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Evidence - FRE & CEC Flashcards

1
Q

Relevance

A

Evidence is relevant if it has any tendency to make the existence of any fact that’s of consequence to the determination of the action more or less probable than it would be without the evidence

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2
Q

Proposition 8 (CA)

A

Relevant evidence shall not be excluded in any criminal proceeding, but doesn’t apply to privilege, hearsay, character evidence, or 352

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3
Q

FRE 403/CEC 352

A

Evidence where probative value is substantially outweighed by undue prejudice, confusion, or delay shall be excluded

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4
Q

Leading Question

A

Suggest answer the examiner wants

Not permitted on direct examination except for preliminary matters or hostile/adverse W

Permitted on cross-examination

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5
Q

Calls for Narrative

A

Leads W to tell a story, rather than answer a specific question

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6
Q

Assumes Fact Not in Evidence

A

Examiner assumes a fact as true without first establishing it

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7
Q

Compound Question

A

Asks more than one question in a single question

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8
Q

Unresponsive/Nonresponsive Answer

A

W’s answer goes beyond scope/doesn’t answer

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9
Q

Character Evidence - Rule

A

The use of prior conduct to infer a character trait and then use of that trait to prove conduct in conformity with that trait in the current case is generally inadmissible

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10
Q

Character Evidence Exceptions - FRE

A

In civil and criminal sexual assault/child molestation cases, D’s prior bad acts of sexual assault/child molestation are admissible to prove conduct in the current case

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11
Q

If character is at issue in the case

A

All 3 kinds of CE is admissible

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12
Q

Mercy Rule

A

In crim case, D may first offer O/R evidence of relevant good character trait. Then P may:

Rebut with O/R evidence of same bad character trait of D; and
Inquire into D’s character W’s knowledge D’s specific acts of inconsistent with character trait to impeach W’s credibility

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13
Q

Victim Character Evidence - FRE

A

In crim case, D may first offer O/R evidence of V’s relevant bad character trait. P can then rebut with O/R of V’s relevant good character trait and D’s same relevant bad character trait

In homicide case, if D claims self-defense and produces evidence that V attacked first, P can introduce O/R evidence of V’s peacefulness before D offers CE

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14
Q

Victim Character Evidence - CEC

A

D can introduce all 3 types of CE of V’s bad character. P can then rebut with all 3 types of V’s good character, but if V’s character trait introduced by D is violence, P can ALSO introduce all 3 types of CE of D for violence

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15
Q

Specific Acts for a Non-Character Purpose are Admissible

A 
Common plan or scheme
Identity of Perpetrator
Motive
Opportunity
State of Mind
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16
Q

Habit Evidence

A

A person’s regular practice of responding to a particular situation with specific conduct

Admissible to show that the party likely acted in conformity with the habit

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17
Q

Custom Evidence

A

A business’s regular practice of responding to a particular situation with specific conduct

Admissible to show that the business likely acted in conformity with the custom

Evidence that no business follows a custom is admissible to show it’s reasonable not to follow the custom

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18
Q

Policy Exclusion - Subsequent Remedial Measures

A

FRE:
Prohibits the admission of SRM taken after an accident or similar incident to prove negligence, fault, or damages
Permits such evidence to prove ownership, control, or feasibility of precautionary measures or deign (if controverted)

CEC:
Evidence of SRM or precautions admissible to prove product defects

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19
Q

Policy Exclusion - Offers of Compromise

A

Inadmissible to show fault
Requires dispute as to liability or damages and “if, then” statement
Admissions made in connect with offer/settlement negotiations also excluded

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20
Q

Policy Exclusion - Offers to Pay Medical Expenses

A

Admissions made in connection with offer excluded under CEC but admissible under FRE

Humanitarian offer (paying funeral expenses) and associated admissions are excluded in CEC

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21
Q

Policy Exclusion - Benevolent Gestures - CEC

A

“I’m sorry for your loss. It’s my fault”

The second part (admissible) is admissible

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22
Q

Policy Exclusion - Liability Insurance

A

Inadmissible to prove liability or fault, but admissible to prove ownership/control

