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Rules for CA Bar Exam (Attack Sheet) > Evidence flashcards > Flashcards

Evidence flashcards

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1
Q

Direct evidence

A

can immediately resolve an issue

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2
Q

Circumstantial evidence

A

can resolve an issue if additional reasoning is used

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3
Q

Types of Evidence that can be introduced

A

Testimonial, Real, Demonstrative

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4
Q

Logical relevance - FRE and CEC

A

All evidence must be logically relevant. FRE: any tendency to prove/disprove material fact. CEC: tends to be material to disputed fact. (same result for both)

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5
Q

Legal Relevance

A

Balancing test - otherwise relevant evidence may be excluded if probative value substantially out weighed by danger of unfair prejudice, confusion of issues, misleading jury, wasting time. FRE 403.

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6
Q

California Prop 8

A

“Victim’s Bill of Rights” - CA criminal trials: All relevant evidence admissible even if objectionable under CEC subject to few exceptions.

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7
Q

Exceptions to CA Prop 8

A

Defendant must “open door” to bring in evidence of character, Rape shield laws, Member of media can’t be held in contempt for refusing to reveal confidential news source, court can exclude for excess unfair prejudice; secondary evidence, hearsay , exclusionary rules based on constitution and CA legislature, privileges.

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8
Q

Admissibility of subsequent remedial measures

A

Not admissible to prove culpable conduct or, FRE only, defective product design. Want to encourage people to repair dangerous conditions.

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9
Q

Admissibility of liability insurance

A

Not admissible to prove culpable conduct. Can be admissible for ownership or control, impeachment, statement of fault made in conjunction with statement of possession of insurance.

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10
Q

Admissibility of offers to pay medical expenses

A

Not admissible to prove liability for the injury.

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11
Q

Admissibility of settlement officers

A

Not admissible to prove claim’s validity, liability, or amount. Doesn’t apply if claim not yet made!

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12
Q

Admissibilty of Offer to plead guilty

A

Want to encourage people to bargain - judicial economy. Offer to plead guilty and all related statements not admissible.

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13
Q

Admissibility of expressions of Sympathy

A

CEC: Not admissible

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14
Q

Can judge call witnesses and ask questions?

A

Yes

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15
Q

CA: can judge presiding at trial testify?

A

Only if no objection.

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16
Q

When is lay opinion testimony admissible?

A

Rationally based on witness’s perception and helpful to trier of fact. FRE Only: May NOT be based on scientific or specialized knowledge.

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17
Q

Rule for admission of expert testimony

A

Specialized knowledge will assist trier of fact, witness qualified, testimony based on suficient facts or data (firsthand knowledge, observation of prior witnesses, hypothetical question); testimony is product of reliable principles and methods.

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18
Q

Reliable Principles and Methods: FRE Test

A

Daubert/Kumno - peer reviewed and published, tested and subject to retesting, know for low error rate, subject to reasonable level of acceptance.

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19
Q

Expert testimony 0 Reliable Principles: CEC

A

Kelly/Frye - proponent proves underlying scientific theory, generally accepted as valid. Doesn’t apply to medical and nonscientific testimony.

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20
Q

When does the attorney client privilege end? Federal

A

Death of client

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21
Q

When does the attorney client privilege end? CEC

A

Dead client estate fully distributed, personal representative has been discharged.

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22
Q

What are the exceptions to the attorney client privilege

A

Communication used in furtherance of something client should have known was crime or fraud; dispute with lawyer; 2+ parties, communication offered by one against other. CEC: reasonable belief necessary to prevent criime likely to result death/substantial bodily harm. exception is just to preven t the crime.

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23
Q

Is there federal doctor-patient privilege

A

No

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24
Q

Does CEC have doctor-patient privilege?

A

Yes, communications for purpose of medical diagnosis and treatment.

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25
Q

FRE Psychotherapist privilege?

A

Yes - for confidential communications

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26
Q

CEC psychotherapist-patient or social worker-client privilege

A

For confidential communications - exceptions - patient puts mental condition in issue, services sought to aid wrong doing,dispute etween therapist/patient, patient danger to self, court appointed therapist, patient minor and possible crime victim.

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27
Q

Spousal immunity (adverse testimony privilege) - who holds the privilege, and when can it be claimed?

A

Spouse can’t be compelled to testify against other spouse. Can be claimed only during marriage only by witness spouse.

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28
Q

Marital confidential communications privilege

A

Marital confidential communications privilege: One spouse cannot disclose confidential communications of the other made during marriage. Privilege survives the marriage; both spouses can assert, prevent other spouse.

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29
Q

CEC Only privileges

A

counselor victim, clergy victim, news reporters/ sources

30
Q

What are the three methods for proving a person’s character?

A

Reputation, opinion, and specific acts.

31
Q

Definition: Reputation evidence

A

Testimony regarding reputation in community

32
Q

Definition: Opinion testimony (character evidence)

A

Testimony regarding witness opinion of the person

33
Q

Definition: Specific Acts (reputation testimony)

A

specific acts engaged in by the person in question, which witness testifies to in court.

34
Q

Is character evidence generally admissible to prove conforming conduct?

A

Generally no, but admissible if character is at issue.

