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CA Essay Bar Studies > Evidence > Flashcards

Evidence Flashcards

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1
Q

Logical relevance

A

Tendency to make more or less probable

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2
Q

CA Logical Relevance

A

Must be in dispute (not enforced)

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3
Q

Legal Relevance

A

Probative value outweighs

Danger of unfair prejudice, confusing court or misleading jury

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4
Q

Prop 8 CA

A 
Relevance evidence not excluded in 
Crim proceedings subject to exceptions:
Authorized by CEC
Character evidence
Rape shield
Non-legally relevant
Exclusionary rules
Hearsay exceptions
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5
Q

Authentication

A

Must produce sufficient evidence to support a finding the thing is what the proponent claims

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6
Q

Physical Evid Auth

A

Distinctive characteristics or

Chain of Custody

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7
Q

Demonstrative Evid Auth

A

If fair representation

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8
Q

Writings/Record Auth

A 
Admission
Eyewitness
Voice ID
Handwriting verifications
Circumstantial evidence
Ancient documents:
More than 20 years old
Free from suspicion
Found where they would be kept
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9
Q

CA Writing/Record Auth

A

30 years

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10
Q

Self Authentication

A 
Public docs bearing gov’t seal
Certified copies of public record
Official publications by public authority
Notarized docs
Newspapers and periodicals
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11
Q

FRE Self Auth

A

Business records AND

Trade inscriptions

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12
Q

CA Self Auth

A

Signatures of notaries

Domestic public employees

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13
Q

BER

A

Requires original writing,

Photograph, or recording to be produced

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14
Q

FRE BER

A

Duplicates allowed unless content disputed OR

Unfair to admit the duplicate

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15
Q

CA BER

A

Secondary evidence and

Allows duplicates or other evid

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16
Q

Exceptions to BER

A 
Lost or destroyed
Proponent not acting in bad faith
In possession of opponent
Not obtainable by judicial process
Collateral matter
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17
Q

Voluminous Writings

A

So voluminous can’t be conveniently
Introduced into evidence
Summary may be introduced

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18
Q

Form of Question Obj

A 
Leading
Compound
Facts not in Evidence
Non-Responsive
Narrative
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19
Q

Witness Competency

A

Personal knowledge
Swear oath or affirmation
Understand duty to tell truth

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20
Q

FRE Age Witness Competency

A

Intelligence/maturity
Ability between truth and false
Understand importance in truth

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21
Q

Dead Man’s Statute

A

Limits ability of witness to testify about

Transactions w/ people who now deceased

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22
Q

CA Dead Man’s Statute

A

Has not adopted

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23
Q

Impeachment

A

Attacks credibility of testifying witness by one’s own testimony, testimony of another OR extrinsic evidence

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24
Q

Ways to Impeach

A 
Untruthfulness
Prior Criminal Conviction
Bias
Capacity to Perceive/Remember
Contradiction
Prior Inconsistent Statement
Prior Consistent Statement
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25
Q

Untruthfulness Impeachment

A 
By reputation or opinion
Honesty only when truthfulness attacked
No extrinsic
Specific allowed on x-exam if probative
Must accept answer
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26
Q

CA Untruthfulness Impeachment

A

Any relevant character trait

Reputation, opinion, or specific instances

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27
Q

Prior Criminal Conviction Dishonesty

A

Crimes involving dishonesty allowed to challenge truthfulness within 10 years

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28
Q

Prior Criminal Conviction Felony

A

Admissible UNLESS
Defendant witness
Reverse 403

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29
Q

CA Prior Criminal Conviction

A

Crimin falsi if moral turpitude
No time limit
Civ cases, only felonies of same

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30
Q

Bias Impeachment

A 
Extrinsic allowed:
Friend or relative of party
Bears grudge against party
Business relationship w/ party
Leniency on pending crim case
Financial interest in outcome
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31
Q

Capacity to Perceive Impeachment

A

Allowed to show witness
Diminished capacity to perceive
Extrinsic evid allowed

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32
Q

Contradiction Impeachment

A

Evidence to challenge underlying facts
If extrinsic, independent admissibility
Non-collateral matters only

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33
Q

Prior Inconsistent Statement Impeachment

A

Inconsistent statement material to witness’ testimony
Extrinsic inadmissible UNLESS given opp to explain or deny
If under oath, may be for substantive truth
Otherwise, impeachment
Not allowed for collateral matter

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34
Q

CA Prior Inconsistent Statement Impeachment

A

Always admissible to prove truth

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35
Q

Prior Consistent Statement Impeachment

A

Admissible to rebut recent
Fabrication, improper influence or motive
Must be before bias or motive

