – exception: does not apply to medical and nonscientific testimony
    - applied principles reliably
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4
Q

Privileges

A
  1. Attorney-client
    - client: person or corporation
    - confidential communication (intended as confidential)
    - - not physical evidence
    - professional services is purpose of communication
    - holder: client
    - lasts until
    - - FRE: after death
    - - CEC: estate settles
    - exceptions
    - - further crime or fraud
    - - dispute w/ lawyer
    - - dispute b/w co-clients in common matter
    - - CEC: prevent death/serious bodily injury
  2. Doctor-patient
    - FRE: no Dr.-patient privilege
    - CEC: communication made for diagnosis and treatment only
  3. Psychotherapist-patient
    - FRE and CEC both allow
  4. Self-incrimination (5A)
  5. Spousal immunity
    - during marriage
    - holder: witness spouse
    - FRE: criminal only
    - except: cases between spouses
  6. Confidential marital communication
    - during and after marriage
    - holder: both spouses
    - except: cases between spouses
  7. Clergy-penitent communications
  8. CEC-only privileges
    - counselor-victim
    - news reporters
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5
Q

Character evidence

A
  1. 3 types of character evidence
    - reputation in community
    - opinion by W of person
    - specific acts
  2. Civil court rules
    - not for conduct in conformity
    - except: character “at issue”
    - - W puts credibility at issue, not necessarily general character
    - FRE exception: sexual assault/child molestation
    - rape shield: disallow evidence of V’s past sexual conduct
    - - FRE: P put reputation in issue, and probative value substantially outweighs prejudice
    - - CEC: only to prove P’s sexual conduct w/ the D
  3. Criminal court rules: D’s character
    - D must “open door”
    - - W puts credibility at issue, not necessarily general character
    - pertinent character trait only
    - if D on stand: truthfulness
    - except: P can open door for propensity in sexual assault/child molestation
    - FRE exception: if D offers on V character, prosecution can match for D
    - CEC exception: if D offers on V’s violent character, prosecution can match for D
    - CEC exception: In domestic violence/elder abuse case, P can show other acts of domestic violence/elder abuse
  4. Criminal court - V’s character
    - D must “open door”
    - pertinent character trait only
    - except: rape shield rules apply
    - FRE exception: D offers that V 1st aggressor, Prosecutor can rebut that V peaceful (rep/opin)
  5. D’s character: form of evidence
    - direct: no specific acts
    - cross (to rebut):
    - - FRE: all 3 forms, but no extrinsic evidence allowed
    - - CEC: no specific acts
  6. V’s character: form of evidence
    - direct
    - - FRE: no specific acts
    - - CEC: all 3 forms allowed
    - FRE exception: D offers that V 1st aggressor, Prosecution can rebut that V peaceful (rep/opin)
    - rape shield: disallow evidence of V’s past sexual conduct
    - - no reputation/opinion
    - - specific acts only for:
    - – 3P source of semen/injury
    - – prior consent w/ D
    - - CEC: V’s prior sexual conduct to show reasonable belief of consent
  7. Other purpose character (MIMIC)
    - motive
    - intent
    - mistake
    - identity
    - common scheme or plan
  8. Habit or custom: regular response to a repeated situation
    - individuals and business practices
  9. Similar happenings
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6
Q

Impeachment

A
  1. Character for truthfulness
    - reputation and opinion ok
    - specific acts
    - - FRE: ok, but no extrinsic evidence allowed
    - - CEC:
    - – civil: prohibits extrinsic evidence and initial cross exam
    - – criminal: ok
    - criminal convictions:
    - - involving dishonesty: ok (balancing test only if >10 years old)
    - - felony
    - – criminal D: ok if probative value outweighs prejudicial effect
    - – others: ok unless prejudicial effect substantially outweighs probative value
    - – CEC: felony convictions involving moral turpitude admissible subject to balancing test
    - - misdemeanor
    - – FRE: not allowed unless involving dishonesty (balancing test only if >10 years old)
    - – CEC: civil - not allowed, criminal - if moral turpitude
  2. Prior inconsistent statement
    - extrinsic evidence allowed, but W must have opportunity to explain or deny
  3. Bias
    - extrinsic evidence allowed, but W must have opportunity to explain or deny
  4. Sensory or mental defect
  5. Contradiction by another W
  6. Rehab impeached W
    - meet the attack
    - good character if character for untruthfulness attacked
    - prior consistent statement
  7. Bolstering the W before attacked
    - FRE: not allowed
    - CEC: allowed
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7
Q

