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180 Cards in this Set
- Front
- Back
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What are typical SUCKER answers for evidence questions?
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(1) "Inadmissible because it is not the best evidence."
(2) "Inadmissible because of the Dead Man's Statute." (3) "Inadmissible because the evidence is self serving and prejudicial." (4) "The statement is part of the res gestae." (5) T.V. Objections: -"The witness is not on trial" -"The evidence calls for an inference upon an inference" (6) "Not hearsay because it is the witness' own statement." (7) Res Gestae (present sense impression and the then existing mental/physical state have taken the place of this common law exception). |
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When is evidence relevant?
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Any tendency; Of consequence; More or less probable
Evidence is relevant when it has ANY TENDENCY to make the existence of any fact that is OF CONSEQUENCE to the determination of the action MORE OR LESS PROBABLE than it would be without the evidence. |
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What types of facts are "of consequence?"
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(1) Anything that must be proved in the case (know the elements)
AND in CA: (2) Is disputed -not stipulated to |
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Can evidence be somewhat relevant?
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NO
Relevance is a YES or NO inquiry (unlike probative value). |
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Can evidence be somewhat probative?
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YES
Probative value is a sliding scale (unlike relevance). |
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What must a judge determine to rule that relevant evidence is nevertheless inadmissible?
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The probative value is SUBSTANTIALLY outweighed by
(1) unfair prejudice; (2) confusion; or (3) waste of time |
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When is relevant evidence often inadmissible?
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(1) When it is emotionally disturbing
(2) When it is admissible for one purpose and inadmissible for another |
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What type of relevant evidence is typically inadmissible for policy reasons?
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(1) Liability insurance
(2) Subsequent remedial measures (3) Settlement offers (4) Offers to pay medical expenses |
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When is liability insurance:
(1) Inadmissible; and (2) Admissible |
(1) Inadmissible
-To prove culpable conduct; or -Ability to pay (2) Admissible -Anything else: bias, scope of employment, etc. |
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When are subsequent remedial measures:
(1) Inadmissible; and (2) Admissible |
(1) Inadmissible
-To prove culpable conduct; or -Defective product design (CA allows this) (2) Admissible -Anything else: ownership, rebut the no feasible precaution defense, etc. |
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When are settlements, settlement offers, and surrounding statements:
(1) Inadmissible; and (2) Admissible |
(1) Inadmissible;
-To prove liability in a civil suit (2) Admissible -When there is no claim or threat of a claim -When no dispute as to liability or damages exist (∆ is looking for a bargain, offering $5,000 to settle while admitting to owing $10,000) |
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When are guilty pleas, pleas of nolo contendre, and related statements:
(1) Inadmissible; and (2) Admissible |
(1) Inadmissible;
-To prove guilt in a criminal case (2) Admissible -never |
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When are offers to pay medical expenses:
(1) Inadmissible; and (2) Admissible |
(1) Inadmissible;
-To prove liability in a civil suit (2) Admissible -Surrounding statements are admissible. |
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Similar occurrence evidence is typically inadmissible.
When may similar occurrences be admissible? |
Causation; Fraud; Preexisting Condition; Possibility; Value; Habit; Practice; Custom
(1) To prove causation - Too similar to be a coincidence - Same time, place, manner, and injury (2) To prove fraud - Previously had faked a slip and fall (3) To prove a preexisting condition - Injury existed previously (4) To rebut impossibility defense - It has happened before (5) To establish value - Comparable sales - Similar property, area, time (6) Habit - Specific conduct - No moral judgment (7) Routine Practice (Business Habit) - Conformity (8) Industrial Custom - Establishing standard of care - How it's done in the industry |
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What is the difference between habit and character?
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(1) Habit
-Specific conduct that conveys no moral judgment -Always stops at lights, completely behind the line, gets out of the car to ensure he is behind the limit line, pushes his car through the intersection only after determining that it is 100% safe, and waives a red flag to warn others. -Only can be established via O/SA, NEVER R (2) Character -General statement about a person that conveys a moral judgment -"Careful Driver" -May be established via ROSA |
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Four step approach to character evidence.
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(1) Purpose
(2) Method (3) Civil or Criminal (4) Pertinent Trait |
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What are the 3 purposes for which character evidence can potentially be admitted?
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(1) Character is at issue
(2) Conformity (3) Impeachment or Support |
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What are the 3 methods that potentially can be used to establish character?
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(1) Specific Acts
(2) Opinion (3) Reputation |
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Is character evidence admissible to prove CONFORMITY in a civil case?
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NO
Not by SA, R, or O evidence UNLESS Current and past case = -Sexual Assault OR -Child Molestation |
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When is character at issue in a civil case?
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(1) Defamation
(2) Child custody (3) Fraud (4) Negligent entrustment |
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When character is at issue in a civil case, what methods may be used?
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ALL
SA, R, or O |
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When can the prosecution in a criminal attack the ∆'s character without the "door being opened?"
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(1) In sexual assault or molestation cases (other similar acts)
OR (2) When the ∆ has 1st attacked the character of the victim |
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Is dishonest a pertinent character trait in an assault case?
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NO.