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36
Q

CA Prior Consistent Statement Impeachment

A

Rehabilitate witness impeached by PIS

So long as made prior to PIS

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37
Q

Recollection Refreshed

A

A witness may examine any item

“Refresh” Cannot read from it

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38
Q

Lay Opinion

A

Rationally based on witness perception
Helpful to jury
Not based on scientific or technical knowledge

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39
Q

CA Lay Opinion

A

Not required to not be based on scient or tech knowledge

Sanity allowed

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40
Q

Expert Opinion

A

Scien, tech, or spec knowledge, skill, training
Reasonably relied on in field
Criminal no opinion about mental state or condition element

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41
Q

CA Expert Opinion

A

New scientific techniques
Show generally accepted
Mental state barred except sanity

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42
Q

Character Evidence

A

Inadmissible to show acted in accordance

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43
Q

Other Purpose Character Evidence

A 
Allowed if: 
Opportunity
Knowledge
Motive
Intent
Absence of Mistake
Identity
Common Plan or Scheme
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44
Q

Character Evid Civil

A

Rarely allowed BUT
Reputation, opinion or prior bad acts
Allowed if trait essential element

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45
Q

Character At Issue

A

Rep or opinion if essential element

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46
Q

Character Defendant of him/herself in Crim

A

Reputation or opinion only UNLESS trait essential element
Prosecution may rebut with same pertinent trait by rep or opin
Cross-X allows specific instances
Extrinsic not allowed to contradict witness’ testimony & prosecution must accept answer

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47
Q

Character Defendant of victim of Crim

A 
Rep or opin only
Prosecution may rebut by rep or opin
NOT for rape victims
Cross-X allows specific instances
Extrinsic not allowed to contradict the witness’s testimony & prosecution must accept answer
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48
Q

CA Character Defendant of victim of Crim

A

Spec allowed on direct

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49
Q

Character Defendant claim first aggressor

A

Homicide by rep or opin to
Rebut non-character evidence by
Defense that victim first aggressor
Cross-X allows spec instances

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50
Q

CA Character Defendant claim first aggressor

A

Peacefulness by rep, opin or spec instances to rebut evidence of victim’s character trait for violence

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51
Q

Character Rape or Sexual Assault

A

Prohibits exam of victim promiscuous or sexual activities, sexual history, behavior, and preferences

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52
Q

Exceptions to Character Rape or Sexual Assault

A

Source of semen, injury, or physical evid
Sexual acts w/ defendant for consent
Sexual acts w/ defendant by prosecution
Crim if violates defendants con law rights
Civil case if prob value substantially outweighs danger of harm to the victim or unfair prejudice to any party

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53
Q

Character Sexual misconduct of accused in sex crime

A

Plaintiff/pros against
Defendant of prior, similar, wrongful sex or
Child molest acts for any purpose by spec instances

54
Q

CA DV, Child Abuse or Elder Abuse

A

Allows evid of prior DV, child abuse, or
More than 10 years
Inadmissible UNLESS
In interest of justice

55
Q

Policy Exclusions Evid

A 
Subsequent Remedial Measures
Insurance
Plea Discussions
Pay medical bills
Negotiations
56
Q

Subsequent Remedial Measures

A 
Remedial measures that would have made injury less likely to occur 
Not allowed for:
Negligence
Culpable Conduct
Defect in product or design
Need warning instruction
Except:
Ownership or control
Feasibility of precautionary measures
57
Q

CA Subsequent Remedial Measures

A

Not used for strict liability

58
Q

Insurance Evid

A

Inadmissible to show neg or wrongful
Admissible to show bias or
Prove agency, owner, or control

59
Q

Plea Discussions Evid

A

Guilty plea withdrawn
Nolo contendere plea
Made w/ assistance of pros

60
Q

Exceptions to Plea Discussions Evid

A

Allowed if made in same plea as another statement that has been introduced if statements should be considered together or in criminal proceeding for perjury and statement was made under oath, on record, and w/ attorney present

61
Q

CA Exceptions to Plea Discussions Evid

A

Inadmissible if w/ police officer

62
Q

Pay medical bills Evid

A

Inadmissible to prove liability

Statements may be severed

63
Q

CA Pay medical bills Evid

A

Cannot be severed

64
Q

Negotiations Evid

A

Validity or amount of disputed claim OR

Impeach for PIS

65
Q

CA Negotiations Evid

A

Allowed in crim case UNLESS offer made w/ assistance of pros

66
Q

Privileges Evid

A

Can limit party’s ability to demand info about specific communications made w/ certain relationships
Holder of privilege holds power to claim or waive

67
Q

Attorney/Client Privilege

A

Protects confidential conversations related to legal advice between lawyer and client
Client holder of privilege
Underlying info not privileged
Does not survive death

