Evidence Flashcards
CA Bar Evidence Rules
FRE + CA Relevance defined
Evidence is relevant if ANY tendency to make a fact OF CONSEQUENCE more or less probable (Rule 401).
[In CA, definition also requires matter be “in dispute.”]
Usually must relate to time, event, or person in controversy. But other things are also relevant: showing similarity between current controversy and a different one, which can show intent, counter claims of impossibility, sale of similar property, habit, or business routine
FRE Discretion to exclude relevant evidence
Relevant evidence can be excluded if probative value is substantially outweighed by unfair prejudice, confusion, waste of time (Rule 403). Judge may NOT consider whether the evidence makes more or less likely that a party will win.
FRE Probative defined
Probative evidence contributes to proving or disproving a MATERIAL issue.
Examples of non-probative: redundant evidence, or immaterial issue.
If evidence admissible for one purpose (or against one party) but not another…
The party must request a jury instruction (Rule 105)
FRE Habit evidence
Habit defined: one’s regular response to a specific set of circumstances. More specific than just “character,” which is general.
Evidence of a person’s habit may be admissible to prove that on a particular occasion the person acted in accordance with the habit (Rule 406).
FRE Admissibility of evidence re: liability insurance
Relevant evidence excluded for public policy reasons
(1) Liability insurance: inadmissible to show negligence or ability to pay (Rule 411).
May be admissible to prove ownership/control or for impeachment.
FRE + CA Admissibility of evidence re: subsequent remedial measures
FRE: Subsequent remedial measures: inadmissible to show negligence or culpable conduct (Rule 407). May be admissible to prove ownership/control, to rebut claim that precaution was not feasible, to prove destruction of evidence.
CA: Same, but does not apply to products liability cases. So evidence of a product redesign is admissible to prove design was defective.
FRE + CA Admissibility of evidence re: settlement offers and negotiations
FRE: Settlement offers and negotiations: generally wholly inadmissible–nothing comes in, but…
Exception: settlement negotiations in civil case with government can be brought in a later criminal case.
CA: Same as FRE + mediation.
FRE + CA Admissibility of evidence re: offers to pay medical expenses
FRE: Payment of medical expenses - inadmissible to prove liability. But any accompanying statements of fact in the offer (e.g., I’m sorry I hit you - let me pay) ARE admissible.
CA: Offers to pay + accompanying statements of fact are ALL INADMISSIBLE.
FRE Admissibility of evidence re: withdrawn guilty pleas
Inadmissible [but this can be waived in the initial plea deal with a knowing and voluntary waiver]
FRE + CA: Admissibility of character evidence to prove party’s conduct (default regime, civil and criminal)
Character evidence generally inadmissible to prove conduct.
3 always-exceptions: when character is directly in issue (e.g., defamation issues); MIMIC; current case is crim/civil sex/child and the previous act was crim/civil sex/child. For these, must (1) have only quantum of proof of the prior misconduct (LOW standard), (2) normal relevance 403.
[In CA, for CIVIL cases, there is no sex/child exception. For CA CRIMINAL, there is a sex/child exception + domestic/elder abuse.]
In federal criminal + CA criminal, other than those 3 always-exceptions, D must first open the door.
When D raises D’s character for the trait involved in the case, D’s witness is testifying about opinion or general reputation (no extrinsic evidence, no specific instances). Then prosecution can (1) cross examine with “are you aware” type questions (no extrinsic evidence) or (2) bring prosecution’s own character witness to rebut D’s witness’s character testimony with ONLY opinion or general reputation (no extrinsic evidence, no specific instances).
D cannot open the door to a character trait irrelevant to the case.
FRE + CA: Admissibility of character evidence re: the VICTIM in criminal cases (not sexual crimes)
In GENERAL criminal cases:
If D opens door to VICTIM’S BAD character, prosecution can put on evidence that (1) D has the same character trait or (2) that victim DID NOT have that trait. [In CA, this is only allowed if D puts on character evidence that victim was violent.]
If D opens door to VICTIM’S character GENERALLY, prosecution can use opinion, reputation, or specific instances on that cross; and can use opinion and reputation evidence anytime thereafter.
In HOMICIDE cases specifically: self-defense defenses automatically allow prosecution to put on evidence of victim’s peacefulness and can use opinion or reputation evidence at any time (cross or direct). But prosecution can only bring up specific instances on cross.
FRE + CA: Admissibility of character evidence re: the victim in civil/criminal rape cases
In criminal rape cases, reputation or opinion testimony ever.
Specific instances of victim’s past sexual behavior generally inadmissible, but two exceptions: (1) in a criminal case, a specific allegation that someone else not D was source of semen or other evidence is admissible; (2) evidence of past sexual activity between D and victim can be admitted to prove consent.
