r/s Flashcards
Prop 8 beginning
Under Proposition 8 of the California Constitution, any evidence that is relevant may be admitted in a criminal case.
However, Proposition 8 makes an exception for balancing for the California Evidence Code 352 which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of the issues, or misleading the jury.
Relevance
logical relevance: tends to make a fact in issue more or less likely than it would be without evidence (CA: fact must be disputed)
legal relevance: probative value is substantially outweighed by the danger of unfair prejudice
form of question objections
L NAAN
leading
narrative
assumes facts not in evidence
argumentative
nonresponsive
character evidence: civil cases
NO
unless:
-character is at issue
-essential element
-sexual assault/child molestation case and that is what evidence is about
-exception allowing a party to introduce evidence of his peaceful character in cases in which the defendant is claiming self-defense, but only when there is a dispute as to who was the initial aggressor
character evidence of D: criminal cases
D can introduce evidence of good character in reputation/opinion form if relevant
THEN and only then P can
-rebut D’s claim
-cross examine D’s character witness about reputation/opinion/specific bad acts
CA Distinction—D can introduce evidence of a relevant character trait or his character in general
character evidence of V: criminal cases
D can introduce if relevant to case in reputation/opinion
THEN P can
=rebut in reputation/opinion
=intro D’s character for same trait
CA: can use opinion, reputation, or specific acts of V
murder cases in CA: prosecution must wait for defense to offer bad evidence that V is violent
prior bad acts
-allowed on cross examination without extrinsic evidence as impeachment. need good faith basis.
CA: only in criminal cases, extrinsic evidence allowed
-MIMIC: motive, intent, absence of mistake, identity, common plan purpose
victim’s sexual acts evidence
criminal: if D was not source of physical evidence OR past conduct with D to show consent
civil: only if V brings it up and probative value substantially outweighs danger of harm to V
competence
-able to appreciate importance of telling truth
-oath to tell truth
-personal knowledge
CA: no hypnotized witnesses
character of truthfulness/impeachment
-reputation/opinion testimony
-can inquire into specific bad acts but no extrinsic evidence
-criminal convictions
criminal convictions and exceptions fed
-evidence of crime or dishonesty: ok
-felony: ok UNLESS
–> more than 10 years old, reverse! ADMIT if probative value substantially outweighs prejudicial effect (A: PV»PE).
–> regular witness: normal test. exclude if probative value is substantially outweighed by prejudicial effect. (E: PE»PV).
–> criminal D: reverse, light. admit if probative value outweighs prejudicial effect. (A: PV>PE).
….unless it was the subject of a pardon, annulment, or certificate of rehabilitation based on:
-a finding of innocence OR
-a finding of rehabilitation with no subsequent felony convictions.
–> Juvenile adjudication—not admissible to impeach D; may impeach other witness’s character for truthfulness in criminal case if an adult conviction for that offense would be admissible and admitting it is necessary to determine guilt or innocence
prior inconsistent statements (impeachment vs substantive)
impeachment: can use extrinsic evidence if W has a chance to explain. otherwise use intrinsic evidence
substantive only if HS exception is met: declarant testifying + PIS + under oath
rehabiliation
prior consistent statements if they occurred before improper motive
introducing another W for reputation/opinion
no bolstering before impeachment, unless in CA: D in criminal case can bolster his testimony for honesty/veracity without any impeachment attempt by the prosecution, and may do so through evidence of specific acts, as well as reputation and opinion evidence
recollection refreshed
-W can’t remember
-refresh with anything
-testify from refreshed memory
CA Distinction—generally, the failure to produce a writing that was used to refresh a witness’s memory will cause the testimony to be stricken
lay opinions
-based on perception of witness
-helpful to understand testimony or determine fact in issue
-no scientific/technical knowledge
expert witnesses opinions
-specialized subject matter
-help trier of fact understand evidence
-not about W credibility or mental state of crim D
expert witnesses tests (fed vs CA)
fed:
-expert is qualified
-testimony based on sufficient facts or data
-reliable principles and methods
-reliable application
CA: novel science
-scientific theory/technique is generally accepted as valid and reliable in field
authentication: methods and standard and exception
evidence sufficient to support a finding that it is authentic
distinctive features or chain of custody
self-authenticating docs as exception
voice if only heard: heard by anyone at any time
Best evidence rule / secondary evidence rule CA
if contents are at issue, present contents
duplicates ok if process that adequately reproduces
at issue if it is proof of event, has a legal effect like a contract, or W knows about facts only b/c of doc
confidential communications in marriage
-comm when married
-both spouses hold
-intend to be confidential
-survives marriage
spousal testimonial privilege
-married at time of testimony
-criminal case (CA: any case)
-testifying spouse holds
-about events at any time
exceptions to marital privileges
spouses suing each other; crime against family member
atty-client privilege (and for corps)
-confidential comm
-between client and lawyer
-purpose is seeking legal advice
-client holds
corporations: if told to speak to counsel or seeking legal advice
exceptions: crime/fraud, malpractice
work product doctrine
materials prepared in anticipation of litigation
exceptions:
-substantial need for information
-can’t be obtained without undue hardship
mental impressions are NEVER discoverable
physician/psychotherapits
-patient and doctor
-purpose of getting medical treatment
unless: illegal purpose; waiver; malpractice
psychotherapist privilege
-confidential communication
-patient/trained person (psychiatrist, psychologist, social worker)
