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39 Cards in this Set

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  • Back
What are the two ways D can open the door to Victim's character in a criminal case?
1. Offer evidence of V's character, which can then be rebutted by proseuction

2. In a HOMICIDE case, if D offers evidence the victim attacked first, prosecution can show evidence of Victim's character for peacefulness
What are the 5 requirements for expert testimony?
1. Must be helpful to the jury

2. Witness must be qualified

3.Witness must believe in opinion to a reasonable degree of certainty

4. Opinion must be supported by proper factual basis

5. Opinion must be based on reliable principles that were reasonably relied on
What is the Daubert standard for judging reliability of scientific evidence?
1. peer reviewed and published

2. tested and subject to retesting

3. Low error rate

4. reasonable level of acceptance
What is the Kumho standard for reliability of non-scientific evidence in federal court?
all opinions must be shown to be reliable from common sense standpoint
When is a prior consistent statement admissible and for what purposes?
Admissible for all purposes if there has been an allegation of bias/deception and was made before bribe or inconsistent statement

Otherwise inadmissible for ALL purposes
Can extrinsic evidence be used for impeachment by contradiction on a non-collateral matter?
Yes, can call witnesses to testify witness is lying
What kind of evidence can be used to for impeachment by contradiction of a collateral matter?
Can inquire about the contradiction on cross examination but NO extrinsic evidence. Attorney is limited to the witness's response
Is extrinsic evidence of a prior inconsistent statement admissible to impeach on a collateral matter?
No
What requirements must be met before a witness may be impeached with a prior inconsistent statement?
Must be a non-collateral matter

Witness must be given a chance to explain or deny at some point during the proceeding (so cannot use if you have already excused the witness)
Is extrinsic evidence admissible to impeach for bias, interest or motive?
Yes, AS LONG AS witness is asked about facts showing bias or interest BEFORE the extrinsic evidence is admitted
What are the requirements to impeach someone with prior misconduct not resulting in a conviction?
Prior misconduct MUST bear on truthfulness (so cannot ask about any misconduct not involving lying)

No extrinsic evidence is allowed

Limited to asking witness about misconduct on cross examination
Is it okay to impeach a witness with opinion/reputation evidence about that witness's truthfulness?
Yes, by cannot inquire about specific acts. Limited to testifying about opinion or reputation in community
If the prior inconsistent statement was made by a hearsay declarant can it be admitted?
Yes, this is an exception to the requirement that witness must be given opportunity to explain or deny inconsistent statements
When can the wtinesses good reputation for truthfulness be admitted?
Can be admitted to rehabilitate witness AFTER witness's character for truth/veracity has been attacked
When is former testimony allowed to be used in a criminal case under the former testimony exception to the hearsay rule?
When the party against whom the testimony is now offered had an opportunity to examine the person, and motive was similar to the present motive
When is former testimony allowed to be used in a civil case under the former testimony exception to the hearsay rule
When the party against whom testimony is being offered had a close privity relationship with someone who was present at the earlier proceeding and had opportunity and similar motive to examine witness
When are dying declarations admissible under FRE?
In a homicide case and in civil cases
What are the requirements for the public records exception?
Must fall w/in ONE of the following:

1. record describes activities of office

AND, ONLY in CIVIL CASES:

2. record describes matters observed pursuant to duty imposed by law

3. record contains factual findings resulting from investigation made pursuant to authority granted by law
When are judgments of previous felony convictions admissible as an exception to the hearsay rule?
Any time relevant to prove any fact essential to the judgment in either a civil or criminal case.

However, in criminal case, it cannot be offered against a party other than the accused except for impeachment purposes
What does the confrontation clause exclude?
Excludes out of court statement of a testimonial nature if declarant does not testify at trial and Defendant did not have a chance to cross examine declarant when statement was made.
What is the burden of proof to authenticate evidence?
sufficient to sustain finding
When must a chain of custody be established to authenticate an item?
When the item is indistinguishable from another
When are facts appropriate for judicial notice under the FRE?
Not subject to dispute b/c either:

1. generally known w/in the community

OR

2. capable of accurate and ready determination by resort to a source whose accuracy cannot be reasonably questioned
What is proposition 8
Applies only in criminal cases. Makes all relevant evidence admissible in a criminal case, subject to balancing.
What are the exceptions to prop 8
1. confrontation clause

2. Hearsay

3. Privilege

4. Character evidence in rape cases

5. Rule that D must open door before P regarding D's character

6. secondary evidence rule
Under CEC, are statement made in connection with offers to settle and medical expenses admissible?
No for both
When are expressions of sympathy admissible under CEC?
They are inadmissible if relating to suffering or death of victim. However, statements of fault made in connection with expressions of sympathy are admissible
When is character evidence admissible in civil cases under the CEC?
NEVER admissible; unlike the FRE there is no exception for rape/sexual molestation crimes
Under the CEC, if D offers evidence of P's character for dishonesty, can P rebut with evidence of D's character for dishonesty?
No, this is not allowed under the CEC but would be allowed under FRE.

CA only allows P to be the first to offer character evidence of D if D has admitted evidence of victim's character for violence; then P can rebut with evidence of D's character for violence
Under the CEC what methods can be used to prove D's character when appropriate? Does prop 8 change this?
Under CEC can only use reputation and opinion (FRE would also allow specific instances on cross)

However, prop 8 allows any method (including specific instances) to be used, subject to balancing, on EITHER direct or cross if D has opened the door
What methods may be used to prove victim's character under the CEC?
Once D opens the door, any method may be used to prove V's character on direct or cross
Under the CEC when can the prosecution be the first to offer evidence of the victim's character? How does this differ from FRE? How is this affected by Prop 8?
Under CEC P can never be first to offer evidence of V's character.

FRE has exception for homicide cases to prove V's character for peacefulness if D claims V attacked first.

Prop 8 would allow the prosecution to admit evidence of victim's character before the defense in any instance, subject to balancing
What is the Kelley/Frye standard for reliability of expert testimony under CEC?
opinion must be based on principles generally accepted by experts in field.
When is the learned treatise exception to hearsay available under the CEC?
Very limited: only allowed to show matters of general notoriety or interest
Under the CEC, when can a prior inconsistent statement be admitted to offer the truth of the matter asserted?
Anytime, even if statement was not given under oath
Under the CEC, when can an individual be impeached with a prior felony conviction?
Only if crime involves moral turpitude. Never automatically admisisble, must use balancing
Under the CEC, can a felony not involving moral turpitude ever be used to impeach?
No

Also, prop 8 does not apply b/c assume if it does not involve a crime of moral turpitude it is not relevant
Under the CEC, when can a witness be impeached with a prior misdemeanor conviction? Does prop 8 affect this?
No misdemeanor convictions are admissible

However prop 8 will allow a misdemeanor to be admitted if it involves a crime of moral turpitude (note: does not apply to civil cases so all Midemeanors are inadmissible in civil cases to impeach)
Under the CEC, when can prior misconduct not resulting in a conviction be used to impeach? Does prop 8 affect this?
Prior misconduct is inadmissible in all civil and criminal cases.

But, under PROP 8 would be admissible in criminal cases if misconduct involves moral turpitude. Also, any method, including extrinsic evidence could be used