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106 Cards in this Set

  • Front
  • Back
Offer of Proof
o Means by which counsel can place into the record a description of the excluded testimony so that the right to an effective appeal may be preserved
Necessary for Offer of Proof
i. Substance of excluded evidence
ii. What it was intended to prove
iii. Relevance of the excluded evidence
Ways of making an offer of proof
1. Excuse the jury and proceed with examination of the witness
2. Summarize the witnesses testimony
3. Submit to the court witness statements reports or deposition transcripts
Reversible Error (If not reversible, then harmless)
mistake that affected substantial rights in a way that seems serious enough to warrant relief from judgment
Factors to Consider When Determining Substantial Rights
• Criminal v. civil
• What is harmless in civil might be harmful in criminal
• Jury v bench
• Want to shield jurors from evidence that should not be heard
• Error that occurred before a jury is more likely to be reversed than judge
• Strong cases vs weak cases
• If the other evidence is overwhelming then it may have not affected outcome
• Peripheral vs central issues
• Minor error vs. major error
• Error affecting constitutional rights vs. error affecting statutory rights
When is error considered harmless?
• An error in admitting evidence is not harmless if all the evidence is sufficient ONLY when that item is counted
• An error in excluding evidence is not harmless if letting it in would have made it sufficient
• If other evidence is overwhelming then even a serious error may be considered harmless
Plain Error
same as above except that the error was obvious or egregious, and failure to object may be excused
Constitutional Error
An error that infringes on constitutional rights is required to be reversed unless the court believes beyond a reasonable doubt that the error did not effect the verdict
CA differences to objection and error
• 354 c --CA code recognizes that on cross examination if objected to and judge sustains YOU DON’T HAVE TO MAKE AN OFFER OF PROOF
a. THIS IS NOT PRESENT IN OFFER OF Proof
• CA DOES NOT RECOGNIZE THE PLAIN ERROR DOCTRINE
Relevant Evidence
evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
What is a fact of consequence?
• Look at charges
• Look at defenses
• Credibility of witnesses
• Background Info
Direct Evidence
The thing proves or disproves itself;
• Directly proves a fact with inference (CA Distinction
No logical process is employed
Circumstantial Evidence
o Proves a fact which we can make an inference (CA Distinction
Circumstantial Evidence
(Criminal Cases)
o If two opposing inferences can be drawn from a piece of circumstantial evidence the jury must find the inference that points toward innocence
• HOWEVER this is only true if it is the most logical inference to draw (the jury can reject it)
• The innocent inference must be reasonable to overcome a reasonable guilty inference
Relevance Difference CA
Relavence CRE v. FRE Difference
o DIFFERENCE in CRE: the word "disputed" is in this code
o In CA, evidence offered to something that is not disputed can be irrelavent
• Can make same arg in fed court, but less likely to win
403 Balancing Test
Although relevant, evidence may be excluded if its probative values is substantially outweighed by the danger of unfair prejudice…
Unfair Prejudice
an undue tendency to suggest decision on an improper basis, commonly, though not necessarily an emotional one
Considerations of the 403 Balancing Analysis
o How strongly does this evidence prove what it is offered to prove?
o What is the strength of the inferences?
