Evidence Flashcards
Relevance
evidence having any tendency to make a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence
Prop 8 (CA)
relevant evidence shall not be excluded in any criminal proceeding for impeachment issues but does not apply to character, hearsay, privileges, or 352 issues
FRE403/CRE 352
evidence will be inadmissible if its probative value is outweighed by undue prejudice such as the possibility that the jury will decide the case on emotion rather than fact or the potential for jury confusion
Personal Knowledge
testimony is only valid if the witness has been able to perceive what he is testifying to
Leading Questions
suggest the answer in the question and only permitted on direct of an adverse or hostile witness OR on cross
Compound Question
either has two verbs in the question or two independent clauses
Calls for a Narrative
impermissible form of questioning that asks witness to relate a story rather than specific facts, such as “tell us what happened next”. But allowed if asking witness to recall what was discussed in a particular convo
Argumentative Questioning
asks the witness to resolve an apparent contradiction in their testimony
Assumes Facts Not in Evidence
asking a question regarding a specific detail that there has been no previous mention of
Non-responsive Answer
when a question asks for a a yes or no answer, anything beyond that is non-responsive & likely to subject to a motion to strike
Character Evidence
the use of prior conduct to infer a trait & then the use of that trait to suggest or infer that the trait makes it more likely that the party engaged in particular conduct at issue — character evidence is not admissible
Where Character Trait Itself is in Issue (civil case)
evidence of opinion, reputation, specific conduct is admissible including prior acts of sexual assault. HOWEVER, prior acts of sexual assault not admissible in CA
Where Character Trait Itself is in Issue (crim case)
evidence of opinion, reputation, and specific conduct is admissible including prior acts of sexual assault (for both FRE & CA). Plus in CA, prior acts of domestic/ child abuse also allowed
Mercy Rule
when relevant evidence is first offered by the criminal △ in the form of opinion or reputation evidence, the prosecution can then offer only relevant opinion or reputation evidence of the △’s same bad character trait
Mercy Rule on X
the prosecution can ask the character witness about specific acts by the △ that are inconsistent with the character character trait the witness testified to only to impeach the character witness
Victim Character Evidence (FRE)
if the △ first offers evidence of the victim’s character trait, it is limited to opinion & reputation evidence only, and prosecution can then offer evidence of vic’s good character traits & △’s same bad character trait
Victim Character Evidence (CA)
If the △ offers evidence of the victims character trait, allowed in the form of opinion, reputation, or specific conduct, prosecution can then offer evidence of vic’s good character traits & can only offer △’s same bad character trait if △ says vic has a violent character trait
Evidence of Specific Acts for Character Purposes
not allowed to prove character EXCEPT: 1) where character trait is in issue in civil/crim case 2) on cross to impeach a character witness’s credibility 3) in CA: evidence of vic’s character & △’s character in response to such evidence of vic’s violent behavior
Evidence of Specific Acts for Non-Character Purposes
specific acts of a party are permitted for non-character purposes such as: MIAMI KOP Motive Intent Absence of Mistake Identity Knowledge Opportunity Plan & Preparation
Habit & Custom Evidence
habit evidence is admissible to show that a party likely acted in conformity w/ the habit. Requires a repeated same response to the same stimulus. Custom refers to a business practice
Subsequent Remedial Measures
subsequent remedial measures taken after an accident or similar incident are inadmissible to prove fault, negligence, or damages in both negligence & products liability cases.
Except in CA: allowed to show defective product & thus liability
FRE: only allowed to prove: 1) ownership, 2) control, or 3) feasibility of precautionary measures/design (if in controversy or for impeachment)
Offers of Compromise
evidence of offers of compromise will be inadmissible to prove fault so long as there is an actual dispute (look for conditional language) as to liability or damages prior to making the offer.
Entire statement & any admissions made w/ the offer will be excluded
Offers to Pay Medical Expenses
offer is excluded but any admissions made w/ the offer are admissible
Offers to Pay Medical Expenses/ Humanitarian Offers/ Benevolent Gestures CA
offers to pay med expenses & humanitarian offers (e.g., offer to pay funeral) are excluded along w/ any admissions.
However, for benevolent gestures. The b.g. (e.g., I’m sorry for your loss) is excluded but any accompanying admissions are not excluded.
