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301 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
applicable law - three sources in essay
FRE, trad rule, CA distinctions
when does CEC CA apply?
1) CA state court in both civil and crim cases

2)fed cts in CA - civil cases where state law governs elements of claims and defense
what does CEC apply to?
witness competency, privilege and effects of presumption
prop 8 general rule
all relevant evidence shall be admitted in crim procs
prop 8 7 areas of evidence excluded from general rule
) pivilege ruels extant in 1982, 2) hearsay, 3) iscretionary exclusion, 4) rape-shield 5) UC C Miranda Massiah 6) media protection 7) statutory exclusion rules enacted after 82 by 2/3 vote of leg
whole law of evidence 3 sections
relevance, formal and foundational requirements and exclusionary rules
relevance - 4 subsections
1) logical relevance 2) special problems 3) policy exclusions 4) discretionary exclusion
steps to answer any question
1) parties, 2) nature of action charges claims etc, 3) who, what offered , why offered 4) objections ruling
relevance - logical relevance - 2 types
probative and material
relevance - logical relevance - probative
tends to prove or disprove a (matter of consequence to the action)
relevance - logical relevance material
(tends to prove or disprove a) matter of consequence to the action
relevance - special problems - 4
character, habit/routine practice, similar happenings, credibility
relevance - logical relevance - evidence offered is truth - direct evidence probative
direct evidence is proof and is probative
relevance - logical relevance -
circumstantial evidence
must be shown to be probative through strong inferences
relevance - logical relevance - if gut feeling is weak with respect to probatve
too many inferences etc = likely not probative
relevance - logical relevance - material CA code
must be offered to prove a disputed fact but under FRE if material and not disputed likely excluded under discretionary rule
relevance - logical relevance - material - credibility
look out for impeachment or rehab that tends to prove issues of crediblity
relevance - policy exclusions nuemonic
ripoff remedial measures, insurance, pleas, offer to settle, fact admission settlement, fact admission meds
relevance - policy exclusions 6 -
remedial measures, insurance, pleas, offer to settle, fact admission settlement, fact admission meds
ripoff
legal relevance - policy exclusions - remedial measures - rule
Subsequent RM will be excluded if offered to show D negligence or some other kind of culpable conduct
legal relevance - policy exclusions - remedial measures - SPL FRE CA
FRE not admitted in SPL
CA and Modern is admitted in SPL
legal relevance - policy exclusions - remedial measures - exceptions
1) if D denies ownership then to show ownership
2) if D denies having control then to show control
3) if D denies feasibility then fixes to show it was feasible
legal relevance - policy exclusions - insurance
not admitted as proof of insurance or lack of insurance is excluded if offered to show negligence culpable conduct, due care , or ability to pay
legal relevance - policy exclusions - insurance CA
admissible if offered to show D was not covered and offered to show due care - D being particularly careful because not coverd
legal relevance - policy exclusions - insurance exceptions
agency, ownership, control or to show bias of witness
egal relevance - policy exclusions - pleas
excluded in order to promote plea negotiations - nolo please, withdrawn guilty pleas, plea bargain statements
legal relevance - policy exclusions - pleas - admissible
guilty , conviction
legal relevance - policy exclusions - pleas - exceptions
where it would not be fair to exclude or a perjured statement can come in
legal relevance - policy exclusions - offer to settle or pay medical expes
all Js do not admit - MBE has to be a claim where liability or amount of damages is disputed
legal relevance - policy exclusions - offer to settle- what to look for
trad rule fact admissions out side offer to pay is admissible - I know it was defective so I'll settle
FRE not admissible unless hypo question or w/o prejudice
legal relevance - policy exclusions - fact admission w offer to pay meds alone
FRE factual admissible
CA neither admitted
legal relevance - policy exclusions - mediation statements CA
in CA will exclude statements/writings made in connection with mediation - findings or report cannot be discovered and in subsequent non-crim
legal relevance - discretionary exclusions - rule 403 CA 352
discretion to balance probative value vs unfair prejudice if admitted - must be substantially outweighed - favoring admissibility
legal relevance - discretionary exclusions - rule 403 CA 352
balance
probative value vs prejudice or misleading or cause delay
legal relevance - discretionary exclusions - rule 403 CA 352
court has discretion to exclude evidence if the probative value is substantially outweighed by unfair prejuice
legal relevance - discretionary exclusions - rule 403 CA 352 - standard on appeal
will not be overturned abuse of discretion - no reas judge would have made the same ruling under the circumstances
legal relevance - discretionary exclusions - rule 403 CA 352 - what should be kept out
gory, shocking or cumulative see MIMIC
legal relevance - discretionary exclusions - rule 403 CA 352 - surprise witness
FRE=admitted but surprised side get continuance to prepare
trad = not admitted
relevance - special problems
character - 3 types
in issue, propensity, MIMIC
relevance - special problems
character - in issue
negligent hiring, defamation, negligent entrustment - if character is in issue it is admissible
relevance - special problems
character - in issue - negligent hiring
character of employee is in issue
relevance - special problems
character - in issue - defamation
