Evidence Flashcards
When is evidence Relevant?
(logically and legally)
-
Logically Relevant:**
1) When it has *any tendency to make a fact more or less probable than it would be without the evidence, AND
2) The fact is of consequence in determining the action (in CA, the fact of consequence must be in dispute).
- *Legally Relevant:**
1) If it’s not excluded on policy grounds; AND
2) If it’s not excluded under FRE 403/CEC 352
FRE Rule 403/CEC 352 Exclusions
A court may exclude evidence if its probative value is outweighed by a danger of what?
a) Unfair prejudice;
b) Confusing the issues;
c) Misleading the jury;
d) Undue delay;
e) Wasting time; OR
f) Being needlessly cumulative.
What is admissible under California Proposition 8, and what does it NOT affect?
ALL relevant evidence in a criminal trial.
It does not affect the following:
1) Exclusionary rules based on U.S. Constitution;
2) Secondary/Best evidence rule;
3) Hearsay or privilege exclusions;
4) Evidence barred under rape-shield statutes; and
5) Limits on prosecution from offering specific character evidence.
When is evidence Unfairly Prejudicial?
When the evidence is:
1) Unnecessary; AND
2) Might cause the jury to improperly sympathize or dislike a party.
When is evidence of Subsequent Remedial Measures NOT admissible?
To prove:
a) Negligence;
b) Culpable conduct;
Additionally, under the FRE:
c) Adefectinproductordesign; OR
d) A need for a warning or instruction.
*But, it may be admissible to impeach or prove a disputed issue of ownership, control, or feasibility of precautionary measures.
When are Settlement Offers and statements made during Settlement Negotiations NOT admissible?
a) To prove the validity or amount of a disputed claim (claim must be filed or threatened); OR
b) To impeach by a prior inconsistent statement or contradiction.
c) CA: Excludes written/oral statements made during mediation proceedings.
*It may be admitted to: prove bias/prejudice of a witness, negate a contention of undue delay, or prove obstruction in a criminal matter.
What Pleas and Plea Negotiations are NOT admissible in a subsequent civil or criminal case?
1) Statements made during plea discussions.
2) A nolo contendere plea.
3) A defendant’s guilty plea that was later withdrawn.
Evidence of paying (or promising/offering to pay for) medical expenses is NOT admissible to prove what?
Liability
(even if there is no disputed claim)
FRE: Any related statements or factual admissions ARE admissible.
CA: Related factual statements are NOT admissible.
Evidence of Liability Insurance is NOT admissible to prove what?
Culpability
(that a person acted negligently of wrongfully)
*However, a court may admit it for another purpose (i.e. proving bias/prejudice of witness, proving agency/ownership/control).
All physical evidence MUST be authenticated before being admitted into evidence.
How may physical evidence be Authenticated?
By:
a) Witness testimony; OR
b) By evidence that shows it has been held in a substantially unbroken chain of custody.
*A party must prove that the item it seeks to admit is actually what the party purports it to be, unless stipulated otherwise.
Voice recordings may be Authenticated by whom?
By anyone who:
1) Has heard the person speak (either firsthand or electronically); AND
2) Identified the recorded person as the speaker.
What is the Best Evidence Rule?
A party must provide the original document (or a reliable duplicate) when a witness:
a) Testifies to the contents of a writing; OR
b) Testifies to knowledge gained solely from a writing.
FRE: Handwritten duplicates are NOT admissible.
CA: Handwritten duplicates ARE admissible.
*In CA, this rule is called the Secondary Evidence Rule.
Character Evidence
Character evidence may only be offered as circumstantial evidence to prove propensity in what limited circumstances?
1) Criminal cases – by defendant OR by prosecution if the defendant“opens the door” (unless in CA only: elder abuse or domesticviolence);
2) Victim’s character (except in rape cases) – to prove defendant’sinnocence. (In CA, ONLY violent traits);
3) Homicide cases – if defendant claims victim was the aggressor, theprosecution may offer evidence of the victim’s character forpeacefulness. (NOT IN CA);
4) Sex offense cases – not admissible, unless exceptions apply.