68
Q

CA Attorney/Client Privilege

A

Presumed confidential

Opponent must show not there

69
Q

Exceptions to Attorney/Client Privilege

A

Crime likely to lead to death or GBI
Breach of duty by either
Services for crime/fraud

70
Q

CA Exceptions to Attorney/Client Privilege

A

Future commission of crime or fraud

Client knew or should have known

71
Q

Spousal Privilege

A

Cannot be compelled to testify against spouse
Testifying spouse is holder
FRE: Crim only

72
Q

Exceptions to Spousal Privilege

A 
One spouse against another
Commit spouse
Establish competence
Crimes against spouse or children
Invalid marriage
73
Q

Marital Conversation Privilege

A

Spouse may not disclose
Confidential comm made during marriage
Survives death and divorce
Joint holders of privilege

74
Q

Exceptions to Marital Conversation Privilege

A 
Crime/fraud
Commit spouse
Competence hearing
Proceeding between spouses
Criminal case against spouse or for children
Juvenile proceeding
Spouse defendant  in crim and offers
75
Q

CA Doctor/Patient Privilege

A

Made in confidence by examination

Patient holder of privilege

76
Q

CA Exceptions Doctor/Patient Privilege

A 
No privilege in crim
Proceeding to recover damages for 
Patient conduct (good cause)
Crime/Fraud
Commitment 
Competence
77
Q

Psychotherapist/Patient Privilege

A

Persons who are or are reasonably believed
By patient to be someone involved in
Mental health services or counseling
Patient holder

78
Q

CA Psychotherapist/Patient Privilege

A

License requirement

79
Q

Exceptions to Psychotherapist/Patient Privilege

A 
Patient puts mental condition in issue
Services for crime/fraud
Dispute between psycho/patient
Patient dangerous to self/others
Therapist court appointed
Patient minor and possible crime victim
80
Q

CA Exceptions to Psychotherapist/Patient Privilege

A

Dangerous to self or others

Under 16 and possible crime victim

81
Q

CA Clergy/Penitent Privilege

A

Protects confidential communications between
Clery/penitents
Joint privilege

82
Q

Hearsay

A

Out of court statement

Made for truth of matter asserted

83
Q

Not Hearsay

A 
Non-assertive conduct
Effect on listener
State of Mind Indirectly
Impeach credibility
Legally operative fact
84
Q

Non-Hearsay

A

Prior Inconsistent Statement
Prior Consistent Statement
Prior Identification
Party Admission

85
Q

Prior Inconsistent Statement

A

Declarant testifies at current hearing
Subject to x-exam
Prior OOC inconsistent w/ current testimony
Prior statement under oath

86
Q

CA Prior Inconsistent Statement

A

Not required to be under oath

87
Q

Prior Consistent Statement

A

Declarant testifies at current
Subject to x-exam
Prior OOS consistent with current
Offered to rebut recent fabrication OR
Acted under improper influence or motive OR
Rehabilitate when attacked for other reason

88
Q

CA Prior Consistent Statement

A

Rehabilitate for PIS if made prior to PIS

89
Q

Prior Identification

A

Declarant testifies at current
Subject to x-exam
Prior statement identifies as someone
Declarant perceived earlier

90
Q

CA Prior Identification

A

Made with fresh memory AND

Testify true reflection of opinion when made

91
Q

Party Admission

A

Made by opposing party

92
Q

Vicarious Party Admission

A

If employee, spokesperson, agent

93
Q

CA Vicarious Party Admission

A

Only witness’ activities

94
Q

Co-Conspirator Party Admission

A

Conspiracy existed
Defendant and declarant same conspiracy
Made in furtherance & during conspiracy
No bootstrapping

95
Q

CA Co-Conspirator Party Admission

A

Content not considered in

Prelim for exist of conspiracy

96
Q

Declarant Unavailable

A 
Cause through no fault of proponent
Prevents witness from testifying including
Death, mental or disability
Beyond subpoena power
Invokes privilege
Refuses after order
Cannot recall subject matter
97
Q

CA Declarant Unavailable

A

Refuses to testify unless held in contempt OR

Lack of memory not allowed

98
Q

Exceptions Declarant Unavailable

A

Dying Declaration
Former Testimony
Forfeiture
Statement Against Interest

99
Q

Dying Declaration

A 
Declarant unavailable
Sense of immediate and impending death
Must relate to cause of death
Personal knowledge
Homicide or civil case
100
Q

CA Dying Declaration

A

Allowed in all cases AND

Declarant must have died

101
Q

Former Testimony

A 
Declarant unavailable
Primary issue of former hearing & current same
Similar motive and interest to x-exam
Criminal same party
Civil same or party in predecessor
102
Q