The prosecution cannot rebut ∆'s showing of his good character, or ∆'s showing of victim's bad character with character evidence that shows dishonesty. |
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In a criminal case, when does the ∆ "open the door" to his character, therefore allowing the prosecution to rebut?
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(1) When the ∆ has offered evidence of his good character;
OR (2) When the ∆ has offered evidence of the victim's bad character; OR (3) In a homicide case, ∆ claims that V was the 1st to attack. |
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If the "door has been opened," what method(s) may the prosecution use to rebut?
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FRE
R or O NOT SA |
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When may all methods of establishing character (SA, O, R) be used in a criminal case?
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FRE
On cross examination by EITHER party. |
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What are the 2 ways a ∆ can "open the door" to his character, without bringing his character into issue?
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(1) ∆ offers evidence of victim's character.
OR (2) In a homicide case, ∆ claims that V attacked first. |
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What are the rules regarding the Rape Shield Statutes?
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(1) Criminal:
(a) R and O Inadmissible (b) SA admissible to show (i) 3rd party was source of seamen; or (ii) prior consensual sex (2) Civil (a) R, O, and SA admissible if probative value outweighs prejudice (b) R only if π put it at issue |
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What may a ∆'s prior bad acts be used to establish?
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MIMIC
Motive Intent Mistake (absence of) Identity Common Plan or Scheme |
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What is the "MIMIC Rule?"
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A pneumonic to remember what specific instances of bad acts can be used to show:
Motive -why Intent -desired outcome Mistake (absence of) -not the first time Identity -this is the ∆ -uniqueness Common Plan or Scheme -events leading up to the crime |
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Is the evidence offered to establish MIMIC subject to judicial discretion?
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YES
Its probative value must outweigh its prejudicial effects. |
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What are the 4 (CA: 5) requirements to witness competency?
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(1) Personal Knowledge
-5 senses (2) Present Recollection -not from a record (3) Communication -be able to relay what she perceived (4) Sincerity -swear to tell the truth (CA) Understand legal duty to tell the truth |
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What 2 (CA: 3) classes of people are incompetent as a matter of law?
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(1) The Judge in the case
(2) Any Jury member of that trial (CA) Those Hypnotized to refresh recollection (criminal case exception) -Competency is a very low threshold -Children, criminals, atheist, etc. can testify so long as the 4 (CA: 5) requirements are met. |
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What are the 7 most common objections?
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USA CLAN
Unresponsive Scope (beyond the scope of direct) Assumes Facts Not in Evidence Compound Leading Argumentative Narrative |
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What can be used to refresh a witnesses recollection?
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ANYTHING
However, the opposing counsel may inspect and offer it into evidence. |
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When can you refresh a witnesses recollection?
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As soon as they admit that they cannot remember?
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When can you bring in past recollection recorded to assist a witness?
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I can't remember; I used to remember; I made it; when it was fresh in my memory; it was accurate when made
(1) Witness has insufficient recollection to testify -on his own -after trying to refresh (2) The witness once had personal knowledge (3) Recorded recollection was: -made by the witness; OR -made under the witness' direction OR -was adopted by the witness (initialed) (4) The recorded recollection was made or adopted when the facts were fresh in the witness' memory (5) The recorded recollection was accurate when made. |
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When is lay opinion testimony admissible?
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(1) Based on perception
-5 senses (2) Rationally based -opinion based on perception (3) Helpful to jury |
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What can a lay opinion be in regards to?
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(1) speed of auto
(2) sanity/senility/lucidity (3) intoxication/consciences (4) emotions (5) value of witness's property (*) NEVER legal conclusions (in my opinion, he was negligent) |
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When is an expert qualified to testify?
-5 requirements |
(1) helpful to the jury
(2) witness is qualified (3) witness believes his opinion to a reasonable degree of certainty (4) proper factual basis (5) reliable principles |
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May an expert testify to an opinion that a lay person could conclude?
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NO
This is not helpful to the jury. |
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What may an expert's opinion be based on?
-3 things |
(1) Admitted evidence
(2) Personal knowledge (3) Inadmissible evidence reasonably relied upon in the field |
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What is the Daubert/Kumho standard for determining whether an expert opinion is based on reliable principles that were reliably applied?
-4 requirements |
(1) Peer Review and publication
(2) Tested and subject to retesting (3) Low error rate (4) Reasonable level of acceptance -FRE |
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What does the learned treatise hearsay exception allow?
(1) FRE (2) CEC |
(1) FRE
If the LT is an ACCEPTED AUTHORITY within the field, the treatise may be READ (not admitted) into evidence. (2) CEC LT is ONLY admissible to show matters of general notoriety or interest (almost NEVER applicable). |
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When can evidence of good credibility be admitted?
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ONLY once it has been attacked.
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Are prior consistent statements hearsay?
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NO, and they may be admitted for their truth.
-Hearsay exemption |
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When may a prior consistent statement be admitted?
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When the statement was made before a bribe or a prior inconsistent statement.
-This shows that the consistent statement was not influenced by the bribe. -FRE Hearsay Exemption -CEC Hearsay Exception |
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What is the 3 step approach to the admissibility of impeachment evidence?