35
Q

Under FRE, can character evidence be admitted in civil cases based on sex assault/chiild molestation?

A

Yes. (FRE only)

36
Q

Rape shield provisions - FRE and CEC

A

FRE: evidence of victim’s past sexual conduct admissible only if plaintiff puts her reputation in issue; probative value must substantially outweigh unfair prejudice;

CEC: victim’s sexual history only to show prior sexual conduct with defendant.

37
Q

General rule for defendant’s character in criminal cases - who can open the door?

A

Only defendant can open the door.

38
Q

When can prosecution introduce character evidence of victim/defendant.

A

CEC and FRE: Defendant in sexual assault cases;

FRE: when defendant offers evidence of victims character, prosecution can offer that defendant has same character;

CEC: D offers evidence of victims VIOLENT character, prosecution can offer that defendant has violent character;

CEC: Past domestic violence/elder abuse

39
Q

General rule: Victim’s character in criminal case

A

Only defendant can open the door, then prosecution can rebut.

40
Q

FRE Exception: if defendant claims victim was the first aggressor, can prosecution offer evidence of victim’s character for peacefulness?

A

Yes

41
Q

Criminal defendant: what kind of evidence can be used to show character on direct?

A

Reputation and opinion evidence

42
Q

Criminal defendant: what kind of evidence can be used to show character on cross-examination?

A

all three, but prosecutor cannot use extrinsic evidence to prove specific acts. CEC: Only reputation and opinion.

43
Q

Criminal victim: character evidence permitted on direct

A

FRE: reputation and opinion; CEC: all 3

44
Q

Criminal victim: character evidence permitted on cross:

A

All three

45
Q

Criminal: Can character evidence be used for purposes other than to show conduct in confirmity with character trait?

A

Yes. Examples - intent, prepration to commit act, identity of perpetrator (including modus operandi); Knoweldge of some fact or event, Absence of mistake, motive, opportunity, plan

46
Q

Definition: Habit and custom

A

Habit and custom is regular response to repeated situation. Admissible to show confming conduct on a particular occasion. Person: ex - always buckles seatbelt; business practices followed.

47
Q

Factors considered to determine if behavior is habit

A

specific, regular, unreflective or semi-automatic.

48
Q

Can criminal convictions be used to impeach?

A

yes - crimes involving false statements are admissible; judge can’t exclude unless > 10 years old.

49
Q

Can misdemeeanors be used to impeach in civil court?

A

No.

50
Q

When can misdemeanors be used to impeach in criminal court?

A

CEC, only if there is moral turpitude.

51
Q

Adoptive admission

A

Statement made by another where party knows of its content and voluntarily manfests belief in truth of statement by words or action. Silent adoptive admission.

52
Q

Are statements made for purpose of medical diagnosis or treatment admissible?

A

Yes - statement can include cause of condition but not statement of fault.

53
Q

Are statements of then-existing mental, emotional, or physical condiiton admissible to show condition or state of mind?

A

Yes

54
Q

Hearsay exception: Present sense impression

A

Statement admissible if descriing or explaining event and made while declarant perceiving event.

55
Q

Hearsay exception: Excited utterance

A

Admissible if relating to starting event and made while declarant still under stress of excitement.

56
Q

When is a prior inconsistent statement of an available witness substantively admissible?

A

declarant was under oath and subject to cross examination.

57
Q

When is prior consistent statement admissible substantively?

A

IF offered to rebut charge of recent fabrication or improper motive.

58
Q

Admissibility of prior identification

A

Admissible if declarant testifies at trial.

59
Q

Document hearsay exceptions

A

past recollection recorded, business record, public records, learned writings and commercial publications.

60
Q

Requirements: Past recollection recorded

A

witness needed firsthand knowledge, events fresh in memory when record made, witness now has impaired recollection, record accurate when written.

61
Q

Past recollection recorded - admitted or read to the jury?

A

Document is read to the jury, not admitted.

62
Q

Requirements: business recorded

A

regularly conducted business activity, regular practice, personal knowledge, timeliness

63
Q

Requirements: public records

A

agency record of own activities, matters observed in line of duty with duty to report, investigative reports with fact findings, criminal case - FRE _ criminal prosecution can’t use matters observed by police officers against criminal D.

64
Q

How can unavailability of witness be established?

A

Privileged fromtestifying, death/illness, reasonable means can’t procure, witness refuses to testify despite court order, witness unable to remember.

65
Q

Which hearsay exceptions require witness unavailability?

A

Former testimony (if under oath/cross), dying declaration (believing death imminent); declaration against interest, forfeiture by wrongdoing - party has engaged in witness tampering.)

66
Q

methods to authenticate real evidence

A

distinctive characteristics or chain of custody

67
Q

Ancient documents authentication

A

FRE 20 years old, CEC 30 years old if found in condition to be free from suspicion of authenticity and found in place writing would be kept.

68
Q

Self authenticating documents

A

business records and trade inscriptions; cec notary signature.

69
Q

Does Proposition 8 overrule hearsay exceptions?

A

No.

70
Q

Is a statement offered to show the effect on the person who heard it hearsay?

A

No

Rules for CA Bar Exam (Attack Sheet) (15 decks)

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