if called a thief then the P's character is in issue
relevance - special problems
character - in issue - negligent entrustment
character of to whom -entrust car to A who is well known as a reckless driver
relevance - special problems
character - procedure to attack
purpose, type of proceeding, form of evid
relevance - special problems
character - procedure to attack - form of evid
, reputation or opinion, specific acts, character in issue, mimic, impeachment
relevance - special problems
character - to show propensity
circumstantial that makes it more likey D acted in a certain way
relevance - special problems
character - to show propensity - civil case
not admitted
relevance - special problems
character - to show propensity - criminal by D own character - mercy rule
FRE as long as it is a relevant trait pertinent to the crime which is charged - if violent then evidence of being peaceful is admitted
fraud, larceny, = honest

CA not only can D admit pertinent trait but also his character in general
relevance - special problems
character - to show propensity - criminal by D - other's character - victim was first agreeor
victim
FRE will be allowed to introduce reputation to show Victim was first aggressor
CA will be allowed to introduce reputation AND SPECIFIC ACTS to show Victim was first aggressor
relevance - special problems
character - to show propensity - criminal by D - other's character - exception
rape - cannot be admitted if sex crime - Victim's past sexual conduct is not admissible - except not D's semen
relevance - special problems
character - to show propensity - by prosecution
cannot initiate introduction of character evidence unless D does first then prosecutr can rebut with reputation or opinion and witness can be Xed - have you heard , did you know SPECIFIC ACTS
relevance - special problems
character - to show propensity - by prosecution D's character
if D opens door then reputation, opinion, and specific acts in form have you heard
relevance - special problems
character - to show propensity - by prosecution - victim's Character
if D opens door by pleading self defense and offers evid about victim's violence then admissible
relevance - special problems
character - MIMIC
other crimes acts by D can be admitted even though D did not open door --- Motive, Intent, absence of Mistake, Identity, Common Scheme or plan --- opportunity, knowledge, modus operandi,
relevance - special problems
character - MIMIC - discretionary exclusion
very important to subject MIMIC evid to rule 403

finish essay issue that uses MIMIC with 403
relevance - special problems
character - MIMIC - CA
may offer evid of victim's prior sexual conduct to show D may have thought victim consented
relevance - special problems - mimic admission procedure - 3steps
1) item of character evid offered by prosecution to show propensity -
2) prosecution is showing MIMIC
3) rule 403
relevance - special problems - character - rule 403 balance
limiting instruction should be included in order to alleviate danger of jury considering evid for improper purpose
relevance - special problems - character - rule 403 balance - limiting instruction
always include a talk about limiting instruction in a 403 discussion
relevance - special problems - habit or routine practice rule
Person invariably does a certain conduct
relevance - special problems - habit or routine practice rule
FRE habit or routine of person or organization may be admitted to show person acted in conformity with that habit
TRAD requires corroboration
relevance - special problems - similar happenings 3
accidents, prior tort claims, prior contracts
relevance - special problems - similar happenings -rule
similar happenings as circumstantial evid as ho someone acted in this case
relevance - special problems - similar happenings - accidents
excluded if offered to show D negligence unless if offered to show dangerous condition that existed in substantially similar conditions that caused P injury or to show D was aware of dangerous condition
relevance - special problems - similar happenings - prior tort claims
cannot cme in to shoe this claims is w/o merit except where prior tort claims were proven false shows common scheme of filing frivolous claims then may be probative
relevance - special problems - similar happenings - prior contracts
evid of prior contracts may be admissible for prior course of dealing
relevance - special problems - similar happenings - absence of accidents
absence will be excluded if offered to show D due care except if one disputed issues is D had no notice because no prior accident then probative
relevance - special problems - similar happenings - prior tort claims and exception
where prior tort claims were proven false shows common scheme of filing frivolous claims then may be probative
relevance - special problems - similar happenings - absence of accidents exception
if one disputed issues is D had no notice because no prior accident then probative
relevance - special problems - similar happenings - prior tort claims - same injury same part of body
if in prior tort suffered same injury or injury to same part of body the evidence can be offered because they are relevant
relevance - special problems - credibility 2 steps
who and how
relevance - special problems - credibility who - own witness FRE and Trad
FRE allows you to impeach your own witness
trad does not allow
relevance - special problems - credibility who - adverse - called by other side
will be admitted to impeach - free ipeachment
relevance - special problems - credibility who - hostile
can be impeached
relevance - special problems - credibility how - 4 areas
prior inconsistent statements, bias, competency/perception, character
relevance - special problems - credibility how - prior inconsistent statements PIS - intrinsic evid
x examination is liberally allowed - FRE has something they wrote there is no requirement to disclose PIS to witness
