EVIDENCE Flashcards
- Proposition 8
- Relevance
- Public Policy (LOSS)
- Competence / Personal Knowledge
- Authentication & BER
In CA crim cases, Prop 8 is a Victim’s Bill of Rights & part of the CA Cx. All relevant ev is admis except for certain exclusionary rules such as exclussionary rules based on the USCx, privileges, and hearsay.
- Proposition 8
- Relevance (Logical and Legal)
- Public Policy (LOSS)
- Competence / Personal Knowledge
- Authentication & BER
Ev is log relvnt if it tnds to mke a fact of cnsquence mre or less prbble thn it wld be w/out th ev. [CA, fact mst be in dispute].H, [damages] ws a mat fact in dispute b/c P was suing for neg. [Evi] tndd to prve [damages] b/c
Log relvnt ev may be excldd if its pv is sub o/weighed by danger of UCM, UWN.
H, [ev] [had/ no] substantial pj effect b/c [_]. [Ev] was probative to show [_]. The probative value of [ev] [outweighed/did not] any substantial prejudicial effect.
Public Policy (LOSS)
- Liability Insurance
- Offers to Pay Medical Expenses (FRE / CEC)
- Subsequent Remedial Measures
- Settlement Offers
L PP enc pple to hve insurance. INAD to shw a D is neg or hs ability to pay a sub j/ment, bt AD to prve O/C, I,or as anadmission.
O PP enc humanitarian motives. U/ FRE, payment of, or an offer to pay, med $ are INAD to prve liability, bt admissions of fact in conjunction w/ an offer to pay med $, are AD. In CA, an offer to pay med $, & admisions of fault in conjunction w/ an offer to pay med expenses, are INAD.
S PP enc sub remedial measures (repairs, etc.). Ev of SRM is INAD to prve fault, bt AD to prve O/C, feasability of precautionary measures, or spoilation (destruction) of ev.
S PP enc pple to settle disputes w/out fear tht a s/ment offer will be used as ev against them in litigation. A settlement offer is INAD to prve (1) liability for, (2) invalidity of, or (3) amount of, a disputed claim, or (4) to impeach through a PIC. (only inadmissible if claim filed or threatened)
Competence and Personal Knowledge
Non-expert Ws mst be competent and have prsnl knwldge of a matter to testify abt th matter. Competence is presumed, unless otherwise provided in the [FRE/CEC]. H,T
FOR DOCUMENTARY EVIDENCE:
- Relevance
- Authentication - Documents
- Best Evidence Rule
-
Hearsay
- Hearsay Exceptions
- Past Recollection Recorded
- Business Records
- Public Records
- Hearsay Exceptions
Docs mst be authenticated b4 they can be admitted into ev. They can be authenticated by test of a W with p.k. about the doc.
The original doc mst be usd to prve the contents of the doc whn the contents of the writing are at issue, unless an exception to the BER applies. H, the contents of the [doc] were material to D’s case. Since the original was offered [doc] was offered, there was no violation of the BER. Thus the [doc] met the BER.
Hearsay
HS is an out of ct statement offered to prove the truth of the matter asserted in the statement. HS is inadmissible unless a statement is not hearsay or an exception applies.
H, [ev] was a <strong>s/ment</strong> b/c it was [(writ/oral) assertion] [conduct intended to be a substitute for words] [Q conveyed rather than sought info].
The <strong>declarant</strong>, [X], a prsn, made [ev] <strong>outside of court </strong>[where made].
The s/ment [was/not] <strong>offered for its truth</strong> [insert statement exactly].
The s/ment was offered to prove [purpose statement offered to prove].
Not hearsay (LES)
- Legally Operative Facts
- Effect on the Listener
- State of Mind
A statement is not hearsay when offered…
Legally operative facts: … to prove the statement was made.
Effect on the Listener: … to show the effect on the recipient.
State of Mind: … as circumstantial ev of a declarant’s mental state.
CA = exception / FRE = not hearsay
- Prior Consistent Statement
- Prior Inconsistent Statements
- Prior Identification
- Prior Consistent: A PCS, mde under oath or not, b4 th decl hd reason to fabricate, may be AD to rebut an express or implied charge that the decl fabricated the statement b/c of an improper motive.
- Prior Inconsistent: FRE = a PIC mde under oath may be AD to impeach the dec’s credibility AND as substantive ev. [CA, s/ment does nt need to be mde u/ oath].
- Prior Identification: A P.ID.S of a prsn after perceiving the prsn may be AD as substantive ev. [CA, the W mst mke the prior id while memory of the event is fresh, and confirm in ct s/he mde the id, and the id truly reflected her opinion at the time.]
CA = exception / FRE = not hearsay
- Admission by Party-Opponent
- Adoptive Admission
- Vicarious Admission - Agent/Employee
- Co-conspirator
Pty Opponent: U/ [B], a prior out of ct s/ment by a pty to th current lit tht is used against tht pty is not HS/exception. The s/ment need nt hve been agnst the dec’s intrst at time it was made; it mst only be contrary to dec’s present intrst.
