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107 Cards in this Set
- Front
- Back
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evidence: checklist
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CHIRP-E
- admissible to show CHARACTER? - barred by HEARSAY RULE? - admissible to IMPEACH? - RELEVANT? - barred by PRIVILEGE? - EXTRINSIC policies that bar admission? |
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relevance & reliability checklist
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- logically relevant?
- legally relevant? - reliable? - authenticated? - based on personal knowledge? - best evidence rule |
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legally relevant?
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probative value outweighs prejudicial effect
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ancient writings in California
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30 years
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self-authenticating documents
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No extrinsic evidence of authenticity required:
- public documents, sealed & certified - official publications, newspapers & periodicals - trade inscriptions - acknowledged documents - commercial paper - documents identified by statutory presumption |
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extrinsic policies
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NOT ADMISSIBLE TO SHOW LIABILITY OR INJURY:
- evidence re. insurance liability - subsequent remedial measures - offers to settle the case - offers to pay medical expenses - offers to plead guilty |
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character evidence: admissibility
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usually not admissible. EXCEPT:
- to prove ultimate issue or knowledge - to prove the character of the accused or offered by an accused against a victim - circumstantial proof of a fact - habit - credibility |
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impeachment
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- prior felony conviction
- prior bad acts - reputation - bias - inconsistent statement - lack of competency - contradiction of witness' testimony |
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privileges: list
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- attorney-client
- physician-patient - clergyman-penitent - spousal witness - marital communication - self-incrimination - general considerations |
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privileges: issues checklist
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- who holds the privilege
- is it covered? - was it made in confidence? - exceptions? was it waived? |
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hearsay: basic rules
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- is there an assertion?
- made outside of court hearing? - who is the declarant? - offered to prove the truth of the matter stated? - exception? - criminal defendant: 6th Am. right of confrontation excludes hearsay even if there's an exception! |
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Crawford case
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Criminal defendant's 6th Amendment right of confrontation requires exclusion of testimonial hearsay despite the application of a hearsay exception!
Example: pretrial statements. |
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hearsay exceptions
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- declaration against interest
- admissions - dying declaration - sense impression - excited utterance - expert cross-examination - mental state - equivalency - business record - official record - past recollection recorded - prior testimony - physical state - identification - consistent statement - inconsistent statement |
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evidence: how to create your outline
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-relevance & reliability
- extrinsic policies - character evidence - impeachment - privileges - hearsay & exceptions |
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prior bad acts for impeachment: can you impeach someone who hasn't testified yet?
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NO.
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logical relevance: issues
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- what fact am I trying to prove?
- is that fact of consequence to the case? - does the evidence help prove the fact? - special rules? |
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similar tort claims: relevance
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usually inadmissible. Exceptions:
- false claims - same part of body |
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similar contracts or transactions: relevance
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only clarifies the terms if the parties are the same!
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similar accidents or injuries: relevance
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only to prove dangerousness or knowledge thereof
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- similar acts did not occur: relevance
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to show safety of a particular condition, or lack of notice
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legal relevance
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inadmissible if probative value is substantially outweighed by:
- prejudicial effect - confusion of the issues - misleading the jury - waste of time |
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reliability
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testimony: must have personal knowledge
writings, voices, physical objects: must be authenticated |
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reliability: writings
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- personal knowledge
- identification of handwriting (lay person ok!) - circumstantial evidence: REPLY MESSAGE DOCTRINE - public records - self-authenticating ancient writings - general: 20 years - California: 30 years |
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self-authenticating documents: need extrinsic evidence of authenticity?
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NO
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prior testimony: admissibility
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- under oath
- former hearing - unavailable - opposing counsel had OPPORTUNITY AND INCENTIVE to cross |
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reliability: voices
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- personal knowledge
- identify the voice - distinctive characteristics - phone: caller ID or dialed number |
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reliability: physical objects
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- personal knowledge
- distinctive characteristscs - chain of custody |
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reliability: witnesses
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- personal knowledge
- under oath or affirmation - capacity to perceive & tell truth |
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Dead Man Acts
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civil suit: can't testify about conversation with the deceased if you have an interest in the outcome
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when witness is unavailable
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- unavailability not planned
- declarant's testimony could not be obtained by deposition NOT IN CALIFORNIA: - no present memory - refuses to obey ct. order |
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Best Evidence Rule
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- in proving contents of a writing
- original writing - must be produced - or shown to be unavailable - by the proponent of the secondary evidence (only if it relates to a controlling issue) |
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character evidence: types
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- reputation
- opinion - specific instances of conduct |
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character evidence: exceptions
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- non-conduct use (character or knowledge of character is an issue)
- character: accused - character: victim - circumstantial proof of fact - habit - witness reliability |
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character evidence: circumstantial proof of fact--which facts?