Liability Insurance
FRE: evidence of liability insurance is not admissible to prove fault or liability BUT allowed to prove ownership/control. absence of is inadmissible
CA: absence of liability insurance is only inadmissible if opponent argues rule 352 (probative value outweighed by undue prejudice)
Pleas
FRE: offers of pleas/ withdrawn pleas made to a prosecutor are inadmissible
CA: offers of pleas/ withdrawn pleas are admissible to impeach the party if they testify inconsistently w/ the plea. Plea offer may be made to a non-transporting police officer, if accused reasonably believed officer had the authority to convey the offer
Hearsay
An out of court statement offered to prove the truth of the matter asserted
Statement by Opposing Party (FRE)/Admission (CA)
statement made by & offered against the opposing party, that if true, proves an aspect of the opponent’s case. Considered not hearsay under FRE, exception in CA
adoptive: where a party would be expected to object if not true unless made to party by law enforcement
authorized: statement made by person authorized by the party to make a statement on the subject (look for authority)
vicarious: admission by EE on a matter w/in scope & course of employment
Co-Conspirator Admission
co-conspirator admission is admissible against opposing party so long as made in the course of & in furtherance of the conspiracy
(FRE=nonhearsay; CA= exception)
Prior Consistent Statement
first require an attack on witness’ credibility by bias, interest, or prior inconsistent statement & must be made before prior inconsistent statement, bias, or interest arose
(FRE=not hearsay; CA= exception)
Prior Inconsistent Statement
FRE: always admissible to impeach but admissible for truth only if given under oath in prior proceeding/depo. not hearsay
CA: admissible to impeach & admissible for truth UNLESS barred by constitution under rule 352 (probative value outweighed by undue burden) whether or not made under oath in prior proceeding. hearsay exception
Both: Extrinsic evidence only allowed if witness is given opportunity to explain/deny the statement
Prior Statement of Identification
allows statements made by witness identifying the △/perp immediately after perceiving them so long as subject to cross
FRE= not hearsay & admissible in all cases
CA= exception only admissible in criminal cases
exception doesn’t require unavailability
Statement for Purpose of Diagnoses or Treatment (FRE only)
statements made describing pain, cause of pain, medical history, & past/ present symptoms are admissible if pertinent to diagnosis or treatment
FRE: exception that doesn’t require unavailability
CA: not applicable
exception doesn’t require unavailability
Present Sense Impression (FRE)/ Contemporaneous Statement (CA)
FRE Present Sense Impression : statement made by declarant explaining or describing an event while the event occurs or immediately thereafter
CA Contemporaneous Statement : limited to statement made by declarant to explain, qualify, or make understandable his own conduct & made while declarant was engaged in such conduct
exception doesn’t require unavailability
Excited Utterance (FRE)/ Spontaneous Statement (CA)
statements relating to an objectively startling event & made while under the stress of excitement it caused
exception doesn’t require unavailability
Statement of then existing mental, emotional, or physical condition (FRE)/
State of Mind (CA)
statement of how the declarant was feeling or of plan or intent
exception that doesn’t require unavailability
Past Recollection Recorded
requires that
1) witness have no memory of the matter,
2) the memo was made when witness’ memory was fresh & accurately reflected their knowledge; &
3) writing may only be read into evidence not introduced as an exhibit
doesn’t require unavailability
Business Records Exception
- must be made as part of regularly conducted business activity,
- @ or near the time of the event,
- by a person w/ knowledge, AND
- the time & mode of preparation suggest trustworthiness
NOTE: consider absence of business records when they are expected to exist
*If they incorporate someone else’s statement look out for multiple hearsay*
doesn’t require unavailability
Official Records
made by govt EE’s w/ a duty to make such records & property records
CA: includes judgments of conviction as long as they are considered official records
(NOTE: if they incorporate someone else’s statement, watch out for multiple hearsay)
exception doesn’t require unavailability
Learned Treatise
- includes any scholarly publication,
- can be introduced through any expert who considers it authoritative or used it in forming their opinion, AND
- can be used to impeach a witness simply by calling it to their attention
CA: medical treatises are not included
Unavailable Declarants
- exempted/ precluded from testifying bc of privilege
- dead or unavailable bc of illness
- absent from hearing & beyond ct’s process to compel
- absent from hearing despite proponent’s reasonable efforts to compel
- refuse to testify despite court order
requires unavailability
Former Testimony
requires unavailability
- applies to former testimony made under oath
- if the party against whom it is offered (or predecessor in interest in civil case) had an opportunity & similar motive to cross examine the witness
CA: may also be offered against non-party
requires unavailability
Dying Declaration
FRE: statement made by declarant who believes their death is imminent & must be concerning cause/circumstances of their death. Has to be unavailable & only applies to civil & homicide cases
CA: applicable in all cases & declarant doesn’t have to be unavailable just has to be dying
requires unavailability
Statement Against Interest
statement must be contrary to person’s pecuniary (financial) or proprietary interest OR would tend to subject them to criminal or civil liability
CA: includes statements against social interests
requires unavailability
Crime Victim Complaints (CA)
require unavailability
- statements involve a threat or injury
- made shortly after threat or injury
- are in writing, recorded, or made to law enforcement, domestic abuse shelters, medical personnel, or similar agencies
Impeachment
impeachment of a witness can be done by
- prior inconsistent statements (opportunity to explain/deny not required to introduce statement impeaching a hearsay declarant)
- bias (extrinsic evidence admissible if given opportunity to explain or deny OR not excused)
- opinion or reputation as to truthfulness
- prior bad acts involving untruthfulness (not in CA civil case; allowed in crim case through prop 8)
- convictions
Impeachment by Convictions
FRE:
- may be impeached w/ felonies commited w/in last 10 yrs BUT if W is a criminal △, then may only be impeached if probative value outweighs prejudicial effect.
