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1
Q

What are 4 public policy reasons evidence is excluded?

A
  1. Liability insurance
  2. Subsequent Remedial Measure
  3. Settlement Offers & Withdrawn guilty pleas
  4. Offers to Pay Medical Expenses
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2
Q
  1. Evidence of Subsequent Remedial Measures Not Admissible to Prove? (3)
  2. When may evidence of Subsequent Remedial Measures be admissible? (3)
A

A) culpable conduct
B) product design
C) need for warning or instruction

A) ownership
B) claim of precaution impossible
C) destruction of evidence

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3
Q

When may similar occurrences be relevant and therefore admissible?

A

If there probative value outweighs their prejudicial value.

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4
Q

What are 9 similar occurrences that may be admissible?

A
  1. Causation
  2. False Claim or Same Bodily Injury
  3. Similar Accidents or Injury
  4. Similar Acts to Prove Intent
  5. Rebut Defense of
  6. Sale of similar sales of property
  7. Habit
  8. Business Routine
  9. Industry Custom Standard of Car
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5
Q

When are similar accidents or injuries caused by same event or condition admissible? (3)

A
  1. show existence of dangerous condition
  2. DEF had knowledge of dangerous condition
  3. dangerous condition was the cause
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6
Q

When is evidence of sales of similar property admissible?
ex:

  1. Are prices quoted admissible?
  2. How about unaccepted offers?
A
  1. To shoe value
    ex: x home taken in condemnation case or burned in fire can bring in evidence of other sales
  2. No
  3. Yes if used against him as admission
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7
Q
  1. For habit evidence to qualify what must it be ?

ex: not habit

A
  1. Frequent repeated conduct

ex: person rides in a car and only 3 times and says driver always comes to a complete stop

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8
Q

Character Evidence What 4 questions do yo need to ask?

A
  1. What purpose offered
  2. What method or technique
  3. Civil or Criminal
  4. Prove pertinent character trait
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9
Q

3 purposes Character Evidence may be offered?

A
  1. Character is at issue in case
  2. Circumstantial evidence of conduct
  3. Bolster or Impeach Witness
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10
Q
  1. Action for injuries auto accident. Plaintiff calls witnesses to testify DEF has a reputation as a reckless driver, admissible?
  2. Same case DEF calls witness who offers to testify that, in his opinion, DEF is a careful driver. Admissible?
  3. Civil action molestation case DEF denies molestation, PLAINTIFF offers evidence of DEF molesting other children, admissible?
A
  1. NO
  2. NO
  3. YES
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11
Q

2 exceptions character evidence of DEF admissible criminal case?

ex:

A
  1. Sexual Assault or Child Molestation case.
  2. DEF admitted evidence of Victims Character, prosecution can be first to offer evidence the DEF has the SAME character trait.
    ex: DEF admits evidence that victim has violent character, prosecution can offer DEF violent character.
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12
Q

What are the two ways DEF can open the door to victims character?

A
  1. DEF offers evidence of victims character, prosecution may rebut.
  2. Homicide case DEF offers evidence victim attacked first, prosecution may offer evidence of victims peacefullness
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13
Q
  1. Rape Shield Civil Rules Generally?

2. If DEF (civil) wants to bring in reputation of victim what must happen?

A
  1. Reputation opinion and specific instances admissible if probative outweighs prejudicial.
  2. PLAINTIFF must have put reputation at issues
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14
Q

Rape Shield Criminal Rules Generally ?

  1. Reputation or Opinion
  2. Specific instances a & b ?
A
  1. Reputation and Opinion evidence inadmissable.
  2. a. 3rd party source of semen
    b. prior acts consent between DEF and victim.
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15
Q
  1. Generally are specific instances of DEF’s bad character admissible to prove DEF’s Character?
  2. If relevant for what may specific instance be brought in to prove?
A
  1. NO
2. M    MOTIVE
     I     INTENT 
    M    MISTAKE
     I     IDENTITY
    C    COMMON PLAN  / SCHEME
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16
Q
  1. Antitrust case. PLAINTIFF attorney calls PLAINTIFF on direct asks :isn’t it true the DEF fixed prices?” Objection?
  2. Antirust case. DEF attorney on cross-exam asked PLAINTIFF “Isn’t it true you farted when you swore to tell the truth?” Objection
A
  1. Leading - on direct