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(1) Is the source of impeachment extrinsic or based on the testimony just given?
(2) If extrinsic, is it admissible given the impeachment technique? (3) Are there any foundation requirement? |
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What type of extrinsic evidence can be used for impeach purposes?
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-use of wit B to impeach wit A
-use of Doc to impeach wit A -use of A's prior out of court statements to impeach A |
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Can you impeach a witness on a collateral matter?
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NO
-not with prior inconsistent statements -not with contradictions - it is a waste of time. |
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When is a matter collateral?
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(1) When it is not material to the issues in the case
AND (2) Not helpful in determining whether the witness is credible |
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When is a prior inconsistent statement NOT hearsay?
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(1) When the witness is currently at trial
AND (2) The prior statement was given under oath |
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If a prior inconsistent statement is NOT under oath, may it be used as evidence?
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YES
BUT ONLY to impeach. NOT for its truth. |
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If extrinsic evidence is used to impeach a witness by a prior inconsistent statement, what foundational requirements must be met?
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The witness must have had the opportunity to either explain or deny the statement.
-Witness must not be excused as a witness -Witness must not be dead |
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Can a showing of bias, interest, or motive be used to impeach?
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YES.
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If extrinsic evidence of bias, interest, or motive is used to impeach a witness, what foundational requirements must be met?
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The witness must have had the opportunity to either explain or deny the statement.
-Witness must not be excused as a witness -Witness must not be dead |
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What are the types of specific act's evidence that can be used to impeach?
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(1) Felony AND Misdemeanor convictions involving false statements.
(2) Felony convictions NOT involving false statements. (3) Non-convictions involving acts of dishonesty. |
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Who determines preliminary issues of admissibility for hearsay exceptions, e.g., whether a document was kept in the regular course of business for the business records exception?
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The JUDGE makes the determination
AND The JURY MAY, at the judge's discretion, be present at that hearing. |
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When may evidence of a witness's veracity be admitted?
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Only after the witness’s character for truthfulness has been attacked.
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Can the credibility of a hearsay declarant be impeached?
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YES
The credibility of a hearsay declarant can be as much at issue as the credibility of an in-court witness. Thus, Federal Rule 806 allows statements of a hearsay declarant to be impeached to the same extent as those of an in-court witness. |
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What is a "Dead Man Act?"
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A statute designed to prevent perjury in a civil case by prohibiting a witness who is an interested party from testifying about communications or transactions with a decedent unless there is a waiver.
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Can you impeach a witness that can no longer remember something that he said?
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NO.
You can only impeach a witness by making a showing that prior statements are inconsistent with a material part of the present testimony. Not remembering ≠ inconsistent |
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What is the right against self-incrimination protect?
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No witness can be compelled to answer questions, in a civil or criminal matter, that may tend to incriminate that witness, no matter the likelihood of criminal prosecution.
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Can a document that has not been authenticated be admitted to the jury?
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YES
Authenticity is a preliminary matter for the jury to decide. |
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Will a state court take judicial notice of foreign law?
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NO
Foreign law is not an adjudicative fact (common knowledge or easily determined). |
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When is evidence of subsequent remedial measures admissible?
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(1) To establish ownership if disputed
(2) To establish control if disputed |
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What is judicial notice?
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It is a process of establishing facts without presenting evidence.
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When will a judge take judicial notice?
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(1) Generally known fact
-fire burns OR (2) Capable of accurate and ready determination by a source whose accuracy is not questioned. - calender to determine that last wednesday was the 7th |
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What procedure is required to put a judge on judicial notice?
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(1) Party must request notice to compel judicial notice
OR (2) Court may do so sua sponte, without a request |
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What is the difference between judicial notice in a criminal and civil case?
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(1) Criminal
Jury MAY accept facts as true Prosecution's burden is relieved ∆ may rebut (2) Civil Jury MUST accept facts as true Conclusively proven |
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What does the "completeness doctrine" require?
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If a party introduces a writing, or part thereof, the adverse party, may require introduction, at that time, of any other part or any other writing which, in FAIRNESS, ought to be considered.
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What are the 4 privileges that are recognized in the federal courts?
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(1) Attorney-Client
(2) Spousal (3) Psychotherapist-Patient (4) Social Worker-Client (*) State privileges apply if the action is brought under diversity JDX. |
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What are the 3 requirements to the Attorney-Client Privilege?
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(1) Communication
(2) Confidential (objective) (3) In pursuit of legal services (*) Not waived |
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Does the attorney-client privilege apply ONLY to the client and the attorney?
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NO.
-Attorney Representatives (Dr., Staff, etc.) -Client Representatives (EEs) |
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Does a client's subjective belief matter in determining whether a communication was made in CONFIDENCE for purposes of the Attorney-Client privilege?
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NO.
This is an OBJECTIVE standard. |
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What breaks the attorney-client privilege?
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(1) Crime or Fraud exception
(2) Malpractices suits against the attorney (3) Joint Clients who later sue each other |
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What are the elements to the Crime or Fraud exception to the attorney-client (and doctor-patient) privilege?
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(1) Professional service sought in FURTHERANCE of what...
