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217 Cards in this Set

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What is logical relevance?
Relevance evidence means evidence having any tendency to make the existence of any fact that is consequence to the determination of the action more probable or less probable then would be without the evidence.
What is logical relevance?
Relevance evidence means evidence having any tendency to make the existence of any fact that is consequence to the determination of the action more probable or less probable then would be without the evidence.
In CA - Logical Relevance
Relevant evidence means evidence including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequences to the determination of the action
In CA - Logical Relevance
Relevant evidence means evidence including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequences to the determination of the action
What is logical relevance?
Relevance evidence means evidence having any tendency to make the existence of any fact that is consequence to the determination of the action more probable or less probable then would be without the evidence.
What does probative value deal with?
Probative value deals with "admissibility" not sufficiency. The court determines probative value based upon logic and common experience.
What is circumstantial evidence?
Circumstantial evidence requires that the trier of fact to draw rational inferences in order to find the fact for which the evidence if offered.
In CA - Logical Relevance
Relevant evidence means evidence including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequences to the determination of the action
What is direct evidence?
Direct evidence only requires to trier of fact to believe the evidence...credibility of a witness
What does probative value deal with?
Probative value deals with "admissibility" not sufficiency. The court determines probative value based upon logic and common experience.
Is Legal Relevance a discretionary exclusion?
Even if the evidence if found to be logically relevant, the trial judge has the discretion to exclude it, if she determines that the probative value of the evidence is substantially outweighed by certain practial consideration.
What is circumstantial evidence?
Circumstantial evidence requires that the trier of fact to draw rational inferences in order to find the fact for which the evidence if offered.
Evidence may be excluded if probative value is substantially outweighed by what?
By the danger of unfair prejudce, confusion, of sthe issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence
What is direct evidence?
Direct evidence only requires to trier of fact to believe the evidence...credibility of a witness
Is Legal Relevance a discretionary exclusion?
Even if the evidence if found to be logically relevant, the trial judge has the discretion to exclude it, if she determines that the probative value of the evidence is substantially outweighed by certain practial consideration.
What does probative value deal with?
Probative value deals with "admissibility" not sufficiency. The court determines probative value based upon logic and common experience.
Evidence may be excluded if probative value is substantially outweighed by what?
By the danger of unfair prejudce, confusion, of sthe issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence
What is circumstantial evidence?
Circumstantial evidence requires that the trier of fact to draw rational inferences in order to find the fact for which the evidence if offered.
What is direct evidence?
Direct evidence only requires to trier of fact to believe the evidence...credibility of a witness
Is Legal Relevance a discretionary exclusion?
Even if the evidence if found to be logically relevant, the trial judge has the discretion to exclude it, if she determines that the probative value of the evidence is substantially outweighed by certain practial consideration.
Evidence may be excluded if probative value is substantially outweighed by what?
By the danger of unfair prejudce, confusion, of sthe issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence
What is unfair predudice?
An undue tendency to suggest decision on an improper basis, commonly though not necessarily an emotional one.
Character Evidence?
General rule: evidence may not be used to prove that aperson acted in conformity with his propensity on the occasion in question. In other words, evidence of character may not be used as circumstantial evidence of conduct.
What is Character Evidence under the FRE 404(a)
Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith evidence of conduct.
Can character evidence be offered where character itself is in issue?
Can character evidence be offered to show probable past conduct in conformity with character?
Can Character evidence be offered to impeach?
Yes. Impeachment by character for Honesty and Veracity
What are the three types of character evidence?
Specific instance; opionion; reputation in the community
Character is at issue when?
evidence of a person's character is admissible where that person's character is in issue where a person's character is an element of a claim, charge or defense, defamation impugning plaintiff's character-truth is a defense; negligence entrustment child custody-fitness tobe a good parent; entrapment-defense
Is Character admissible in civil cases?
No character is not admissible in civil cases unless the defendant is establishing his good character in defending against a tort based moral turpitude
In Criminal cases can the prosecution introduce character evidence?
Prosecuton in its case in chief cannot introduce evidence of defendant's bad character to show that defendant acted in conformity with his bad character trait on occasion in question
Can Defendant is criminal cases may introduce evidenceof his relevant good character trait?
Yes he can do so however he opens the door to rebuttal character evidence by the prosecution
What type of evidence my defense use to prove good character?
Majority- reputation only
Minority- reputation and opinion
If D offers a reputation witness to establish his good character, how can the prosecution cross-examination?
On cross-examination may ask the reputation witness if she has heard of specific acts of bad conduct committed by D. -Test knowledge of D's reputation. "Have you heard.." "Do you know"
What is the victim's exception?
May offer evidence of a pertinent character trait of the victim to show that the victim acted in conformity with that character trait
In self-defense cases can character evidence be offered?