2. Beyond the Scope

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17
Q
  1. Divorce case. Husband testifies that since his wedding he has never looked at another woman. On cross wife’s counsel asked “do you expect the jury to believe that baloney?” Objection ?
  2. Divorce case. On cross exam wife’s counsel asks “isn’t true that you cheated on your wife and beat her?” Objection?
A
  1. Argumentative

2. Compound question

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18
Q
  1. 5 elements of Recorded Recollection:

2. Once 5 elements are met, what can witness do?

A
  1. Once had personal knowledge
  2. Can’t remember now
  3. Witness made or adopted report
  4. At time of report fresh in memory
  5. Accurately made

Read the document to the jury,

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19
Q
  1. Lay opinion admissible if? (3)

2. 5 topics for lay witnesses

A
  1. helpful
  2. rationally based
  3. based on perception
  4. intoxication
  5. speed
  6. sanity
  7. emotions
  8. value of witness property
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20
Q

Expert testimony 5 requirements

A
  1. Helpful
  2. Qualified
  3. Reasonably certain
  4. Supported by Facts
  5. Reliable principles
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21
Q

Factual Basis - Expert

3 ways expert can base his factual basis:

A
  1. admitted evidence (in court case)
  2. personal knowledge
  3. inadmissible evidence, reasonably relied upon
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22
Q

Reliable Principles, reasonably applied - Expert

5 Daubert / Koho

What do you need under FED.

A
  1. Peer reviewed
  2. Published journals
  3. test and retested
  4. low error rate
  5. reasonable level of acceptance

ALL (1-4) except reasonable level of acceptance

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23
Q
  1. When is a prior consistent statement NOT hearsay and admissible for all purposes (2) ?
  2. What does the time line look like?
A