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- motive
- opportunity - intent or knowledge, absence of mistake or accident - modus operandi, preparation, plan - identity |
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impeachment: what can you introduce?
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- felony
- acts - reputation - bias - inconsistency - competency - contradiction |
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attorney-client privilege
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client holds privilege
attorney can claim only client or estate can waive! EXCEPT: - attorney v. client - crime or fraud - will disputes |
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spousal privilege
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- CRIMINAL ONLY
+ holder: - majority: defendant spouse - minority & fed: witness spouse - valid marriage required - only lasts as long as marriage! EXCEPTION: interspousal torts, crimes, bigamy, adultery |
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spousal privilege: marital communications
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- holder: both spouses!
- all confidential communication - only DURING marriage + non-verbal conduct: - MAJORITY: no! - MINORITY: yes, but only at home EXCEPTIONS: crime or fraud |
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physician-patient privilege
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- holder: patient
- physician must be (or reasonably believed to be) authorized to practice - applies to all communication EXCEPTIONS: - suit between Dr. & patient - mental or physical state an issue - Dr. appointed by court - crime, fraud - reports to social workers or public agencies - psychologist-patient: MAJORITY & CALIFORNIA: yes! But CA allows disclosure for minors or to protect patient |
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clergyman-penitent
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- holder: both!
+ clergyman must be: - member of religion/church - authorized to take confession - under duty to keep secret - only confidential communications are privileged - no exceptions! |
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self-incrimination
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ACCUSED:
- right not to take the stand - doesn't apply to Grand Jury, legislative or administrative hearings WITNESS: privilege not to disclose self-incriminating evidence in ALL proceedings! |
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privileges: general considerations
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- 3rd person present: no privilege!
- eavesdroppers: COMMON LAW: may testify MODERN: may not testify CALIFORNIA: privilege holder can prevent eavesdropper from revealing privileged information - court can assert privilege in absence of holder |
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testimonial hearsay
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Hearsay in a courtlike setting, but not actual trial (eg. pretrial). EXCLUDED even if there's a hearsay exception!
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hearsay exceptions
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- declaration against interest
- admission - dying declaration - sense impression - excited utterance - expert cross-examination - mental state - equivalency - business record - official written statement - past recollection recorded - prior testimony - physical state - identification - consistent statement - inconsistent statement |
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Federal Rules of Evidence: "not hearsay"
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- admissions
- identification - consistent statement - inconsistent statement |
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hearsay: declaration against interest
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- declarant unavailable
- against financial or penal interest - when it was said - REASONABLE person wouldn't have said unless true! |
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hearsay: dying declaration
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- declarant unavailable
COMMON LAW & CALIFORNIA: must be dead! - believed death was imminent - relating to circumstances of death - with personal knowledge COMMON LAW: homicide case only! |
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hearsay: excited utterance
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- exciting event
- made under stress of excitement - relating to the event - declarant had personal knowledge |
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hearsay: business record exception
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- written statement
- made in regular course of business - near time of receipt of information - source reliable (or declarant had personal knowledge) - unless circumstances indicate untrustworthy!!! |
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official written statement
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- written statement
- by public official - in course of business - unless untrustworthy!!! |
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past recollection recorded
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- written statement or record
- made when facts were fresh - personal knowledge or reliable source - accurately reflects prior knowledge - no present recollection |
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prior inconsistent statement
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- prior statement
- inconsistent - given under penalty of perjury - at a proceeding (deposition, trial, etc.)!!! |
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What is required for a Dead Man act to apply?
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- interested party
- protected party - civil case (no criminal!) Otherwise the Dead Man Act doesn't apply! |
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Dead Man Act: interested party
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stands to gain or lose by the direct and immediate operation of a judgment in this case
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Dead Man Act: protected party
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representative or successor in interest to the deceased
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Admission by party opponent: is it admissible if the declarant did not have personal knowledge?
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YES. You can discredit your own out-of-court statement during trial by explaining that you had no personal knowledge at the time you said it. But, that won't keep the evidence from being admitted!
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Statement against interest: must the declarant be unavailable?
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YES. If the declarant is available then you cannot introduce a prior statement against interest.
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Essay writing: For each piece of evidence, what is the issue?
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The issue is not the testimony, but the fact itself! eg. not Paul's testimony, but Don's statement (as related by Paul)
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doctor asks "how did this happen?" is it privileged?
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NO. Privilege does not apply to non-medical matters such as details of an accident.
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Does doctor-patient privilege survive after patient's death?
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NO.
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what do you need to authenticate a photograph?
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Just a witness who can verify its authenticity. You don't need the photographer.
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How can you use a learned treatise?
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Federal Rules:
- impeach - substantive evidence Traditional: - impeach only |
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Does patient-physician privilege apply in a personal injury suit?
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NO. Not if the injuries are an issue in the case!
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Is it a business record if it was made in anticipation of litigation?
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NO. But it does qualify for attorney-client privilege.