-for the purposes of treatment
exceptions: commitment proceeding, court ordered, illegal, dispute, waiver
fifth amendment privilege
-testimonial current statements
-criminal liability
subsequent remedial measures
repairs after accident can’t show negligence/fault
settlement offers
cannot be used to prove validity or amount of claim or for PIS
can be used for bias
plea negotiations
inadmissible
offers to pay medical expenses
-not ok for liability
-accompanying statements ok
CA Distinction—both the statement and the offer to pay medical expenses are inadmissible to prove liability
liability insurance
-not ok for negligence
-but other reasons ok
HS: conduct
if assertive, can be treated as statement for HS purposes
non-HS
-goes to legally operative fact: to prove statmeent was made regardless of truth (contract)
-effect on listener
-circumstantial evidence of state of mind (not in right mind, knowledge)
CELl phone
HS exemptions
opposing party statements (judicial admissions, adoptive admissions/silence, vicarious statements)
prior statements of testifying witnesses (consistent statements, inconsistent, identification)
adoptive admissions
opposing party statement made by someone else that D adopted
silence is adoptive admission if:
-D heard and understood statement
-D had ability to respond
-reasonable person would have denied
vicarious statements
opposing party statement made by someone else that can be attributed to party
-agents/employees in scope of employment
-designated spokesperson
-coconspirators in furtherance of and during conspiracy
prior statements of testifying W’s (fed)
these are HS EXEMPTIONS.
-consistent statements: can rehabilitate or for the substance when accused of improper motive
-inconsistent: under oath, then substantively admissible
-identification: out of court
prior statements of testifying W’s (CA)
-consistent statements: any and all
-inconsistent: any. doesn’t have to be under oath
-identification: out of court ID + fresh in W’s mind at time of ID + W believed it was accurate
HS exceptions when declarant unavailable
-dying decs
-statement against interest
-statement of persona/fam history
-party caused unavailability
-former testimony
-CA: threat of infliction of injury
STUPiD For real
dying declaration (fed)
-unavailable
-believes she is dying
-belief that death is imminent
-about circumstances of death
-civil or homicide case
dying declaration (CA)
-actually died
-believes she is dying
-death is imminent
-about circumstances of death
-all cases
statement against interest (fed)
-unavailable
-at time was made, against pecuniary, proprietary, civil, penal interest
-reasonable person would not say if not true
-criminal liability of declarant other than D: corroboration
statement against interest (CA)
-unavailable
-contrary to interest, subject them to liability, render invalid another’s legal claim, or risk of making them object of ridicule
-reasonable person would not say if not true
-criminal liability of declarant other than D: corroboration
statement of personal/fam history
-unavailable
-birth/adoption/marriage/family
party caused declarant’s unavailability
-unavailable
-party’s caused it
-then can use anything said
former testimony
-unavailable
-under oath at prior proceeding
-party opponent had opportunity and similar motive to develop testimony
HS exceptions not dependent on unavailability
-present sense impression
-excited utterance
-business records
-public records
-statement of mental or emotional or physical condition then-existing
-medical treatment
-recorded recollection
-judgments of previous convictions
-residual
PB JR PE CM: peanut butter junior for pe class ma’am
[PSI; business records; judgments of crim; public records, EU, condition, medical]
present sense impression
-while perceiving event or immediately after
-describes/explains event
contemporaneous statement (CA)
-explaining conduct of declarant while engaged in such conduct
-while perceiving event or immediately after
spontaneous statements
-while perceiving event or immediately after
-explaining conduct or events occurring to others
excited utterance
-relating to stressful/condition
-while declarant is under stress of that event
business records
-made at or near time of event
-someone with p/k of event and under duty to report OR transmitted by such person
-regular practice of business to make record
-course of regularly conducted business activity
CA Distinction
The record need only have been made in the regular course of business; the record need not have been made as part of a regular practice of making that kind of entry,
meaning CA courts allow a record that was made by the business under atypical circumstances
Proponent of the business record must establish that the source of information and method and time of preparation were such as to indicate the trustworthiness of the record
public records
-public agencies
-activities of dept, observations, factual findings or conclusions
statement of condition
-mental/emotional/physical condition
-then existing
-can prove intent
CA Distinction—CA has an explicit trustworthiness requirement that must be present as a foundational element for statements of then-existing state of mind
statement for medical treatment
-describes medical history or symptoms
-pertinent to treatment or diagnosis
medical treatment (CA)
only applies to victims under age 12 reporting child abuse or neglect
otherwise only admissible to explain doctor’s opinion
recorded recollection and how can it be intro’ed
-concerns matter about which W had p/k
-W testifies she can’t remember
-prepared or adopted by W when fresh in mind
-accurately reflects knowledge
opponent can intro as exhibit. proponent can read it into the record
judgments of previous convictions
to prove any fact essential to judgment
threat of infliction of injury
-declarant unavailable
-statement that describes infliction of threat or physical injury
-made at or near time of threat
-not more than five years of filing
-circumstances are reliable (bias/motive, made in anticipation of litigation)
-made in writing or to law enforcement or health worker
FURST WW
habit
indicates a person’s particular routine reaction to a specific set of circumstances.
