Evidence Flashcards

Question

Prior inconsistent statements (CA)

Answer 1

Substantively admissible and admissible for impeachment unless barred by US CN or judge under E.C. 352

Answer 2

Uses evidence of the nonexistence of the fact testified by the witnesses, often testified to by others

Answer 3

Witness who has an incentive to benefit from their testimony or has reason to shade their testimony can be impeached with evidence of their bias, incentive, or motive

Answer 4

Witness may be impeached in a civil/criminal case by ANY felony conviction, misdemeanor conviction involving dishonesty or untruthfulness, or prior un-convicted bad acts involving untruthfulness (no extrinsic evidence) Witness who is also the criminal D can only be impeached by a felony conviction if court determines the probative value outweighs prejudicial effect Convictions more than ten years from the date of the conviction or the release from confinement for that conviction, whichever later, may not be used unless court determines probative value of conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect

Answer 5

Civil: Allows felony convictions to impeach a witness' credibility. Criminal: Witness may be impeached in a criminal case by any convictions or prior bad acts involving moral turpitude. Judgments of convictions are hearsay but under prop 8, any evidence, including extrinsic evidence of bad acts are admissible if probative of truthfulness. CA hearsay exception only permit evidence of felony and misdemeanor convictions. Prior bad acts may be proved by extrinsic evidence if witness denies them on the stand

Answer 6

Witness credibility may be attacked by opinion or reputation evidence of character for truthfulness. If witness' credibility is attacked, may be supported by opinion or reputation evidence of character for truthfulness

Answer 7

Civil cases only. 1. Offers of compromise 2. offers to pay medical expenses 3. subsequent remedial measures (FRE) / Humanitarian Offers (CA) 4. evidence of liability insurance 5. evidence of offers of pleas

Answer 8

If there is an actual dispute as to liability or damages, then offers of compromise is inadmissible to show fault. Entire statement is excluded including admissions made with the offer of compromise or settlement negotiations.

Answer 9

Prohibits admissibility of offers to pay hospital or medical bills but other offers and admissions are admissible.

Answer 10

Excludes offers and admissions made in connection with offers to pay medical expenses. (narrower) Excludes admission in a civil case of statements, writings, and benevolent gestures expressing sympathy relating to the pain, suffering, or death of a person involved in an accident and made to the person or their family.

Answer 11

Not admissible to prove negligence, culpable conduct, or defect in a product. May be used for another purpose such as proving ownership, control, or feasibility of precautionary measures if controverted, or impeachment

Answer 12

Limited to negligence and carelessness. Does not include marketing, design, or distribution of a defective product. Evidence may be admissible in cases of product liability in CA state courts to show product was defective and thus D was liable and not just feasibility of an alternative design

Answer 13

Inadmissible to prove liability or fault Admissible to prove ownership or control Absence of insurance explicitly inadmissible to prove wrongdoing or negligence Cf. CA - absence of insurance admissible if permitted by EC 352.

Answer 14

Evidence of offers of pleas and withdrawn pleas inadmissible in all cases Statements may be used to impeach accused if a party testifies inconsistently with the plea

Answer 15

Prohibits admissibility of plea offers made to US attorney prosecutors. Statements not permitted to impeach the accused.

Answer 16

1. Statement or assertion 2. Made by person other than while testifying at trial 3. Offered to prove truth of matter asserted Analysis: 1. Define 2. Discuss whether statement was an out of court statement 3. discuss whether it is being used to prove its truth 4. if its hearsay, is there an exception or exclusion

Answer 17

1. Proof declarant is alive or conscious 2. proof of why a particular course of action is taken 3. effect on the hearer or reader 4. proof of notice to a party 5. verbal acts - words of legal significance 6. Circumstantial proof of declarant's state of mind

Answer 18

Opponent of evidence has burden of showing actor intended his conduct as an assertion

Answer 19

Proponent of the evidence has burden of showing that conduct was not intended as an assertion

Answer 20

When prosecution offers testimonial statements against accused for a hearsay purpose, out of court declarant must be produced for cross-examination under oath, or the prosecution must demonstrate unavailability AND that accused had a prior opportunity to cross-examine the declarant

Answer 21

Involves questioning of declarant by government officers and raises fairness concerns. Do not include business records, statements in furtherance of a conspiracy, or many other traditional hearsay exceptions. Do not include exclusions such as admissions CA application: certain items imbued with sufficient formality to qualify as testimonial and thus subject to CC requirements (police investigative reports during an investigation of a completed crime, STEP notices which record info taken when police inform someone he is thought to be associating with a known gang, and Field Info Cards recording officer's contact in the field with an individual)

Answer 22

1. Admissions by Party-Opponent 2. Prior Inconsistent/Consistent Statements of witnesses 3. Statements of Identification 4. Prior Recollection Refreshed 5. Present Sense Impression - narrating event 6. Statement for Diagnosis/Treatment

Answer 23

Assertion that, if true, proves an aspect of the opposing party's case

Answer 24

FED - statements by opposing party are excluded from hearsay Party making admission need not have personal knowledge and can be based in otherwise impermissible lay opinion Need not have been against the party's interest when made but only at the time used in trial. CA - admissions are exceptions to hearsay.

