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26 Cards in this Set
- Front
- Back
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Examples of relevant similar occurences:
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a. Causation
b. Prior False Calims or Same Bodily Injury c. Similar Accidents or Injuries Caused by Same Event or Condition d. Previous Similar Acts Admissible to Prove Intent e. Rebutting Claim of Impossibility (IE D's claim that car will not go above 50mph can be rebutted by showing occasions when car went more than 50mph) f. Sales of Similar Property (to prove value) g. Habit; regular response to a specific set of circumstances h. Industrial or business routine (tending to show that a particular event occurred) I. Industry custom as evidence of standard of care |
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Procedural aspects of judicial notice (the recognition of a fact as true without formal presentation of evidence)
criminal v civil |
Judicial notice may be taken for the first time on appeal.
FEDERAL COURT: Conclusive in a civil case but not a criminal case. CALIFORNIA STATE COURT: judicial noticed facts are conclusive in both but may be subject to Sixth Amendment challenge May take judicial notice of municipal ordinances/foreign law; must take judicial notice of federal and state law and official regulations of the forum state and the federal government. |
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General conditions of admissibility
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1. Authentication
a. testimony of a witness that she RECOGNIZES the objects as what the proponent claims it is (such as a gun found at the crime scene) or b. evidence that the object has been held in a SUBSTANTIALLY UNBROKEN CHAIN OF POSSESSION (blood taken for blood-alcohol test). 2. Condition of Object: if condition of the object is significant, it must be shown to be in substantially the same condition at trial 3. Balancing Test - inconvenience of bringing the object into the courtroom, indecency or impropriety, or undue prejudice. |
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best evidence rule does not apply to the following situations
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1. fact to be proved exists independently of writing
2. writing is collateral to litigated issue 3. summaries of voluminous records 4. public records |
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Leading questions are generally improper on direct examination. However they are permitted:
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1. on cross examination
2. to elicit preliminary or introductory matter 3. when the witness needs aid to respond because of loss of memory; immaturity; or physical or mental weakness 4. when the witness is hostile |
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Past Recollection Recorded: when can a writing be read into evidence if the witness does not remember and what is the proper foundation?
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The foundation must include proof that:
1. the witness at one time had personal knowledge of the facts in the writing 2. the writing was made by the witness or under her direction, or it was adopted by the witness 3. the writing was timely made when the matter was fresh in the witness's mind 4. the writing is accurate 5. the witness has insufficient recollection to testify fully and accurately This is hearsay, but it falls within specific exception to the hearsay rule |
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Present Recollection Refreshed
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Any writing may be used to refresh a witness's memory (even a photograph)
The witness cannot read from the writing while testifying There is no hearsay problem, because the writing is not offered into evidence. |
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Federal hearsay exceptions requiring unavailability
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1. former testimony
2. dying declaration 3. statement against interest |
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federal hearsay exceptions (unavailability immaterial)
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1. present state of mind, emotion, or physical condition
2. present sense impression 3. excited utterance 4. Statements for purpose of medical diagnosis or treatment 5. Past recollection recorded 6. Business record 7. Public record 8. Learned treatise 9. Judgmeent of previous felony conviction 10. Records of vital statistics 11. Religious records 12. Family records 13. Reputation concerning family hisotry 14. Reputation concerning boundaries or general history. 15. Reputation as to character. 16. Records affecting interset in property 17. Ancient documents 18. Market reports. |
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Use of character for non-propensity purpose
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Motive
Intent Absence of Mistake Identity (Modus Operandi - must be unique and similar) Common Scheme Knowledge |
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Expert testimony: if scientific of technical or specialized knowledge will assist jury to understand evidence or determine fact, ezpert witness may testify if:
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1. expert must be qualified
2. helpful to jury 3. degree of certainty 4. proper basis for testimony: expert may base testimony on knowldge; facts learned at trial; inadmissible evidence if reasonably relied upon by experts |
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Form: objections
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1. question calls for narrative
2. answer is unresponsive 3. leading question 4. scope of cross-examination 5. assumes facts not in evidence/misleading 6. argumentative 7. compound |
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Prior conviction: only admissible if within ten years of release and:
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FEDERAL: any crime involving dishonesty or false statement; all felonies (Defendant is witness - prosecution must show probative value outweighs prejudicial effect) (all other witnessses: court weights probative value v. prejudicial effect)
CALIFORNIA: misdemeanor crimes of moral turpitude (only in criminal cases); felonies involving moral turpitude. Inadmissible in civil cases. |
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Other purposes a statement may serve besides to prove the truth of a matter
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impeachment
verbal act (if the statement itself has independent legal or logical significance, it is not being offered for the turth iof the matter it asserts IE threats, oral contracts, solicitation, "I'm alive") effect on listener/reader (to show fear, god faith, notice, motive, etc.) circumstantial evidence of state of mind: IE D, after biting victim on neck, said "I am Dracula" |
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Non-hearsay: exclusions where declarant is AVAILABLE and subject to cross-examination
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Prior inconsistent statement by witness (Federal rule - only if it was made under OATH; California rule - does not matter if it is not under oath)