(2) client knew or should have known was a crime or fraud. |
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What are the requirements for the Psychotherapist-Patient ad Social Worker-Client Privileges?
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(1) Confidential (objective)
(2) Communication (3) In pursuit of professional services |
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What are the requirements for the Doctor-Patient privilege?
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(1) Confidential
(2) Communication (3) Purpose of obtaining diagnosis or treatment (4) Pertinent to diagnosis or treatment -This is a WEAK privilege -Look for statements that contain BOTH pertinent and not pertinent statements: "I started having this pain when I was in jail FOR FRAUD." |
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What are the 2 privileges between married persons?
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(1) Spousal Privilege
(2) Marital Privilege |
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What are the similarities and differences between:
(1) Spousal Privilege (2) Marital Privilege |
*Similarities:
(1) Valid marriage (2) Do not apply: -Spouse v. Spouse -Spousal abuse -Child abuse *Differences: (1) Spousal Privilege -Invoked by the witness spouse -Applies only to criminal cases -Applies to statements made during and prior to marriage (2) Marital Privilege -Invoked by either spouse -Applies to criminal and civil cases -Applies to statements made during marriage ONLY |
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Does the doctor-patient apply to criminal cases?
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NO.
Only Civil cases, and only in state courts (unless diversity jdx). |
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Can the marital privilege be invoked against an ex-spouse?
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YES, if the statements was made during the former valid marriage.
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When does the best evidence rule apply?
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Evidence is offered to prove the CONTENTS of a WRITING.
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What is a "writing" for purposes of the best evidence rule?
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Any tangible collection of data:
Example: Document, video, photo, x-ray, audio recording, computer disk, etc. |
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If a witness has personal knowledge of a fact AND the fact is memorialized in a writing, can the witness testify to that fact over a best evidence rule objection?
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YES.
The best evidence rule does not apply to testimony that is based on personal knowledge. |
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Can a doctor testify to the contents of an x-ray over a best evidence objection?
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NO.
A doctor does not have independent knowledge of the facts in an x-ray. |
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If the best evidence rule applies, what is admissible to prove the contents of the "writing?"
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(1) Original
-Printouts -Certified Copies (if public document) (2) Duplicates -A copy of the original produced -by the same impression that produced the original (carbon copy) -or by a machine (photocopier or camera) |
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What is the rule of thumb regarding duplicates for purposes of the best evidence rule?
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If the process that created the duplicate is not subject to errors or alterations?
-Handwritten copy ≠ duplicate -Photocopy = duplicate |
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When are duplicates not admissible under the best evidence rule?
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When there is a GENUINE question as to the authenticity of the ORIGINAL.
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When may testimony be admitted to prove the contents of a writing if the best evidence rule applies?
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When the original is lost or destroyed, there are no duplicates, and the proponent of the testimony did not destroy the original.
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What is hearsay?
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An out of court statement offered for its truth.
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Are ALL out of court statements inadmissible?
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NO.
An out of court statement can come into evidence if it is not offered for its truth (non-hearsay), or, if offered for its truth, through a hearsay exception or exemptions. -Not hearsay -Exception -Exemption |
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What is a "statement" for purposes of hearsay?
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(1) Oral;
(2) Written; or (3) Assertive Conduct By a PERSON |
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What is an act of legal significance, and how does it effect a hearsay analysis?
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NOT Hearsay because NOTMA
It is a statement that is legally significant when made, no matter whether it was true or not. Example: "I accept your offer." (K Law) "You have AIDS." (Defamation) "This is my land." (Adverse Possession) "I am giving this car to you as a gift." (Ownership) |
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What are common examples of out of court statements NOT offered for their truth?
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(1) Acts of Independent Legal Significance
-"I accept your offer" (2) State of Mind of Declarant -"The bridge is out" (3) State of Mind of Auditor -"You're pregnant" (4) Circumstantial evidence to establish Declarant's state of mind -"I am Dracula" (5) Speaker's knowledge of facts -Phone book containing someone's address (6) Impeachment |
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What are the 4 hearsay EXEMPTIONS under the FRE?
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(1) Admissions
(2) Prior Inconsistent Statements (3) Prior Consistent Statements (4) Statements of Identification |
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What is a party admission for purposes of hearsay exemptions?
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(1) An admission
(2) By a party (vicarious, co-conspirator, adoptive) (3) Offered by a party opponent |
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What are the 4 ways an admission can arise (who can admit)?
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(1) Party Opponent
(2) Adoptive (3) Vicarious (4) Co-Conspirator |
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Is an admission subject to the personal knowledge requirement or the no opinions requirement?
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NO
A party that makes an admission does not need to have personal knowledge of that which they are admitting. A party admission may be an opinion (we were negligent again). |
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Who can make a vicarious admission?
(FRE and CEC) |
(1) Expressly authorized spokes person (marketing department)
(2) Impliedly authorized spokes person (CEO, CFO, VP) (*FRE) EE + statement concerning matter WITHIN SCOPE of employment + made DURING employment relationship (*CA) EE + statement concerning negligent conduct of EE that forms the basis of ER's liability under respondeat superior |
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What are the 10 common hearsay EXCEPTIONS?
