Evidence - FRE & CEC Flashcards
Relevance
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
Proposition 8 (CA)
Relevant evidence shall not be excluded in any criminal proceeding, but doesn’t apply to privilege, hearsay, character evidence, or 352
FRE 403/CEC 352
Evidence where probative value is substantially outweighed by undue prejudice, confusion, or delay shall be excluded
Leading Question
Suggest answer the examiner wants
Not permitted on direct examination except for preliminary matters or hostile/adverse W
Permitted on cross-examination
Calls for Narrative
Leads W to tell a story, rather than answer a specific question
Assumes Fact Not in Evidence
Examiner assumes a fact as true without first establishing it
Compound Question
Asks more than one question in a single question
Unresponsive/Nonresponsive Answer
W’s answer goes beyond scope/doesn’t answer
Character Evidence - Rule
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
Character Evidence Exceptions - FRE
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
If character is at issue in the case
All 3 kinds of CE is admissible
Mercy Rule
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
Victim Character Evidence - FRE
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
Victim Character Evidence - CEC
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
Specific Acts for a Non-Character Purpose are Admissible
Common plan or scheme Identity of Perpetrator Motive Opportunity State of Mind
Habit Evidence
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
Custom Evidence
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
Policy Exclusion - Subsequent Remedial Measures
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
Policy Exclusion - Offers of Compromise
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
Policy Exclusion - Offers to Pay Medical Expenses
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
Policy Exclusion - Benevolent Gestures - CEC
“I’m sorry for your loss. It’s my fault”
The second part (admissible) is admissible
Policy Exclusion - Liability Insurance
Inadmissible to prove liability or fault, but admissible to prove ownership/control
Absence of insurance excluded
Policy Exclusion - Plea Bargains
Inadmissible in all cases
FRE: plea offer must be made to prosecutor
CEC: plea offer must be made to prosecutor or police
Hearsay
An out of court statement used to prove the truth of the matter asserted
Excepted hearsay is treated as
FRE: excluded as not hearsay
CEC: hearsay but excepted
Hearsay Exception - Party Opponent Admission
Admission by the party opponent that proves a part of the proponent’s case
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
Hearsay Exception - Adoptive Admission
Admissible if party would be expected to object if not true, unless statement is made by law enforcement
Hearsay Exception - Authorized Admission
Apply agency law
Hearsay Exception - Co-conspirator Admission
Admission made in course of and in furtherance of the conspiracy
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
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
Hearsay Exception - Prior Identification by Witness
Requires the opportunity to cross-examine the declarant
Hearsay Exception - Present Sense Impression (FRE)
A statement made by the declarant explaining or describing an event while the event occurs or immediately thereafter
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
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
Hearsay Exception - Then-Existing State of Mind (CEC)
Allows statements of the declarant’s then-existing physical sensation
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)
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
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
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
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
Hearsay Exception - Excited Utterance (FRE)/Spontaneous Statement (CEC)
Must be made while under the stress of the startling event
Hearsay Exception - Statement of Then-Existing Mental, Emotional, or Physical Condition
How was the declarant feeling, or what were they planning or intending
Hearsay Exception - Past Recollection Recorded
The writing was made when W’s memory was fresh and accurately reflected their knowledge
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
Hearsay Exception - Official Records
Record mad by a gov’t employee with a duty to make such records
Hearsay Exception - Convictions (CEC)
Apply so long as they’re considered official records
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
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
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
Lay Opinion
Based on W’s reasonable perception, such as manner, temp., behavior, whether W shows adequate foundation or personal knowledge
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
Anytime there’s a writing, you must discuss:
Authentication
Best/Secondary Evidence Rule
Hearsay
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
Best (FRE)/Secondary (CEC) Evidence Rule
If the content of the writing is in issue, proponent must produce the original or a copy
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
Physician-Patient Privilege
Same rules for attorney-client privilege
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
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
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