Absence of insurance excluded

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23
Q

Policy Exclusion - Plea Bargains

A

Inadmissible in all cases

FRE: plea offer must be made to prosecutor

CEC: plea offer must be made to prosecutor or police

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24
Q

Hearsay

A

An out of court statement used to prove the truth of the matter asserted

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25
Excepted hearsay is treated as
FRE: excluded as not hearsay CEC: hearsay but excepted
26
Hearsay Exception - Party Opponent Admission
Admission by the party opponent that proves a part of the proponent's case
27
Hearsay Exception - Vicarious Admission
FRE: allows admissions by an employee to be used against employer if made while employee is still employed and if the statement concerns a matter within employee's course and scope of employment CEC: Employee's admissions are admissions against employer when the liability of employer is based wholly or in part on the liability of employee
28
Hearsay Exception - Adoptive Admission
Admissible if party would be expected to object if not true, unless statement is made by law enforcement
29
Hearsay Exception - Authorized Admission
Apply agency law
30
Hearsay Exception - Co-conspirator Admission
Admission made in course of and in furtherance of the conspiracy
31
Hearsay Exception - Prior Inconsistent Statement
A statement made prior to the trial that's inconsistent with what's said at trial FRE: If PIS is used to impeach, it's not hearsay. If PIS is also used for its truth, it must be made under oath or at a prior proceeding CEC: Admissible for both purposes so long as either W is given opportunity, while testifying, to explain/deny the statement, or W isn’t excused
32
Hearsay Exception - Prior Consistent Statement
Can't be introduced unless W's credibility has first been attacked and the PCS was made before the grounds for the attack arose
33
Hearsay Exception - Prior Identification by Witness
Requires the opportunity to cross-examine the declarant
34
Hearsay Exception - Present Sense Impression (FRE)
A statement made by the declarant explaining or describing an event while the event occurs or immediately thereafter
35
Hearsay Exception - Contemporaneous Statement (CEC)
Statement is offered to explain, qualify, or make understandable conduct of the declarant and was made while the declarant was engaged in such conduct
36
Hearsay Exception - Statement for Diagnosis/Treatment (FRE)
Statements made describing pain, the cause of pain, medical history, and past and present symptoms, if they're pertinent to diagnosis or treatment, are admissible
37
Hearsay Exception - Then-Existing State of Mind (CEC)
Allows statements of the declarant's then-existing physical sensation
38
Declarant is unavailable if:
Exempt from testifying because of privilege; refuses to testify despite ct order (FRE); testifies to lack of memory on the subject matter of the statement; dead or physically/mentally ill; absent and the statement's proponent has been unable to procure declarant's attendance or testimony by process; contumacious declarant; declarant suffers total memory loss or refuses to testify out of fear (CEC)
39
Hearsay Exception Requiring Unavailability - Former Testimony
FRE: Testimony under oath, if the party against whom it's offered, or their predecessor in interest in a civil case, had an opportunity and similar motive to cross-examine W CEC: Such evidence may ALSO be offered against non-party if similar motive to cross-examine in civil case
40
Hearsay Exception Requiring Unavailability - Dying Declaration
FRE: only applies to civil and homicide cases, and the statement is made by a declarant who believes their death is imminent, and the statement concerns the cause of their death CEC: Applies in all cases and the statement must be made by a declarant who believes their death was imminent, and the statement must be concerning the cause of their death but the declarant need not be unavailable
41
Hearsay Exception Requiring Unavailability - Statement against Interest
FRE: statement must be contrary to the person's pecuniary or proprietary interest, or would tend to subject them to criminal or civil liability. Statement may only be disserving of declarant's interest CEC: statement must be contrary to the person's pecuniary or proprietary interest, or would tend to subject them to criminal or civil liability or against their social interest. Statement may only be disserving of declarant's interest
42
Hearsay Exception Requiring Unavailability - Crime Victims (CEC)
Where declarant is unavailable and the statements involve a threat or injury, are made shortly after the threat or injury, are in writing or recorded or made to law enforcement, medical personnel, or domestic abuse shelters
43
Hearsay Exception - Excited Utterance (FRE)/Spontaneous Statement (CEC)
Must be made while under the stress of the startling event
44
Hearsay Exception - Statement of Then-Existing Mental, Emotional, or Physical Condition
How was the declarant feeling, or what were they planning or intending
45
Hearsay Exception - Past Recollection Recorded
The writing was made when W's memory was fresh and accurately reflected their knowledge
46
Hearsay Exception - Business Records
Must be made as part of a regularly conducted activity, at or near the time of the event, by a person with knowledge, and the time and mode of preparation suggest trustworthiness Custodian must testify to the above
47
Hearsay Exception - Official Records
Record mad by a gov't employee with a duty to make such records
48
Hearsay Exception - Convictions (CEC)
Apply so long as they're considered official records
49
Present Recollection Refreshed
Not a hearsay issue W fails to recall something, but any writing can be used to refresh their memory W can't read from it; Anything used to refresh W's memory must be shown to opposing party
50
Witness Impeachment - FRE
Convictions: felonies committed within 10 years or dishonesty misdemeanors May only be impeached with unconvicted bad acts that involve untruthfulness Extrinsic evidence of prior bad acts is inadmissible
51
Witness Impeachment - CEC
In civil, impeachment can only be with felonies In crim, Prop 8 allows impeachment of W with felonies, misdemeanors, and prior bad acts involving moral turpitude Extrinsic evidence of prior bad acts admissible in crim cases to impeach
52
Lay Opinion
Based on W's reasonable perception, such as manner, temp., behavior, whether W shows adequate foundation or personal knowledge
53
Expert Opinion
Expert must be qualified on the subject matter, have a proper factual basis for the testimony, testimony must help the fact-finder The methodology must be generally accepted in the relevant scientific community
54
Anytime there's a writing, you must discuss:
Authentication Best/Secondary Evidence Rule Hearsay
55
Authentication
Is the writing, thing, or voice what it purports to be? Any writing or voice can be authenticated by any number of methods by someone who can prove it is what it purports to be Certified judgments, notarized deeds, newspapers, are self-authenticating
56
Best (FRE)/Secondary (CEC) Evidence Rule
If the content of the writing is in issue, proponent must produce the original or a copy
57
Attorney-Client Privliege
Privilege attaches if someone consults with a person whom they reasonably believe to be an attorney Both client and attorney are entitled to assert the privilege, but only client can waive it Privilege applies to all communications intended to be confidential
58
Physician-Patient Privilege
Same rules for attorney-client privilege
59
Marital Communications Privilege
Communications between two spouses made during a valid marriage are intended to be confidential - extends beyond marriage If communication is made to enable spouse to commit a crime/fraud, it's not privileged Both spouses hold the privilege so either can prevent the other from testifying
60
Spousal Privileges
1) The privilege not to be called as a W against a current spouse, and 2) the privilege not to testify against a current spouse The waiver of one privilege doesn't waive the other Only the testifying spouse can claim the privilege Ends with marriage
61
Judicial Notice
The fact must not be subject to reasonable dispute in that it is either 1) generally known within the ct's territorial jurisdiction or 2) capable of accurate and ready determination by resort to unquestioned accurate sources

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