Answer 25

Silence may be taken as an adoptive admission upon showing that the opposing party heard the admission and if under the circumstances, a reasonable person would have protested if the accusation were untrue. Fifth amendment prohibits in criminal cases

Answer 26

Applies if statement is offered against a party and is a statement by a person authorized by the party to make a statement concerning the subject authority based on law of agency. (express or implied authority)

Answer 27

Statements by employees that are admitted against employer Fed - (1) whether the statement is about a matter within the scope of the agency/employment; (2) whether it was made while employee was still employed. CA - When liability of employer is based in whole or in part on liability of an employee and employee is the declarant, employee's admissions are held to be admissions against employer as well No requirement that statement be made within the course and scope of the agency nor while employee is still employed.

Answer 28

Statement offered against a party and is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. FED - statement is evidence of foundational facts and ultimate facts. Factors: (1) identity of speaker; (2) context in which statement was made; (3) evidence corroborating the contents of the statement in making its determination as to each preliminary question CA - not admissible evidence of foundation because not yet admissible without the establishment of the proper foundation

Answer 29

Admissible if declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person.

Answer 30

Limited to criminal trials. EC requires prosecutor to first have witness testify that he or she made the identification and that it was a true reflection of their opinion at the time.

Answer 31

Anything that refreshes a witness' recollection. Once witness uses thing to refresh recollection, opposing counsel entitled to see the thing, use it to cross-examine the witness, and may introduce parts since purpose of writing would primarily be to impeach the witness

Answer 32

1. exempted or precluded from testifying on grounds of PRIVILEGE 2. dead or unable to testify on account of mental or physical illness 3. absent from hearing and beyond court's process to compel attendance 4. absent from hearing despite proponent's reasonable efforts to compel attendance through court's process 5. refuse to testify despite court order. (FRE only) 6. testifies to lack of memory of the subject matter of the statement Forfeiture rule - declaration admissible if 'unavailability' procured by proponent of the statement

Answer 33

Admissible in civil cases if the party against whom it is offered, or their predecessor in interest had an opportunity and similar motive to cross examine the witness

Answer 34

Admissible in civil cases if the party against whom it is offered, or their predecessor in interest had an opportunity and similar motive to cross examine the witness. May also be admissible against a non-party if party who cross-examined witness in prior case had similar interest and motive as the party against whom statement is offered.

Answer 35

Statement admissible in all civil proceedings but only in criminal homicide cases. 1. Person must be dying, but he or she need not die - just be unavailable. 2. Statement must concern the cause and circumstances of the impending death, of which declarant must have personal knowledge 3. declarant must believe their death is immediately impending

Answer 36

Admissible in all civil and criminal cases. Does not require declarant of dying declaration to be unavailable.

Answer 37

Declarant must be unavailable. 1. Statements contrary to declarant's pecuniary (financial) or proprietary (ownership) interest, or 2. Tends to subject declarant to civil or criminal liability CA - declarations against declarant's social interest and any declarations tending to invalidate the declarant's claims against others are admissible

Answer 38

statement of then-existing emotional, physical, or mental conditions, plan or intent 1. relate to or narrate a startling event or condition, and 2. were made spontaneously while the declarant was under the stress of excitement caused by such event Excitement can be generated by observing or experiencing an event. Time lapse does not eliminate the possibility of an excited utterance, key is whether or not person's reflective powers have returned

Answer 39

(slightly narrower) - must purport to narrate, describe, or explain an act, condition, or event perceived by declarant.