Prior consistent statement offered to rebut a charge of fabrication prior statement of identification |
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Non-hearsay: admission by opponent party (5 types)
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individual admissions
adopted admission authorized admission statement by party's agent or servant within scope of relationsip vicarious statement by co-conspirator (any statement made by a co-conspirator in furtherance of the conspiracy; not after arrest) |
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Places where California and FRE differ
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Logical Relevance: CEC: evidence that has any tendency to make more or less probable any DISPUTED material fact
Subsequent Remedial Measures social policy exclusion - does not apply in CEC for product liability Statements made in mediation proceedings Expressions of sympathy for liability inadmissible in CEC Specific instances/extrinsic evidence relating to character inadmissible in CEC Prosecution can offer evidence of defendant's past domestic violence crimes in domestic violence cases CEC - specific instances of character evidence of victim allowed on cross CEC: witness must understand legal duty to tell the truth CEC: learned treatise admissible only to show matters of general notoriety or interest CEC prior specific instances of conduct may not be asked about in civil cases to impeach CEC: misdemeanor crimes of moral turpitude only in criminal cases CEC: felony crimes of moral turpitude admissible in both civil and criminal CEC: ancient document is 30 years CEC: best evidence rule is called secondary evidence rule CEC: handwritten notes can be admissible as a duplicate CEC: prior inconsistent statements can be used for any purpose, whether it was made under oath or in a prior proceeding. Dying declaration: CEC: must actually die Statement against interest: CEC can be against social interest (FRE; only against financial penal interests) Statement describing infliction of physical abuse: statement made at time of threat or injury made to police is admissible (911 calls etc) CEC: statements made for purpose of medical diagnosis: exception only applies to when 1) victim alleging child abuse; 2)condition is an issue in the case (and here it need not be for purpose of obtaining treatment or diagnosis) CEC attorney-client privilege: a lawyer may disclose privileged information if lawyer reasonably believes necessary to prevent a criminal act resulting substantial bodily injury or death |
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California hearsay exceptions when declarant unavailable
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1. former testimony
2. dying declaration 3. statement against interest 4. past physical condition or state of mind where an issue in the case 5. statement describing infliction or threat of physical injury |
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California hearsay exceptions when declarant unavailability is immaterial
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1. present state of mind, emotion, or physical condition
2. contemporaneous statement 3. spontaneous statement 4. Statements for purpose of medical diagnosis or treatment 5. Past recollection recorded 6. Business record 7. Public record 8. Learned treatise 9. Judgmeent of previous felony conviction 10. Records of vital statistics 11. Religious records 12. Family records 13. Reputation concerning family hisotry 14. Reputation concerning boundaries or general history. 15. Reputation as to character. 16. Records affecting interset in property 17. Ancient documents 18. Market reports. |
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business records hearsay exception
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records of events, conditions, opinions, or diagnoses made in regular course of business, consisting of matters within personal knowledge of one with business duty to transmit. lack of such writing may be used to show nonoccurence of event.
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character evidence offered in civil case to prove defendant's conduct is inadmissible in federal cases unless
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character is at issue
MIMIC - if independently relevant evidence of prior sexual assault or child molestation when offered in a civil case arising out of sexual assault or child molestation |
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California rule for character evidence offered in criminal case to prove defendant's conduct
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When defendant opens the door by offering evidence of his good character, OT and RT are admissible on both direct examination and cross-examination. SIC not allowed on direct or cross.
if court has admitted evidence of victim's violent character offered by defendant, prosecution can offer evidence that defendant has same violent character trait (narrower than FRE) MIMIC In domestic violence and elder abuse caes, prosecution can offer evidence that defendant committed other acts of domestic violence or elder abuse |
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lay opinion inadmissible unless
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rationally based on the witness's perception
helpful to a clear understanding of his testimony; and not based on scientific, technical, or other specialized knowledge (CA does not have this requirement) |
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expert opinion: admissible if
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subject matter is appropriate for expert testimony and opinion is helpful to the jury;
witness is qualified as expert; witness believes in opinion to a reasonable degree of certainty; and opinion is reliable and supported by proper factual basis |
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former testimony hearsay exception in FRE
testimony given under oath in earlier proceeding or deposition by now-unavailable witness is admissible if: |
- similarity of parties: party against whom testimony is offered (or, in civil cases, party's predecessor in interest) was party in earlier proceeding
- similarity of issues: trial must be of same action or another action of same subject matter - party against whom testimony is offered must have had opportunity to examine witness, and motive to conduct that exam was similar to current motive - alternatively, in civil case, the party against whom testimony is offered was not a party in earlier proceeding but is in privity-type relationship with one who was a party to that earlier proceeding ("predecessor in interest") and had opportunity and interest to conduct that exam similar to the interests of party against whom testimony is now offered |
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present bodily condition CA hearsay exception
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statement made by unavaialble declarant that describes, narrates, or explains infliction or threat of physical injury on delcarant is admissible if statement:
- was made at or near time of infliciton or threat - was made under circumstances that indicate trustworthiness, and - is in writing, recorded or made to a law enforcement officer/medical personnel |