- may be impeached w/ misdemeanors involving dishonesty/untruthfulness
CA:
- only allows impeachment in felony convictions involving moral turpitude
- not allowed in CA civil cases & allowed in crim cases through prop 8
Confrontation Clause
when prosecution offers testimonial statements against accused in crim case for a hearsay purpose, the out of court declarant must be produced for cross examination under oath OR prosecution must demonstrate unavailability & that accused had a prior opportunity to cross declarant
testimonial statement= questioning by govt officers w/ an eye towards use at trial as opposed to during emergency
Bruton Doctrine
(confrontation clause issue)
when there is a joint trial w/ multiple △’s, confessions of a co△ cannot be used against the non-confessing co△even if it implicates him
confession must be testimonial in nature
Present Recollection Refreshed
a procedure, NOT a hearsay issue
when a witness fails to recall something, any written thing can be used to refresh their memory but witness can’t read from it
anything used to refresh memory while on the stand, must be shown to opposing party & they can use it to cross examine witness.
if used before trial, only entitled to production if court decides justice requires it
Authentication
can be authenticated by any method that constitutes sufficient evidence proving it is what it purports to be such as:
- author of doc & custodian of records
- questioned document examiner
- some receives a letter can authenticate it if its in response to one they sent
- Voice can be authenticated by someone who has sufficient familiarity with the person’s voice
Under FRE: 1) notorized deeds, 2) newspapers, 3) official records, & 4) trade labels are self authenticating
CA only certified copies of judgments are self authenticating & 1-4 presumed to be self authentic
Best Evidence Rule (FRE)/ Secondary Evidence Rule (CA)
FRE: if content of the writing is in issue, proponent must produce the OG, which includes photocopies, to prove the contents of the doc
CA: expresses a preference for the use of copies rather than testimony unless writing is a true summary, OG/copy destroyed, proponent doesn’t have control of OG/copy & can’t reasonably procure it
Waiver of Privilege
can be
1) conscious – by holder
2) negligent – by failing to claim in any proceeding in which holder has legal standing
3) by disclosure to third person
Spousal Privilege
Privilege not to be called as a witness by a party adverse to current spouse & not to testify against a current spouse
APPLICABLE DURING MARRIAGE ONLY & ONLY HELD BY TESTIFYING SPOUSE
Marital Communications Privilege
communications between 2 persons that are made during marriage are intended to be confidential. Applies to all marital communications even after marriage has ended. Held by both so either spouse can prevent the other from testifying to confidential info but not from testifying in general
Attorney Client Privilege
if someone consults w/ someone who they reasonably believe to be an attorney, privilege attaches to communications between them.
Can be asserted by attny or client but only client can waive it.
Crime Fraud Exception
any privileged communication made in order to enable a client, patient, spouse to commit a crime or fraud is w/in crime fraud exception & subsequently lost
Lay Opinion
based on reasonable perception & whether it can help the fact finder understand the testimony. It can cover manner, behavior, etc. Witness must show adequate foundation of personal knowledge
Expert Opinion
expert must be qualified in the subject matter, testimony must be of help to the fact finder, & methodology must be generally accepted in the relevant field
Judicial Notice
method of establishing facts w/out necessity of a jury deciding them. Fact must not be subject to reasonable dispute in that its either
1) generally known w/in courts territorial jx (e.g. boiling water is hot, capital of a state) OR
2) capable of accurate & ready determination by resort to unquestioned accurate sources
crim case: raises inference (jury may but not required to accept)
civil case: conclusive presumption
Vicarious Admission