Yes, evidence of victim's violent character is admissible to show that the victim was teh first aggressor or that the accused's apprehension of harm from the victim was reasonable.
What is the Rape Shield Statute?
Rape shield statutes have been enacted in most jurisdiction out of a concern that the above-use of evidence of a rape victim's character could deter the reporting and prosecution of rape cases.
In criminal cases when is "specific instance" evidence of past sexual behavior allowed?
To show that a person other than the accused was the source of semen, injury or physical evidence
In civil cases when is "specific instance evidence of past sexual behavior allowed?
When the victim's reputation is admissble only if it has been placed in controvery by the victim
In other criminal acts evidence cannot be used to establish criminal propenity but can be used for other purposes. KIS MOM PIP
What is habit evidence?
Evidence of habit used circumstantially to prove particular conduct, generally is admissble- Habit is particular, unvarying activity, routine or response that is frequently repeated over a protracted period of time.
What is custom?
Court refer to habit within a business organization as custom and it still requires a repeated response to a particular circumstances
What is trade usage?
Admissible to indicate meaning of special terms in a contract.
Can evidence that P has similiar claims be offered?
Evidence that the plaintiff has filed lots of lawsuits on a variety of different claims is generally inadmissible. However very similar and false claims are often admissible to who the claim in question is also false
Can evidence of prior similar losses or injuries be offered into evidence?
Evidence is admissible if the court in its discretion determines that the probability of coincidence (bad luck) is minimal
Can evidence of other K between the same parties be admissible
Yes where relevant to establish the terms of the contract in question or the meaning of the terms of that contract
Evidence of K between third party.
Usually deemed irrelevant to the contract in question. However sometimes admissible where relevant to show a party's customary practice and course of dealing
Evidence of prior accident admissible?
Not admissible to prove the ultimate issue of negligence arising out of the accident in question.
What is subtantial similarity?
The other accident must be substantially similar to the one at issue. However to show notice or knowledge of dangerous conditon requirement is less-strictly enforced
Is subsequent remdial measures admissible?
Evidence of measures taken after an injury or harm allegedly caused by an event by a party which if taken previously, would have made the injury or harm less likely to occure is inadmissible to prove negligence or cuplable conduct, a defect design, etc.
Subsequent remedial measures are admissible for what OTHER purposes?
1)Ownership or control by defendant of premises when disputed
2) Feasibility of taking precautionary measures when disputed.
3) To impeach defendant's witness
4) To show defendant was atempting to conceal or destroy evidence
Are offers to compromise disputed claims admissible?
Once it is established that there exists a dispute betweenparties regarding either liabilityor the amount of damages, evidence that one of the aprties offered to settle or compromise the claim against the other party is inadmissible to show liability
What about documents presented in the course of settlement negtiations
Documents which are not prepared for the purpose of negotiating a settlement are not protected under this rulel merely because they were presented in the course of settlement negotiations
When can offers to compromise be offered for OTHER PURPOSES
1) to show bias or prejudice of a witness
2) to negate a contention of undue delay
3) to prove a party attempted to obstruct a criminal investigation/prosecution
Are payment of medical/hospital or other similar expenses admissible?
No. The Good Samaritan Rule -evidence that a party furnished or offered or promised to furnish the injured party's medical hospital or other similar expenses is not admissible to prove liability for the injury. Does not protect statements or sconduct made during the course of furnishing or offering to furnish medical expenses.
Are withdrawn guilty pleas/nolo contendere pleas?
Evidence of a guility plea which was later withdrawn a plea of nolo contendere or any statement made in the course of please bargaining are not admissible in any civil or ciminal proceeding against defendant who made the plea.
In Federal court the statement are admissble why?
Statements are asmissible against the accused in separate proceeding for perjury or faluse statement if they were made under oath on record an in the presence of counsel.
Is liability insurance admissible for negligence?
No. liability is not admissible as proof of evidence
Can liability insurance be admissible for other purposes?
1) ownership
2)bias of witness
3) voir dire examination
4) where evidence of insurance is an inseparable part of a party admission (sorry I blew the light but don't worry I'm insured)
What are the 9 Objections on direct examination?
4)assuming facts not in evidence
6)asked and answered
7) calls for narrative
8) calls for speculation
9) leading question
What is argumentative Objection?
Purpose of the question is to persuade the trier of fact rather than to elict information. Question calls for an argument in answer to an argument contained in the question
What is a compound objection?
A question is compound if it contains two or more questions
What is a Non-Responsive Objection?
An answer that goes beyond the scope of the question and inclused subject matter not called for by the question. Any voluntary statement by a witness.
What is assuming facts not in evidence?