relevance - special problems - credibility how - prior inconsistent statements - extrinsic evid
only be admitted is impeachment goes to material issue in case - collateral issue not admitted
relevance - special problems - credibility how - prior inconsistent statements - duty to disclose written statement FRE
FRE has something they wrote there is no requirement to disclose PIS to witness
relevance - special problems - credibility how - prior inconsistent statements PIS -
foundation
foundation must be laid for extrinsic evid - material issue in case - by giving witness opportunity to explain or deny before evid is introduced
relevance - special problems - credibility how - prior inconsistent statements PIS -
foundation interest of justice
trial court may dispense with foundation requirement to allow to explain or deny such as when witness is not availible
relevance - special problems - credibility how - prior inconsistent statements PIS -
what use can be made if admitted FRE CA
impeachment- also FRE for substantive purposes for its truth even though it is hearsay- under oath at prior proceeding
CA would be allowed fr substantive use as well as impeachment even if declarant was not under oath at prior proceeding
relevance - special problems - credibility how - bias
will be admitted show bias of witness either favorable or unfavorable based on relationship to one of the parties or to show witness has stake in outcome
relevance - special problems - credibility how - competency
admitted to show competency or perception error that affected witness testimony
relevance - special problems - credibility how - character not to show propensity but to show lack of credibility 3 areas
rep/opinion, prior bad acts, prior convictions -not to show propensity
relevance - special problems - credibility how - character - rep/opinion
trad = rep only
FRE rep/opinion
relevance - special problems - credibility how - character - prior bad acts PBA
FRE may be asked only on X - asked on GF basis
relevance - special problems - credibility how - character - prior bad acts CA civil
civil no impeachment using PBA on X or extrinsic evid
relevance - special problems - credibility how - character - prior bad acts CA crim
both X and extrinsic evid of PBA allowed
relevance - special problems - credibility how - character - prior bad acts PBA extrinsic evid
FRE cannot follow up but CA in Crim yes
relevance - special problems - credibility how - character - prior bad acts 403
always look at it even in CA liberal admission
relevance - special problems - credibility how - character - prior convictions
actual convictions require
relevance - special problems - credibility how - character - prior convictions - crimes of dishonesty
freely admissible to show liar
relevance - special problems - credibility how - character - prior convictions - felony not dishonesty to impeach
balance 403 if accused burden on govt probative outweighs prejudice to show criminal propensity - tipped more to keep it out
relevance - special problems - credibility how - character - prior convictions - felony not dishonesty to impeach - 10 year rule
if more than 10 years since date of conviction or release - which ever is later - then it too remote
relevance - special problems - credibility how - character - prior convictions - misdemenaor not dishonesty to impeach
cannot come in for impeachment
relevance - special problems - credibility how - character - prior convictions - CA
any felony conviction involving moral turpitude and not expunged can be admitted for impeachment - even misdemeanors if moral turpitude
relevance - special problems - credibility - rehabilitation 2 types
rebut facts or rebut inference
relevance - special problems - credibility - rehabilitation
if impeached a witness can rebut facts or inferences
relevance - special problems - credibility - rehabilitation 4 types of rebuttal of facts
good character, competent, not biased, no PIS
relevance - special problems - credibility - rehabilitation - areas of rehab of inferences
yes, but explanation an PCS prior consistent statement
relevance - special problems - credibility - rehabilitation - PCS prior consistent statement requirement
must have been recent charge of fabrication then PCS is allowed for rehab and it is non hearsay so substantive
relevance - special problems - credibility - rehabilitation - bolstering when allowed FRE
FRE non allowed until impeachment - waste of time
CA = Prop 8 both prosecution and D can bolster prior to attack
P suffers serious injuries in auto accident with D. P sues D for negligence seek to introduce evid of dave's rep as reckless driver - admissible
only time Character can come in in civil case is when character is in issue so no
D charged with grand larceny seeks to introduce evid in community he is peaceful - prosecution objects
mercy rule if inconsistent with crime charged - here no - peaceful is not relevant
CA admissible lets evid from either side
D charged with grand larceny seeks to introduce evid in community he is peaceful - prosecution objects
difference if D charged with murder
admitted in FRE and Ca
D charged with murder shooting and killing V. claims self defense prosecution case in chief W testifies opinion that deft is prone to violence - court err in admission
yes - D has not opened door
D charged with murder shooting and killing V. claims self defense prosecution case in chief W testifies opinion that deft is prone to violence - court err in admission
difference offered after D introduced evid of his peaceful rep
yes -admitted - except 403 rejection?
after D introed evid of his peaceful rep, prosecution offer testimony by N, D's neighbor, that on 3 prior occasioned he saw D start fist fights
Yes - prosecution cannot get in extrinsic evid of specific acts
D testifies that M said V was out to get D. Court admit?