o Are there alternatives to proving the same point?..if so, this would discount its probative value and could ultimately tip the scales
Authentication (Laying the foundation)
• THE PROPONENT MUST PROVIDE SUFFICIENT EVIDENCE TO PERSUADE THE TRIAL JUDGE THAT A REASONABLE JUROR COULD FIND THAT THIS IS THER REAL MCOY
Self Authentication
Self Authentication(FRE 902)—A document can be self authenticating, you just have to offer it
• Public Document Under Seal
• Domestic public Documents not under seal
• Foreign public docs
• Certified copies of public records
• Newspaper
Non Self Authenticating
Use extrinsic evidence
1) Nonexpert opinion based on familiarity
2) Expert opinion or jury draw comparison
3) Distinctive qualities that can determine its source
4) Self Identification of a call
-Callee says self identify not enough on its own, caller attests to self identify...enough
5) Really old docs
-fed 20 years, cali 30
Reply Letter Doctrine
Authentication can be proved that the call/letter was made in response to a previous message
Authentication of Unique Objects
a. Foundation is complete when a witnesses testifies that the unique characteristics are what they saw before
1. Need testimony that the object has unique characteristics
2. Need testimony that they saw the unique characteristics
3. Testify that it is the unique characteristics that he saw
4. Has not changed in any material way see 901b4…if so account
1. Can also use chain of custody
Authentication of Non Unique Objects
a. Have to create a chain of custody…identify every person that had this cocaine from the time it is seized to the time of trial
Best Evidence Rule
In proving the terms of a writing, where such terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent
Admissibility of a duplicate?
a duplicate is admissible to the same extent as they original unless there is a genuine question as to the authenticity of the original or it would be unfair to admit the duplicate in lieu of the original.
Original Document
The writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it.
-Relative to BER the original is considered to be the document that played a role in the litigation
Duplicate
• Counterpart produced by the same impression as the original
• Any version that is SOO likely to be accurate that we do not worry about it
o Photo copy is a duplicate
o Treated as good as an original UNLESS the opponent can poke a hole in it
When the original is not required....
o ALL originals are lost or destroyed UNLESS proponent did it in bad faith
• Then you must prove that you looked for it (due diligence requirement)
o -2:Original is in JN that you cannot subpoena, then you do not have to produce it
o -3: The other side has the original and wont let you have t, so you can offere secondary evidence
o -4: The writing is not clearly related to a controlling issue (never rely on this)
CA Secondary Evidence Rule
Secondary evidence can be used to prove the contents of a writing as long as:
1) No genuine dispute exists as to the writing’s material terms,
2) and that such admission would be neither unfair or unjust
Aditionally
-Oral testimony can be used to prove the content of the writing when the proponent has 1) not fraudulently lost or destroyed the original, 2) the originals are not reasonably procurable 3) production would waste the courts time 4) voluminous
Character evidence
EVIDENCE OF A PERSON’S CHARACTER IS GENERALLY NOT ADMISSIBLE TO PROVE THAT THE PERSON ACTED IN CONFORMITY THEREWITH ON A PARTICULAR OCCASION (404a).
*Concern is that the jury will convict because he is a bad man, as oppose to because he is guilty.
Exception: Character in Issue
o when the applicable substantive law makes a trait of character an element of a claim, cause of action, or defense
• Ex. Negligent entrustment: Driver is a reliable driver, Defamation: whether what was said was true, Child custody
• Character is not in issue in criminal prosecution EXCEPT for the defense of entrapment in proving the predisposition to commit the crime
• DON’T EVER TALK TO HIM ABOUT CHARACTER BEING IN ISSUE IN A CRIMINAL CASE!!!
o Can offer evidence in one of two way:
• Character witness: 405(a)
• Specific instances of behavior to prove character 405b Only available in issue
Exception: D's Good Conduct
o A criminal DEFENDANT my offer evidence of a pertinent trait of defendant’s good character as substantive evidence of innocence
Exception: Victim's propensity
the Defendant may offer a character witness to describe the victim’s reputation for violence in an effort to prove that the victim was the first aggressor
-Can take the form of specific instances in CA
-Victim's lustful disposition is barred by rape shield
Exception: D's Lustful predisposition (FRE 413-415)
o In sex offense cases, the prosecution can offer evidence of the defendant’s lustful predisposition
-CA also allows for D's Character in domestic violence
Exception: Impeachment 404a3
o A witness can be impeached with character evidence (404a3
405a last sentence impeachment
o The prosecutor may impeach the character witness by asking the character witness about specific instances of the D if the D has put on character evidence regarding his good conduct(405a last sentence)
-Note, "have you heard" and "did you know" distinction
Rebut the Same "D"
can offer a character witness to testify that the D has a reputation for violence if the D has first put on character evidence regarding his good behavior (bad character evidence to rebut the same) (405a1)
CA Differences to 404 and 405
In aiming to prove the victims violent predisposition in cases where self defense is asserted, the D can put on evidence of specifice instances of such violence however the victim is then allowed to admit evidence of specific instances that would imply that the defendant had propensity for violence and was the agressor. Specific intances are not allowed under the federal rules.