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(1) Former testimony
(2) Declaration against interest (3) Dying declaration (4) Excited utterance (5) Present sense impression (6) Then existing physical or mental condition (7) Past or present mental or physical condition made for medical diagnosis or treatment (8) Business record exception (9) Public record exception (10) Judgement of previous conviction |
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What 3 hearsay exceptions require UNAVAILABILITY of the declarant?
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(1) Former testimony
(2) Declaration against interest (3) Dying declaration |
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What 7 hearsay exceptions require do NOT require UNAVAILABILITY of the declarant?
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(1) Excited utterance
(2) Present sense impression (3) Then existing physical or mental condition (4) Past or present mental or physical condition made for medical diagnosis or treatment (5) Business record exception (6) Public record exception (7) Judgement of previous conviction |
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Former Testimony Elements?
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(1) UNAVAILABLE declarant
(2) Former testimony is SWORN -prior proceeding or deposition (3) Adverse party had the OPPORTUNITY to examine (4) Adverse party had an equal MOTIVE to examine (5) "Adverse Party" can be... (FRE & CA) Adverse Party OR (FRE) Predecessor in interest (privity) OR (CA) Party with "similar interest" OR (CA) Against the party who offered it in the previous proceeding (estopped from objecting) |
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When is a declarant "unavailable?"
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(1) Privilege
(2) Dead (3) Sick (4) Unreasonable (distance/cost) (FRE) Refusal to testify (FRE) Bad memory (CA) Total memory loss |
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Declaration Against Interest Elements?
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(1) Against penal, proprietary, or pecuniary interest
(CA) Also allows social interest (2) At time made (3) Unavailability of declarant (FRE) If offered to exculpate, Corroborating Evidence -someone else admitted to the crime |
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Admission
V. Declaration Against Interest |
(1) Admission
-Statement by party (co-conspirator, vicarious, or adoptive) -Need not be against interest when made -Declarant need not be unavailable (2) Declaration Against -Statement by anyone -Against interest when made -Declarant must be unavailable |
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Dying Declaration Elements?
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(1) Declarant believes he is about to die
(2) Statements concern cause or circumstances leading to death (3) Declarant unavailable (4) *Criminal case must be HOMICIDE -NOT attempted murder -Actual death need not occur |
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Excited Utterance Elements?
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(1) Startling Event
(2) Statement made due to event (3) Statement made while under stress of event -Look for: screamed, shouted, yelled, etc. -Look for: exclamation mark !!!!! -Time lapse is is not important, only stress |
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Present Sense Impression Elements?
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(1) Statements describe or explain an event
(2) Statement made while perceiving the event or immediately thereafter -Time lapse is important |
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Then Existing Physical or Mental Condition Elements?
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(1) Statement concerns declarant's state of mind or physical condition
(2) As it exist at the time the statement was made -Cannot describe a memory or belief: "I remember I said I gave the car to Joe" not allowed. "I gave the car to Joe" allowed |
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If a statement is admitted under the "Then Existing Physical or Mental Condition" hearsay exception, can the jury infer conformity with that statement?
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YES
"I intend to give the car to Joe." Inference = he gave the car to Joe |
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Past or Present Physical condition Made for Medical Diagnosis or Treatment Elements?
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(1) Statement concerns a past or present mental or physical condition or its cause
(2) Of any person (3) Made for medical diagnosis or treatment |
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Business Record Elements?
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(1) Record of events, conditions, opinion, etc.
(2) kept in the regular course of business (3) made at or near the time of the matters described (4) by a person with knowledge -This can cover multiple levels of hearsay within a single business |
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Public Records Elements?
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(1) Record by public EE
AND (2) Record describes activities of the office OR (3) Record describes matters observed OR (4) Record contains factual findings of an investigation *Criminal Case: prosecution cannot use (2) or (3) |
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Judgment of Previous Conviction Elements?
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(1) Statement describes felony conviction
(2) Admissible to prove any fact essential to the judgment (3) *Criminal: Prosecution can only use prior conviction of accused UNLESS using prior conviction of witness to impeach |
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When does the Confrontation Clause apply?
-Elements |
(1) Criminal Case
(2) Out of court statement (3) Declarant is unavailable (4) Statement is "testimonial" (5) ∆ had no chance to cross-examine declarant |
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What is a "testimonial" statement for purposes of the Confrontation Clause?
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(1) Building a case for the prosecution = testimonial
-PO investigation aimed at producing evidence (2) Ending threat ≠ testimonial -PO questions aimed at dealing with an ONGING threat |
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What needs to be authenticated?
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EVERYTHING except testimony
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What is the burden of proof for authenticating a piece of evidence?
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"Sufficient to sustain a finding."
-VERY LOW -Lower than preponderance |
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What are the 6 ways to authenticate a signature?
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(1) Admission
(2) Expert opinion (3) Eyewitness testimony -saw ∆ sign (4) Lay opinion -witness familiar with signature (5) Circumstantial evidence -π mailed K to ∆ and received signed document 5 days later (6) A genuine exemplar -Allow jury to compare genuine signature with disputed signature |
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What is the Ancient Document Rule?