A question that assumes unproved facts to be true is objectionable as it seeks to bring before the trial of fact fact that have not been proved and may not be true. "Did you know that" This type of question whether on direct or cross-examination is improper?
What is leading question?
A question that suggest the answer is leading/ However leading questions are permitted:
1) to refresh recollection
2) hostile witness
3) handicapped witness, very young witness
4) preliminary foundational matters
5) examination of adverse party
6) expert witness
What is revivial of recollection? (Present recollection revived)
Is permitted to adi the witness so long as the witness will thereafter be able to testify from present recollection.
What is cross-examination?
Used to test witness' credibility. Common Law permits unreastricted x-exam while Federal and California restrict x-exam to matters within the scope fo matters reasonably inferred from the direct examination
What is impeachment?
Refers to the introduction of evidence (intrisic/extrinsic) for the purpose of discrediting the testimony of a witness.
What is intrinsic evidence?
Means eliciting impeaching facts on cross-examination out of the witness own mouth.
What is extrinsic evidence?
Means elicting the impeaching fact other than through cross-examination during the opponent's rebuttal case.
Can Character for honesty and veracity be used for impeachment?
Can one be impeached by
prior bad acts?
Prior bad acts refer to misconduct which falls short of a criminal conviction:
1)within court discretion
2)limited only cross exam
3)limited to character trait of truthfulness or untruthfulness, not just bad moral character
4)Civil cases evidence prior bad acts to impact a witness is inadmissible. In criminal cases evidence or prior bad act is admissible but subject to legal relevance balancing
What is Crimen Falsi? Is it admissible?
Convictions for felonies or misdemeanors involving dishonesty or false statement are absolutely admissible for impeachment purposes.
If the Crimen Falsi is only than felonies is it admissible?
Yes, but subject to one of the two balancing testing
What is the remoteness of prior conviction?
a conviction more than 10 years old from the date of conviction or release from confinment is inadmissble
Is proof of conviction admissible re: impeachment
Proof of prior conviction involving evidence impeached witnesses own testimony) or extrinsic evidence (a certified copy of judgment of conviction)
Poor Reputation for truthfulness?
Reputation only - the character witness could only testify to his knowledge of the principal witness's reputation in the community not to the character witness' opinion of the principal witness character
Bias - impeachment?
Bias improper motive to testify financial gain, relation to a party, hatred of a party
Prior Inconsistent statement
Prior inconsistent statement to show that witness -waffle (wells different stories) by proof that witness has made prior statement inconsistent with testimony at trial
Prior Inconsistent Statement -on x-examination (instrinsic)
Requires that in order to cross examine a witness about aprior inconsistent statement the cross-examination must present the statement to the witness if in writing, or describe the statement and surrounding circumstances if oral. Purpose gives witness opportunity to admit or deny or explain the prior statement
What does collateral mean?
Collateral means unrelated to the merits of the suit nor to any other impeachment ground where extrinsic evidence is allowed
Contridictions (impeachment)
To prove a portion of witness' testimony is false or erroneous by establishing that the facts are different from what the witness has testified.
What is attack on sensory perception?
By showing through either cross or extrinsic evidence impairment of the witness capacity/ability to perceive certain facts which he testifies he observed.
1) defects of the senses (hearing, eyesight, smell
2) defect in mental qualities or intelligence and memory, under influence of drugs
What is rehabilitation?
Rehabilitation refers to the introduction of evidence for the purpose of restoring the witness credibility after it has been attacked
Can prior consitent statement be used to rehabilitate a witness?
Yes. Prior consistent statements may be used to rehabiltate against impeachment ; hearsay cross-over
Are statements made in violation of 4th and 5th admendment admissible to impeach?
Statements illegally obtained in violation of the 4th and 5th Amendment if voluntary made, are admissible for impeachment
What is Burden of Production
Burden of production is the burden of going forward with sufficient evidnce to enable the tier of fat to rationally find in favor of the party with the burden of production.
Who is the burden of production usually placed on?
The burdent of production is placed on the plaintiff as to each element of her cause of action and on the defendant as to each element of his defense.
What is the penality for failure to meet the burdent of production?
The penality for a party's failure to meet its burden of production is a judgment as a matter of law.
What happens if the plaintiff meets her burden of production and goes further and offers compelling and conclusive evidence?
The burdent of production on all elments shift to the defendant ie rick of suffering a direct verdict now fals upon the defendant
When does the defendant in a criminal case have the burden of production?
The criminal defendant may bear the burden of production on defense which he asserts ie insanity
What is Burden of Persuasion?
Sometimes called the risk of non-persuasion, the burden of persuationis the degree of belief which must be attained by the trier of fact in order to find in favor of the party with the burden of persuasion.
Burden of persuasion in Civil?