Adoptive: An AA is a s/ment of anthr prsn tht a pty expressly or impliedly adopts. Silence by a pty in response to another’s s/ment is an adoptive admission if (1) pty ws present, heard, and u/stood s/ment, (2) pty hd ability and opprtnty to deny s/ment, and (3) reas prsn similarly situated wld hve denied s/ment.
Vicarious - Employee: A s/ment made by a party’s agent or employee, if mde during scope of emplymnt and concerning a matter w/in scope, is imputed to pty.
Co-conspirator: Admission of 1 conspirator (1) mde to a 3P in furtherance of a conspiracy to commit a crime or civil wrong (2) at a time whn th decl ws participating in the conspiracy, are admissible against co-conspirators.
Hearsay Ex. TEMP
-
Then-Existing State of Mind (FRE)
- Present Physical Condition (CEC)
- Excitted Utterance
- Medical Diagnosis or Treatment
-
Present Sense Impression (FRE)
- Contemporaneous Statement (CEC)
-
T-ESoM: A s/ment of prsnt intnt is ADMIS to prve cndct in cnfrmty w/ the stated intent.
- PPC: A s/ment of a Dec’s then-existing emotion/sensation/physical condition is ADMIS when the ev is offered to prove the Dec’s emotion/sensation/physical condition at that time.
- An EU is a s/ment made u/ the stress of a startling event, regarding the cause or circs of the event, by a Dec w/ PK.
- Medical: A s/ment describing medical history or past or present symptoms = NH if made for medical D or T. A s/ment of the condition cause or source is ADMIS as an exception if it is reas pertinent to D or T.
- A PSI is a s/ment describing or explaining an event made while the Dec perceives the event (or immeidately thereafter).
- In CA, a cntmporaneous s/ment (1) made while the Dec is engaged in conduct is ADMIS (2) to explain, qualify, or make D’s conduct understandable.
Documents (PBPL)
- Past Recollection Recorded
-
Business Record
- Record Absence
- Public Record
PRR: A record abt a matter a W once had PK bt nw has insufficient recollection is ADMIS as a hearsay exc if the doc (1) was prepared or adopted by the W when the matter was fresh in the W’s memory; and (2) accurately reflects the W’s knowledge. The record may be read to the fact finder, and received as ev when offered by an adverse party.
A Bus record is ADMIS to prove the act or event recorded if (1) authen writing made in the regular course of business (2) w/ the p.k. of an entrant who is (4) u/ a duty to make the entry (5) at or near the time of the event.
Record Absence: Ev that matter is not included in a record of a regularly conducted activity may be admissible to prove the matter did not occur or exist, provided that a record was regularly kept for that kind of matter. The circumstances, incl. possible info source, must not indicate untrustworthiness.
Public Record: A PR is ADMIS whn it (1) sets forth the activities of an office, (2) records matters observed pursuant to a public employee’s duty imposed by law, at or near the time of an event (except police observations in crim cases), or (3) sets forth factual findings of a legal investigation, whn offered against th govt in a crim action, or agnst either party in a civil action.
- Statement Against Interest
- Former Testimony
- Dying Declaration
- S/ment Against Interest: A s/ment against an u/a decl’s pecun, proprietary, or penal intrst whn mde, w/ prsnl knwldge of th facts, is admis if the dec ws aware th dec. is against her intrst and hd no motive to misrepresent.
- Former Testimony: The test of an u/a decl, given at a prior proceeding, is admis if (1) the pty against whm th test is offered ws a pty or in privity w/ a pty in th former action, (2) former action invlvd same sm, (3) test ws u/ oath, and (4) pty against whm test is offered hd an opp at prior proceeding to examine (ie, direct, cross, redirect) the decl.
- Dying Declaration: An u/a decl’s dying dec. is admis if s/ment (1) is mde by an indvdual who believes death is imminent, and (2) pertains to the cause or circs of death. [CA, DDs admis in all crim and civil prceedngs, and decl mst be dead]
Hearsay Exception
Past Physical Condition
(CA only)
In CA, statements made to anyone. not just medical personnel, concerning an unavailable declarant’s past state of mind, emotion, sensation, or physical condition is admissible when the condition is in issue.
Hearsay Exception
Prior Criminal Conviction Judgment
Ev of a final j/ment of conviction is admissible if
(1) judgment was entered after a trial or guilty plea, but not a “no contest” plea,
(2) conviction was for a crime punishable by death or imprisonment for more than one year, and
(3) ev is offered to prove any fact essential to sustain the judgment. If the prosecutor offers ev of a final judgment of conviction for a purpose other than impeachment, the judgment must have been against the D.
Hearsay Ex.
Catch-All
For a hearsay statement not covered by a specific exception to be admitted, the FRE provides a catch-all exception, requiring
(1) hearsay statement possess circumstantial guarantees of trustworthiness,
(2) statement be strictly essential, and
(3) notice be given to the adversary on the nature of the statement.
