Evidence

Front 1

Relevance

Back 1

All evidence must be relevant to be admissible. Relevant evidence is evidence that tends to prove or disprove a fact at issue. Allowing only relevant evidence is for efficiency and privacy purposes. Courts have limited resources.

Front 2

Hearsay

Back 2

Hearsay is an out of court statement, made by a declarant that is offered to prove the truth of the matter asserted. Hearsay is inadmissible unless it falls within a recognized exception. A statement is not hearsay if it is offered to prove the statement actually occurred or offered to prove a person's reaction to the statement. A statement of independent legal significance is not hearsay. A statement is an oral or written assertion or non-verbal conduct intended as an assertion. However, if something is hearsay and can be offered for some other relevant purpose it can be brought in, but the judge should give a limiting instruction.

Front 3

Hearsay Exception

Back 3

dying declaration
excited utterance
present state of mind
present sense impression
former testimony
past ID
past recollection recorded
business records exception
public records exception
admission
declaration against interest

Front 4

Excited Utterance

Back 4

A exclamation, declaration or spontaneous utterance is admissible in certain circumstances even though the party who made the statement does not take the stand. The statement must concerns a startling event or condition and was made while under the stress of the startling event or condition. There is no magic time frame for excited utterances, but anything over 30 seconds is inadmissible.

Front 5

Present Sense Impression

Back 5

NOT IN CA!

A statement may be admissible as a present sense impression if the statement was made concerning a condition or event and was made either while observing this condition or event or immediately thereafter.

Front 6

Categories of Admission

Back 6

individual admission
adoptive admission
authorized admission
co-conspirators statements

Front 7

Individual Admissions

Back 7

A party's own statement may be admissible against him at trial. The statement must be the party's own statement in either his individual or representative capacity and must be offered against the declarant at trial.

Front 8

Adoptive Admission

Back 8

Even if the party did not make his own statement a statement that he adopted may be admissible against him at trial. The party's words or conduct must manifest a belief in the truth of the statement. The adoption must be clear and unambiguous. The judge must determine whether the person actually heard the statement.

Front 9

Authorized Admission

Back 9

A statement that a party has authorized may be admissible against him at trial. The statement may either be explicitly or vicariously authorized. In CA and FRE an ee's statement may be vicariously authorized by the conditions of his empoyment. In FRE the judge makes the foundational fact regarding whether the statement was made within the scope and duties of employment. In ca, the jury makes this determination. Furthermore, in FRE, a statement may be vicariously authorized if it was made during work and concerned the scope of employment. Just because a person is an employee does not automatically authorize him. Instead, the employee must be authorized to speak on the subject matter. Furthermore, independent contractors do not qualify.

Front 10

Co-Conspirator's statements

Back 10

A co-conspirator's statement may be admissible against another co-conspirator if the statement was made during and concerning the conspiracy. The rationale for this exception is that co-conspirators are eachothers statements.

Front 11

Former Testimony

Back 11

Testimony at a former trial or proceeding can be admissible against a party in certain circumstances.
1. the statement must have been made during a formal hearing or deposition.
2. the declarant must be unavailable for trial.
3. the party against whom the testimony is offered must have been at both proceedings.
4. the declarant must have been made available for cross x and the same motive for to develop the testimony must have been present.

Front 12

Prior ID

Back 12

A declarant's prior identification may be available at trial if:
1. the declarant testifies at trial and is made available for cross x 2. the declarant made the ID after perceiving the person.
In CA the ID would be admissible after the W testified that he made the ID and the id is a true reflection of his opinion.

Front 13

Dying Declaration

Back 13

A declaration may be admissible as a dying declaration if it is offered in a homicide or civil proceeding, the declarant is unavailable for trial, made a statement while believing death was imminent, that concerned the cause or consequences of his death. Death does not have to actually happen. Thus, the declarant need not be the victim and it can be offered for the killing of someone else.

Front 14

Past Recollection Recorded

Back 14

Past Recollection Recorded is an exception when the W:
1. had personal knowledge of the matter recorded, but
2. no longer remembers
3. recorded at or near the time of the matter recorded
4. record accurately reflected his knowledge

The record may be read into evidence, but may not be received unless the other party offers it into evidence.

Front 15

Business Records Exception

Back 15

There is an exception for business records. A business is any organization that makes records.