self defense state of mind
prosecution seeks to intro evid that D has a rep in community as a liar D objects
admit because by taking stand D put his credibility at issue
prosecution offers certified judgment that D was arrested a year ago for attempted murder of vic - charges dropped
propensity cannot come in, motive absence of mistake - balance could come in - 403 - credibility in issue but is not prior conviction
prosecution offers certified judgment that D was arrested a year ago for attempted murder of vic - charges dropped
difference if conviction
yes - impeachment - G has burden that Probative value outweighs prejudice
prosecution offers certified judgment that D was arrested a year ago for attempted murder of vic - charges
proper for prosecution to ask D on X isn't true that one year ago you attempted to murder V
1) impeachment of specific act allowed under MIMIC to show intent
2) impeachment prior bad acts GF basis FRE stuck with answer becasue no extrinsic
3) CA extrinsic evid allowed but
4) does not go to credibility - no impeachment
specific act come in under 3 general categories
character in issue, MIMIC, impeahment on X acts having to do with truthfulness - under FRE no extrinsic evidence is allow ed to prove but in CA extrinsic is allowed
formal foundational requirements areas
witnesses, documents, real/demonstrative evid
formal foundational requirements areas - witnesses 3 areas
competency, personal knowledge and expert
formal foundational requirements areas - witnesses - competency -capacity to communicate
capacity to communicate understood by juror -
formal foundational requirements areas - witnesses - competency - comprehend duty
testify truthfully under oath
formal foundational requirements areas - witnesses - competency -
child mental
court make threshold decision
formal foundational requirements areas - witnesses - competency -
dead man's
prevent witness from testifying against estate about transactions etc - dead don't speak
formal foundational requirements areas - witnesses - competency -judge/juror
judges nor juror can generally testify at trial except CA judge if no one objects and juror can testify in front of judge with other jurors excfluded
formal foundational requirements areas - witnesses - competency -juror CA
uror can testify in front of judge with other jurors excluded
formal foundational requirements areas - witnesses - personal knowledge
present recollection ability to perceive and remember the relevant facts
formal foundational requirements areas - witnesses - expert witnesses
trial court make determination whether witness is qualified and proper subject
formal foundational requirements areas - documents - authentication
person offering evid must show that it is what it purports to be - I took that photo etc
formal foundational requirements areas - documents - authentication methods - admissions
parties simply stipulate that what is offered is genuine
formal foundational requirements areas - documents - authentication methods
admissions. witnesses opinion, circumstantial, ancient
formal foundational requirements areas - documents - authentication methods - witnesses
subscribing witness could examine and admit they signed - non subscribing cloud testify they saw some one else sign
formal foundational requirements areas - documents - authentication methods- opinion
lay witness knows handwriting qualified to testify, expert can render an opinion by comparing to exemplars testify to authenticate, jury can make comparisons to determine whether authentic
formal foundational requirements areas - documents - authentication methods circumstantial
infer due distinctive appearance
formal foundational requirements areas - documents - authentication methods self-authenticating
1) PUBLIC/CERTIFIED COPIES 2) notarized/ acknowledged 3) both FRE & CA include official pub newspapers , commercial paper
formal foundational requirements areas - documents - authentication methods - ancient doc
1) not suspicious 2) found in expected place 3) FRE 20 years or more is ancient CA 30 years or more
formal foundational requirements areas - documents - best evid rule trigger
evid offered is to prove the contents of a writing, recording photo , x-ray etc
formal foundational requirements areas - documents - best evid rule
original writing is required
formal foundational requirements areas - documents - best evid rule
exceptions secondary evid
1) FRE any kind admissible
2) trad next best required
formal foundational requirements areas - documents - best evid rule - two big triggers
if writing itself is the event like deeds , wills , contract, divorce decree - requires original AND
when witnesses knowledge is based on reading a doc - testifying as to what they read and not know it first hand
formal foundational requirements areas - documents - best evid rule
exceptions allows secondary evid
orig unavailbile
evidence that lost or destroyed in GF
ormal foundational requirements areas - documents - best evid rule
exceptions secondary evid
certified pubic copies
not orig -
ormal foundational requirements areas - documents - best evid rule
exceptions secondary evid
duplicates
no problems raised about autheticity
ormal foundational requirements areas - documents - best evid rule
exceptions secondary evid
voluminous
summary of docs allowed
ormal foundational requirements areas - documents - best evid rule
exceptions secondary evid
collateral matter
orig not required
formal foundational requirements areas - real / demon scientific
1) real evid is actual murder weapon/
2) demonstrative evid tangible evid used to explain or illustrate - a gun like the real murder weapon
formal foundational requirements areas - real / demon scientific - authentication
not altered- witness who introduces authenticates
formal foundational requirements areas - real / demon scientific
subject to alteration
chain of custody- every single person must testify as to links in chain
formal foundational requirements areas - real / demon scientific - types allowed
original, phots x-rays - not tech or photographer - device working identify the scene , maps or mode that accurately represent , demonstration sufficiently similar to process or event
