Cal Bar Cheat Sheet (Evidence)

Front 1

Logical Relevance

Back 1

Under the FRE, evidence is logically relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more to less probable than it would be without the evidence. The CEC requires that the fact of consequence be in dispute

Front 2

Legal Relevance

Back 2

A trial judge has broad discretion to exclude relevant evidence if its probative value is substantially outweighed by its prejudicial effect.

Evidence is prejudicial if it may bias the jury, confuse the jury, waste time, or unduly delay the proceeding.

Front 3

Hearsay

Back 3

Hearsay is an out-of-court statement offered for the truth of the matter asserted. It is generally inadmissible because the veracity of the witness at the time the statement was made cannot be tested.

Front 4

Hearsay Exceptions

Back 4

Although evidence may qualify as hearsay, there are certain exceptions to the hearsay rule for evidence that has its own indicia or reliability.

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Character Evidence

Back 5

Character evidence is evidence that tends to suggest a party's conduct occurred in conformity with their character. It can be offered by: (1) evidence of specific acts; (2) opinion testimony of a witness who knows the person; or (3) testimony as to the person's general reputation in the community.

Front 6

Objection: Assumes Facts Not in Evidence

Back 6

A question may not assume as true, any fact not yet introduced into evidence.

Front 7

Objection: Lacks Foundation

Back 7

An attorney cannot ask the witness to answer a question for which he or she lacks foundation.

Front 8

Objection: Logical Relevance

Back 8

Evidence must be logically relevant to be admissible. Evidence is logically relevant when it tends to prove or disprove a material fact of the case.

Front 9

Objection: Speculation

Back 9

A witness may not offer testimony based on speculation or conjecture.

Front 10

Objection: Lacks Personal Knowledge

Back 10

A witness may only testify to facts that are within his or her personal knowledge.

Front 11

Objection: Calls for a Narrative

Back 11

A question that is so broad and general that it permits the witness to narrate is impermissible. Proper questions should be specific enough to allow the witness to answer only on specific subjects.

Front 12

Objection: Hearsay

Back 12

Hearsay is an out-of-court statement offered for the truth of the matter asserted. It is generally inadmissible because the veracity of the witness at the time the statement was made cannot be tested.

Front 13

Hearsay Exception: Excited Utterance

Back 13

An excited utterance is a statement made by a witness as the witness is perceiving or experiencing an exciting event. Excited utterances are admissible because the spontaneity and excitement of the statement leave little time for the witness to lie.

Front 14

Hearsay Exception: Present Sense Impression

Back 14

A present sense impression is a statement made as the witness is making an observation or sensing something. A present sense impression must be made contemporaneously with the event or sensation. Generally the event is not exciting, or it would qualify as an excited utterance.

Front 15

Objection: Improper Opinion Testimony

Back 15

Generally, opinion testimony be lay witnesses is inadmissible. However, in situations where no better evidence can be obtained, lay opinions are permitted when they are: (1) rationally based on the witness' perception; (2) helpful to a clear understanding of a witness' testimony or determination of a fact in issue; and (3) not based on scientific or technical knowledge. Courts have held that lay witness can generally testify as to the speed of a vehicle, sanity, intoxication, emotion, and the value of the witness' property.

Front 16

Non-Hearsay: State of Mind

Back 16

A person's state of mind, emotion, or sensation is admissible as non-hearsay. Moreover, a person's state of mind as to intent is also non-hearsay.

Front 17

Judicial Notice

Back 17

Judicial notice is the court's recognition of a fact as true. A court may take judicial notice of either notorious or manifest facts. Notorious facts are those of common knowledge. Manifest facts are those easily capable of being verified through sources of unquestionable accuracy.

Front 18

Exceptions to the Character Rule: Modus Operandi

Back 18

An exception to the character rule exists when the evidence tends to suggest that the defendant has a modus operandi - namely a signature method for carrying out a particular act. Use of a modus operandi makes a criminal more likely to be identified by his acts, which makes it a valid exception to the character rule.

Front 19

Hearsay Exception: Public Records

Back 19

Under the public records exception, a writing may be admitted into evidence if it was made by a public agency as: (1) part of that agencies activities; (2) observations made by a public employee pursuant to a legal duty; or (3) as part of an internal investigation.

Front 20

Best Evidence Rule

Back 20

Under the Best Evidence Rule, an original document, or a duplicate original, must be produced if the terms of the writing are to be introduced into evidence.

Front 21

Authentication

Back 21

In order for a writing to be introduced into evidence, it must be authenticated-in other words, proven that the item is really what it purports to be.

Front 22

Hearsay Exception: Business Records

Back 22

Under the business records exception, a business record that contains hearsay will be admitted if it was prepared by someone during the normal course of business by someone with personal knowledge of and a duty to report the matter contained therein.

Front 23

Impeachment

Back 23

Impeachment is the casting of an adverse reflection on the veracity of the witness. It can be done either by cross-exam or by putting other witnesses on the stand. Reputation evidence for untruthfulness, which is otherwise inadmissible under the character evidence rule, is admissible to impeach a witness.

Front 24

Proposition 8

Back 24

Proposition 8 is part of the California Constitution. Under proposition 8, all relevant evidence is admissible in California criminal cases unless the evidence falls within an exemption.

Front 25

Hearsay Exemption: Prior Statement of Identification

Back 25

A witness' prior statement identifying a person after perceiving him is non-hearsay under the FRE and is a hearsay exception under the CEC. However, in order to protect the ∆'s rights, the declarant-witness must testify at trial and be subject to cross-examination.

Front 26

Character Evidence of the Accused Offered by the Accused

Back 26

Under the FRE, the accused may introduce reputation or opinion evidence of his good character to show his innocence of the alleged crime, but may not use specific instances of conduct.

Front 27

Character Evidence in a Civil Case

Back 27

Character evidence is generally NOT admissible in civil cases to show conduct in conformity therewith.

However, character evidence may be introduced in a civil case when character is at issue (defamation, child custody, fraud, or negligent entrustment), or when establishing the ∆'s propensity for sexual assault or child molestation.

Front 28

Character Evidence of the Victim Offered by the Accused

Back 28

Under the FRE, the accused may introduce reputation or opinion evidence of the victim's character, where the conduct of the victim in conformity with his character would tend to prove the innocence of the accused. Specific acts may not be used to establish the victim's character.

The CEC does allow specific instances of conduct to prove the victim's character as evidence of how the victim acted on the occasion in question.

Front 29

Impeaching with Prior Felony

Back 29

A witness may be impeached, under the FRE and the CEC, by any felony although, if the witness is the accused, the court must weight its probative value against its prejudicial effect. Also, the conviction cannot be too remote in time.