Evidence Flashcards
1
Q
Relevance
A
- Logical
- prove or disprove a material fact
- CEC: disputed fact - Legal
- probative value substantially outweighed by danger of unfair prejudice - 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»_space; probative
- secondary evidence rule (best evidence rule)
- hearsay, unless exception
- exclusionary rules of CA post-1982
- privileges
2
Q
Public policy exceptions
A
- Subsequent remedial measures, except:
- ownership and control
- precautions infeasible
- other party destroyed evidence - Liability insurance, except:
- ownership and control
- impeachment
- admission - Offers medical expenses
- FRE exception: collateral admission gets in
- CEC exception: none - Settlement offer
- disputed claim only
- CEC: applies to mediation also - Offers to plead
- CA exception: Prop 8 may allow - CA expression of sympathy
- except: admission of fault
3
Q
Witness examination
A
- Personal knowledge required
- W must declare will testify truthfully
- judge can call W and ask questions
- - CEC: judge can testify unless party objects - 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 - Present recollection refreshed
- W shown item to refresh
- W then testifies from memory
- other side has right to inspect, introduce into evidence - Lay opinion
- rationally based on W’s perceptions and helpful to trier of fact
- FRE: not scientific or specialized knowledge - 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
4
Q
Privileges
A
- 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 - Doctor-patient
- FRE: no Dr.-patient privilege
- CEC: communication made for diagnosis and treatment only - Psychotherapist-patient
- FRE and CEC both allow - Self-incrimination (5A)
- Spousal immunity
- during marriage
- holder: witness spouse
- FRE: criminal only
- except: cases between spouses - Confidential marital communication
- during and after marriage
- holder: both spouses
- except: cases between spouses - Clergy-penitent communications
- CEC-only privileges
- counselor-victim
- news reporters
5
Q
Character evidence
A
- 3 types of character evidence
- reputation in community
- opinion by W of person
- specific acts - 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 - 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 - 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) - 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 - 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 - Other purpose character (MIMIC)
- motive
- intent
- mistake
- identity
- common scheme or plan - Habit or custom: regular response to a repeated situation
- individuals and business practices - Similar happenings
6
Q
Impeachment
A
- 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 - Prior inconsistent statement
- extrinsic evidence allowed, but W must have opportunity to explain or deny - Bias
- extrinsic evidence allowed, but W must have opportunity to explain or deny - Sensory or mental defect
- Contradiction by another W
- Rehab impeached W
- meet the attack
- good character if character for untruthfulness attacked
- prior consistent statement - Bolstering the W before attacked
- FRE: not allowed
- CEC: allowed
7
Q
Hearsay and exceptions
A
- Hearsay: out of court statement offered for the truth of the matter asserted
- Nonhearsay purpose
- effect on listener/reader
- declarant’s state of mind
- legally operative fact - 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) - 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 - 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 - 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 - 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) - 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)
8
Q
Documents
A
- Establish relevance
- 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 - Best evidence rule (CA: secondary evidence rule)
- original (or machine copy, unless original disputed) - Summaries of voluminous writings
9
Q
Judicial notice
A
- 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.