formal foundational requirements areas - real / demon scientific - special problems
foundation, degree of acceptance, expert
formal foundational requirements areas - real / demon scientific - special problems - foundation requirement
procedures used were in accordance with standards in relevant scientific community
formal foundational requirements areas - real / demon scientific - special problems - degree of acceptance CA
Strict view CA= generally accepted among applicable authorities = Frye
FRE relaxed barriers to opinion testimony if reliable Daubert
formal foundational requirements areas - real / demon scientific - special problems - exmples
radar, blood test, ballistics acceptable
hypnosis and polygraph not accepted
exclusionary rules 3 areas
opinion, privilege, hearsay
exclusionary rules - opinion 2 types
expert , lay
exclusionary rules - opinion - 3 requirements for admissibility
1) based on perception 2) helpful to jury 3) FRE not based on scientific, technical or other specialized knowledge CA no 3rd requirement
exclusionary rules - opinion - 2 or 3 requirements for admissibility - based on perception
speed of car from actually seeing car - rationally based on actual perception - handwriting , height , weight , voice , distance
exclusionary rules - opinion - 2 or 3 requirements for admissibility -helpful to jury -
FRE 701 adds a 3rd requirement not based on scientific, technical or other specialized knowledge -
exclusionary rules - opinion - 2 or 3 requirements for CA
1) based on perception 2) helpful to jury
exclusionary rules - opinion - 2 or 3 requirements for admissibility -helpful to jury - legal issues
no legal issue lay opinion
exclusionary rules - expert opinion - why
jury needs help beyond their knowledge
exclusionary rules - expert opinion - 3 requirements
proper qualifications, proper subject, proper basis
exclusionary rules - expert opinion - proper qualifications
must be qualified on that particular matter - expertise nexus matter, training or real world experience
exclusionary rules - expert opinion - proper subject - FRE and CA
FRE daubert subject be based on sufficient data, product of reliable principles and methods and reliably applied to facts in case
CA and trad Frye test - proponent of testimony must prove scientific theory or instruments are generally accepted and reliable
exclusionary rules - expert opinion - proper basis - FRE CA
must be facts perceived or made know to witness at or before the hearing - including hypos - FRE basis is of type reasonably relied on experts in the field need not be admissible in itself trad basis must be on admissible or hypo
exclusionary rules - expert opinion - X - x of expert - impeachment what
qualifications, subjects, basis
exclusionary rules - expert opinion - X - x of expert - impeachment - texts and treatises -FRE
FRE reliable and called to attention of expert but do not have to have been relied on in direct
exclusionary rules - expert opinion - X - x of expert - impeachment - texts and treatises - trad
had to be actually relied on in direct
exclusionary rules - expert opinion - X - x of expert - impeachment - texts and treatises - used as substantive evid FRE CA trad
FRE - hearsay exception allows admission for impeachment and substantive
CA - narrow reading of hearsay exception so like trad rule
trad only impeachment no hearsay exception
exclusionary rules - privilege
excludes evid that is relevant
exclusionary rules - privilege - FRE applies where
federal cases except in diversity triggers Erie so court applies state substantive law so CA applies - look for federal court in CA in diversity
exclusionary rules - privilege - CA privileges apply where
CA state court and federal diversity case where under Erie CA is applied
exclusionary rules - privilege - holder rights
may exercise the privilege to keep evid out or waive the priv
exclusionary rules - privilege - holder rights - waiver
allows confidential communication to be admitted - through conduct disclosure of substantial content to non-priv 3rd P or through failure to assert
exclusionary rules - privilege - what is confidential communication -
facts disclosed
exclusionary rules - privilege - confidential communication - necessary 3rd P destroys confidence
no like paralegals , interpreters and secretaries cannot be forced to testify
exclusionary rules - privilege - confidential communication - eavesdropper destroys confidence
trad can testify to what they overheard
modern known eavesdropper then it is not confidental comm and they can testify
unknown - does not destroy and cannot testiy
exclusionary rules - privilege - relationships - martial - which to talk about
both
exclusionary rules - privilege - relationships - martial - spousal immunity scope - types of proceeding
trad crim trial and grand juries
modern & CA crim and civil -
exclusionary rules - privilege - relationships - martial - spousal immunity scope - coverage
covers all testimony about communications and observations that occurred before and during M
CA also not even to be called to witness stand
exclusionary rules - privilege - relationships - martial - spousal immunity scope - duration
only during M - end of M lips are unsealed
exclusionary rules - privilege - relationships - martial - spousal immunity scope - holder split trad
trad party spouse(D) may assert or waive
modern min FRE -priv heid by non-party spouse - testifying spouse
exclusionary rules - privilege - relationships - martial - spousal immunity/incompetency exceptions-
will no protect actions involving the spouses - civil crim for crime against the other, competency
exclusionary rules - privilege - relationships - martial - confidential communication - scope
communications verbal,non-verbal between spouses during M
exclusionary rules - privilege - relationships - martial - confidential communication - scope - observations
1 observes the other in a way that would not occur save the M - cross-dressing covered
exclusionary rules - privilege - relationships - martial - confidential communication - scope -
During M but not before
exclusionary rules - privilege - relationships - martial - confidential communication - scope - survive divorce?