Habit Evidence 406
Evidence of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice
Uncharged misconduct evidence
Evidence under 404b is not admitted to prove conformity with character on a given occasion but is relevant to another issue found admissible...
Admissible purposes under 404b
motive
2) Opportunity
3) Intent
4) Preparation
5) Plan
6) Knowledge
7) Identity
8) Absence of mistake or accident
Factors considered in 404b balancing
1) Important issue
2) Other evidence establishing the same point
3) Hotly disputed issue
4) Clarity that the D did the UME
5) Lapse of time
6) How difficult to prove the UME
Motive
Identity: Existence of a motive increases the likelihood that the D is the culprit
Intent: If they had the motive then it is more likely they intended it to happen
1st Theory of motive
an uncharged act may give rise to the motive for the charged act
2nd Theory of motive (illegitimate)
the uncharged and charged acts are products of the same motive (Illegitimate theory according to myers)
• Prosecutor admits evidence that the D attacked the victim on a prior uncharged occasion, the prior assault is a product of defendant’s hatred of the victim
• Because you have the same motive you continue to commit the same crimes
Wigmore's Doctrine of Chances
Intent: The more often that something occurs the less likely it is occurring coincidentally and the more likely it is occuring because it is intended
Doctrine of chances--Anonymous acts
o Acts can be anonymous, at some point before the anonymous acts are introduced you must tie the D to the anonymous act in some way
• D is charged for murdering the child due to head injury….there were 5 head injuries reported (UME)….all were D’s kids=admissible
o There is no hard and fast rule about the number of acts that need to occur before admission…just need enough to make sense
o The more similar the better
Beechum Thoery of Intent
o D's UME-->Intent to kill-->Propensity for intent to kill--->conduct in conformity with intent
o Possessing criminal intent on one occasion increases the likelihood that the same intent exists on subsequent occasions
o Anonymous acts are not permissible under this viewneed to establish that it was D who did it
o The charged and the uncharged act must be similar
o The uncharged acts must not be too remote as to rob them of probative value regarding intent at the time the D committed the charged offense
Entire Picture Doctrine
Courts will admit uncharged misconduct that is inextricably entwined with the charged offense
o To complete the story of the crime on trial by placing it in the context of nearby and nearly contemporaneous happenings
o Only admissible when it is needed for COMPLETE understanding of the uncharged act
Plan
o Uncharged misconduct establishing plan is admissible to prove mens rea, actus reus, or identity
• Identity: if he had a plan to do it is more likely that it is the perpetrator
• A plan to commit the crime is strong evidence of intent
• If a plan exists it is more likely that the crime happened
-ANONYMOUS ACTS NOT ADMISSIBLE
Narrow Approach to Plan
Evidence of a plan is only admissible if the D’s plan incorporates the uncharged acts and the charged acts in one continuous undertaking
• The UME must be part of one large plan—5 robberies under one large plan of a bunch of robberies (i.e. I rob everyone that comes into my store)
• Not admissible: five separate robberies by the same person
Broad Approach to Plan
: Evidence of a plan is admissible when it demonstrates that an individual devised a plan and used it repeatedly to perpetuate separate but very similar crimes
• The doc used his expertise to drug women and take advantage of them on four separate occasions
-CA adopts this
Conciousness of Guilt
UME reflecting consciousness of guilt is admissible to establish identity, mens rea, or actus reus
Modus Operandi
Identity only
Identity (only) may be established by the admission of the D’s uncharged acts that are strikingly similar to the charged offense
Modus Operandi Requirements
1. A very high degree of similarity between the charged and uncharged acts
o Needs greater similarity than the doctorine of chances or broad theory of plan
o Time lapses and locality considered (not as important as similarity)
