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86 Cards in this Set
- Front
- Back
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What is relevancy? |
Evidence is relevant if it has any tendancy to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. |
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How is probative value different from relevancy? |
Relvancy is binary. Probative value is matter of degree, used to exclude if also unfair prejudice, confusion, or waste of time. |
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What scenarios present unfair prejudice? |
Emotionally disturbing evidence. Or one item of evidence is logically relevant to prove two different facts of consequence, but one fact it is inadmissible for one fact. |
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When must a court exclude evidence for policy reasons? |
Liability insurance to prove culpability or ability to pay; subsequent remedial measures or repairs to prove culpability or defective product design; statements during negotiation of settlements, offers to settle and pleas (guilty and nolo), in civil and criminal proceedings; offers to pay medical expenses |
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What is the similar occurrences rule? |
Generally, only relevant evidence is specific people and event at issue. But *similar* occurrences sometimes admissible to prove causation. |
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When can prior accidents or claims be admitted? |
Generally, never. But can be used for pattern of fraudulent claims, or preexisting condition. |
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When can prior similar acts be admitted? |
To prove intent (e.g. employment discrimination) |
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How does character evidence differ from habit evidence? |
Habit is admissible to show person acted in accordance with those acts (frequently repeated specific acts). But character evidence is inadmissible to make a moral judgment about a person's general past acts. |
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When may prior similar acts be admitted? |
Generally not, except 1. Similar occurrences to prove causation (chicken nuggets) 2. Prior accidents to show pattern of fraudulent crimes or preexisting injury (fall down stairs) 3. Previous similar intent to show intent (discrimination) 4. Evidence to rebut defense of impossiblity (window stickers) 5. Comparable sales relevant to establish value (housing) 6. Evidence of habit to prove action in accordance with habit (stopping at stopsigns) 7. Route practices, to show conformity (businesses) 8. Industrial custom to prove standard of care (bus driver door closure) |
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What is the four-question checklist of character evidence? |
What is the purpose for which the character evidence was offered? What method or technique is used to prove character? Is this a civil or criminal case? Does the evidence prove a pertinent character trait? |
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What are the three general uses of character evidence? |
1. Prove character because character is an issue 2. Prove character as circumstantial evidence of person's conduct on the occasion in question 3. Offered to impeach of support credibility of witness |
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When may evidence of the defendant's character be used to prove conduct in a criminal case? |
Usually never, except 1. Sexual assault or child molestation 2. Where court has admitted evidence of victim's character, offered by defendant, to prove defendant has same character trait 3. After the defendant first offers character evidence |
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What form must character evidence take? |
Opinion Reputation Specific instances, only on cross-examination (+ special rules) |
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When may evidence of the victim's character be used to prove conduct in a criminal case? |
Usually never, except 1. After defendant offers first offers character evidence What is a rape shield statute in a criminal case?2. In a homicide case, defendant offers evidence victim attacked first, prosecution can offer evidence of victim's peacefulness |
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What is a rape shield statute in a criminal case? |
1. Repuation and opinion are inadmissible 2. Specific instances are admissible, but only to prove third party was source of semen or injury; or What is a rape shield statute in a civil case?3. Prior acts of consensual intercourse between defendant and victim |
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What is a rape shield statute in a civil case? |
Victim's character, to prove consent, (via reputation, opinion, and specific instances) is admissible, if probative value substantially outweight prejudice, and plaintiff put her reputation in issue. |
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When may specific instances of defendant's conduct be used to prove things other than character? |
1. Motive 2. Intent 3. Mistake (or absence) 4. Identity 5. Common plan or source |
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What must be used to prove identity, in order to tender specific instances of bad conduct? |
Similarity and uniqueness |
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What are the four requirements necessary to testify as a witness? |
1. Personal knowledge 2. Present recollection 3. Communicaiton 4. Sincerity |
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How does hearsay differ from lack of personal knowledge? |
In lack of personal knowledge, witness testifies to a fact that is claimed to have been perceived. In hearsay, witness testifies to a fact that is heard from another. |
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What is the present recollection requirement for a witness to testify? |
Witness must testify from present recollection, not from some record regardings matters the witness once knew but has now forgotten |
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What is a leading question? |
A question that suggests the answerv |
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When can an attorney lead on direct? |