If made: 1. before inconsistent statement

2. before bribe

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24
Q

Can impeach BMI

A

BIAS
MOTIVE
INTENT

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25
If witness is given a chance to explain or deny (a statement) what has happened? And what can you now do if witness denied?
Foundation has been laid You can admit the document
26
Prosecution for tax fraud. DEF testifies and admits his tax returns did not report all his income, but claims this was unintended. Prosecution offers evidence that DEF previously convicted of filing a false police report. Admissible to prove DEF has character of a liar? Admissible to prove credibility?
No - not for proving character Yes -
27
1. Can you impeach w/ non conviction misconduct bearing on truthfulness? 2. What type of act? 3. Extrinsic evidence allowed?
1. Yes 2. lying 3. No - only can cross examine
28
1. Can you impeach with Reputation / Opinion regarding truthfulness? 2. Extrinsic evidence allowed 3. What is ex personal injury case
1. yes 2. yes 3. Plaintiff testifies he suffers from back pain after accident. DEF witness testifies that he lives in community with knows Plaintiff for many years and Plaintiff is known as a liar.
29
Personal injury action. Plaintiff testifies he suffers back pain because of an accident. Defense witness testifies he lives in plaintiffs community and has know plaintiff for years. Witness testifies that he believes plaintiff is a liar and is known in the neighborhood as "shifty." Admissible?
1. yes
30
1. Breach of contract, DEF denies entering the contract PLAINTIFF offers out of court statement of DEF's secretary who said "I saw DEF sign the contract" Hearsay? 2. Same case witness testifies she heard DEF say to PLAINTIFF "I accept your offer" Hearsay? What can be done here?
1. YES - if secretary is lying our would be misled 2. NO - "i accept" has independent legal significance in contract law.
31
1. Defamation case. PLAINTIFF offers testimony of witness who states he heard DEF say "PLAINTIFF cheats on his wife" Hearsay? 2. Other examples of legal significance?
1. NO - not offered to prove PLAINTIFF actually cheated on wife just that DEF was saying this - legal significance 2. '"thats my land" - adverse possession "this car is a gift" - dispute over ownership
32
EXCEMPTIONS TO HEARSAY (2)
1. Statement Opposing Party ( Party Opponent Admission) | 2. Prior Statement by a Witnesses
33
VICARIOUS OPPOSING PARTY STATEMENTS 1. Adoptive Opposing Party Statement: 2. Can Silence be adoptive - civil? criminal? 3. Co-Conspirator Statement
1. a party makes an admission by expressly or impliedly adopting a statement 2. YES-civil NO-criminal 3. statement of co-conspirator may be used if in furtherance of conspiracy
34
Prior Statement by Witness / Declarant Exemption to Hearsay (3)? What are these statements?
1. Prior Inconsistent statement given under oath 2. Prior Consistent (does not need to be under oath) statement to Rebut (claim of fabrication, improper influence, motive) 3. Statement of Identification "thats the person who shot me" - photo lineups ALL NOT HEARASY
35
Former Testimony Exception (2) ? Declarant?
Earlier proceeding or deposition: 1. party against whom testimony is now offered had an opportunity to examine persona and same motive to do so. 2. Civil Case, party was not present but has close privity type relationship with was a party at first proceed / dep 3. Declarant Unavailable
36
Prosecution for attempted murder. Prosecutor offers evidence that an hour after victim was shot he said "i am not going to make it. DEF did this to me" Victim then lapsed into a coma and has not regained conscienceless Admissible?
1. NO - criminal case (only if homicide)
37
PAST or PRESENT MENTAL or PHYSICAL CONDITION made for MEDICAL DIAGNOSIS or TREATMENT DECLARENT:
Statement by a person concerning the past or present mental or physical condition, or its cause of THAT person or ANY OTHER person if made fro the purpose of medical diagnosis or treatment No need to show unavailbale
38
BUSINESS RECORD EXCEPTION (5) DECLARENT
1. Record of event, condition, opinion, diagnosis 2. Kept course of business 3. made near time 4. person with knowlwdge 5. Regular practice make record No need to show unavailable
39
Personal injury case. PLAINTIFF offers reports of hospital which states patient states "patient admitted with broken keister. Patient reports he was hit by car driven by someone with suspended license. Admissible?
Hospital record admissible BUT not the patients statement. Patient not part of hospital, not acting in course of business.
40
PUBLIC RECORD EXCEPTION(3): DECALRENT:
1. Office Policies 2. record made by law requirement (not police rpts) 3. factual finding pursuant to law No need to show unavailable.
41
Crawford v. Washington (CRIMINAL CASE) When does the confrontation clause make inadmissible an out of court statement offered by the prosecution in a criminal case (4).
1. Declarant does not testify 2. Now unavailable 3. Testimonial statement 4. DEF NO chance to cross-examine
42
Testimonial is considered (2)? What type of police statement is considered non-testimonial.