2. A unique methodology
o Terms used: distinguishing, handiwork, idiosyncratic, signature quality, and unique, strikingly similar, mark of zorro
Opportunity or Capacity
The likelihood that defendant committed a crime increases when there is evidence that the D had the opportuinity or capacity to commit the crime
Third Party Culpability Evidence
Does the evidence have a tendency to prove that a third party rather than defendant committed the crime
• 1st Approach Direct Connection: To reduce the potential for false claims, this approach requires Ds to establish a direct connection between the third party and the crime—mere relevance is not enough
• 2nd Approach Reasonable Doubt: TPC evidence is admissible if it raises a reasonable doubt about the defendant’s guilt
• 3rd Approach Probative value vs delay, confusion, or undue prejudice: just treat it like any other evidence and do a 403 analysis if relevant…however, pointing the finger the other way may confuse the jury
Types of TPC Admitted
o Opportunity (usually not enough on its own)
o Motive (Usually not enough on its own)
o Habit
o Modus Operadndi
o Third-Party Confessions—
o Physical evidence linking a Third Party to the crime (Strong)
o Third party testifies against D…usually evidence against that party is admitted
o JUST THE STRONGER THE EVIDENCE, THE MORE LIKELY IT IS ADMISSIBLE
o It is admissible
o Note potential Constitutional Issues
Holmes
Just because there is strong evidence pointing to D’s guilt does not mean evidence pointing to a 3rd party’s gilt is less probative and should not be considered
Similar Happenings Evidence
Where the proponent can show that other accidents occurred under circumstances substantially similar to those prevailing at the time of the injury in question, such evidence is admissible subject to 403 balancing….(
What can similar happenings evidence prove
• Existence of a particular condition
• Defect caused
• Risk that D's conduct created
• Evidence that D knew or should or should not of known
Common applicability: Business K's
Subsiquent Remedial Measures
If after an injury or harm allegedly caused by an event, measures are taken that should have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct
-CA counterpart, in SPL it is not barred
Compromise
Evidence furnishing or offering or prove compromise of a claim which was disputes as to either validity or amount is not admissible to prove liability or invalidity of the claim or its amount.
Offers to Pay Medical Expenses
Evidence of offered to pay doctor bills for an injury is not admissible to prove fault
• When you have an offer to pay medical expenses are mixed…
o Options: exclude all, admit all, or edit
Ple
Evidence of a guilty plea later withdrawn is inadmissible against the D who made the plea or was a participant in plea discussions
Liability Insurance
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully
o Evidence of lack of insurance is not admissable
o We want people to carry insuance
o Don’t forget second sentence…can still use it for control or if it is relevant for other reasons such as agency or ownership
Sex Offense Cases (Federal)
Generally, evidence offered to prove that the victim of a sex crime engaged in sexual behavior or that the victim had a sexual predisposition is barred.
Exceptions to 412 (rape shield)
o Someone other than D was the source of semen, injury, or other evidence (specific instances)
o Specific instance of consent with the accused
o Evidence if not admitted would violate the D’s constitutional rights
o Reputation evidence is only admissible if it has been placed in controversy by the victim
o Motion for the evidence must be served on all parties and then inspected by the judge in camera
Competency
Every witness is presumed to be competent
Personal knowledge requirement
A witness cannot testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter
• Personal knowledge must have used one of the five sense to garner some firs hand impression or first hand impression of what happene
• In Fed court can move forward without proving knowledge base (wait and see), while in Cali you can object beforehand
Translator, judges as witnesses, jurors
duh idiot.