Adverse witness, hostile witness, witness needs help |
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How may a testifying witness get around hearsay with records? |
"Refreshing recollection" (can use anything to refresh, but opponent can admit into evidence) |
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What is the recorded recollection exception to hearsay? |
1. Witness once had personal knowledge 2. Document was made or adopted by witness 3. Document was written at time when facts were fresh in witness's memory 4. Document was accurate when made 5. Witness now has insufficient recollection |
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What is the exception to the general rule that lay opinions are inadmissible? |
1. Based on witness's perception; AND 2. rationally based (logical connection + sufficient perception) 3. helpful to factfinder (more information that testimony just about perception) |
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What are the five requirements for expert opinion testimony? |
1. Helpful to jury (reach conclusion that average jury couldn't reach alone) 2. Witness must be qualified 3. Witness must believe in opinion to reasonable degree of certainty 4. Opinion supported by factual basis 5. Opinion must be based on reliable principles that were reliably applied (Daubert / Kumho) |
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What factual bases may support expert testimony? |
1. Admitted evidence 2. Personal knowledge 3. Inadmissible evidence reasonably relied upon |
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What critieria can (not must) a court look to when evaluating an expert's reliability? |
1. Peer reviewed 2. Test, subject to retesting 3. Low error rate 4. Reasonable level of acceptance |
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What is learned treatist hearsay exception? |
Normally, books are hearsay. But learned teatises are admissible to prove anything stated therein if it is an accepted authority in field. |
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When is evidence permissible to support witness's credibility? |
Only if credibility was attacked first. |
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When is prior consistent statement not hearsay and admissible? |
If, and only if, made before bribe or rehabilitates credibility when attackd on other ground |
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What is the three-step approach to impeachment? |
1. Is source of impeachment extrinsic evidence or testimony at this proceeding? 2. If extrinsic, is it admissible given impeachment technique? 3. Are there other foundational requirements? |
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What is a collateral matter? |
Fact not relevant to issue in case nor witness's credibility, other than witness contradicted herself |
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How may a witness be impeached? |
1. By contradiction (but no extrinsic evidence to contradict collateral matter) 2. By prior inconsistent statement, i.e. self-contradiction (foundation) 3. By bias, interest, or motive (foundation) 4. With conviction for crime involving false statement 5. With conviction for felony not involving false statement 6. With non-conviction misconduct evidence bearing on truthfulness 7. With reputation and opinion regarding truthfulness |
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Can a prior inconsistent statement be used to impeach and for the truth? |
Yes for impeachment (but no extrinsic evidence to contradict collateral matter). But it's inadmissible for the truth, unless PIS was given under oath at trial or deposition. |
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What is the foundation requirement for impeachment? |
Extrinsic evidence is admissible only if witness given opportunity to explain or deny. |
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What balancing does a court do to determine admissibility of prior conviction of crime involving false statement, against defendant testifying? |
None. Even though it may not be admitted to prove conduct in questions, it is admissible to impeach if defendant testifies, with no balancing. |
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What may the opponent use to prove convictions that are admissible? |
Extrinsic or intrinsic evidence (but over 10 years old requires balancing, burden of offering party) |
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How may an opponent use non-conviction misconduct bearing on truthfulness of witness? |
To impeach, but can't use extrinsic evidence |
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How may an opponent use reputation and opinion regarding truthfulness of witness? |
To impeach, and extrinsic evidence may be used. |
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What is hearsay? |
Out of court statement (assertive conduct) offered to prove the truth of the matter |
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What out-of-court statements are not hearsay? |
1. Independent legal significance 2. Offered to show effect on listener 3. Offered to show speaker's or writer's knowledge of facts stated 4. Circumstantial evidence of state of mind |
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What are exemptions to hearsay? |
1. Opposing party statements, party admissions (not subject to personal knowledge + opinion rules) 2. Prior inconsistent statement 3. Prior consistent statement to rebut attack on credibility 4. Statement of identification |
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What are four types of vicarious opposing party statements? |
1. Authorized spokesperson (express or implied) 2. Employee of party concerning matter within scope of employment3. Statement adopted by opposing party4. Statement by co-conspirators |
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What are exceptions to hearsay? |
1. Former testimony 2. Declaration against interest 3. Dying declarations, in homicide prosecution and civil cases 4. Excited utterance 5. Present sense impression 6. Declaration of then-existing physical or mental condition 7. Past or present mental or physical condition made for medical diagnosis or treatment 8. Business records 9. Public records 10. Judgments of previous convictions (to impeach, or for proof as long as not offered against accused) |