Answer 40

Federal Only. Statement describing or explaining an event or condition made while declarant was perceiving the event or condition, or immediately thereafter. Need not be a startling event as required for an excited utterance

Answer 41

CA only. 1. Statement made by declarant 2. offered to explain, qualify, or make understandable conduct of the declarant (not emotion); and 3. Was made while declarant was engaged in such conduct

Answer 42

CA exception only. Statement made at or near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recorded or made to police or medical professional, under trustworthy circumstances

Answer 43

Statements by witnesses who can no longer recall the substance of their statement, but recorded, or caused the recording of, the statements in writing at a time in the past. Writing must be made by the witness or someone on their behalf or was adopted by the witness. Writing must have been made at a time when the event recorded in the writing was fresh in the witness' mind Writing must be true and accurate when made Witness must have no present memory of the contents of the writing May be read out loud into evidence if admissible but writing itself is not received into evidence

Answer 44

Includes emotions, sensation, or physical conditions (such as intent, plan, motive, design, mental feeling, pain, and bodily health) Does not include statements of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Answer 45

Federal Rules only. Statements made for purposes of medical diagnosis or treatment and describing: - medical history, - past or present symptoms, - pain, - sensations Admissible as declarant's then-existing state of mind or as a statement of past physical condition.

Answer 46

Exception to Hearsay to the extent that their entry reflects that they are prepared by someone with a duty to enter the record accurately. Elements: 1. writing must be made in the regular practice of the business; 2. writing must be made at or near the time of the act, condition, or event recorded; 3. custodian testifies to the record's identity and its mode of preparation; 4. sources of info and method and time of preparation were such as to indicate its trustworthiness (excluded if prepared with litigation in mind) absence of business records may also be admissible

Answer 47

1. Records, reports, statements, or data compilations, in any form, 2. of public offices or agencies, 3. with a duty to report, 4. excluding in criminal cases, matters observed by police officers and other law enforcement personnel.

Answer 48

Evidence admissible to prove the absence of something within the official record

Answer 49

Includes any type of scholarly publication. May be introduced through any expert who considers it authoritative or uses it in forming their opinion May also be used to impeach witness simply by calling it to expert's attention Admissible statements may be read into evidence but not received as exhibits. CA - no medical treatises, no impeachment

Answer 50

Facts that can be proved through lists and tabulations that are generally used and relied upon as accurate by the public including tabulations, lists, directories, market quotations, or other published compilations

Answer 51

Lists and tabulations must be generally used and relied upon as accurate by the public or by persons in particular occupation Does not include market quotations

Answer 52

1. Relevance 2. Hearsay? 3. Exception to Hearsay?

Answer 53

1. Authentication 2. Best Evidence Rule 3. Hearsay

Answer 54

Process of introducing sufficient evidence from which the tier of fact could conclude that the writing is what its proponent says it is Applies to things as well as writings

Answer 55

1. Testimony of witness with knowledge that a matter is what it is claimed to be 2. Nonexpert opinion on handwriting based upon familiarity not acquired for purposes of the litigation; 3. comparison by trier of fact or by expert witnesses with specimens which have been authenticated; 4. identification of a voice; 5. telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business; and 6. evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, is from the public office where items of this nature are kept.

Answer 56

Trade labels, certified copies of public records, official documents under seal, notarized documents, newspapers and periodicals, and commercial paper require no independent authentication.

Answer 57

No provision for self-authentication at all except for certified copies of public records such as judgments.

Answer 58

Fed Requires contents of a writing (what it says) to be PROVED BY THE ORIGINAL of the writing and not by what someone recounts that it says (multiple hearsay) Duplicate is a counterpart produced by the same impression as the original and will be considered an original

Answer 59

CA Instead of requiring an original, Code retains preference for the use of copies (rather than testimony) to prove contents of a writing unless: a. Proponent does not have a copy and original was destroyed without proponent's fraudulent intent; b. proponent does not have the original and either: i. writing or a copy are not reasonably procurable by process; OR ii. writing is not closely related to controlling issues; or c. writing is a summary of voluminous books or records

Answer 60

Non-exact assessment as the result of a deduction from an observation that cannot be independently verified by repeatable observation

Answer 61

Lay witnesses can give opinions that: - Estimate quantity, value, weight, measure, time, distance, and velocity - Describe emotions such as anger, fear, excitement, love, hatred, sorrow, and joy - Describe character traits such as truthfulness and mendacity (tendency to lie) - Describe appearances, such as age, manner of walking, type of beard, and hair type - Relate whether others appeared to be sick, well, intoxicated, or irrational Must be rationally based on the witness' perception and helpful to understanding the witness' testimony

Answer 62

1. Qualified - Expert is qualified to testify if he or she has special knowledge, skill, experience, training, or education sufficient to qualify him/her as expert on the subject to which testimony relates 2. Proper Basis - Expert may base his opinion on info or data of the type ordinarily and normally relied upon by experts in the field to which the expert belongs - do not need personal knowledge or perception. 3. Testimony must be of help to the fact-finder - methodology must be generally accepted in relevant scientific community. data and methodology relied upon must be reproducible and regarded as scientifically valid Could be based on inadmissible hearsay. however, expert in CA cannot testify to case-specific hearsay absent an independent hearsay exception or independent proof of the case-specific evidence

Answer 63

Facts not subject to reasonable dispute and (a) generally known within the court's territorial jurisdiction; OR (b) capable of accurate and ready determination by resort to unquestionably accurate sources. Must be a fact and not a legal conclusion When judge takes judicial notice of a fact, the party with the burden of proving that fact is relieved of the obligation of introducing evidence establishing the fact. Operates as a conclusive presumption in a civil case, but only treated as an inference in a criminal case.