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Authenticity is established if
(1) Document is 20 years old or more (2) does not appear to have any irregularities (erasures) (3) found in a place of natural custody |
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What is self authenticating?
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(1) Certified copies of public documents (deeds)
(2) Acknowledged documents (notary) (3) Official publications (gov docs) (4) Newspapers (5) Periodicals (6) Periodicals (7) Business records (8) Trade inscriptions (TM) |
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Which is the correct way to authenticate a photo without the photographer?:
(1) "Does this photo fairly and accurately depict what the intersection looked like at the time of the accident?" (2) "Is this a photo of the intersection taken at the time of the accident?" |
(1) is correct.
The only person who could authenticate whether the photo was actually the "photo of the intersection taken at the time of the accident" is the photographer. However, any witness at the scene could authenticate how the intersection look on the day of the accident. |
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What is, and how do you authenticate a non-unique item?
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(1) A non-unique item: Bag of white powder, a 2x4, a bullet casing, anything that is generic.
(2) To authenticate, you must lay the chain of custody. -This person handed it to that person who stored it in this locker under #4... -small breaks in the chain of custody are allowed -large breaks in the chain of custody are NOT allowed |
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What is the "voluminous documents" exception the the best evidence rule.
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A writing may be summarized if:
(1) The original is available for inspection AND (2) There are too many documents to practically bring into court |
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Is an attempt to bribe a witness to testify favorably admissible?
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YES.
This is a party admission. It is admissible as substantive evidence of the weakness of the ∆'s case. |
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Can essential facts of a misdemeanor conviction be admitted in a criminal proceeding to establish those essential facts in the current proceeding?
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FRE: NO
Under the the FRE, essential facts of a prior conviction may only be used in the current proceeding if the prior conviction was a FELONY conviction. |
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What good character traits may a ∆ raise in his defense?
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Only those character traits that are at issue.
-Assault = non/violence -Perjury = dis/honesty |
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Is embezzling an act involving "dishonest" for purposes of prior bad acts?
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Yes
Others include: -Perjury -False pretenses -Criminal Fraud -Any crime involving deceit, untruthfulness, or falsification NOTE: Honesty is not relevant if the crime charged in is burglary. |
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Facts:
Federal + Civil (or Criminal) + Sexual Assault Case (or child molestation) Issue: Can SA of sexual assault or child molestation be admitted to establish conformity? |
YES.
-Not allowed in Civil in CA |
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Facts:
California + Civil + Sexual Assault Case (or child molestation) Issue: Can SA of sexual assault or child molestation be admitted to establish conformity? |
NO.
-Federal this would be allowed -CA, this would be allowed if this were a criminal case |
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Facts:
Federal + Criminal + ∆ has attacked V's character for honesty Issue: Can prosecution admit SA, R, or O of V's character for honesty? |
On Cross, YES, by SA, R and/or O
On Direct, only by R or O Note: the character trait must be the same (honesty and honesty). |
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Facts:
CA + Criminal + ∆ has attacked V's character for violence Issue: Can prosecution admit SA, R, or O of ∆'s character for violence? |
On Cross, YES, by R and O under CEC, and SA under prop 8
On Direct, YES, by R and O under CEC, and SA under prop 8 Note: the character trait must be for VIOLENCE |
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How to organize an evidence question.
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(1) Form
-Leading (2) Purpose -Logical relevance (tends to...) -Legal relevance (probative/prejudicial) -Character (3) Presentation -Wit Qualification -Opinion (expert/lay) -Wit Credibility/Impeachment -Authentication -Best evidence rule (4) Hearsay -Exemptions/Exceptions (5) Privileges (6) Confrontation Clause |
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What is the "Truth in Evidence" Amendment to the California Constitution (Prop. 8)?
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(1) In all criminal cases
(2) all RELEVANT evidence is admissible (3) even if objectionable under the CEC (4) UNLESS an exception applies. |
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What are the exceptions to prop. 8?
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(1) Exclusionary rules (US Constitution)
(2) Hearsay Law (3) Privilege Law (4) Victim character evidence in a rape case (5) "Door Opening" (Criminal Character offered by Prosecution) (6) Secondary Evidence Rule (BER) (7) CEC 352 (probative v. prejudicial) |
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What is the rule for Relevance?