1. statements made in court 2. statements made in furtherance of police invetigation * statements to police to deal with ongoing emergency
43
What are self authenticating documents? (5 types)
1. Certified copies of public record 2. Acknowledge docs (notary) 3. Official publications 4. News paper, periodicals 5. Business Records -Trade inscriptions
44
Best Evidence Rule: What are "writings" under Best Evidence Rule(6)a? (7)
Requires the original if to prove content of writing. ``` documents videos photo x-ray audio recording computer discs any collection of tangible data ```
45
3 exceptions dr -patient privilege: What type of cases dr patient privilege apply in CA.
1. patient puts physical condition in issue (ex: personal injury suite) 2. patient seeks services to aid in crime or fraud or escape 3. alleged breach of duty (ex malpractice) Civil ONLY - NOT Criminal
46
What do you need for either of spousal privileges to apply? When would spousal privilege not apply? Civil: Criminal:
A valid marriage. Civil: action between spouses Criminal: spouse charged with crime against spouse or children
47
1. FRE and CA (DEF CHARACTER) What is an exception that allows the prosecution to first offer evidence of DEF character to prove DEF conduct both FRE and CA?
sexual assault or molestation of child cases
48
2. FRE ONLY (DEF CHARACTER) | Exception to prosecution offering evidence of DEF's character first?
FRE - defense admitted evidence of victims character prosecution can offer same character trait evidence.
49
3. CA ONLY (DEF CHARACTER) Exception to prosecution offering evidence of DEF character first? 4. CA ONLY (DEF CHARACTER) Exception to prosecution offering evidence of DEF character first?
CA-prosecution for crime of DOMESTIC violence or ELDER abuse prosecution can may offer evidence DEF committed those same acts CA-defense brings in evidence that victim has violent character, prosecution can bring in evidence DEF has violent character. * violent only character trait allowed
50
Character Evidence Method: FRE CA DEF direct? DEF direct? cross? cross? VIC direct? VIC direct? cross? cross?
FRE DEF direct= reputation/opinion cross=specific VIC direct= reputation/opinion cross=specific CA c DEF direct=reputation/opinion cross=reputation/opinion VIC direct-reputation/opinion/specific cross-reputation/opinion/specific
51
1. Relevance FRE & CA | 2. CA only:
1. evidence is relevant if it has any tendency to make the existence of any fact of consequence to the to more or less probable 2. The fact of consequence must also be in dispute
52
Expert Opinion 5 requirments FRE and CA:
1. Helpful 2. Qualified 3. Reasonably certain 4. Supported by Facts 5. Reliable principles
53
What do CA & FRE differ on as it relates to the 5 requirements as it applies to _______ testimony?
Reliable principles in Scientific expert testimony
54
As it relates to reliable principles, what standard does FRE use: CA ues:
FRE: Dauber / Kunho CA: Kelly / Frye
55
Difference between Daubert / Kunho and Kelly / Frye
Daubert/Kunho: 1. publication / peer review 2. low error rate 3. test and retest 4. reasonable level of acceptance Kelly/Frye 1. Generally Accepted by experts in field
56
Learned Treatise hearsay exception FRE: CA:
FRE: admissible to prove anything if treatise is accepted authority in filed. CA: only fact of general notoriety or interest * very narrow excpetion
57
Impeachment with Prior Felony Conviction CA: a) what can you impeach with b) other felonies Prop * apply?
a) all crimes of "moral turpitude" are admissible BUT CA court must "balance" b) Not admissible c) NO crime of "moral turpitude" makes it releavant
58
1. How does prop 8 apply to misdemeanors for impeachment ? 2. CA Misdemeanors in civil case admissible?
1. crimes of "moral turpitude" can be admitted in a criminal case subject to balancing 2. NOT Admissible
59
Action for breach of contract. DEF testifies he never entered into a contract with PLAINTIFF. On cross-examination, PLAINTIFF "isn't it true that you were convicted last year of a misdemeanor for lying on your drivers license application?" DEF answers "yes" FRE: CA: Prop8:
FRE: Yes - No balance CA: No Prop 8: NO - Ciivil case.
60
Action for breach of contract. On Cross of PLAINTIFF defense asks "isn't it true you lied on your drivers license application?" PLAINTIFF answers yes. Admissible? FRE CA Prop 8
FRE: Yes (must balance) CA: No Prop 8: No (not criminal)
61
Non - Conviction Misconduct for Truthfulness FRE: a) type b) method CA: a) type Prop 8 a) type b) method
FRE a) acts of lying admissible in civil and criminal b) can ask about misconduct but not enter extrinsic evidence CA a) NO - non-conviction truthfulness Prop8 a) criminal case moral turpitude - must balance b) cross and extrinsic
62
Same case (bank robbery). Prosecutor asks DEF if he stole office supplies at work. DEF admits to the theft. Admissible. FRE: CA: Prop 8:
FRE: NO (crime of lying only) CA: NO Prop8: YES (subject to balance) * ct would probably say this is too prejudicial
63
1. Admission of Party Opponent (opposing party statement FRE) FRE & CA: 2. FRE comes in as: 3. CA comes in as:
1. statement by opposing party, or statement attributed to a party, offered by a party opponent. 2. FRE : excemption non-hearsay 3. CA: exception