Answer 64

1. Exempts certain persons from duty to give evidence (spousal privilege, or accused testifying for prosecution); 2. Exempts witness from providing certain kinds of testimony (testifying against a spouse or self-incrimination); 3. Protects information communicated in confidence in the context of an enumerated professional or personal relationship (attorney-client, physician-patient, spouse-spouse, etc.)

Answer 65

1. Conscious waiver 2. Negligent waiver - holder fails to claim privilege in any proceeding in which holder has legal standing and opportunity to claim the privilege 3. Waiver by disclosure to third person UNLESS: (a) communication is reasonably necessary to accomplish purpose of consultation; OR (b) communication reasonably necessary to further interests of the holder (i.e. interpreter) 4. Eavesdropper rule - holder can prevent eavesdropper from disclosing 5. Inadvertent waiver - accidental disclosure, privileged documents must be returned and cannot be referred to in the proceeding

Answer 66

1. Attorney and client have right to refuse to disclose content of communications 2. Attorney and client have right to prevent others from disclosing content of the communications 3. Not protected: ==i. no privilege if purpose of communication is to enable client to commit a crime or fraud ==ii. subject matter of the communication, as opposed to the communication, is not privileged ==iii. info which others furnish to client and client then gives to lawyer is not protected ==iv. Tangible items that client gives to lawyer, such as reports, goods, photographs, murder weapon, and the like, are not protected

Answer 67

1. Must be between attorney and client. 2. Must be made in the course of an attorney/client relationship; and 3. Must be transmitted in confidence

Answer 68

Person, whether or not a party, has privilege to refuse to disclose, and to prevent others from disclosing, a communication that was made in confidence between that person and his or her spouse

Answer 69

1. Married person has privilege not to be called as a witness by the adverse party where the other spouse is a party. 2. Married person has privilege not to testify against a spouse in any proceeding, whether or not the spouse is a party

Answer 70

Relevant evidence shall not be excluded in any criminal proceeding EXCEPT: 1. Privileged 2. Hearsay 3. E.C. 352 4. Character Evidence Likely only applies to Witness Impeachment rules and impeachment with illegally obtained evidence in violation of 4th, 5th, and 6th amendments

Answer 71

1. Leading - suggests answer in the question, only permitted on cross and on direct of adverse witness 2. Compound Question - either has two verbs in same question or two independent clauses 3. Calls for Narrative - what happened next... 4. Assumes Facts not in Evidence 5. Argumentative - asks witness to resolve an apparent contradiction in their testimony 6. Non-Responsive Answer - yes/no questions subject to motion to strike anything more than yes/no Improper questions subject to objections improper answers subject to motion to strike

Answer 72

1. Where character is in issue (civil and criminal cases) 2. On cross-examination of character witness to impeach character witness' standard for evaluating character trait 3. (CA only) Evidence of victim's character and evidence of D's character for violence (if D first introduced character of victim for violence)

Answer 73

1. To prove party possessed a particular kind of trait and thus likely committed a particular act; 2. Non-character purpose, such as proof of motive, opportunity, intent, common scheme or plan, absence of mistake, lack of an asserted defense, etc.; 3. Who is first seeking to introduce? (prosecution or defense); 4. Is the type of character evidence, if otherwise admissible, permissible (opinion or reputation on cross, specific acts to impeach credibility).

Answer 74

1. Admissions by Party-Opponent 2. Prior Inconsistent/Consistent Statements of witnesses 3. Statements of Identification 4. Prior Recollection Refreshed 5. Contemporaneous Statement 6. Diagnosis/Treatment - then existing physical condition admissible; past only if unavailable, actually an issue, and not for any other purpose; exception for child abuse

Answer 75

1. Present sense impressions (FRE) 2. Excited Utterance (CA - spontaneous statement) 3. Statement of then existing mental, emotional, or physical condition 4. Past recorded recollection 5. Business Record 6. Official Records 7. Convictions (CA)

Answer 76

Whether witness is shown to have personal knowledge

Answer 77

1. Vicarious 2. Authorized 3. Adoptive 4. Co-Conspirator