yes duration after M
exclusionary rules - privilege - relationships - martial - confidential communication - holder
both spouses
exclusionary rules - privilege - relationships - martial - confidential communication - exceptions
same as spousal incompetency plus if communication is about aiding and abetting fraud can come in or to defend themselves to charge
exclusionary rules - privilege - relationships - atty client- scope - 3 elements
Confidential Comm 2) between atty and client both actual and MAJ reas believed to be atty MIN must be actual atty 3) purpose must be for legal services
exclusionary rules - privilege - relationships - atty client- duration FRE CA
FRE survives termination of atty-client relationship and survives death of client
CA when client estate distributes and personal rep discharges the priv terminates
exclusionary rules - privilege - relationships - atty client- scope - must holder actually hire the lawyer
no
exclusionary rules - privilege - relationships - atty client- holder
client but atty must assert on behalf of holder unless authorized to waive
exclusionary rules - privilege - relationships - atty client- - exceptions
atty - client dispute, competency of client, communication has to do with perpetrating a crime or fraud
CA if atty beilves disclosure reas necessary to protect against death or bodily harm then atty can testify
exclusionary rules - privilege - relationships - atty client- - work product
prepared in anticipation of litigation by for a party it is protected as work product
exclusionary rules - privilege - relationships - atty client- - work product - substantial need
if substantial need and hardship then court may admit work product
exclusionary rules - privilege - relationships - atty client- corporate clients -
communications with corp officials or employees if authorized to make statements
exclusionary rules - privilege - relationships - MD / patient - scope
protected when talking about medical treatment
no FRE priv
exclusionary rules - privilege - relationships - MD / patient - scope CA
comm about medical treatment or diagnosis
exclusionary rules - privilege - relationships - MD / patient - therapist - MAJ
yes protected non MD psychologists LSW
exclusionary rules - privilege - relationships - MD / patient - holder
patient
exclusionary rules - privilege - relationships - MD / patient - eceptions
criminal proceedings, crime or fraud, malpractice, competency, physical or mental condition in issue,
may be duty to warn - tarasoff
exclusionary rules - privilege - relationships - clergy/penitent -scope
confidential comm clergy authorized to hear confessions
exclusionary rules - privilege - relationships - clergy/penitent - holder
penitent
exclusionary rules - privilege - miscellaneous
state secret priv, journalists informer's ID
5th a self-incrimination what does it cover
testimony only
5th a self-incrimination - scope
refuse to take stand and prosecution cannot comment on defendant's failure to testify
5th a self-incrimination - where applies
all criminal proceding
5th a self-incrimination - holder
defendant
5th a self-incrimination - exceptions
none but waiver
5th a self-incrimination - waiver
taking the stand opens the door - each proceeding is treated separately with respect to waiver
5th a self-incrimination - witnesses - scope
any witness any proceding - cannot be forced to give testimony that could potentially lead o conviction
5th a self-incrimination - witness - holder
natural person
5th a self-incrimination - D holder
natural person
5th a self-incrimination - witness - exception
granted use immunity - or no actual risk of conviction
5th a self-incrimination - witness - waiver
witness discloses fact about transaction waives all disclosures about that transaction
5th a self-incrimination - priro statements
will not apply only applies to current testimony
hearsay - exceptions FRE - spoken
admission, excited utterance, CA spontaneous statement, present sense impression, body condition, CA condition in issue, declarant unavailable, state of mind
hearsay - definition
statement other than testimony at this hearing that is offered to the truth of the matter asserted tom
hearsay - nature of statment
by a person orally or in conduct where meaning is transmitted
hearsay - not for toma
not for truth - offered becasue it was heard
hearsay - not for toma - independent legal effect
defamation, contract negotiations,
hearsay - not for toma - effect on or notice to hearer
statement significance was that the person heard it - warning, mental state of accused,
hearsay - not for toma - knowledge of fact or condition
declarant was aware of their unreas condutc
hearsay - not for toma - state of mind
to show intent, motive, domicile - emotions , delivery intent in conveyance
rivileges - hearsay - for toma but not hearsay - prior statements - types - FRE CA
PIS, PCS Prior Id
FRE non-hearsay
CA exception
steps for hearsay
parties/ action, who's on stand, what's coming in, statement - declarant, why offered not toma for toma - exception
hearsay - for toma but not hearsay - prior statements - PIS - FRE CA trad
for impeachment not toma,
FRE if done under oath at formal proceeding can come in for impeachment and for toma

trad only fo impeachment

CA admitted for impeachment and substantive even if not given under oath
hearsay - for toma but not hearsay - prior statements - PCS - FRE trad
FRE rehab and substantive with no oath required
trad only reahab to rebut charge of recent fabrication
hearsay - for toma but not hearsay - prior statements - prior ID
testifying about prior ID qualifies under 801 if person who made statement must testifying and subject to cross
hearsay - for toma but not hearsay - prior statements - prior ID under CA
requires witness who identified the person to 1) warrant they IDed while memory was fresh and 2) they did make the prior ID and 3) it reflected their opinion at the time
hearsay - for toma but not hearsay - prior statements - prior ID - crim procs
look out or confrontation clause because of right to confront
hearsay - for toma but not hearsay - admissions
statement offered against a party - party opponent
hearsay - for toma but not hearsay - admissions - CA
allow as exception but FRE 801
hearsay - for toma but not hearsay - admissions - conclusive
no can be attacked
hearsay - for toma but not hearsay - admissions - personal knowledge
not required
hearsay - for toma but not hearsay - admissions - against party interest
does not need to be
hearsay - for toma but not hearsay - admissions - opinion of law is allowed
yes
hearsay - for toma but not hearsay - admissions - express
by party opponent can come in - spoken or otherwise
hearsay - for toma but not hearsay - admissions - vicarious -Agents Ee