The record must be made in the regular course of the business, was made by or from info supplied by someone with personal knowledge and who is working in the business and the entry was made at or near the time of the matter recorded.

It can only be exluded if it fails the PVP test or there is an indication of its untrustworthiness.

Foundation must be laid either through certification or by a person who is familiar with the business' habit of recording and says that these are business records.

Under FRE only opinions and conclusions are admissible.
Under CA opinions, conclusions and conduct are admissible.

Front 16

Present State of Mind Exception

Back 16

THe present state of mind exception applies when it is a declarant's statement about his intention or desire to do something. The present state of mind exception does not apply when it is a statement about a declarant's past state of mind or memory about past beliefs.

In Ca the statement is inadmissible if the circumstances indicate a lack of trustworthiness.

Front 17

Public Records Exception

Back 17

Applies to
1. agencies own conduct
2. matters observed in the line of duty are admissible if they were made by someone who has a duty to record the matters and observed while in the line of duty.
3. factual findings fro investigatory reports are admissible in civil cases and criminal cases against the government.

Records made by law enforcement officers are not allowed in criminal cases.

In CA: the person trying to admit the report must prove it is trustworthy.

Foundation can be laid by person with personal knowledge of the records or by certification

Front 18

Multiple Hearsay Issues re hearsay

Back 18

Public Records
A statement made by someone who does not have a duty to record the matter must fall within another exception.

Business Records
A statement made by someone who is not in the business must fall within another hearsay exception.

Front 19

Attorney Client Privilege

Back 19

A clien'ts confidential communications with an attorney, or someone he reasonably believes is an attorney, relating to matters relevant to obtaining legal advice are privileged. The communication must be intended to be confidential. Thus, the client and attorney must intend for them to be confidential. If there is a 3rd party who is assisting the lawyer he is considered a representative and the privilege also applies. If a third party accidentally overhears then the privilege still applies if the client and attorney reasonably believed they were not being overheard. The privilege is held by the client, but an attorney who is representing the client may assert the privilege. In FRE any ee of a corporation holds the privilege. In CA only people who hold public policy positions hold the privilege.
The privilege survives the death of the client.

Front 20

Exceptions to Attorney Client Privilege

Back 20

1. Crime Fraud Exception: Any communication relating to facilitating a crime or fraud is not privileged.

2. Attorney-Client Dispute

3. Joint privilege holders will be deemed to have waived the privilege if they initiate a dispute with one another. Matters at issue in the trial will not be privileged.

Front 21

Work Product Immunity

Back 21

Protects an attorney from having to disclose information obtained in anticipation of litigation.
1. Documents concerning an attorney's opinion, mental impressions and legal conclusions and are absolutely privileged.
2. Documents obtained in anticipation of litigation are privilege unless the party shows there is a significant need for the documents and that they cannot obtain the documents by any other means.

Front 22

Physican Patient Privilege

Back 22

Confidential communications between a physician and his patient relating to obtaining diagnosis or treatment is confidential.

A patient who puts his medical condition at issue in a case is deemed to have waived the privilege.

The privilege does not apply to communications concerning litigation.

The privilege may never be asserted in a criminal case

The privilege does not survive death.

Front 23

Psychotherapist Patient Privilege

Back 23

A physician is someone who is licensed to practice medicine. This includes social workers, psychologists, psychotherapists and licensed family counselors.

EXC:: Dangerous patient
if a doctor reasonably believes his patient is a danger to himself or the public and disclosure is necessary the privilege does not apply.

Front 24

Marital Privilege

Back 24

The marital privilege covers the privilege of a spouse not to give adverse testimony and the privilege against confidential communications. A spouse may refuse to testify against another spouse if they are still married. The privilege is held by the testifying spouse, thus he may waive the privilege. THe privilege of confidential communications is held by both parties. Thus, a spouse may only testify re his perceptions during the marriage. This privilege applies even if the marriage has failed, but it must concern communications that happened during marriage.

Front 25

EXC Marital Privileges

Back 25

1. Crime Communications--confidential communications relating to facilitating crime are not privileged.
2. Suit between spouses
3. Suit by spouse or children

Front 26

Clergy Penitant Privilege

Back 26

The clergy penitant privilege applies to all communications between a clergyman and a member of the church in his professional capacity as spiritual advisor. The privilege does not survive death. The privilege is held by both the priest and clergymember.

