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
Party-Opponent Admissions (CA)/ Opposing Party Statements (FRE)
An assertion by the party opponent that, if true, proves a part of the opposing party’s case
Vicarious Admissions - FRE
Admissions by employee can be used against employer if made while employee still employed & statement concerns a matter within employee’s scope of employment
Vicarious Admissions - CEC
Employee’s admissions are admissions against employer when the liability of employer is based in whole or in part on the liability of employee
Adoptive Admissions
Admissible if party would be expected to object if not true, unless provoking statement is made by law enforcement
Authorized Admissions
Apply agency law
Co-conspirator Admissions
Admissible if made in course of & in furtherance of the conspiracy. CA requires extrinsic evidence of conspiracy
Confrontation Clause
When prosecution offers testimonial statements against D for a HS purpose, the out of court declarant must be produced for cross under oath, or prosecution must show unavailability & that accused had prior opportunity to cross
Testimonial Statement
Procured by gov’t with an eye toward use at trial
Prior Inconsistent Statements - FRE
Statement made prior to the trial that’s inconsistent with W’s testimony
May always be used to impeach
May be used for its truth if PIS was made under oath or at a prior proceeding
Prior Inconsistent Statements - 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
Statements of Identification
Declarant testifies and is subject to cross, and the statement is one of identification of a person made after perceiving the person
CEC: limited to crim trials
Present Sense Impression (FRE)
Statement explaining or describing an event while the event occurs or immediately thereafter
Contemporaneous Statements (CEC)
Statement is offered to explain, qualify, or make understandable declarant’s conduct, and was made while declarant was engaged in such conduct
Statement of Diagnosis/Treatment (FRE)
Statements made describing pain, cause of pain, medical history, and past and present symptoms, if pertinent to diagnosis or treatment
Then-Existing State of Mind (CEC)
Allows statements of the declarant’s then-existing physical sensation
When Declarant is Unavailable
1) Exempt from testifying because of privilege
2) Dead or physically/mentally ill
3) Absent and beyond ct’s reach of subpoena
4) Absent despite proponent’s reasonable efforts to compel
5) Contumacious declarant
Not unavailable if unavailability was procured by proponent of the statement to prevent declarant from testifying
Unavailability Exception - Former Testimony FRE
Testimony made under oath, and 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
Unavailability Exception - Former Testimony CEC
May also be offered against non-party if similar motive to cross-examine in civil case
Unavailability Exception - Dying Declaration FRE
Declarant is “dying;” declarant believes their death is imminent; and statement concerns cause of their death
Only available in civil and homicide cases
Unavailability Exception - Dying Declaration CEC
Declarant is “dying;” declarant believes their death is imminent; and statement concerns cause of their death
Applies in all cases
Unavailability Exception - Statement against Interest FRE
Statement must be contrary to declarant’s pecuniary or proprietary interest, or tend to subject them to criminal/civil liability
Statement can only be disserving of declarant’s interest
Unavailability Exception - Statement against Interest CEC
Statement must be contrary to declarant’s pecuniary, proprietary, or social interest, or tend to subject them to criminal/civil liability
Statement can only be disserving of declarant’s interest
Unavailability Exception - Crime Victim CEC
Statement made by unavailable declarant at or near time of injury/threat describing infliction or threat, in writing or recorded or made to police/medical professional
Excited Utterance (FRE)/Spontaneous Statement (CEC)
Made while under the stress of a startling event and describes the event
Statement of Then-Existing Mental, Emotional, or Physical Condition
How the declarant was feeling, or what they were planing or intending to do
Past Recollection Recorded
Writing made when fresh in W’s memory and accurately reflects their knowledge
W reads the writing into record
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 of the event, and the time and mode of preparation suggest trustworthiness
Custodian must testify to the above
Official Records
Made by gov’t employees with a duty to make such records
Learned Treatises - FRE
Admissible to the extent it’s called to expert W’s attention on cross, or relied upon by expert on direct
Learned Treatises - CEC
Admissible to the extent it’s called to expert W’s attention on cross, or relied upon by expert on direct
Doesn’t include medical treatises unless expert admits to its authority
Commercial Lists
Must be the kind generally relied upon as accurate by the public
CA doesn’t include market quotations
Present Recollection Refreshed
W fails to recall something, but any writing can be used to refresh W’s memory
W can’t read from it; only used to refresh memory
Anything used to refresh 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 inadmissible
Apply 403 if W is a party
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
Apply 352 if W is a party
Lay Opinion
Opinion is based on W’s reasonable perception and helps understand W’s testimony
Expert Testimony
Expert must be qualified on the subject matter, have a proper factual basis for the testimony, testimony must be helpful to the fact-finder
Methodology must be generally accepted by the relevant scientific community
Writings - Elements
1) Authentication
2) Best (FRE)/Secondary (CEC) Evidence Rule
3) 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 the document is what it purports to be
Best (FRE)/Secondary (CEC) Evidence Rule
If the content of the writing is in issue, proponent must produce the original or a copy
Privileges - Presumption
If communication is made between the proper parties, there is a presumption of confidentiality that the opposing party must overcome
Attorney-Client Privilege
Communication is:
1) Between an attorney and client;
2) Made in the course of the relationship; and
3) Transmitted in confidence
Marital Communications Privilege
Communications between spouses made during a valid marriage
Privilege extends beyond marriage
Not privileged if communication is made to enable a spouse to commit a crime/fraud
Both spouses hold the privilege so either can prevent the other from testifying
Spousal Privileges
1) Privilege not to be called as a W against a current spouse; and 2) privilege not to testify against a current spouse
Waiver of one privilege doesn’t waive the other
Only the testifying spouse can claim the privilege
Privilege ends with marriage
Judicial Notice
Court can take judicial notice of a fact that isn’t subject to reasonable dispute in that the fact is 1) generally known within the court’s territorial jurisdiction or 2) capable of accurate and ready determination by resort to unquestioned accurate sources
Is a conclusive presumption in a civil case but only an inference in a crim case