Factors Considered in determining testimonial capacity
Capacity to observe
sufficient intelligence
sufficient memory
ability to communicate
awareness of difference between truth and false--age 3
appreciation of duty to tell the truth--2
Intellectual Capacity of and Infant
comprehension of the obligation to tell the truth and his intellectual capacity of observation recollection and communication
o Receive, retain, and transmit accurate representations
Dead Man's Statute
If one of the parties to an agreement dies, the other party cannot testify to the agreement...one man's lips are sealed by death, the other is sealed by law
-CA abolished this and allows for testimony from one side and others for the dead guy
Hypnotized Witnesses
Federal Courts: Generally, hypnotized witnesses are not allowed to testify

CA: Due to Prop 8, hypnotized witnesses are allowed to testify if the testimony is limited to those matter which the witness recalled and related prior to the hypnosis or the substance of the prehypnotic memory was preserved prior to hypnosis

SC: A Defendant that has been hypnotized has to be let to testify, otherwise it would violate due process
Leading Questions
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimonies, however leading questions are permitted on cross examination.
o If considered a hostile witness, he or she can be taken on direct
o In CA, you can lead experts in on direct examination
o Statement of fact followed by request for agreement
o Some questions are only considered mildly leading, such as: Did you have toast and Jam for breakfast?
IS, ARE< WERE< DO< DID=often signal mildly leading question
• Just worried about highly leading
Bias
Under rule 607, a witness may be impeached through the admission of evidence demonstrating a particular bias.
-Bias is admissible through collateral evidence
-If attacking under bias, it does not trigger the bolstering of a witness under 608
Character witness
Opinion and reputation evidence of character (608a): The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation (character witness)
-Evidence of truthful character is admissible only after the character of the truthful witness has been attacked
Specific Instances of Conduct
Specific instances of the conduct of a witness for the purpose of attacking or supporting the witness’ character MAY NOT be proved by extrinsic evidence
-HOWEVER, they may be inquired into on cross-examination of the witness regarding HIS truthfulness or untruthfulness, or concerning the truthfulness or untruthfulness of another witness as to which character the witness being cross examined has testified
-Does not apply to 609
-Do not recharacterize as contradiction and apply CEIR
CA differences to specific intances
o In CA, under CEC 787, in civil cases a witness cannot be impeached by asking the witness about specific instances, HOWEVER due to Prop 8, in criminal cases such specific instances are allowed for impeachment purposes (additionally, can ask about moral turpitude)
Prior convictions
Federal Court, Witness
evidence that a witness other than the accused has been convicted of a crime shall be admitted if the crime was a felony
-subject to normal 403 balancing, therefore it may be excluded if its probative value is SUBSTANTIALLY outweighed by the danger of unfair prejudice
-Juvenile crimes not considered
Prior Convictions
Federal Court, Defendant
evidence that an accused has been convicted of such a crime shall be admitted if the crime was a felony
-subject to special defendant’s test in which such crimes shall be admitted if the court determines the probative value OUTWEIGHS the prejudicial affect to the accused
(More evidence will be found inadmissible due to prejudicial effect compared to witness)
-juvenile crimes not considered
Prior convictions,
Crimen Falsi,
Both (misdemeanors included)
Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
-Not subject to any balancing test
Crimen Falsi
Crimes in nature of falsification bearing on witness’ propensity to testify truthfully...
o Perjury
o Subornation of Perjury
o False Statement
o Criminal Fraud
o Embezzlement
o False Pretense
o Forgery
Not Crimen Falsi
o Shoplifting
o Cocaine Possession
o Burglary
o Theft
o Robbery
Possibly Crimen Falsi
o Failure to file income taxes--Possibly
o Conspiracy to import cocaine for import?
