Final Study Push Flashcards
What is the rule for relevance?
Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action.
In California, evidence is relevant if has any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.
What is the rule for hearsay?
An out of court statement that (2) the declarant spoke (or wrote or acted) and (3) the statement is offered in evidence to prove that the statement is true (TOMA).
What is the rule for confrontation clause with hearsay?
If a declarant testifies at trial and is subject to cross-examination about the out-of-court statement, then the Confrontation clause is satisfied and poses no barrier to admission of the hearsay. If the declarant does not testify, the question is whether the hearsay is “testimonial.” If the hearsay is not testimonial, then the Confrontation Clause does not bar the hearsay. If the hearsay is testimonial, then the hearsay is inadmissible unless the defendant had a prior opportunity to cross examine the declarant. (Crawford Doctrine)
Confrontation Clause does not apply party admissions (particularly relevant for co-con, dying declarations.
What is the rule for character evidence?
Evidence of a person’s character is not admissible in a civil or criminal trial to prove that the person acted in conformity with their character on a specific occasion, character is only “in issue” in civil cases (negligent entrustment, defamation when the defense is truth, and child custody litigation) and in criminal cases. except when the trait of character is offered by an accused is pertinent to the charge the accused is facing.
What is the rule for UME? Name some types of UME.
UME is not, by definition, character evidence and can show that D committed a crime. This evidence is admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. UME is proven with relevant, admissible evidence, including eyewitness testimony of specific instances of conduct.
Types of UME include: Doctrine of chances, prior attempt, entire picture (not really UME), Plan, Modus Operandi (MO), Opportunity/Capacity, Intent (Beechum’s Theory), Motive
What is the rule for authentication / identification?
The proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
What is the rule for BER / SER?
When a party seeks to prove the contents of a writing, the party must offer the original writing. A writing includes letters, words, numbers set down in any form including photographs. A judge has discretion to allow evidence of the contents if the original is too hard to obtain (like a tombstone). A duplicate is admissible, but a copy is not. The original is not required when it is lost or destroyed, the original can’t be obtained by subpoena, the other party has the original and won’t produce it, or the original is not important.
What is the rule for 403?
Relevant evidence is inadmissible if the prejudice to the defendant substantially outweighs the probative value of the evidence. Factors that may make evidence more prejudicial is remoteness of evidence, old evidence, or in a criminal case the more related evidence is to the charged crime.
Issues of unfair prejudice are most likely to arise with UME, impeachment by conviction, and gruesome photos.
What is the rule for 609?
The crime needs to be crimen falsi. A crime is crimen falsi when it involves lying, deceit, or untruthful statement. It is unclear whether the crime here is crimen falsi. If the court concludes the crime is crimen falsi, then the conviction is automatically admissible to impeach, and the probative value of the conviction is not balanced against the danger of unfair prejudice. On the other hand, if the judge concludes that the crime is not crimen falsi, then it must be a felony, and the judge balances the probative value of the conviction for purposes of impeachment against the danger of unfair prejudice.
What are some hearsay exceptions?
- Dying declaration (in CA has to be dead)
- Excited utterances
- Fresh complaint of rape
- Present sense impression
- Out-of-court statements of identification
- Party admissions: personal admissions, adoptive admission, authorized admissions, employee admissions, co-conspirator exception
- State of mind exception
- Medical diagnosis or treatment exception
- Past recollection recorded
- Present recollection refreshed (not hearsay)
- Former testimony
- Statements against interests
- Business records exception
- Public records exception
- Residual / catch-all exception
What are some impeachment methods?
- PIS
- Contradiction
- Conviction
- Character witness
- Specific instances of untruthfulness
- Bias
- Defects in capacity
- Impeachment of a character witness
- Bolstering
- Rape shield statute
What is the Bruton doctrine?
Two or more defendants are tried together. If one defendant makes an out-of-court statement that implicates the declarant and the other defendants the out-of-court statement is admissible against the declarant but not other defendants. **Arises AFTER conspiracy ends, otherwise if ongoing use Crawford.