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FRE & CEC
Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence [(CA) that is in dispute] to the determination of the action more or less probable than it would be without the evidence. |
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Admission (and surrounding statements) made in conjunction with WHAT are inadmissible under:
(1) FRE (2) CEC |
(1) FRE:
-Settlements and Settlement offers (2) CEC -Settlements and Settlement offers -Mediations -Offers to pay medical expenses |
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Are statements of sympathy and/or surrounding statements admissible under:
(1) FRE (2) CEC |
(1) FRE
-YES, all admissible (2) CEC -Sympathy, NO -Surrounding statements, YES |
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Are pleas later withdrawn, offers to plea, and/or surrounding statements admissible under:
(1) FRE (2) CEC |
(1) FRE
-NO (2) CEC -NO -BUT, perhaps under prop 8 |
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Specific Acts of Character in a CIVIL case
Are a ∆'s prior acts of child molestation or sexual assault admissible to prove conformity in a civil case: (1) FRE (2) CEC |
(1) FRE
- YES (2) CEC - NO |
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Character of ∆ in a CRIMINAL case
When may the prosecution be the FIRST to offer evidence of ∆'s character to prove CONDUCT? (1) FRE (2) CEC |
(1) FRE
-SA of child molestation or sexual assault -Rebuttal: ∆ has SAME character trait as V after V's character has been admitted (2) CEC -SA of child molestation or sexual assault -Rebuttal: ∆ has VIOLENT character trait; after V's character for VIOLENCE has been admitted -SA of domestic violence |
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Method of Establishing ∆'s Character in a CRIMINAL Case
After ∆ has opened the door to his character (or an exception allows prosecution to slip in the door), how may the prosecution attack ∆'s character (SA, O, R)? (1) FRE (2) CEC (3) CEC + Prop 8 |
(1) FRE
-Direct: R, O -Cross: R, O, SA (2) CEC -Direct: R, O -Cross: R, O (3) CEC + Prop 8 -Direct: SA (subject to balancing) -Cross: SA (subject to balancing) |
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Establishing V's Character in a CRIMINAL Case
When may the prosecution be the 1st to raise the issue of V's character and using what method? (1) FRE (2) CEC (3) CEC + Prop 8 |
(1) FRE
-Homicide case + Self Defense + V's Peaceful Character (direct: R & O only; cross: R, O, SA) (2) CEC -Never; prosecution cannot raise V's character 1st (3) CEC + Prop 8 -V's character is relevant + Balancing (direct & cross: R, O, SA) |
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When is a witness who has been hypnotized competent to testify?
(1) FRE (2) CEC |
(1) FRE
Civil- standard 4 requirements Criminal- standard 4 requirements (2) CEC Civil- NEVER Criminal- police hypnotist + procedures to protect against suggestion |
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There are 5 requirements for the admissibility of expert testimony:
(1) Helpful to the jury (2) Qualified (3) Faith in finding (4) Proper factual basis (5) Reliable principles Which factor(s) is/are different under FRE and CEC, and how do they differ? |
(5) Reliable principles
(1) FRE-Daubert/Kumho (i) Peer Review and publication (ii) Tested and subject to retesting (iii) Low error rate (iv) Reasonable level of acceptance (2) CEC-Kelley/Frye (i) Generally accepted by experts in the field |
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What is the Kelley/Frye standard for determining whether an expert opinion is based on reliable principles that were reliably applied?
-1 requirement |
(1) Generally accepted by experts in the field
-CEC |
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When may a prior inconsistent statement be used for its truth?
(1) FRE (2) CEC |
(1) FRE
-The statement is by a witness now testifying -The prior statement was UNDER OATH (2) CEC -The statement is by a witness now testifying |
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When may a prior inconsistent statement be used to impeach?
(1) FRE (2) CEC |
(1) FRE
-Always, NOT Hearsay (2) CEC -Always, Hearsay EXCEPTION |
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When may a prior conviction be used to impeach?
(1) FRE (2) CEC (3) CEC + Prop 8 |
(1) FRE
-False Statement Felony OR Misdemeanor admissible w/o balancing (unless >10 years) -Other Felony admissible w/ balancing -Other Misdemeanors inadmissible (2) CEC -Moral Turpitude Felony admissible w/ balancing -Other Felony inadmissible (3) CEC + Prop 8 -Moral Turpitude Misdemeanor admissible w/ balancing -Other Misdemeanor inadmissible |
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What is a "false statement" crime for purposes of prior conviction used to impeach under the FRE?
& What is a "moral turpitude" crime for purposes of prior conviction used to impeach under the CEC? |
(1) FRE "false statement" crime
-Perjury, forgery, fraud, embezzlement, etc. (2) CEC "moral turpitude" crime -Lying, violence, theft, extreme recklessness, and sexual misconduct |
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Are misdemeanors admissible in civil cases to impeach?
(1) FRE (2) CEC |
(1) FRE
-YES, if "false statement" misdemeanor (2) CEC -NO, prop 8 does not apply to civil cases |
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When may a prior non-conviction be used to impeach?
(1) FRE (2) CEC (3) CEC + Prop 8 |
(1) FRE
-Civil or Criminal -Subject to balancing -Act of lying -No extrinsic evidence -Only on Cross (2) CEC -NEVER (3) CEC + Prop 8 -Criminal -Subject to balancing -Moral Turpitude -Extrinsic evidence allowed -Direct or Cross |
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Is deposition testimony, taken for the current civil action, admissible for its truth under the "former testimony" hearsay exception?
(1) FRE (2) CEC |
(1) FRE
NO, must be former testimony. (2) CEC YES, IF deponent -Is unavailable OR -Lives more than 150 miles from the courthouse |
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May a judge personally interrogate witnesses?
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YES.
So long as no partisanship is shown for either side. |
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When must an objection ordinarily be made?
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After the question BUT before the answer.
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Will a motion to strike an answer be sustained if there was no objection after the question?
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Probably not.
This is likely untimely. |
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Is an examination for insurance purposes (health, life, etc.) considered to e "for diagnosis or treatment?"