Preponderance of the evidence
Burden of persuation in Civil Fraud
Clear and convincing evidence
Burden of persuation in Criminal
Beyond a reasonable doubt.
Inference is also known as what?
Circumstantial evidence-a logical deduction of fact which the tier of fact may from another fact based on the trier's application of its reason and common experience`
What is Presumption?
A legally mandated inference to be drawn from particular evidence known as "base facts" It can be rebuttable or conclusive.
What is competency?
Common law- strict in regards to witness qualification
What is Competency under Modern Law?
1)witness mut have personal knowledge about facts testied to
2) witness mut understand duty to tell the truth
3) Child's testimony be able to observe, recall and communicate
4) Dead Man Statute
5) Insanity permitted if incompetence can perceive, recall and communicate
Are Law Opinion admissible? Are there any exceptions.
Under common law lay opionions were inadmissible. Modern Law:
1) rationally based on the perception of the witness
2)helpful to a claer understaning of his testimony
3) Not based on scientif technical or other specalized knowledge within the scope
What are some examples when lay opinion is admissible?
1) taste, smell and appearance
2) Identity of another (voice)
3)Identity of another's handwriting
4) Shorthand Rendition (defendant was drunk)
Can a lay witness testify as to legal conclusions?
What is a Expert Opinion?
An expert is someone possessing special or pecular knowledge about that of the ordinary lay person.
What are expert qualifications?
Witness must be qualified to testify as an expert by reason of some specialized knowledge, skill,experience training or education in the field
What can an expert testifiy to?
Matters embraced by his or her field of expertise
1)testimony based upon sufficient facts or data
2) the testimony is the product or reliable principles and methods
3) the witness has applied the principles and methods reliably to the facts of the case
Can an expert testify as to the ultimate issue?
Common law - No.
FRE allows expert opion on ultimate issue BUT experts testifyingon mental state or condition of criminal defendant may not state anopion where defendant's mental state of condition is an element of crime or defense of hte charge offense "defendant did not at the time have the mental capacity...
What are the grounds of bases for an expert opinion?
1)facts personally observed
2) facts introduced during trial while expert is present
3) facts based on evidence introduced during trial-hypotheical questions
How can you impeach an expert?
1) lack of expert qualifications
2)prior inconsistent statements in present case
3) financial compensation
4) Conflicting opinions of other experts
5) Use of journal and treaties relied on by the witness
6) Use of journals and treaties not relied on by the witness
What is real evidence? Provide an example?
That which is tangible and has a direct or circumstanial connection with the transaction at issue.
1) Knives, guns
What is demonstrative Evidence?
That what is produced for trial for explanatory purposes
1)drawings, photographs
What is scientific evidence?
Experiments conducted outside of court may be introduced subject to the following:
1) conditions must be substantially similar
2)test must be sufficiently established in the field
3)beware of legal relevancy
What is Documentary Evidence?
Written matter introduced at trial must be relevant, authentic and comply with the best evidence rule
Authentication requires?
That a foundation must be laid to show writing is genuine by offering proof suffient to support a finding by the jury that that writing is what it purports to be.
What are some examples of authentication methods?
1)testimony of witness knowledge
2) non-expert witness on handwriting
3)comparison by trier and expert
4)distinctive characteristics "Reply letter rule?
5) Voice identification
6) Telephone converation
What are self authenticated documents?
Documents which require no extrinsic evidence of authenticty
1)Publi documents under seal
2) Publi documents not under seal (notary)
3) Certified copy
4) Notarized publicatons
5) Offical publications
6) Newspaper and periodical
7) Trade inscriptions (Campbel's soup label)
8)commerical paper
9)certified domestic records
10) certified foreigh records
What is the best evidence Rule
The Original Document Rule-when proving the content of a writing the "original" must be produced unless the original is hown to be unavailable though no fault of the proponent
BER-when is evidence being used for the purpose of proving the terms and contents of a writing
1)deeds, judgments, contracts
2)offer into evidnece writing which contains a recital of that fact
3)knowledge of fact read a writing prior to testifying
What is an original document?
1) Multiple or counterparts of the original
2) Photographs
3) Computer data (hard drive)
4) Duplicat originals
When is secondary evidence or the original writing admissible?
1) original lost or destroyed
2) original beyond the reach of subpeona
3) collateral matters exception
4) public records
5) summaries of voluminious writings
6) original in possession of opponent
7) Admission of a party
What is Judical Notice
Judical notice allows the court to accept certain facts as true without the necessity of formal proof, judical notice is substitute for evidence
When may a court take Judical Notice
When the facts is on not subject to reasonable dispute
1)generally known to all reasonable intelligent people within the territorial jurisdiction of the trial
2) capable of accurate and ready determination by resort to sources whoe accuracy cannot be reasonably questioned
Effect on taking judicial notice in civil and criminal?