• Depends on essence of crime
• Stealth? No
• Falsification of docs? More likely
• Courts will look at facts underlying the crime
CA Prior Convictions Impeachment
Under the Article I Section 28(f) of the California Constitution, it is stated that any prior felony conviction of any person in any criminal proceeding can be used without limitation for the purpose of impeachment. However, this was limited in People v. Castro in which the California Supreme Court required that in order to be impeached through evidence of a prior felony, the crime must be one of moral turpitude or demonstrating a readiness to do evil
Dishonesty
Crimen Falsi
Moral Terpitude
• To determine moral turpitude we IGNORE THE UNDERLYING FACTS and look at the statute and determine if such elements involve moral turpitude
• Crimes of Moral Turpitude
• Child molestation
• Crimes of violence
• Torture
• Brutality
• Sale of Heroine
• Burglary
• Attempted Burglary
• Crimes NOT of Moral Turpitude
• Possession of heroine No
352 Balancing...
All of them BZ
CA uncertainties
• If you have a witness with prior conviction of misdemeanor you cannot impeach with the conviction
• But if the conduct that underlies the conviction is proper to impeach than you can impeach with the conduct
Prior Inconsitent Statements
Evidence of the witness making a statement previously out of court that is inconsistent with a statement tin court is admissible for impeachment purposes

Theory: PIS shows that the witness speaks differently at different time and therefore the jury does not know which statement to believe
PIS NOTES
o Can be oral or a prior statement that is in writing..
o In CA all PIS can be used to impeach and to be evidence as to the matters of the truth
o In federal can be used to impeach and SOME matters to the truth
Foundation for PIS
Ask the witness before confronting them with statement….
• Place where PIS was made
• To whom it was made (who was present)
• Subject matter of PIS
• Time it was made

PIS in writing?
• Same thing, but you have to give it to them first and then ask them the same stuff (Rule in the Queen’s case)
• All of us make inconsistent statements…trying to help them recollect….
• Not to diminish cross, but to help get truthfulness…

However:
o 613 abolishes rule in Queen's case and you do not have to present them the evidence beforehand
PIS through Silence
o Inconsistency implied through silence: courts will consider silence to be inconsistent with previous statements if one is silent at a time when it would be natural to speak
o D testifies he acted in self defense….D did not mention self defense
o If it is deemed that reasonable person would have spoke up under the circumstances
PIS through Forgetting
o Denial of recollection of the prior statement
o Generally found not to be an inconsistency, as people often do forget
o However, if the judge determines that the failure to recollect is a lie or evasive, courts will admit the evidence for impeachment purposes
Contradiction
Under FRE 607, evidence contradicting a statement made by a witness is admissible for impeachment purposes
Collateral Extrinsic Impeachment Rule
Under the CEIR, extrinsic evidence used to impeach a witness based on PIS or Contradiction will not be admissible if considered to be collateral to the principal issues being tried.
Collateral
Not relevant to anything in the case other than impeachment
Is the extrinsic evidence collateral
Yes, then it is barred by the CEIR
No, then it is not barred by the CEIR
Exceptions to the CEIR
1. If the theory of impeachment is CONTRADICTION, and the extrinsic evidence is NOT relevant to any issue other than impeachment by contradiction then CEIR bars the extrinsic evidence UNLESS the impeachment goes to a fact that the witness would not be mistaken about if the witness had been there to observe what the witness described (Big Red Barn)
2. Really good impeachment evidence
CA take to CEIR
Abolished as a waste...let it in and then we will do a 352 balancing test
Rule Against Bolstering
a witness cannot be bolstered through a character witness until being attacked by opinion, reputation, or otherwise
• Even if impeachment is unsuccessful you can still bolster
• Bias does not fall within 'or otherwise” and thus does not trigger bolstering under 608
o But f it goes beyond bias goes into corruption, then could be considered attack on truthfulness
CA Differences
• In federal court the witness must be first attacked in civil and criminal hearing in order to be bolstered
o However, because of prop 8 in criminal trials you do not have to wait for an attack in order to bolster