[In CA, similarly generally inadmissible, but only exception for D to open door is past sexual conduct between victim and D. If Prosecution opens door to victim’s past sexual conduct, D can cross and rebut.]
In civil rape case, normal relevance rules apply (e.g., 403).
FRE Conditions for admissibility of real evidence
Authentication (often by witness testimony) and chain of custody.
FRE Authentication
Quantum of proof of authenticity by any means (often testimony).
Ancient documents: over 20 years old, free of suspicion, found in a place that’s not suspect [*different from hearsay exception for ancient documents.]
Self-authenticating documents: probably obvious.
Handwriting or voice can be authenticated in 3 ways: familiarity BEFORE trial [BUT voice can be familiar during trial]; expert testimony; just let jury decide.
FRE Best evidence rule
Original document required (1) for legally operative document (e.g., a contract); (2) where a witness knows a fact only from having read a document. Usually duplicates okay if machine-made, UNLESS the faithfulness of duplicate is in issue.
Summaries of voluminous records okay.
If document is shown to be unavailable, judge can allow other evidence to come in to establish contents of writing.
FRE Competency
Requires (1) personal knowledge; (2) present recollection; (3) must be able to communicate; (4) oath of sincerity.
FRE objections to form
E.g., leading Q’s on direct, argumentative, assumes facts not in evidence, compound questions, calls for narrative answer, lack of foundation, calls for speculation, etc.
FRE + CA refreshing witness recollection
Witness can have recollection refreshed with anything, but cannot read from it directly while testifying. Other party entitled to inspect it.
If witness still can’t remember, the thing can be READ into evidence NOT admitted into evidence (as a hearsay exception–past recollection recorded) if: (1) the witness had personal knowledge at the time, (2) the record was made by the witness or under witness’s direction, (3) record was timely made, (4) the record accurately reflects witness knowledge, (5) witness has insufficient recollection.
FRE lay opinion testimony
Generally inadmissible, but common exceptions: appearance, emotion, identification, speed, sanity, intoxication.
When admissible requires (1) perception of the witness, (2) helpful to the jury, (3) not expert testimony.
When agency or legal authorization is at issue in a case, witness may not testify as to that authorization.
FRE + CA expert testimony
Requires: (1) opinion helpful to jury, (2) witness qualified, (3) witness must have reasonable degree of certainty, (4) opinion supported by proper factual basis, (5) opinion based on reliable principles and methods (Daubert/Kumho Tire). [In CA, it’s Frye standard.]
No legal conclusions, but may embrace ultimate issue. But not mental state in criminal prosecution.
Expert opinion must rely on personal knowledge, admitted, evidence, or inadmissible evidence reasonably relied upon.
Facts from learned treatises can be read into evidence or used to impeach.
FRE + CA impeachment re: prior inconsistent statement
Admissible to impeach. Under FRE, generally NOT used to prove fact itself, but can be IF the prior statement was made under oath at a formal proceeding. [In CA, the prior inconsistent statement can be used to prove fact itself no matter what, regardless of whether made in legal proceeding.]
Can use cross-examination or extrinsic evidence to show witness made prior inconsistent statement. If extrinsic evidence, must lay foundation and be relevant.
FRE impeachment re: bias
Impeachment only, no substantive evidence.
Cross or extrinsic evidence may be used to show that witness has motive to lie.
FRE + CA impeachment re: conviction of crime
FRE
Top: Felony/misdemeanor for crime of dishonesty. Judge has no discretion to keep out.
Middle: ANY felony conviction (whether related to dishonesty or not), might come in, but judge has discretion.
If the witness is the accused, prosecution may use felony conviction only if satisfies 403.
CA
In CRIMINAL cases, can impeach with prior felony/misdemeanor conviction involving moral turpitude, subject to balancing.
In CIVIL cases, only felony moral turpitude, no misdemeanor convictions of any kind.
FRE + CA impeachment re: prior bad acts
Any witness in civil or criminal case can be impeached by asking about prior bad acts that involve DISHONESTY. ONLY cross examination, NO extrinsic evidence.
[In CA, in CIVIL cases, NO impeachment by asking about prior bad acts. In CA CRIMINAL, Prop 8 allows impeachment by prior bad act if moral turpitude, on cross and also extrinsic evidence.]
FRE impeachment re: reputation for untruthfulness
In civil or criminal, any witness can be impeached by other witnesses by OPINION or REPUTATION.
FRE impeachment re: declarant of admitted hearsay
Any of the impeachment rules also apply to declarant as if the declarant were testifying at trial.
FRE + CA rehabilitation of witness re: prior consistent statement
FRE
Only allowed to rebut charge of fabrication based on improper motive (i.e., bribe to lie on the stand) or to rebut other non-character ground (e.g., sensory problems).
CA
Civil cases: follows FRE.
Criminal cases: Prop 8 allows any party to bolster any witness’s credibility at any time.