1) civil-conclusive
2) not conclusive jusy is instructed that it may but is not required to) find the noticed fact
What is hearsay
Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing offerd into evidence to prove the truth of the matter asserted (offered in evidence for the purpose of proving that the assertion in the statement is true)
What is a statement?
1)A statement is an oral or written assertion
2) A nonverbal conduct of a person if it is intended by him as an assertion (nonverbal assertion)
What is the rationale behind the hearsay rule
The opponent is unable to test the credibility of the declarant through cross-examination of the declarant
What is Effect Upon the Listener?
NON-Hearsay - Refers to statements which are relevant for the effect which they have upon the listner or reader rather than to prove the truth of the statement
1) show reasonableness, good faith of a person;s subsequent behavior
2)to show notice of knowledge-the listner had notice or knowledge of a condition (often dangerous or defective)
What is Knowledge of fact or condition?
Non-hearsay - Refers to statements by the declaration used to show the declarant knowledge, notice or awareness of a particular fact
Words of independent legal significance
Non-hearsay- Legally operative language or verbal act.
Words which accompany and explain legally ambiguous conduct?
Non-hearsay- verbal part of an act. Where the legal significant of an act by itself, is unclear, words which both 1) accompany and 2) explain its legal significance are admissible as non-hearsay
Knowledge of the declarant used to show something other than the thing known
Refers to words which reveal the declarant's knowledge, consciousness or awareness of a fact the existence of which is shown by other evidence
State of Mind (non-hearsay)
Refers to statements which are not offerd to prove the assertion in the statement is true but rather to prove circumstantially (indirectly) the state of mind of the declarant
1)state of mind at issue
2)state of mind must be indirectly expressed
Non assertive conduct (non hearsay)
Nonverbal conduct which does not assert anything but which is offered to prove that the person acted as he did because of his belief in the fact or condition sought to be proved is considered nonhearsay under the assertion -centered hearsay
Silence of absence of complaint (non hearsay)
Absence of complaints
Negative Results of inquires (non hearsay)
To show the nonexistence of a person, etc.
Words offered to identify declaration, time place or relationship (non hearsay)
Circumstances evidence as to presence, time place, relationship
Prior Inconsistent and consistet statement of witness (non hearsay)
If offered to impeach or rehabilitate the credibility of a wtienss
Federal Exemptions (PAP) Non-hearsay
1) Prior Inconsistent statement
2) Admission of party opponent
3) Prior Consistent statement
4) Prior Identification
(5) Exceptions to the hearsay rule in clusters -1
Cluster 1.
1) Dying Declaration
2) Excited Utterance
3) Present Sense Impression
Exceptions to the hearsay rule in clusters 2
Cluster 2
1) Admission
2)Declaration against interest
Exceptions to the hearsay rule in cluster 3
Cluster 3
1) State of mind
2) State of Body
Exception to the hearsay rule cluster 4
Cluster 4
1) Former testimony
2) Past Recollection Recorded
3) Business Records
4) Official Records
5) Judgments
6) Ancient Document
7) Learned Treaties
Exception to the hearsay rule Cluster 5
Cluster 5
1) Family Pedigree (u)
2) Reputation Evidence
3) Prior Identification
4) Prior Inconsistent statement
5) Prior Consistent statement
6) Federal Catchall
7) Physical Abuse
What is multiple hearsay?
One statement repeats or incorporates other hearsay statement in other words, a chain of out of court statements
Dying Declaration Exceptions
Statement of a victim regarding the cause or circumstances of his impending death
1) Declarant unavailable
2) Declarant believes death is imminent and certain
3) statement relates to cause of death
4) Personal knowledge
Excited Utterances Exceptions
Statements of any person (participant or observer) relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
1) startling event
2) made under the stress of starting event
3) statements relates to startling event
4) personal knowledge
What is a startling event?
Occurrence which is startling enough to produce shock and excitement in the observer to still deliberate thought process ie auto accident
Ehat is a spontaneous statement?
Must be contemporaneously or immediately after the exciting event.
Present Sense Impression
Statement made
A statement made by a person while perceiving an event or condition and which describe or explain that event or condition:
Elements: contemporaneously with the event or conditon; statement uttered immediately upon perception; or thereafter; statement describes event; personal knowledge
Admissions by a party opponent?
State/conduct of a party opponent offered as evidence against that party.
Are admissions hearsay?
Judical Admissions
Determines the issue admitted
Evidentiary admissions
Evidentiary admissions are not conclusive of the issue but are merely admitted as some evidence on the issue admitted
Party Admission
Statements or conduct of a party himself (individual or personal statement.
