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39 Cards in this Set
- Front
- Back
What are the two ways D can open the door to Victim's character in a criminal case?
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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 |
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What are the 5 requirements for expert testimony?
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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 |
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What is the Daubert standard for judging reliability of scientific evidence?
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1. peer reviewed and published
2. tested and subject to retesting 3. Low error rate 4. reasonable level of acceptance |
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What is the Kumho standard for reliability of non-scientific evidence in federal court?
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all opinions must be shown to be reliable from common sense standpoint
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When is a prior consistent statement admissible and for what purposes?
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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 |
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Can extrinsic evidence be used for impeachment by contradiction on a non-collateral matter?
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Yes, can call witnesses to testify witness is lying
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What kind of evidence can be used to for impeachment by contradiction of a collateral matter?
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Can inquire about the contradiction on cross examination but NO extrinsic evidence. Attorney is limited to the witness's response
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Is extrinsic evidence of a prior inconsistent statement admissible to impeach on a collateral matter?
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No
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What requirements must be met before a witness may be impeached with a prior inconsistent statement?
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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) |
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Is extrinsic evidence admissible to impeach for bias, interest or motive?
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Yes, AS LONG AS witness is asked about facts showing bias or interest BEFORE the extrinsic evidence is admitted
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What are the requirements to impeach someone with prior misconduct not resulting in a conviction?
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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 |
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Is it okay to impeach a witness with opinion/reputation evidence about that witness's truthfulness?
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Yes, by cannot inquire about specific acts. Limited to testifying about opinion or reputation in community
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If the prior inconsistent statement was made by a hearsay declarant can it be admitted?
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Yes, this is an exception to the requirement that witness must be given opportunity to explain or deny inconsistent statements
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When can the wtinesses good reputation for truthfulness be admitted?
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Can be admitted to rehabilitate witness AFTER witness's character for truth/veracity has been attacked
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When is former testimony allowed to be used in a criminal case under the former testimony exception to the hearsay rule?
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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
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When is former testimony allowed to be used in a civil case under the former testimony exception to the hearsay rule
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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
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When are dying declarations admissible under FRE?
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In a homicide case and in civil cases
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What are the requirements for the public records exception?
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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 |
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When are judgments of previous felony convictions admissible as an exception to the hearsay rule?
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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 |
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What does the confrontation clause exclude?
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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.
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What is the burden of proof to authenticate evidence?
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sufficient to sustain finding
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When must a chain of custody be established to authenticate an item?
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When the item is indistinguishable from another
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When are facts appropriate for judicial notice under the FRE?
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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 |
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What is proposition 8
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Applies only in criminal cases. Makes all relevant evidence admissible in a criminal case, subject to balancing.
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What are the exceptions to prop 8
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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 |
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Under CEC, are statement made in connection with offers to settle and medical expenses admissible?
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No for both
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When are expressions of sympathy admissible under CEC?
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They are inadmissible if relating to suffering or death of victim. However, statements of fault made in connection with expressions of sympathy are admissible
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When is character evidence admissible in civil cases under the CEC?
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NEVER admissible; unlike the FRE there is no exception for rape/sexual molestation crimes
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Under the CEC, if D offers evidence of P's character for dishonesty, can P rebut with evidence of D's character for dishonesty?
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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 |
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Under the CEC what methods can be used to prove D's character when appropriate? Does prop 8 change this?
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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 |
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What methods may be used to prove victim's character under the CEC?
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Once D opens the door, any method may be used to prove V's character on direct or cross
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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?
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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 |
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What is the Kelley/Frye standard for reliability of expert testimony under CEC?
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opinion must be based on principles generally accepted by experts in field.
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When is the learned treatise exception to hearsay available under the CEC?
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Very limited: only allowed to show matters of general notoriety or interest
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Under the CEC, when can a prior inconsistent statement be admitted to offer the truth of the matter asserted?
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Anytime, even if statement was not given under oath
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Under the CEC, when can an individual be impeached with a prior felony conviction?
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Only if crime involves moral turpitude. Never automatically admisisble, must use balancing
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Under the CEC, can a felony not involving moral turpitude ever be used to impeach?
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No
Also, prop 8 does not apply b/c assume if it does not involve a crime of moral turpitude it is not relevant |
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Under the CEC, when can a witness be impeached with a prior misdemeanor conviction? Does prop 8 affect this?
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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) |
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Under the CEC, when can prior misconduct not resulting in a conviction be used to impeach? Does prop 8 affect this?
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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 |