Front 27

GOvernmental Privileges

Back 27

The government has a privilege in certain situations:
1. Government has an absolute privilege against disclosing military secrets. However, there must be a formal claim of privilege and the court must determine if the information is privileged i.e. whether there is a reasonable danger that military secrets would be disclosed.
2. Govt has a qualified privilege against government info such as law investigatory files, policy and internal deliberations. The harm to public from disclosure must outweigh the litigant's need.

3. The gov't has a conditional privilege re informant disclosure. If the litigant's defense would be materially helped by disclosure it must come in.

Front 28

Best Evidence Rule

Back 28

NOT IN CA. When the contents of a document are offered into evidence the original or an exact duplicate must be offered. Secondary evidence will only be allowed if the proponent shows good cause as to why they don't have original. However, if there is a question as to their trustworthiness the documents will not be allowed in.
FRE: copies produced in a reliable manner are presumptivly admissible unless their authenticity is put at issue.
Sound recordings, writings, photos and xrays.

The judge decides whether the evidence is an original and whether it has been destroyed.

Front 29

Collateral Writings

Back 29

If the writing is tangential to the litigation the original need not be produced even if the contents are being proved.

Front 30

Authentication

Back 30

All evidence must be authenticated before it is admissible. That is, it must be proven to be what the proponent proclaims it is. Some documents are self-authenticating such as by their label, statutes, certified copies of public records, publications, newspapers, labels, signs, inscriptions indicating ownership. Evidence may also be authenticated by live testimony, distinctive characteristics, signature or handwriting.

Front 31

Prior Conviction Factors for PVP test

Back 31

similarity of crimes=more prejudicial
remoteness of crime
whether the crime includes indicia of reliability.

Front 32

Examples of Crimen Falsi

Back 32

perjury
embezzlement
tax evasion
forgery
false statements
taking property by false pretensese
counterfeiting

Front 33

Waiving right to challeng improper impeachment based on criminal convictions

Back 33

A D may waive his right to challenge improper impeachment based on criminal convictions if he takes the stand and puts on evidence of prior conviction.

Front 34

Impeaching by prior bad acts

Back 34

NOT IN CA
A W can be impeached by prior bad acts even if they did not lead to conviction. THe prior bad acts must be probativve of truthfulness. Prior bad acts are always collateral, thus, the prosecution cannot bring in extrinsic evidence. The prosecution must have a good faith basis for beilieving the W committed the prior act when questioning. All questions are in the discretion of the judge, thus the court needs to weigh the PVP.

Front 35

Impeachment through prior inconsistent statements

Back 35

A W may be impeached by showing he made a prior inconsistent statement. The statement need not be shown to the W, but must be shown to the opposing party if it is requested.
Extrinsic evidence is allowed as long as the W had the opportunity to explain or deny the alleged inconsistency. If he admits the inconsistency, extrinsic evdience may not come in.

Before the statement is allowed to come in a foundation must be laid regarding the time, place and substance of the language used

Front 36

REhabilitation of W through prior consistent statements

Back 36

A W may be buttressed with prior consistent statements in rebuttal to an allegation of fabrication, bias or improper motive if the statement was made before the improper motive arose.

Front 37

Subsequent Remedial Measures

Back 37

Subsequent remedial measures may be admissible to control or feasibility of precautionary measures or impeachment. But, it is not admissible to show fault, liability, necessity of warning or instruction or product defect or negligence. The judge still ahs the discretion to keep the evidence out if it fails the PVP test. Feasibilty only comes into play if the D puts it into play.

Front 38

Offers in compromise

Back 38

The fact that a party has made an offer to settle may not be admissible to prove validity of claims or liability. Facts stated in settlement discussions are also inadmissible. It may be admissible to show anything other than liability such as motive, bias, prejudice.

Front 39

Similar Happenings

Back 39

Evidence of similar happenings is admissible to prove that the event in question happened in confomity. It must be shown that the event happened many times and that htere is a substantial similarity between the event in question and past events.

The judge must decide whether the event happened in exactly the same way under exactly the same conditions.

Front 40

Habit Evidence

Back 40

Evidence of a person's habit is admissible to prove he acted in conformity with the habit if it is shown that the habit happened several times before. Must take into consideration the specificity, regularity and unreflective behavior. For something to be deemed a habit it must have happened several times.