Expressed: "I blew the red light
Implied: Flight, misconduct amounting to obstruction of justice
Adoptive Admissions
Where a party expressely or implied through conduct adopts another's statement.
1) the party heard the statement
2) party capable of denying the statement
3) matter asserted was writhin party's knowledge
4) Nature of statement and circumstances were such that a reasonable person would have denied
Vicarious Admissions
Unauthorized statement; limited to usual respondeant superior case
Admission by co-conspirators
Conspiracy must be established
1) statement made during the conspiracy
2) statement made in furtherance of the conspiracy
Admissions by predecessor in interest (title)
statements of a predecessor in title to land or personal property made while such person was still the owner are admissible into evidence as vicarious admissions
Declaration against interest
1)Statement made by a non-party against her/his interest.
2) declarant unavailable
3) personal knowledge
4) statement made against the declarant's interest
When is a declarant unavailable?
1) death
2) personal disabilty
3) mental incapacity
4) absence unable to procure attendance
5) inability or refusal to testify
What is considered declaration against interest?
The statement must have appeared to the declarant to be contrary to his interset at the time it was made. Declaration against pecuniary or proprietary interest
What is state of mind?
Statement of the declarant's then existing state of mind, emotions, sensation, or physical condition (intent, plan, motive, design, mental feeling, pain and bodily, health).
What is state of mind circumstanial evidence? When can it be used
A declarant's state of mind can be in issue as a link in a chain of circumstantial evidence reasoning. ...offering declarant's statement of his state of mind to prove the declarant acted consistent with the state of mind.
Hillmon Case
1) where the declarants states her intentin to do an act with a 3rd party, the declarant's intention can only be used to prove the declarant's furture conduct, not that of the third party.
2) Is forward looking it does not look backward to prove past events.(walter rights a letter telling his sister he had been in Crooked Creek= can not be used to show he in fact was in Crooked Creek)
Does the CA Evidence code allow statements of past?
Yes, admits statements of past as well as prsent state of mind but only if
1) the declarant is unavailable to testify as a witness
2) the statement can only be used to prove prior state of mind when that state of mind is itself an issue of action
Physical Condition? (state of body)
Relates to the admissibility of statements by declarant asserting his physical condition for the truth of such statement (out of court statement re: back aches, to prove declarant did indeed experience back aches)
Statements made to a treating physician
1) Present physical condition - statements of then existing physical symtoms made to a treating physician admissible for their truth
2) Past physical conditions- inadmissible for truth; only to show the jury basis for physician's diagnosis given during course of expert testimony
Statements to non-treating physician -expert witnesses?
Admits for their truth statements made for purpose of medical diagnosis or treatment and describing medical history...reasonably pertinent to diagnosis or treatment
In California are statements of present physical and past physical sensations admitted for their truth?
Yes. Past however the following must apply
1) declarant unavailable
2) statement of prior physical senstation are themselves at issue
Former Testimony or prior recorded testimony.
Testimony given by a witness at some former trial, deposition, or hearing when used for the truth of the assertion is admissible under the former testimony if the following elements are met:
1) oath and opportunity for cross-examination at prior proceeding
2) identity of the parties
3) identity of the isues
4) declarant is unavailable
When is the prior former testimony admissible?
The testimony is admissible if the party against whom the evidence is now offered:
1) either offered the testimony or the testimoney was offered against him in the former suit
2) had an opportunity and similar motive to develop the testimony either on direct or cross
criminal - must be a party to prior proceedings
civil - predecessor in interest in prior proceeding
Former Testimony declarant unavailable?
civil - the declarant can be unavailable if he is beyond the reach of a civil subpoena

Criminal-former testimony does NOT violate D's right to confront and cross-examination provided
Past Recollection Recorded
Allows to be read into evidence a writing made or adopted by the witness on the stand where the witness now has insuffient memory to testify to the facts contained therein:
1) writing prepared or adopted by witness
2) matter was fresh in witness memory
3) witness vouches for accuracy of writing
4) witness has insufficient present recollection of facts to testify
5) personal knowledge
When must the writing have been made (past recollection recorded?
Writing must have been made or recognized as correct, when matter was fresh in witness memory...too remote
Present Recollection (memory) Revived
Distinguished from past recollection recorded in that anything not just a writing may be used to attempt to revive the witness' present recollection of an event. testimony is NOT read into evidence only made for identification. Federal can have produce at trial to inspect, x-exam
Business Records
Admission of the records of business concerns and related enterprises such as hospital, educational instructin, and governmental departments. Elements:
1) record made (kept) in course of regularly conducted business activity
2) in the regular practice of that business to make the record
3) record made by or form information transmitted by someone with personal knowledge
4) Record may be a memo, report, record, data compiltation, in any form
5) Record made at or near time of receipt of the event or transaction being recorded
6) Foundation as to the above must be laid by Custodian of Records
7) Unless the source infomation of the method or circumstances indicate lack of truthworthiness
How did the PALMER case rule re: business records (railroad prepared a report)
Railroad prepared report in anticipation of lititation rather than for its business activity - HELD INADMISSIBLE
How is the LEWIS case disinguished from PALMER?