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Can attorney show the witness the attorney's notes in order to refresh his recollection?
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Yes!
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Effect of judicial notice in a criminal case
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Burden of proof stays with the prosecutor but no additional evidence must be shown.
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When can you rehabilitate an impeached witness?
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When the witness was impeached by any prior bad acts
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Once the defendant has opened the door to character evidence what can prosecution introduce?
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Reputation opinion "have you heard"
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What are prior crimes / bad acts allowed to show?
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NOT TO SHOW THEY DID IT THIS TIME. But admissible to show something else like motive our intent! Probative value must outweigh prejudicial effect
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When is character evidence admissible in a civil case?
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CAN'T USE TO SHOW THEY PROBABLY DID IT THIS TIME. Can use to establish something else like negligent entrustment or defamation. If a party testifies truthfulness is automatically an issue.
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Criminal case: D has opened the door. Can prosecutor introduce prior crimes?
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No!
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Trial for assault with a deadly weapon: can D introduce character evidence for honesty & veracity?
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NO; not a material issue in the case!
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Settlement offers inadmissible WHEN:
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If offered to prove liability invalidity of the claim or to establish amount of damage
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Offer to pay medical expenses
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Inadmissible to show defendant's liability!
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Evidence of repairs after an accident
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Inadmissible to prove negligence or strict product liability. BUT admissible to show something else!
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What is admissible for impeachment
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prior inconsistent statements bias prior criminal convictions prior bad acts reputation for untruthfulness
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Are records of arrests admissible to impeach?
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NO. Only convictions maybe.
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What doesn't count as hearsay
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prior inconsistent statement under oath admission by party opponent prior identification by someone currently on the stand
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Hearsay exceptions
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present sense impression current physical/mental condition for medical treatment/diagnosis recorded recollection business records IF WITNESS IS UNAVAILABLE: former testimony declarations against interest dying declarations
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Does accusation + silence count as an admission?
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Yes--adoptive admission if it's the kind of thing you should deny!
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When can dying declaration be used?
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Only in a homicide trial. Someone must be dead.
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Spousal privilege
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(1) spouse cannot be forced to testify against the other spouse—but they can if they want! Doesn't matter when they learned about it! (2) confidential communication made between spouses during marriage: either spouse can assert privilege!
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Federal Rules: must the person who made a dying declaration actually be dead?
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YES. If the person didn't actually die try excited utterance.
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Is lay opinion permissible to identify handwriting?
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YES.
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Spousal privilege under federal criminal law:
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One spouse may testify against the other don't need consent of other spouse!
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Is there a family document exception to the hearsay rule?
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YES
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Does aural voice identification require an expert?
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NO
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When do you have to be familiar with a voice in order to identify it?
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You can become familiar before or after you hear the voice! (Eg. hear the voice on the phone then hear it in the judge's chambers and realize it's the same person. That's ok!)
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Can you impeach on a collateral matter?
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NO.
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Once someone is qualified as an expert can you still attack his expertise?
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YES!
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Non-expert testifies on handwriting: does he have to be personally familiar with the handwriting ahead of time?
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YES - doesn't count if he only prepared for trial.
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Does Best Evidence Rule apply to personal knowledge?
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NO. If you have personal knowledge then Best Evidence Rule doesn't apply.
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Determining admissibility: who makes the initial factual determination?
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The judge! Eg. whether witness believed her death was imminent
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Can the judge testify?
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NO.
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Does the label mean it's really Campbell's soup?
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Yes. Yes it does. FRE 902(7)
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Excited utterance: hearsay exception or non-hearsay?
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NON-HEARSAY. Because you didn't have time to think about it. (Sure, why not?)
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Prior crimes: what if it's rape
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In a rape case, prior instances of rape are admissible FOR ANY REASON under the FRE.
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Pedigree exception
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Hearsay exception: you know who his family is
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When do you determine competence of infant witness?
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At time of event, not time of testimony.
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Declaration of present bodily condition: doctor needed?
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Nope! Can make to just about anyone!
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Doctor-client privilege: if a 3rd party overhears, does that destroy privilege?
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NO - privilege still applies!
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Does hearsay have to be made by a person (ie no parrots?)
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YES - has to be a real person. No parrots.
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Best Evidence Rule: what if you have personal knowledge?
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If you have personal knowledge then Best Evidence Rule does not apply.
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Judicial notice
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Fact must be:
- generally known within the territorial jx of the trial court OR - capable of accurate and ready determination Courts prefer to make judicial notice of something that is not an ultimate fact in the case. |
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Learned treatises
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Non-hearsay. Can be read into evidence but not received as an exhibit. (Sure, why not.)
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Learned treatise: can it be used substantively?
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Yes! (Under FRE - some states limit to impeachment)
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Statutory presumption: must a jury accept it as true?
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NO - they MAY accept it as true but it's up to them.
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