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 (CEC)
Relevant evidence shall not be excluded in a criminal proceeding, but doesn’t apply to privilege, hearsay, CE, or 352
FRE 403/CEC 352
Evidence whose probative value is substantially outweighed by undue prejudice, confusion, or delay is excluded
Form of the Question - Leading Question
Suggests the answer the examiner wants
Not permitted on direct examination, except for preliminary matters & hostile or adverse Ws
Permitted on cross
Form of the Question - Calls for Narrative
Leads W to tell a story rather than answer a specific question
Permitted where W can’t testify in the traditional Q&A format
Asking about a specific conversation is allowed
Form of the Question - Compound Question
Asks more than one question in a single question
Form of the Answer - Nonresponsive Answer
W doesn’t answer the question or answers beyond yes/no
Character Evidence - General
The use of evidence to infer a character trait and then use of that trait to prove conduct in current case is generally inadmissible
Character Evidence - Exceptions
FRE: in civ and crim sexual assault/child molestation cases, D’s prior acts of sexual assault/child molestation are admissible to prove conduct in current case
CEC: such evidence isn’t allowed in civ cases
CEC: permits evidence of D’s commission of domestic violence and elder/dependent/child abuse in similar crim cases
Character Evidence - If character is in issue
All 3 kinds of CE are admissible
Character Evidence - Mercy Rule
In crim cases, D may first offer O/R evidence of D’s relevant good character trait
Then P may 1) rebut with O/R evidence of same bad trait of D; and 2) inquire into specific instances of conduct that are inconsistent with W’s good character testimony
Character Evidence - FRE Victim Character Evidence
In crim cases, D may first offer O/R evidence of V’s relevant bad character trait
P can then rebut with O/R evidence of V’s relevant good character trait and D’s same relevant bad character trait
In homicide cases, if D claims self-defense & produces evidence that V attacked first, P can introduce O/R evidence of V’s peacefulness before D offers CE
Character Evidence - CEC Victim Character Evidence
In crim cases, 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, & if V’s character trait introduced by D is for violence, P can also introduce all 3 types of CE of D for violence
Character Evidence - Rape Shield Laws
Prohibits use of O/R evidence and evidence of V’s prior sexual conduct to prove V’s consent, in rape and other criminal sexual crimes, and in civil cases of sexual harassment, sexual assault, or sexual battery
Can use prior sexual conduct with that D to prove consent, loss of consortium, and identity
Specific Acts Admissible for a Non-Character Purpose
1) Context
2) Common plan or scheme
3) Identity of perpetrator (strikingly similar circumstances)
4) Motive
5) Opportunity
6) State of mind
7) Act not performed innocently or negligently
Habit
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
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
Policy Exclusion - FRE Subsequent Remedial Measures
Prohibits the admission of SRMs taken after an incident to prove negligence, fault, design flaws, or damages
Permits SRMs when offered for another purpose, such as proving ownership, control, impeachment, or feasibility of precautionary measures or design (if controverted)
Policy Exclusion - CEC Subsequent Remedial Measures
SRMs or precautions are also admissible to prove product defects
Policy Exclusion - Offers of Compromise
Requires dispute as to liability or damages, & “if, then” condition
Compromise offers and admissions made in connection are inadmissible
Compromise offers may be admitted in crim cases where the negotiations are with a gov’t body
Policy Exclusion - Offers to Pay Medical Expenses
The offer itself is inadmissible
FRE, but not CEC, allows admissions made in connection
CEC also excludes humanitarian offers and admissions
Policy Exclusion - Benevolent Gestures CEC
“I’m sorry for your loss. It’s my fault.”
The admission is admissible
Policy Exclusion - Liability Insurance
Inadmissible to prove liability or fault, but admissible to prove ownership or control
Absence of insurance also excluded
Policy Exclusion - Plea Bargains
Inadmissible in all cases
FRE - plea offer if made to prosecutor
CEC - plea offer if made to prosecutor or police
Hearsay - General
An out of court statement used to prove the truth of the matter asserted
Conduct as a Statement
FRE: burden on opponent of evidence to show that the actor intended conduct as a statement
CEC: burden on proponent of evidence to show that the conduct wasn’t intended as a statement
Use of Statements for Nonhearsay Purpose
1) Proof declarant is alive/conscious
2) Proof of why a course of action is taken
3) Effect on hearer/reader
4) Proof of notice to a party
5) Verbal acts of legal significance
6) Proof of declarant’s state of mind
How Exceptions are Treated
FRE: excluded as not hearsay
CEC: hearsay, but excepted