Evidence flashcards
Direct evidence
can immediately resolve an issue
Circumstantial evidence
can resolve an issue if additional reasoning is used
Types of Evidence that can be introduced
Testimonial, Real, Demonstrative
Logical relevance - FRE and CEC
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)
Legal Relevance
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.
California Prop 8
“Victim’s Bill of Rights” - CA criminal trials: All relevant evidence admissible even if objectionable under CEC subject to few exceptions.
Exceptions to CA Prop 8
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.
Admissibility of subsequent remedial measures
Not admissible to prove culpable conduct or, FRE only, defective product design. Want to encourage people to repair dangerous conditions.
Admissibility of liability insurance
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.
Admissibility of offers to pay medical expenses
Not admissible to prove liability for the injury.
Admissibility of settlement officers
Not admissible to prove claim’s validity, liability, or amount. Doesn’t apply if claim not yet made!
Admissibilty of Offer to plead guilty
Want to encourage people to bargain - judicial economy. Offer to plead guilty and all related statements not admissible.
Admissibility of expressions of Sympathy
CEC: Not admissible
Can judge call witnesses and ask questions?
Yes
CA: can judge presiding at trial testify?
Only if no objection.
When is lay opinion testimony admissible?
Rationally based on witness’s perception and helpful to trier of fact. FRE Only: May NOT be based on scientific or specialized knowledge.
Rule for admission of expert testimony
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.
Reliable Principles and Methods: FRE Test
Daubert/Kumno - peer reviewed and published, tested and subject to retesting, know for low error rate, subject to reasonable level of acceptance.
Expert testimony 0 Reliable Principles: CEC
Kelly/Frye - proponent proves underlying scientific theory, generally accepted as valid. Doesn’t apply to medical and nonscientific testimony.
When does the attorney client privilege end? Federal
Death of client
When does the attorney client privilege end? CEC
Dead client estate fully distributed, personal representative has been discharged.
What are the exceptions to the attorney client privilege
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.
Is there federal doctor-patient privilege
No
Does CEC have doctor-patient privilege?
Yes, communications for purpose of medical diagnosis and treatment.
FRE Psychotherapist privilege?
Yes - for confidential communications
CEC psychotherapist-patient or social worker-client privilege
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.
Spousal immunity (adverse testimony privilege) - who holds the privilege, and when can it be claimed?
Spouse can’t be compelled to testify against other spouse. Can be claimed only during marriage only by witness spouse.
Marital confidential communications privilege
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.
CEC Only privileges
counselor victim, clergy victim, news reporters/ sources
What are the three methods for proving a person’s character?
Reputation, opinion, and specific acts.
Definition: Reputation evidence
Testimony regarding reputation in community
Definition: Opinion testimony (character evidence)
Testimony regarding witness opinion of the person
Definition: Specific Acts (reputation testimony)
specific acts engaged in by the person in question, which witness testifies to in court.
Is character evidence generally admissible to prove conforming conduct?
Generally no, but admissible if character is at issue.
Under FRE, can character evidence be admitted in civil cases based on sex assault/chiild molestation?
Yes. (FRE only)
Rape shield provisions - FRE and CEC
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.
General rule for defendant’s character in criminal cases - who can open the door?
Only defendant can open the door.
When can prosecution introduce character evidence of victim/defendant.
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
General rule: Victim’s character in criminal case
Only defendant can open the door, then prosecution can rebut.
FRE Exception: if defendant claims victim was the first aggressor, can prosecution offer evidence of victim’s character for peacefulness?
Yes
Criminal defendant: what kind of evidence can be used to show character on direct?
Reputation and opinion evidence
Criminal defendant: what kind of evidence can be used to show character on cross-examination?
all three, but prosecutor cannot use extrinsic evidence to prove specific acts. CEC: Only reputation and opinion.
Criminal victim: character evidence permitted on direct
FRE: reputation and opinion; CEC: all 3
Criminal victim: character evidence permitted on cross:
All three
Criminal: Can character evidence be used for purposes other than to show conduct in confirmity with character trait?
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
Definition: Habit and custom
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.
Factors considered to determine if behavior is habit
specific, regular, unreflective or semi-automatic.
Can criminal convictions be used to impeach?
yes - crimes involving false statements are admissible; judge can’t exclude unless > 10 years old.
Can misdemeeanors be used to impeach in civil court?
No.
When can misdemeanors be used to impeach in criminal court?
CEC, only if there is moral turpitude.
Adoptive admission
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.
Are statements made for purpose of medical diagnosis or treatment admissible?
Yes - statement can include cause of condition but not statement of fault.
Are statements of then-existing mental, emotional, or physical condiiton admissible to show condition or state of mind?
Yes
Hearsay exception: Present sense impression
Statement admissible if descriing or explaining event and made while declarant perceiving event.
Hearsay exception: Excited utterance
Admissible if relating to starting event and made while declarant still under stress of excitement.
When is a prior inconsistent statement of an available witness substantively admissible?
declarant was under oath and subject to cross examination.
When is prior consistent statement admissible substantively?
IF offered to rebut charge of recent fabrication or improper motive.
Admissibility of prior identification
Admissible if declarant testifies at trial.
Document hearsay exceptions
past recollection recorded, business record, public records, learned writings and commercial publications.
Requirements: Past recollection recorded
witness needed firsthand knowledge, events fresh in memory when record made, witness now has impaired recollection, record accurate when written.
Past recollection recorded - admitted or read to the jury?
Document is read to the jury, not admitted.
Requirements: business recorded
regularly conducted business activity, regular practice, personal knowledge, timeliness
Requirements: public records
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.
How can unavailability of witness be established?
Privileged fromtestifying, death/illness, reasonable means can’t procure, witness refuses to testify despite court order, witness unable to remember.
Which hearsay exceptions require witness unavailability?
Former testimony (if under oath/cross), dying declaration (believing death imminent); declaration against interest, forfeiture by wrongdoing - party has engaged in witness tampering.)
methods to authenticate real evidence
distinctive characteristics or chain of custody
Ancient documents authentication
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.
Self authenticating documents
business records and trade inscriptions; cec notary signature.
Does Proposition 8 overrule hearsay exceptions?
No.
Is a statement offered to show the effect on the person who heard it hearsay?
No