5) Civil cases – only if sex offense cases exception applies.
a. In CA, NO exception for sex offense cases.
Character Evidence
Under the FRE, what are the exceptions in Sex Offense Cases that allow character evidence (toprove a victim’s sexual behavior or predisposition)to be admissible?
1) Civil cases: If its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted only if the victim placed it in controversy).
2) Criminal cases: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate thedefendant’s Constitutional rights.
Character Evidence
How may character evidence be proven under FRE and CA rules?
FRE:
On direct examination, by opinion testimony or testimony of the reputation in the community.
On cross examination of the character witness, by opinion, reputation, or specific acts.
CA:
Defendant’s character may only be proven by opinion/reputation, and victim’s character by opinion, reputation, or specific acts.
Prior Bad Acts may be admissible for NON - PROPENSITY purposes, such as?
Proving:
a) Motive;
b) Identity;
c) Absence of mistake or accident;
d) Intent;
e) A common plan or scheme;
f) Opportunity; OR
g) Preparation.
What must a proponent show in order to offer Prior Bad Acts as evidence?
1) That the prior act was committed by a preponderance of the evidence (vague references are insufficient).
AND
2) That’s its probative value substantially outweighs thedanger of unfair prejudice.
When is evidence of a person’s Habit or anorganization’s Routine Practice admissible?
To prove that on a particular occasion the party acted in accordance with the habit or routine practice.
*This may be admitted regardless of corroboration or eyewitnesses.
Extrinsic Evidence of Prior Inconsistent Statements are only admissible to impeach if it’s what?
1) Relevant to a material issue at trial (other than thewitness’s credibility); AND
2) A proper foundation is shown (witness is given a chance to explain/deny, and the adverse party is given a chance to examine the witness about it).
*BUT, the above limitation is NOT applicable to statements by a party opponent.
*CA = Prior inconsistent statement is admissible as non-hearsay when offered only to impeach a witness. It is also an exception to the hearsay rule.
Under the FRE, when is evidence of Prior Convictions admissible to attack a witness’scharacter for truthfulness?
1) Prior felony or misdemeanor convictions involving dishonesty – a dishonest act or false statement.
2) In Felonies that DO NOT involve dishonesty, when:
a. The witness is not a defendant (criminal/civil);
b. In a criminal case where the witness IS a defendant, BUT the probative value outweighs the prejudicial effect.
*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.
In CA, when is evidence of Prior Convictions admissible to attack a witness’s character fortruthfulness?
Felony -> only convictions involving moral turpitude (subject to CEC 352 balancing).
Misdemeanor -> only admissible: (1) in a criminal case, AND (2) if prior misdemeanor conviction involves moral turpitude.
Moral turpitude = crimes involving lying, violence, sex crimes, and extreme recklessness.
When may a witness’s credibility be attacked on cross-examination with Specific Instances of Conduct (i.e. prior bad acts)?
Under the FRE: Only when:
The conduct is probative of the witness’s character for truthfulness or untruthfulness. (BUT, extrinsic evidence is NEVER admissible to attack/support such instances of awitness’s credibility.)
In CA: Prior bad acts are only admissible under Proposition 8 if the acts involve moral turpitude.
How can a witness’s Character for Truthfulness (credibility) be attacked or supported?
By:
a) Reputation testimony about the witness’s character fortruthfulness or untruthfulness in the community; OR
b) Opinion testimony about the witness’s character.
**Evidence of truthful character is only admissible AFTER the
witness’s character for truthfulness has been attacked.
May a witness’s ability to observe, remember, orrelay facts accurately be attacked on impeachment?
YES, a witness may be impeached on these issues on:
a) cross-examination; OR
b) with extrinsic evidence.
Under the FRE, how may a Hearsay Declarant’scredibility be impeached (when a hearsay statement has been admitted into evidence)?
By any evidence that would be admissible if the declarant had testified as a witness.
*A court may admit evidence of inconsistent statements/conduct regardless of when the statement occurred or if the declarant had the opportunity to explain or deny it.