64
Declaration against Interest Exception 1. FRE used to exculpate: 2. CA what other statement is against interest:
1. if used to exculpate DEF in criminal case MUST offer corroborating evidence statement is trustworthy 2. Statement against social interest
65
* ** 1. Former Testimony Exception FRE and CA: 2. What did the party who evidence is offered against must have had FRE & CA: 3. FRE only (weren't a party in first proceeding): 4. CA only (weren't a party in first proceeding): 5. CA only:
1. testimony given in an earlier proceeding or deposition witness now unavailable 2. opportunity to examine and witness and same motive 3. civil case party had a "privity type relationship" 4. civil case part had a "similar interest" 5. party offered against once offered statement into evidence on their own behalf.
66
Dying Declaration Exception FRE&CA: What type of case FRE: CA: Declarant must die: FRE: CA:
FRE&CA: declaration by person believes is about to die describing circumstances FRE: civil and homicide CA: civil and criminal FRE: No CA: Yes
67
CA Statement describing infliction of threat or abuse(4) Also known as:
1. statement near time of threat or injury 2. witness unavailable 3. in writing / oral recorded to PD, medical describe threat 4. trustworthy circumstances OJ Exception
68
1. When in CA can a statement of a declarants past physical or mental condition be admissible to prove a condition? 2. What does the statement not have to be for? 3. Does it matter if declarant is unavailable?
1. If an issue in the case 2. Medical diagnosis 3. yes declarant MUST be unavailable
69
Exception for statement of past or present mental or physical condition made for diagnosis or treatment? FRE: CA: Does declarant need to be unavailable?
FRE: statement for treatment or diagnosis is admissible CA: statement for treatment or diagnosis ONLY if minor NO (no need to shoe unavailability)
70
Personal injury action. PLAINTIFF told a second patient in the emergency room "I was feeling fine before the accident" If PLAINTIFF is now in a coma can the other patient testify as to what the PLAINTIFF said? FRE: CA:
FRE: No (not for diagnosis -not then existing) CA: Yes ( 1. past condition 2. condition at issue 3. declarant unavailable
71
Business Record Exception FRE(4) CA(4)
FRE: 1. record event, diagnosis, treatment 2. kept regular course 3. made near event 4. person had knowledge CA: 1. record event 2. kept regular course 3. made near event 4. person had knowledge
72
What exceptions apply to doctor-patient / psychotherapist-patient (3) and what additional exceptions does CA have:
1. patient condition is at issue in law-suit 2. services sought to aid criminal or fraud 3. alleging breach duty / malpractice CA: psychotherapist--harm to self or others physician--dr required by law to report.
73
What 3 additional privileges does CA recognize:
1. Victim - Victim Counselor 2. Penitent - Clergy 3. Report -- cannot be held in contempt re source
74
"I admit I owe you the full 10K you are claiming but I will pay you 5K. Take it or leave it. Admissible?
Yes- DEF admitted how much he owed (party-opponent) and there is nothing to dispute so not a offer to settle exclusion.
75
Same case (42 old attacked by DEF) to support a claim of self defense, DEF accused testifies that he saw little old lady pull out sticking needles on another occasion and stab a student with needles, admissible? Analysis?
Depends for what: 1) offered to prove character = NO 2) offered to prove DEF state of mind = maybe -fear is needed for self defense claim need to balance prejidice vs probative
76
1. 4 requirements to necessary to for a person to testify 2. 2 FRE? 3. What additional does CA require (CA) ?
1. Personal knowledge 2. Present recollection 3. Communication 4. Sincerity A) Persoanl knowlwedge B) Affirmation to be truthful CA = witness understand legal duty to tell the truth
77
1. Plaintiff calls DEF and on direct asks "isn't it true that you wrote the book Price Fixing For Profit." Objection ? 2. Suit for divorce. No evidence has been offered on physical abuse. Wife's attorney asks on cross examination for husband when did you stop beating your wife. Objection?
1. None - leading of an adverse witness in direct | 2. Assumes facts not in evidence
78
1. Court bars evidence because of unfair prejudice, this may happen in two ways: 2. What do we call it when we have the situation in the second way above and what doe we do (5)
1. emotionally disturbing (gory picture) 2. a piece of evidence is admissible to prove 2 facts of consequence and 1 is admissible and the other is addmissable 2. Touch down problem - court will balance probative v prejudicial
79
Character Evidence, what are the four questions you need to ask? (32)
1. What purpose offered 2. What method or technique 3. Civil or Criminal 4. Prove pertinent character trait
80
What technique or method are used to prove character: (3) | 34
1. specific acts of conduct 2. opinion 3. reputation
81
2 exceptions character evidence admissible in a civil case: | 36
1. Sexual assault or child molestation DEF's prior acts are admissible to prove conduct

Evidence (1 decks)

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