Authorized to speak and within scope of employment
FRE/min even an unauthorized in scope is imputed to agent or principle
hearsay - for toma but not hearsay 801- admissions - vicarious - co-conspirator
must show existence of conspiracy, during conspiracy and in furtherance of conspiracy
hearsay - for toma but not hearsay - admissions - vicarious - predecessor FRE trad
trad transferors statement allowed
FRE will not impute so is hearsay
hearsay - for toma but not hearsay - admissions - vicarious - cross over
confrontation clause
hearsay - for toma but not hearsay - admissions - vicarious - confrontation
will not be admitted against D unless declarant is unavailable (5th A) and D had opportunity to X when statement was made
hearsay - for toma but not hearsay - admissions - adoptive
by words or conduct he part against whom admission is made adopted or ratified the statement
hearsay - for toma but not hearsay - admissions - silence
heard and understood, capable of denying and reas person would deny then can be admitted - watch for C silence
hearsay - for toma but not hearsay - admissions - conduct assertive
assertive conduct intended to convey a message comes in under 801
hearsay - for toma but not hearsay - admissions - conduct non-assertive
flight, resisting arrest or destroying evid admissible to infer guilt
hearsay - for toma - FRE 803 - 2 types
spoken and written
hearsay - for toma - FRE 803 -spoken - admissions FRE CA
in FRE not hearsay but CA party opponent -
hearsay - for toma - FRE 803 -spoken - excited utterance
startling event (hit on haed by heli rotor, under stress of excitement - immediately after look or excited look in CA fpr spostaneous
rivileges - hearsay - for toma - FRE 803 -spoken - spontaneous statement
startling event (hit on haed by heli rotor, under stress of excitement - immediately after look or excited
hearsay - for toma - FRE 803 - present sense impressions-spoken -
FRE present sense impression is describing an event while perceiving the event or immediately there after - timing is tight
hearsay - for toma - FRE 803 - spoken - body condition
if present physical condition of declarant has to do with health of declarant body is excepted but cause of injury not allowed
hearsay - for toma - FRE 803 - spoken - body condition - past
can come in if has to do with treatment or diagnosis - CA -
hearsay - for toma - FRE 803 - spoken - body condition - past CA
allowed when condition is in issue an declarant must be unavailable- immediate condition is ok - a rock hit my eye but not joe threw a rock that hit my head
hearsay - for toma - FRE 803 - spoken - body condition - state of mind
allowed if at issue OR offered to show conduct - hillmon doctrine statement made who later acted in accordance with intent - admitted to show declarant said they were goig to do something and thn they didd
hearsay - for toma - FRE 803 - spoken - body condition - state of mind - to show conduct of someone else
make limiting instruction - prove conduct of delcarant but not probative of conduct of soeone else
hearsay - for toma - FRE 803 - written - types 4
recroded recollection, business records, public records and other
hearsay - for toma - FRE 803 - written - recorded recollection
past recellection recorded - hearsay vs present recollection refreashed
hearsay - for toma - FRE 803 - spoken types 6
admission, excited utterance, CA spontaneous statement, PSI, body condition, state of mind
hearsay - for toma - FRE 803 - written - business records requirements 3
authentication by authorized person 1) made at or near time of event, 2) by person with business duty 3) in regularly conduct business activity
hearsay - for toma - FRE 803 - written - business records - act did not occur
FRE absence of entry in bus records is admissible to show lack of act if it normally would have been recorded
hearsay - for toma - FRE 803 - written - business records lack of trustworthiness
if not prepared in connection with bus activity but prepared for litigation - not reliable so cannot come in
hearsay - for toma - FRE 803 - written - business records requirements - special police record - double hearsay bystander
bystanders statements are not under duty so not admitted in business records exception - try excited utterance or PSI
hearsay - for toma - FRE 803 - written - business records requirements -medical records -
recorded under duty but statements not under duty
FRE diagnosis is included in exception
trad diagnosis does not come in
hearsay - for toma - FRE 803 - written - public records - public office
if records contain statements about public records including transcripts of trial covered under public records exception
hearsay - for toma - FRE 803 - written - police observations in public records CA and trad
viewed with skepticism trad rejected but CA reject if judge finds record to be unreliable
hearsay - for toma - FRE 803 - written - public records vital stats
admitted under public records exception
hearsay - for toma - FRE 803 - written - felony convictions CA
admissible in crim and civil actions as substantive evid of facts essential to judgment CA can only come in civily
rivileges - hearsay - for toma - FRE 803 - written - felony definition
punishable by death or incarceration of more than one year
rivileges - hearsay - for toma - FRE 803 - written - civil judgements
cannot come in under exception not in crim or civil
rivileges - hearsay - for toma - FRE 803 - written - records 3 types
bus records, police records and other
rivileges - hearsay - for toma - FRE 803 - written - records - public records types
public offices, vital stats, felony convictions, civil judgments
rivileges - hearsay - for toma - FRE 803 - written -records - public records - civil judgments - absence of entry
civil judgments dont come in so I presume no problem there - question for CS
hearsay - for toma - FRE 803 - written -family records bible etc
exception so they can come in
hearsay - for toma - FRE 803 - written - ancient doc
FRE 20 years or more
CA 30 years or more and foundational showing by proponent that doc was treated as accurate by people who have reason to care
hearsay - for toma - FRE 803 - written - text or treatise - CA
once cited to expert it can come in CA only iff applies to fact of general notoriety of interest
hearsay - for toma - FRE 803 -catch all - 3 elements CA
necessary, reliable, notice

necessary evid material fact more probative than other evid and in interests of justice should be admitted AND 2) reliable as trustworthy as a written employee business records exception 3) notice to adversary must be given - time and opportunity to respond
often multiple levels of hearsay
CA no catch-all but judge can create an exception by decisional law
does every level of hearsay have to have its own exception?