Habit evidence is admissible to prove that the person acted in accordance with the habit or routine on a particular occasion.
residual HS exception
(1) the statement is supported by sufficient guarantees of trustworthiness,
(2) it is more probative on the point than any other evidence obtainable through reasonable efforts, and
(3) the proponent gives the adverse party notice of the intent to offer the statement.
what privileges are recognized under fed law
-spousal
-atty client
-work product
-psychotherapist patient
-religious
BER exceptions
exception:
-unavailable: lost/destroyed, out of reach of judicial process, party opponent had control and knew it was at issue
-public records: certified copies
-voluminous writings summarized
-admission by party in testimony
forfeiture of CC / HS b/c caused unavailability
To forfeit a hearsay or confrontation clause objection to an unavailable declarant’s out-of-court statement, a defendant must have (1) wrongfully caused, or acquiesced in wrongfully causing, the declarant’s unavailability and (2) done so intending that result.
conviction as impeachment evid, CA
o Criminal or civil trial—a witness may be impeached with evidence that he has been convicted of any felony crime involving “moral turpitude,” so long as the witness has not been pardoned or the conviction expunged
o Criminal trial—other felonies, as well as misdemeanors that involve moral turpitude, may be used for impeachment purposes
rule of completeness
The rule of completeness (i.e., Federal Rule 106) permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement bc it provides context
domestic violence evid
If DV case, admit prior bad DV acts in CA
ancient docs
-HS exception
An ancient document can be authenticated by showing that the document (1) is at least 20 years old when offered, (2) is in a condition that creates no suspicion about its authenticity, and (3) was found in a place where it would likely be if it were authentic.
A court may exclude relevant evidence when its probative value is substantially outweighed by a danger of …
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needless cumulation of evidence.
NOT unfair surprise
hearings outside presence of jury
Hearings regarding such determinations must be conducted outside the presence of the jury if:
the hearing involves the admissibility of a confession
a defendant in a criminal case is a witness and so requests or
justice so requires.
grand jury and probation revocation hearings
no FRE only privileges
judges and jurors as witnesses
Judge—cannot testify at trial
CA Distinction—judge can testify if neither party objects
Juror—can testify at trial in limited circumstances, but generally may only testify after trial about (i) extraneous prejudicial information brought to jury’s attention (ii) improper outside influence, or (iii) mistakes on verdict form
CA Distinction—jurors can provide information to judges on any improprieties that may have affected the jurors, but cannot testify as to how those improprieties affected his reasoning
authentication of xrays and ekgs
X-rays, EKGs—process used was accurate, machine works, and operator qualified
ancient documents
Ancient documents—at least 20 years old, in condition unlikely to create suspicion, and found in a likely place if it were authentic
CA Distinction—documents at least 30 years old may be authenticated by comparison to a different document that appears to be authentic and has been treated as authentic
CA religious
Clergy-penitent—(CA Distinction—the clergy member must customarily receive such communications; both penitent and clergy member hold the privilege)
unavailable witness ca
CA Distinction—unlike FRE, lack of memory does not render declarant unavailable; refusal to testify does not render declarant unavailable unless he is found in contempt
learned treatises
statement in treatise, periodical or pamphlet not excluded if expert witness relied on statement during direct/cross, and publication is reliable authority
CA Distinction—only allows works that are historical, books of science/art, and published maps/charts