Defendant railroad offered its own accident report into evidence HELD ADMISSIBLE. The court looked for earmarks of liability - Railroad was required by law to make this report to the ICC and the report was prepared by a persons who were not involved in accident, thus could not be held liable.
Williams Case (Hospital Records - how the accident occured) Admissible?
No, information relating to how the accident occurred in not what hospital rely on for diagnosis or treatment.
Who is considered a person with personal knowledge of the event(Business Records)
A person with personal knowledge of the event must have a business duty to report within the ordinary course of the business
Are police reports admissible as business records?
Per the Johnson case...No. The court held that report contained entries that included out of clurt statments of bystanders who were not employees of the police department and therefore had no business duty to report what they witnessed to the police officer.. MBE hearsay issue admissible to prove statement made but not for the truth unless there is an exception excitted utterance, present sense impression
Do business records have to be originals?
C/L = Yes. Under FRE, electronic data, ledger recording etc. Minority oral reports made in the regular couse of business is admissible
What is Lack of Truthworthiness " Escape Hatch (Business Records)
Even if all the above-elements are satified (business records), the court still have the decretion to exclude the record if the source of information or the method or circumstances of preparation indicates a lack of trustworthiness
Offical (Public) records?
1) records, reports, statements, data compilations
2) in any form
3) of public office or agencies
What are the three types of offical records?
1) Type A - activities of the office or agency (interal operations records)
2) Type B - matters observed pursuant to duty imposed by law as to which matters there was a duty to report
3) Type C - factual findings resulting from an investigation made pursuant to authority granted by law
A certified copy of any court of record judgment is admissible to prove that the judgment has been entered
Statement of ancient documents?
1) 20 years old
2) authenticy must be established=C/L/= document must be at least 30 years old to be free from suspicious appearance.
2) has ben in proper custody
3) accepted as true by persons with interest in the property
Learned treaties
Statements from books or treaties, even though written by recognized authorities are generally held inadmissible as hearsay. Exceptions:
1)expert may refer to contents of treaties in his field in either stating the basis for his opinion or if called to his attention on x-exam
Family History (Pedigree)
Statements necessary to establish birth, deaths, marriages, divorce, adoption in domestic and probate issues
Declartion by others are admissible if (Family history)
1) Declarant is member of family or intimate associate of family
2) independent proof of D's relationship to the family is established
3) only if declarant is unavailable
4) declaration pertains matter of family history
5) declaration made before controversy arose
Declaration by one whose relationship is at issue (family history)
where declarant's own birth, death, is in issue, evidence of statements is admissible only if the declarant is unavailable.
Family Records (Family History)
Statements of fact concerning person or family history contained in family bibles, gravestones, inscriptins and church records are usually admissible to prove pedigree
Reputation Evidence
A tradition or reputation in a family is admissible to prove a fact of personal or family history
Community reputation: allows neighborhood or community reputation as evidence only of marriage
Landlord Boundaries admissible?
Admissible in disputes concerning boundaries of community lands
Matters of general history (community)
Admissible to prove any matte in the community
Prior Identification
A previous out of court identication of a person:
Majority- hearsay used for impreachment purpose only
FRE- non-hearsay if declarant testifies at trial
CA- exception applies if:
a) the statement is an ID of a party or another as a person who participated in a crime or other occurrance
b) statement was made close to time to event
c) declarant must as a witness testify that he made the ID and that it was a true reflection of opinion
Prior Inconsistent Statement
Majoriy- impeachment only
FRE- Hearsay exception- admissible as substantive evidence if prior inconsistent statement was given under oath at a prior trial, etc., subject to x-exam
CA- Hearsay exception only requirement is that the statment be admissible to impeach, if so then also admissible as substantive evidence
Prior Consistent statement
C/L= they are merely offerd to bolster the creditability of the witness by showing that the witness has been consistent over time
FRE- hearsay exception -when offered to rebut an express or implied charge of recent fabrication or improper influences or motive on the part of the witness
CA- Allows consistent statement to be admissted as substantive evidence - to prove the truth of the matter 1) offered in response to impeachment with prior inconsistant statement 2) offered in response to a charge of recent fabrication
Federal Catchall
Hearsay admissible if:
1) Circumstances guarantee truthworthiness
2) Evidence of material fact
3) More probative of fact than any other evidence
4) serves interest of justice
5) Proponent gives notice to adverse party in advance of trial as to the nature of hearsay-gives oppenent chance to rebut.
