Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
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 |
|