Evidence of the routine practices of a business is admissible to show that practice was followed.

Front 41

Lay Witness Opinion

Back 41

A lay W may give opinion testimony if:
1. rationally based on the perception of the W and would be helpful to understanding an issue in the case
2. not based on scientific knowledge.

Opinon testimony is allowed even on the ultimate issue of a case except for cases where the mental state of the criminal D is concerned.


A witness may not testify regarding legal conclusions or how a case should be decided.

Front 42

Competency of W

Back 42

All W are presumed to be competent. A witness is competent if he takes an oath, is able to communicate with the jury and has sufficient memory and perception. Some types of testimony are inherently unreliable and thus make a W incompetent. IN Ca a hypnotized W is competent to testify only to those facts which he remembered before the hypnotism. Thus, a record should be kept and the hypnosis should be done by a clinical professional.

A hypnotized criminal D's tesitmony may be prevented from exclusion on the basis of the D's right to testify on his own behalf.

In terms of kids--the judge should make sure the child understands the importance of truth and has sufficient mental capacity to report sensory impressions.

Front 43

Judicial Notice

Back 43

A shortcut to proof. A judge can accept as true certain facts which have not been proved.
Must: rules of court, rules of PC, rules of pleading process, english words and phrases, decisions of USSC, CA constitution, legal expressions.
may: facts of general knowledge in the territorial jx.
If must: then must be a formal request for JN, must give notice of request and must supply sufficient info from which the court can infer JN.
In a criminal case in which the matter is an essential element the court may not take JN.

Front 44

Expert Testimony

Back 44

An expert may give opinion testimony if;
1. scientific, technical or other specialized knowlege. and helpful to the trier of fact
3. based on sufficient facts or data
4. based on reliable methods
5. reliably applied these methods.
6. qualified basis of knowledge, experience, education or skill

Mental Health Experts may not testify regarding a criminal' D's mental state at the time of a crime.

Basis of Opinion
1. personal knowledge
2. observations
3. hypothetical questions
4. inadmissible evidence as long as it is the kind reasonably relied upon by experts in teh field.

Disclosure of facts
1. only if PVP test
2. cross examiner may require disclosure
3. limiting instruction should be given

Front 45

Scientific Evidence

Back 45

If trying to admit scientific test or method then must pass test of reliability

FRE: Daubert factors
1. whether it can be reliably tested
2. error rate
3. whether it has been subjected to peer review and publication
4. generally accepted by experts in the field
In CA: Frye test: generally accepted by experts in the field

STD Of review: Abuse of discretion

Front 46

Declaration Against INterest

Back 46

A statement offered by someone other than a party that is against their interest is admissible as a declaration against interest. They must have known it was against their interest at the time of the statement.

Types of interest
pecuniary
penal
CA: ridicule/ shame in the community.

If criminal liability, must prove trustworthiness: i.e. W had a peculiar means of knowing the info, and has no reason to falsify the facts.

Front 47

Present Recollection Refreshed

Back 47

If a W's memory is hazy, it may be refreshed by any document. If shown to the W at trial the opposing party has the right to examine the document and cross-x with reference to it. If shown before trial, then it is the judge's discretion. The item is not shown into evidence at all it merely stimulates testimony.

Front 48

Impeachment to discredit a witness

Back 48

The credibilty of a W may be attacked by any party. But, the W may not be called to the stand for the sole purpose of impeachment. A W is competent to testify if oath, perception, memory communication. A W may be impeached on any of these non collateral areas thus, they can impeach based on extrinsic evidence. A W may also be impeached on the basis of bias, prior inconsistent statements, prior convictions, prior bd acts (Not in CA), and by putting a W on the stand.

Front 49

Impeachment based on bias

Back 49

Evidence that a W is bias is admissible. Bias is a non-collateral issue, so extrinsic evidence may be used as long as the D denied the bias. If he addmitted the bias extrinsic evidence may not be used. The judge still has the discretion whether to admit the evidence, thus the PVP test still applies.

Front 50

Impeachment by prior conviction

Back 50

A W may be impeached by prior conviction. If it is a felony conviction that isn't based on dishonesty or false statements then it is admissible if it was less than 10 years ago and the PVP test is satisfied. This only applies to a criminal D. Thus, if it is a civil case the evid may come in even if PVP test fails. Also, if it is more than 10 years it will be admissible if notice was given and P substantially outweighs P.

