Evidence Flashcards
What is the general rule of relevance?
Irrelevant evidence is NOT admissible. Relevant admissible may be admissible. Evidence is relevant if it is offered to prove a fact of consequence, and it makes the fact more or less probable.
What is the California distinction on general rule of relevance?
Evidence is relevant if is is offered to prove a fact of consequence, THAT FACT IS IN DISPUTE, and the evidence makes the fact more or less likely.
What is California distinction on rule of relevance in a criminal case?
CA’s Proposition 8 declares all relevant evidence is admissible, except for:
-US constitution / privilege / hearsay / character evidence / Secondary Evidence Rule (BER) / if unfair prejudice substantially outweighs probative value
Explain court’s discretion to exclude relevant evidence
Courts have the discretion to exclude relevant evidence if it would cause unfair prejudice, confusion or waste time.
When does evidence create unfair prejudice?
When it leads to an emotional response or would be admissible for one purpose but could be used for another, inappropriate purpose.
Is habit evidence admissible?
Yes, if it doesn’t rise to the level of character evidence.
Is routine business practice admissible?
yes, if relevant to show that a business’s conduct conformed to standard practice
Is industrial custom evidence admissible?
Yes, it can be relevant to prove the standard of care in a negligence case.
Is evidence of liability insurance admissible?
Not to prove culpable conduct or ability to pay judgment. But it can be admitted for other purposes.
Is evidence of subsequent repairs / safety measures admissible? Is there an exception?
- Not to prove culpable conduct or to show design defect in a product liability case (THAT PART DOESNT APPLY IN CA)
- exception: can use it to rebut the argument of “no feasible alternative”
What is rule on admissibility of settlements, offers to settle, pleas, and related statements in CIVIL cases? What is CA distinction?
- Not admissible to show liability or fault. Rule on settlements requires that a claim be filed or threatened or that facts be in dispute.
- CA: cannot admit discussions during mediation or defendant’s expressions of sympathy
What is rule on admissibility of settlements, offers to settle, pleas, and related statements in CRIMINAL cases? What is CA distinction?
- not admissible to show guilt
- It is possible that Prop 8 would permit pleas to be admissible to show guilt. But the CA courts have not ruled on the issue, and the may disfavor that approach
When is evidence of the D’s character admissible in a CIVIL case?
-not admissible except to (i) prove D’s conduct in sexual assault or child molesting cases and (ii) where character is an issue in the case (e.g., defamation, child custody, loss of consortiom)
What is rule for prosecution and character evidence when CRIMINAL case begins? What are the exceptions?
Can’t be the first to offer character evidence.
Exception 1: sexual assault and child molestation cases Exception 2: if court already offered evidence of victim’s character, Prosecution can introduce evidence that D has same trait (e.g., upstanding character)
What are the California distinctions about character evidence in a CRIMINAL case?
- NOT permitted to offer evidence of D’s character even after V’s character has been introduced
- MAY show that D engaged in prior acts of domestic abuse, domestic violence, or elder abuse, in an action for each such crime
- MAY show that D had a violent character, if court already admitted evidence that V had a character for violence.
What is the general rule on offering evidence of Victim’s character?
Defendant may introduce, and V can rebut.
What is the general rule on offering evidence of Victim’s character in a homicide case?
If D offers evidence that V attacked him, then V can be the first to offer character evidence of D and/or V to rebut
What form of evidence is permitted with respect to character evidence?
Direct: only Opinion
Cross: Opinion + Specific Instances, but only to undermine the Opinion from Direct
What are the 4 CA distinctions on character evidence re: the Victim?
- No homicide exception
- Direct Exam: Opinion + Specific
- Domestic Abuse/Violence / Elder Abuse cases - can show prior acts of the same crime
- Where court admitted evidence of V’s character for violence, Prosecution can introduce evidence that the D’s character is also violent
What is the MIMIC Rule?
Specific instances of bad conduct can be admitted to prove anything relevant to the case, other than conduct.
Motive / Intent / Mistake / Identity / Common Plan (or scheme)
Puppies Are Pleasantly Sweet
Rule for Witness Competency:
Personal knowledge / Able to communicate / Present recollection / Sincereity / UNDERSTANDS DUTY TO TELL THE TRUTH (CA)
What are six classic objections?
- Calls for Narrative
- Leading Question
- Assumes facts not in evidence
- Argumentative
- Unresponsive answers
- Hearsay - look for document read from stand
What is the rule on refreshing recollection?
- A witness may review a document to refresh his recollection, and then continue to testify when he finishes reading.
- Other side then gets to review the doc
What happens if witness can’t remember even after you give them a document to refresh their recollection?
You are permitted to show documents to prove the Witness knew something in the past. The document must have been
- made/adopted by the W
- at the time when the facts were fresh in their memory
- accurate at the time
When is lay opinion testimony admissible?
- helpful to the jury
- rationally based on the W’s perception
- see, e.g., speed of car, value of property, sanity
When is expert testimony helpful?
- helpful (specialized knowledge)
- qualified
- believes testimony with reasonable degree ofcertainty
- based on applicable facts through personal knowledge / previously admitted evidence / inadmissible evidence that an expert usually relies on
- applied reliable principles that were reasonably applied
What is federal standard for scientific opinions?
- peer reviewed
- published in scientific journal
- tested and subject to retesting
- low error rate
- reasonable level of acceptance