Physical Abuse
CA- allowed in civil and criminal cases truthworthy recorded by police witness statments by unavailable witness relating to past, present or future incident of physical harm inflicted upon the declarant. Five criteria:
1) statement no more than 5 years old
2) declarant is unavailable
3) There is no evidence that offering the statement is the reason for the declarant's unavailability
4) the treat of phyical harm was not remote in time
5) the statement was made in circumstances that demonstrated its trustworthiness
What is a privilege?
A privilege is a rule of law that protects from compelled disclosure confidential communication between parties to a protected relationship. Rational to foster that relationship
What is the Privilege (approach) MNEMONIC (Relationships can create hapiness with exception)
1) Relationship
2) Communication
3) Confidential
4) Holder
5) Waiver
6) Exceptions
Who is the holder of the privilege?
The owner of the privilege is the person who interst/relationshio is sought to be protected (client, spouse)
Was the communication confidential?
Majority: made in confidence
Eavesdropper: Traditional- could testify if reasonabl precautions were taken to assure confidentiality.
Modernly - cannot testify if holder took reasonable precaustion to protect confidentiality
The power to Waiver rest in whom?
The power of waiver rest soley in the holder. Waiver:
1) failure to object
2) consent in advance
3) voluntary disclosure
4) disclosure of a significant part =waiver entire communication; modernly only part disclosed
Attorney client privilege
A client whether or not a party to the litigation has a privilege to refuse to disclose and to prevent his attorney or anyone wlase from disclosing any confidential communication made between him and attorney
Attorney client privilege (Client)
One who consults a lawyer for the purposes of retaining the lawyer.

Corp client - communication from a corp employee to the corp attorney when employee is directed by the corp to do so

Professional consultatin - legal purpose - privilege stands even through attorney is not retained
Is the attorney's observation of a client's mental or physical condition privileged?
No because there is no communcation. Minority = Yes
Documents prepared by attorney in anticpation of trial privileged?
Yes- in anticipaton of litigaton
What are the attorney client privilege exceptions (5)
1) Crime fraud exception-secure service of lawyer for the purpose eof enabling or aiding, plan to commit a crime CA- physically dangerous crime
2) Joint clients
3) Breach of duty- nonpayment by client
4) Communication in connection with decedent's will
5) Public Officals-Watergate, unless disclosure would seriously impair the functin of government
The Marital Communication (Testimonial) Privilege (testifing against spouse)
Traditionally, C/L rendered a spouse incompentent to testify for or against the other spouse.
Modernly- gives a witness in criminal cases the right to REFUSE to testify if against her spouse. In CA - civil cases also,
3) Holder is CL=Party Spouse; Modern/FRE - witness spouse
4) duration - long as marriage exists; privilege dies with the marriage
Exceptions: crimes against another spouse; crimes of bigamy and adultery; enable or aid anyone to commit or plan a crime
Marital Communication Privilege (get other name)-Confidential communication
Either spouse, whether or not a party hs the privilege to refuse to disclose and to PREVENT another from disclosing a confidentional communcation made between spouse while husband and wife
1) Holder both
2) Durations- forever even after the marriage has terminated/communication must be made in confidence
3)Applies only to confidential communication made during valid marriage
4) waiver both
5) Observation may be privledged/non verbal communications may be privilege (split jursidications)
6) exceptions- criminal proceedings where D testifies in his own behalf as to a communication between himself and his spouse
Physician/Patient Privilege
a patient whether or not a party to an action has a privilege to refuse to disclose and to prevent another from disclosing information between patient and physician for the purpose of medical diagnoses
1) holder - patient
2) Exceptions - domestic relationship cases; no privilege in criminal
Psychotherapist/Patient Privilege
1)holder - pt
2) CA recognizes a psy/pt that extends to clinical social workers
3) Exceptions
a) commitment proceedings agains pt
b)court ordered exam
c)Crime/Tort- aid someone to commit a crime
d) breach of duty - sue therapist malpractice
Priest/Penitent Privilege
Recognized privilege which shields statements made in confideent by penitent to a clergman in his office
2) Observation no privileged
3) holder - Both; minority Penitent
Journalist/Source Privilege
Protects journalist from being compelled while testifying to dislcose ID of sources. Shield Law that provides the newsman with immunity from forced disclose of ID of sources
2) holder - jouranlist
Informers ID
Generally privileged unless when informer's testimony is important to accused in presenting his defense
Privilege Againt Self Incrimination
5th Amendment provides privilege to refule to answer incriminatiing questions.
1) privilege is waived if not timely asserted by the witness
2) waived when D takes the stand in his own defense.