Evidence Flashcards
Expert Testimony
Expert testimony is admissible if (i) subject matter based on specialized knowledge, (ii) helpful to the jury, (iii) the expert is qualified as an expert, (iv) expert believes in opinion to reasonable degree of certainty, (v) and opinion is reliable and based on sufficient facts.
Reliability is based on the Daubert factors: publication/peer review, low error rate, results are tested and capable of retest, and reasonable level of acceptance among community.
In California, based on the Kelly-Frye factor: scientific principals are generally accepted in the field.
Impeachment by Conviction
FRE: If the conviction is based on dishonest or false statements, court must admit and there is no balancing. Other felonies are admissible subject to balancing. Other misdemeanors are not admissible.
CEC: Felony convictions regarding CIMT are admissible, subject to balancing. In criminal cases, misdemeanors involving CIMT are admissible, subject to balancing.
Voice Authentication
Statements made during a telephone call may be authenticated by testimony as to one of the following: (i) the listener recognizes the speaker’s voice, (ii) the speaker has knowledge of certain facts that only a particular person would have, or (iii) the speaker has identified himself.
Co-Conspirator Admission
Under the FRE, a statement by an opposing party is considered nonhearsay, and certain vicarious admissions fall within this rule. An admission by one conspirator, made to a third party in furtherance of a conspiracy to commit the crime while the declarant was a participant in the conspiracy is admissible against a co-conspirator.
Confrontation Clause
Under the Confrontation Clause, a statement will not be admitted in a case where (i) the statement is offered against the accused in a criminal case, (ii) the declarant is unavailable, (iii) the statement was testimonial in nature, and (iv) the accused had no opportunity to cross-examine the declarant.
Hearsay Exception: Contemporaneous Statements (CA)
CEC recognizes a hearsay exception for contemporaneous statements that are made at the time of an occurrence; however, the exception applies only to a statement that declarant makes to explain, qualify, or make understandable his own conduct, and the statement must be made while the declarant is engaged in that conduct.
Hearsay Exception: Statement describing threat of physical injury
CEC recognizes an exception to the rule against hearsay in the case of a statement in which an unavailable declarant describes or explains the infliction or threat of physical injury upon the declarant. For the exception to apply, the statement must be (i) made at or near the time of the infliction or threat, (ii) made under circumstances that indicate its trustworthiness, and (iii) in writing or made to law enforcement or medical personnel.
Hearsay Exception: Excited utterance
Made a statement while under the stress or excitement of an event, and the statement concerns the event. Called “spontaneous statement” in California.
Hearsay Exemption: Prior statement of testifying witness
A prior inconsistent statement by a testifying witness is admissible if the prior statement was made under oath in a prior proceeding (does not need to be under oath in CA).
A prior consistent statement by a testifying witness is admissible if the statement is offered to rebut a charge or lying because of a motive and the statement was made before the motive to lie arose.
A prior identification by a now testifying witness
Hearsay Exception: Prior statement of an unavailable witness
A prior statement by an unavailable witness is admissible if made at a prior proceeding under penalties of perjury
A prior statement by an unavailable witness is admissible against a party (or predecessor in interest in a civil case) if the party had the opportunity to cross-examine, and a similar interest and motive to conduct the cross examination.
Hearsay Exception: Physical Condition
FRE: Present bodily condition admissible. Statements made for diagnosis or treatment are admissible as long as they are reasonably pertinent to the diagnosis or treatment (includes past statements).
CEC: Present bodily condition admissible. Past statement admissible if (i) declarant unavailable and physical condition at issue in the case or (ii) made by a child under 12 to medical professionals regarding abuse or neglect.
Hearsay Exception: Business Records
To be admissible under the business records exception, the record (i) must have been made in the regular course of business, (ii) must consist of matters within the personal knowledge of the entrant or within the knowledge of someone who had duty to transmit, (iii) entry was made at or near the time of the event, and (iv) the record is authenticated. A record may be authenticated by a custodian testifying on the record or certifying in writing.
Under ABA, may contain records of opinions or diagnoses. Under CEC, court will admit only simple opinions and diagnosis.
Hearsay Exception: Public Records
The following are admissible at public records: (i) records setting forth the activities of the office or agency, (ii) recordings of matters observed pursuant to a duty imposed by law (except police reports in criminal cases), or (iii) in civil actions and against the Gov. in criminal matters records of factual findings from an investigation.
Hearsay Exception: Recorded Recollection
If a witness has insufficient recollection of an event to be able to testify fully and accurately, the writing itself may be read into evidence once a proper foundation is laid. The foundation for admissibility requires that (i) the witness at one time had personal knowledge of the facts stated in the writing, (ii) the writing was made or adopted by the witness, (iii) the writing was made while the matter was fresh in the witness’s mind, (iv) the writing is accurate, and (v) the witness has insufficient recollection to testify.
Past Recollection Recorded
In order to qualify as a past recollection recorded, a foundation must be laid for the document’s admissibility, which must show that (i) the witness at one time had personal knowledge of the facts, (ii) the writing was made by the witness or made under his direction, (iii) the writing was made while the matter was fresh in the mind of the witness, (iv) the writing is accurate, and (v) the witness has insufficient recollection to testify.