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NO.
Therefore the physician-patient privilege does not apply to these consultations. -What about the hearsay exceptions? |
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What are the elements of the Spousal Privilege?
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(1) Valid marriage
(2) Invoked by the witness spouse (3) Witness spouse may elect to testify over ∆ spouse's objection (3) Applies only to criminal cases (4) Statements made during and prior to marriage (5) Expires upon divorce |
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What are the elements of the Marital Privilege?
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(1) Valid marriage
(2) Invoked by EITHER spouse (3) May be invoked against a spouse (4) Applies to criminal AND civil cases (5) Statements made DURING marriage (6) Made in confidence (7) Survives divorce |
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Can a lay witness testify to the authenticity of a signature if the law witness' knowledge of the ∆'s signature is based SOLELY on seeing the ∆'s signature once four years ago.
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YES.
These facts speak to reliability, an issue for the jury to determine. |
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If evidence is recovered pursuant to a warrant that is later found to be invalid because it lacked sufficient probable cause, will the evidence be excluded?
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No, not if the police reasonably relied on the warrant.
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May a witness refresh her own memory before trial by referencing her diary?
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YES
AND the diary need not be disclosed to the opposing counsel unless the court so orders. |
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Is an artist's rendition of a suspect admissible?
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YES, as a prior identification.
However, the witness must be there to testify at trial and be subject to cross-exam (confrontation clause-6th). |
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If a ∆ takes the stand to testify, can he be impeached with prior acts that bear on truthfulness?
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YES, treat the ∆ just as you would a witness.
Therefore, conviction of a crime for dishonesty may be used to impeach the ∆'s credibility. This is NOT character, and therefore is not subject to the "opening the door" analysis. |
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If ∆ commits 1 act, can he be convicted of 2 offenses if each offense requires proof of EXACTLY the same facts?
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YES
Double Jeopardy does NOT prohibit the imposition of cumulative sentences for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even if each offense does not require proof of some additional facts that the other does not (Blockburger Test). |
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To appeal a judges ruling on an objection, what must be present in the record?
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The grounds for the objection.
Therefore, simply stating “Objection!” will not give sufficient grounds to appeal. The objection must be specific. |
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Does a judge ever have to give a reason for overruling or sustaining an objection?
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NO
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Logical Relevance
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(1) Any tendency
(2) Fact of consequence (3) More or less probable CEC: disputed fact of consequence |
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Character in a CRIMINAL case
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(1) Prosecutor cannot introduce evidence of the ∆’s bad character if the purpose is to show conformity
(2) ∆ is allowed to introduce R/O evidence of RELEVANT good character traits to show conformity (3) If (2) occurs, prosecution is allowed to rebut with R/O (4) Prosecution may use SA to prove MIMIC (5) If ∆ testifies, his TRUTHFULNESS is automatically in issue NOTE: SA is almost always a prior crime Watch for 403 balancing |
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Character in a CIVIL case
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(1) Character is not allowed to show conformity
(2) In some cases, character is allowed: Negligent Entrustment; Defamation; Child Custody; (3) If party testifies, his TRUTHFULNESS is automatically in issue |
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Does the entrustor need to have actual knowledge of the the entrustee's character?
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NO, IF the entrustor SHOULD have known
NOTE: This is a close call because if the entrustor did not know and should not have known, it is not admissible. |
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Character v. Habit
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(1) Evidence of prior similar occurrences and character evidence is not admissible if offered to show that that person probably acted in conformity
(2) Evidence of habit evidence IS admissible if offered to show that that person probably acted in conformity Habit = a repeated response to a particular set of circumstances |
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Common ways to Impeach
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(1) Prior inconsistent statements
-"Didn't you say" or Wit 2 testifies "Wit 1 said ___" -Impeached Wit must be given a chance to explain UNLESS it is also an admission (2) Bias -"Isn't it true that you are ∆'s uncle" (3) Prior criminal convictions -Any crime involving dishonesty -Any other FELONY (403 balancing) (4) Prior bad acts -Cross Exam ONLY -Extrinsic evidence NOT allowed -Dishonest act (5) Reputation for untruthfulness |
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Mental/Physical Condition Hearsay Exceptions
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(1) Current condition
Allowed regardless of why made so long as a current condition (2) Past condition Allowed ONLY if made for purposes of seeking medical diagnosis or treatment |
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May extrinsic evidence be introduced to establish that π'a witness has vandalized the ∆'s home?
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YES.
Evidence that the witness disliked the party he is testifying against would qualify as evidence of bias. NOTE: If the witness did this to a 3rd party's home, the evidence would be inadmissible because: (1) it is a prior bad act that does NOT bear on truthfulness; and (2) even if it did bear on truthfulness, extrinsic evidence is NOT allowed. |
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Can habit evidence be established by reputation evidence?
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NO
ONLY Opinion or Specific Acts NOTE: If the witness is going to testify to ∆'s "reputation," he is testifying to character NOT habit, even if the fact patter says ∆ "always" did something. |
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Are a ∆'s threats against a witness admissible?
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YES
These are admissible of an admission. They show consciousness of guilt. |