If it is a conviction pertaining to dishonesty or false statmeents it is admissible regardless of whether it is a felony or misdemeanor. And it is not subject to PVP test.

Front 51

Confrontation Clause

Back 51

Even if a statement falls within the hearsay rule the D may still object to its admissibility on the basis that it violates his right to confront the witness against him. This generally occurs where the W is not available for cross examination. The old rule was the Roberts rule which stated that the statement would be admissible if the W was not available for cross examination if the statement was trustworthy. Trustworthiness was presumed if the statement fell within a recognized hearsay exception. Now, we follow the Crawford rule, which states that a statement is admissible if it is testimonial and W is available for cross x. If the statement is not testimonial the statement is admissible if it falls within a recognized hearsay exception. A statement is testimonial if the circumstances surrounding it indicate that it is likely to be used later at trial. A W may be available for cross x at trial or at the time the statement was made.

Front 52

Compulsory Process Clause

Back 52

A criminal D has the right to obtain and present all evidence relevant to his defense. A state rule that limits certain types of evidence may be deemed to violate the compulsory process clause. It will not violate if it is not arbitrary or disproportionate to the rationale for the rule. The rule should rationally serve evidence's truth seeking function or the state should have some other legitimate reason for its existence.

Front 53

Judges

Back 53

The std for preliminary facts is preponderance of evidence. The judge may use inadmissible evidence in evaluating this std, but the inadmissible evidence alone, must not be deemed to meet the standard.

Front 54

Character Evidence

Back 54

Character evidence is inadmissible to prove that D acted in conformity with that character at the time in question. However, it is admissible for any other relevant purpose such as, to prove motive, purpose, intent, plan, knowledge, lack of excuse, opportunity

Front 55

Character in Issue

Back 55

When character is an essential element of a charge, claim or defense proof may be made of it by specific instances of the conduct. Character is an essential element if it is the ultimate issue in the case and not used as evidence of anything else. However, if the evidence is used as circumstantial evidence to prove some other fact it is not an essential element.

Front 56

Other Crimes and bad acts in criminal cases

Back 56

Other crimes may not be used to prove that D committed a crime because he is of criminal character. However, it may be used to prove any other relevent purpose. The Judge will still subject the evidence to the PVP test.

Front 57

Other Crimes and bad acts distinctions

Back 57

When the crimes are so similar in method that it constitutes a signature it is admissible to prove the identity of the defendant.

other crimes may also be used to show intent required to commit the crime.
The other crimes need to have led to conviction.

If D was acquitted of the crime this will be taken into consideration in evaluating whether this evidence is substantial evidence of his guilt.

Front 58

Evidence of Criminal D's good character

Back 58

A criminal D may put in evidence of his good general character. He may also put in evidence of a specific narrow character trait if it is relevant to the crime charged. He may prove this character by reputation or opinion, but not by specific acts. Once he puts his good character at issue the prosecution may rebut either by putting its own W on the stand or by cross examining the D's character witness. The prosecutor may ask questions about specific instances of bad conduct if he has a good faith basis for believing the D committed the act and it is relevant to the crime charged. He may not use extrinsic evidence.

Front 59

Character of the victim

Back 59

A criminal D may bring in evidence of V's bad character if it is relevant to his defense. Once he does this the prosecution may rebut this allegation by bringing in evidence of V's peaceable character. They may also bring in evidence of D's same bad character trait.

Front 60

Methods of proving bad character

Back 60

Bad character may be proved by reputation or opinion. A foundation must be laid that W knows the D and has knowledge of his reputation.

Front 61

Character Evidence in Sex Crimes

Back 61

If D is charged with a sex crime, evidence may be brough in that he committed a sex crime in the past and may be considered on any relevant issue. The judge must still decide if the PVP.

Front 62

Rape Shield Laws

Back 62

Not Admissible: evidence offered to prove alleged victim engaged in other sexual behavior. Not offered to prove the alleged victims sexual predisposition.

Allowed: (In CRIM cases)
1. evidence of specific instances of sexual behavior to prove that a person other than the accused is the source.
2. evidence of specific instances wrt the accused to prove consent
3. evidence that would violate D's rights.

Exceptions apply in civil cases if coupled with PVP test.