yes justify each one
hearsay - for toma - FRE 804 - exception - unavailability 5 ways - all must be in GF
1) exempt from testifying 5th A, 2) GF refusal CA not allowed 3) lack of memory CA not allowed 4) death or illness 5) proponent cannot procure the unavailibility
hearsay - for toma - FRE 804 - exception - unavailability - former testimony requirements
given at prior hearing offered at present trial - 1) made under oath subject to X, AND 2) same persons or someone in privity CA not required AND 3) similar motive opportunity to X
hearsay - for toma - FRE 804 - exception - unavailability - dying declaration
1) sense of imminent death makes it reliable FRE don't need death but CA requires actual death 2) statement was regarding cause of death 3) FRE & CA crim/civil and trad crim
hearsay - for toma - FRE 804 - exception - unavailability - statement against interest elements 3
1) against interest at time statement was made AND 2) based on personal knowledge AND reas person would not have said unless it was true AND unavailable
hearsay - for toma - FRE 804 - exception - unavailability - statement against interest - trad fre CA
trad pecuniary/ propprietary
FRE pecuniary/ propprietary penal
CA corroboration quetion for CS
hearsay - distinctions - compare - past RRecorded hearsay exception vs Pesent RRefreshed
1) recorded witness on stand cannot remember 2)fresh accurate record introduced 3) still don't remember therefore record cannot come in but can be read to jury
compare with PRRefreshed
1) witness cannot remember 2)
item shown to witness at trial or before trial 2) wieness remembers 3) refreshed testimony comes in not hearsay opponent entitled to production of the item an can X and opponent can introduce item into trial
hearsay - distinctions - compare - excited utterance/spontaneous statement vs PSI
EU 1) startling event 2)with excitement 3) shortly after event - can be longer than 5 minutes
compare
PSI hearsay exception FRE
1)relates to anything directly perceived 2) made while perceiving or 3) immediately thereafter 5 minutes too long CA contemporaneous statement mad to explain qualify or make understandable something declarant is doing while making the statement
hearsay - distinctions - compare - statement against interest vs admission of party opponent
SAI introduce by any party and requires unavailability
unavailable, against interest when made, reasonable person would not have made unless true
1) unavailable 2) content against that witness's interest at time made - against pecuniary or property FRE Pecu and Prop an against penal interests if either crim or civil but if confession exculpates another accused then requires corroboration CA does not require corroboration also includes social interest risks object of hatred, ridicule or social disgrace in community
compare
APA can only be introduced by adverse party does not require unavailability - 1) need not be against interest when made 2 need not be based on personal knowledge 3) declarant a party or privy
Substitutes for evidence - types 2
judicial notice and presumptions
Substitutes for evidence - judicial notice
1) proper subject - generally known - sunrises in east or capable or accurate and ready determination - blue book
2) on court's own motion permissive) or on party's request -mandatory if proper subject - look for party dropping ball and court has to introduce on judicial notice 3) effect
FRE
Civil conclusive determination Crim shift burden of production but not conclusive
CA both civil and crim court may instruct jury that it is conclusive
Substitutes for evidence - presumptions - FRE trad
inference jury must draw unless rebutted -letter mailed was received unless other party introduces contrary evid
effect
trad shifts burden of persuasion to other party
FRE bursting bubble presumption as soon as one party introduces evid it creates presumption that letter was received if not contradicted the jury must find true if not burst by contrary evid as soon as other side introduces evid contrary then bubble bursts then jury decides
roles of judge and jury - 5 discretionary areas a judge can determine
policy exclusions,opinion, competency, privilege, competency, priv and hearsay
roles of judge and jury - judge does 4 things
instructs jury, admits evid, rules on objections and makes preliminary determinations as to authenticity
joles of judge and jury - judge - jury instructions
substantive law for case, instruct about presumptions, explain burdens of proof and production
joles of judge and jury - judge - jury instructions - burden standards
preponderance = lowest
clear and convincing = in the middle
beyond reasonable doubt = moral certainty crim each element
oles of judge and jury - judge - jury instructions limiting
how should jury view evid
oles of judge and jury - judge - jury
weigh evidence, decides if burden of proof is met, final determination of verdict
evidence in appellate court - reweigh evid
does not reweigh evidence,
evidence in appellate court - reviews of admissibility
plain error egregious even if not properly preserved, harmless error opposite extreme refuse to reverse, issues preserved by appeal -grounds of objections and offer of proof
evidence in appellate court - how to preserve evid
state on record specific grounds for objection in order to preserve
evidence in appellate court - jury instruction proper
either affirm or reverse all or part
evidence in appellate court - offer of proof
sustained and kept out must be on record what would have come so proponent of evid make offer of proof and show evid
type of objections to questions - transcript style questions - essay
leading improper in D but ok in X
argumentative
misleading
compound
conclusionary
assumes facts not in evidence
cumulative
harassing or embarrassing
calls for narrative answer
calls for speculation
confusing or unintelligible
misstates evidence
beyond the scope of direct X redirect recross
insufficient/ lacks foundation
document speaks for self
type of objections to answers
document speakes for elf
lack of foundation
non-responsive
daubert elements
fry element
daubert=
dam
D=sufficient data
A= reliably applied
M= methdology
Frye = generally accepted