CA Former Testimony

A

Same party, then allowed
Same but not OG offered, similar to x-exam
Different party in civil & similar to x-exam

103
Q

Forfeiture by Wrongdoing

A

Declarant unavailable

Must intend to deprive court of testimony

104
Q

Statement Against Interest

A

Declarant unavailable
Conscious statement against interest
Crim needs corroborating circumstances

105
Q

CA Statement Against Interest

A

Against social allowed

No require of corrob in crim

106
Q

Exceptions Availability Doesn’t Matter

A 
Present Sense Impression
Excited Utterance
State of Mind
Medical Treatment
Past Recollection Recorded
Business Records
Public Records and Reports
Final Judgment of Previous Conviction
107
Q

Present Sense Impression

A

Made while or immediately after
Describes or explains event
Personal knowledge

108
Q

CA Contemporaneous Statement (similar to PSI)

A

Explain, qualify, or make understandable
Conduct of declarant made while
Engaged in such conduct

109
Q

Excited Utterance

A

Sufficiently startling event
Declarant dominated by shock of event
Relates to event
Declarant has personal knowledge

110
Q

CA: Spontaneous Statement

A

Describe, narrate, or explain

111
Q

State of Mind Evid Excep

A

Then existing physical or mental state
Directly stated
Is at issue
Does not apply to memory or belief UNLESS relates to execution, revocation, id or terms UNLESS declarant’s will

112
Q

CA State of Mind Evid Excep

A

Past mental or physical state
Allowed when dec unavail
Lack of trust, discretion to exclude

113
Q

Medical Treatment

A

Statement for diagnosis or treatment
Pertinent to diagnosis or treatment
Describes medical history, symptoms, or general cause

114
Q

CA Medical Treatment

A

Limited to declarants under 12

Otherwise, use state of mind

115
Q

Past Recollection Recorded

A

Read into record if declarant testifying
First-hand knowledge at some point
Lacks sufficient recollection of event
Record of some sort
Made or adopted by declarant at or near event
Record accurately reflects facts once knew

116
Q

CA Past Recollection Recorded

A 
May be made at direction of witness or 
By some other person for purpose of 
Recording statement AND 
Only after witness testifies
True statement of fact
117
Q

Business Records

A 
Record of act, event, condition, or diagnosis
First-hand knowledge
Bus duty to acquire info & report it
Made at or near event by someone w/ duty to record
Part of regular course of bus
Kept in regular course of bus
Opponent no lack of trustworthiness
Crim: no police observations
118
Q

CA Business Records

A

Proponent show trust and
Made in regular bus but not
Required to be reg practice

119
Q

Public Records and Reports

A

Office’s activities
Matter observed while under legal duty to report
Exception crim case observations by law enforcement
Civil case or evidence by defendant against gov’t in crim
Factual findings from authorized investigation

120
Q

CA Public Records and Reports

A

No limit on law enforcement
Limit to acts, conditions, or events
Made at or near event
Proponent show trust

121
Q

Final Judgment of Previous Conviction

A 
Judgment from trial or guilty plea
Crime was felony
Prove fact essential in judgment
When offered by pros in crim other than impeach
Judgment was against defendant
122
Q

Hearsay Catchall

A

Does not fit within 803 or 804
Equivalent guarantees of trust offered as evid of material fact
More probative than other evid for reasonableness on particular point
Best serves these rules and justice
Proponent give adverse party notice

123
Q

Criminal Case 6th Amend

A

“In all crim prosecutions the accused
Shall enjoy the right…to be confronted
With the witnesses against him.”

124
Q

Testimonial for 6th Amend

A

Under circumstances which
Lead an objective witness to
Reasonably believe the
Statement would be used at trial

125
Q

Judicial Notice

A

Process of establishing facts
Without presenting evidence
Facts not subject to reasonable dispute:
Generally known within JDX
Capable of accurate and ready determination by
Source who cannot be reasonably questioned

126
Q

Civil Judicial Notice

A

Must accept

127
Q

Crim Judicial Notice

A

May find

128
Q

Presumptions Evid

A

Switches burden of proof

129
Q

Civil Presumptions

A 
Operates to shift burden of:
Producing evidence to opposing party
Rebuttable presumptions
Mail delivery
Legitimacy
Sanity
That death is not suicide
Death from seven years’ absence
130
Q

Crim Presumptions

A

No criminal case presumption
Both burdens on pros
Beyond a reasonable doubt

131
Q

Prelim Hearings Evid

A

Court decide prelim questions about witness qualified, privilege exists, or evidence admissible
MUST conduct hearing prelim question outside presence of jury if:
Hearing involves admissibility of confession
Testifying defendant in criminal case requests OR
Justice so requires

CA Essay Bar Studies (15 decks)

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