Hearsay and exceptions

A
  1. Hearsay: out of court statement offered for the truth of the matter asserted
  2. Nonhearsay purpose
    - effect on listener/reader
    - declarant’s state of mind
    - legally operative fact
  3. Admissions: any statements
    - party admissions
    - adoptive: manifest belief in truth of statement
    - vicarious: employee or agent statement in course of relationship
    - CEC: employee negligence only
    - co-conspirator: during and in furtherance of the conspiracy (confrontation clause require co-conspirator to testify or can’t use)
  4. Witness statements: other hearsay exceptions
    - medical purpose diagnosis and treatment
    - - cause ok, but not fault
    - - CEC: child abuse victim only
    - state of mind: then-existing mental, emotional, physical state
    - present sense impression
    - - describe event/condition
    - - while perceiving
    - - CEC: describing declarant’s own conduct only
    - excited utterance
    - - startling event
    - - statement made while under stress of event
  5. Prior statement of available W’s
    - prior inconsistent statement made under oath
    - prior consistent statement to rebut charge of fabrication, improper motive, sensory deprivation, etc.
    - prior identification
  6. Document exceptions
    - past recollection recorded
    - - firsthand knowledge
    - - fresh at time of recording
    - - W’s recollection impaired now
    - - record accurate at time made
    - business record
    - - business activity
    - - regular practice to keep
    - - firsthand knowledge
    - - business duty to report
    - - timely at time made
    - public record
    - - agency record of own acts
    - - matters observed with duty to report
    - - investigative reports
    - - FRE: not against criminal D
    - learned writings
  7. Declarant unavailable exceptions
    - unavailability is established by
    - - privileged
    - - death or illness
    - - witness refuses to testify
    - - witness can’t remember
    - former testimony
    - - civil case only
    - – FRE: predecessor in interest only
    - – CEC: similar interest in prior proceedings and deposition in same proceeding allowed
    - dying declaration
    - - re: circumstances of death
    - - while believing death imminent
    - - FRE: civil and criminal homicide only and death not required
    - - CEC: death required and allows “OJ” exception for physical abuse
    - declaration against interest
    - - financial or penal interest
    - - CEC: social interest too
    - forfeiture by wrongdoing (W tampering)
  8. Residual “catch-all” exception
Memorization:
4 admissions:
- party
- adoptive
- vicarious
- co-conspirator

4 witness availability immaterial:

  • MT (medical treatment)
  • PBC (present bodily condition)
  • PSI (present sense impression)
  • EU (excited utterance)

3 prior statements of available witness:

  • PIS (prior inconsistent statement)
  • PCS (prior consistent statement)
  • PI (prior identification)

4 documents:

  • PRR (past recollection recorded)
  • business
  • public
  • learned writing

4 declarant unavailable:

  • FT (former testimony)
  • DD (dying declaration)
  • DAI (declaration against interest)
  • FBW (forfeiture by wrongdoing)
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8
Q

Documents

A
  1. Establish relevance
  2. Authentication
    - real evidence: distinct characteristic or chain of title
    - demonstrative: must be a fair representation
    - writings/recordings: by admission, W testimony, handwriting authentication, circ evidence, etc
    - self-authenticating documents: certified copies of public records, newspapers, periodicals, CEC: notarized
  3. Best evidence rule (CA: secondary evidence rule)
    - original (or machine copy, unless original disputed)
  4. Summaries of voluminous writings
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9
Q

Judicial notice

A
  1. Judicial notice allowed if
    - not subject to reasonable dispute
    - generally known in jurisdiction, OR
    - capable of accurate and ready determination by source whose accuracy cannot be reasonably questioned.
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