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What former testimony counts as an exception to hearsay? |
1. Given at former proceeding or deposition, 2. When the party against whom it is offered had opportunity + motive for cross; or 3. In civil case, party against whom it is offered had opportunity for cross had privity with those who crossed 4. Declarant is unavailable |
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When is a declarant unavailable? |
Court exemption, dead or sick, proponent cannot get declarant by process, refusal to testify, memory failure |
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When can a declaration against interest be excepted from hearsay? |
1. at time statement was made, made against financial or penal interest of declarant 2. Declarant is unavailable 3. If exculpatory for crime, needs corroborating evidence |
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What is the limitation on existing physical or mental conditions as an exception to hearsay? |
May not be admitted to prove fact remembered or believed (but jury can infer speaker acted in accordance with belief or intention) |
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What is the business records exception to hearsay? |
1. Record of events, conditions, opinions 2. Kept in course of regularly conducted business activity 3. Made near time of matters described 4. By person with knowledge 5. And made in regular business practice to keep record 6. Opponent does not show it's untrustworthy |
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What is the public records exception to hearsay? |
1. Record describes activities and policies of office; or 2. Records describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases); or 3. Record contains factual findings resulting from investigation 4. Unless opponent shows untrustworthy |
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What does the Confrontation Clause guarantee? |
In a criminal case, prosecution may not admit out-of-court statement if declarant had no chance to cross, statement was testimonial, and declarant is now unavailable. |
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How must a party admit writings and other physical (non-testimonial) evidence? |
After authentication |
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What is the burden of proof for authentication? |
Sufficient to sustain finding |
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How can evidence be authenticated? |
1. Admission 2. Eyewitness 3. Expert testimony 4. Lay opinion 5. Circumstantial evidence 6. Genuine exemplar |
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What is the ancient documents rule? |
1. >= 20 years old 2. Doesn't present any irregularities 3. Was found in natural place of custody |
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What documents are self-authenticating? |
Certified copies of public documents; acknowledged documents (notarized); periodicals; official publications; trade inscriptions |
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How does one authenticate non-unique items? |
1. Proponent must lay chain of custody 2. Demonstrating that this is specific item proponent claims it to be Must be physical evidence with generic appearance. |
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What is the best evidence rule? |
When offering a "writing" (any tangible collection of data), the original must be submitted |
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What use of writings trigger the best evidence rule? |
1. Case turns on contents of legal instrument 2. Knowledge obtained from writing. |
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What privileges apply in federal court? |
Fed question: attorney-client, psycho-patient, clergy-penitent, social worker-client Diversity: Those state privileges in which the court sits |
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To what communications does attorney-client privilege apply? |
To communications between attorney (or rep) and client (or rep), intended to be confidential, relating to professional legal advice |
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What are exceptions to attorney-client privilege? |
1. Furthered crime/fraud 2. Relates to breach of duty between lawyer and client 3. Two or more parties consult matter of common interest, and communication is offered by one party against other |
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What are the spousal privileges? |
1. Witness may refuse to testify against spouse as to anything, in criminal cases 2. Confidential spousal communications during marriage are privileged, in both criminal and civil cases Doesn't apply in one spouse vs other |
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What facts may be judicially noticed? |
1. Generally known within jurisdiction 2. Capable of accurate and ready determination by resort to sources whose accurately cannot reasonably be questioned. |
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What is the effect of a judicially noticed fact? |
Civil case: Jury must accept fact Criminal case: Jury may, but not must, accept fact. Notice can occur at any time. |
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What hearsay exceptions require witness unavailability? |
1. Former testimony 2. Statements against interest 3. Dying declarations 4. Statements offered against party procuring declarant's unvailability |
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What hearsay exceptions do not require witness unavailability? |
1. Present state of mind (not for the truth) 2. Excited utterance 3. Present sense impression 4. Declaration of present bodily condition 5. Declaration of past bodily condition for diagnoses 6. Business records 7. Past recollection recorded (not admissible, but usable) 8. Public records 9. Record of vital statistics 10. Statement of absence from public record 11. Judgments (felony) 12. Ancient documents 13. Learned treatises 14. Reputation 15. Family records 16. Market records |
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What is the Truth in Evidence Amendment to the Cal. Constitution (Prop 8)? |
All relevant evidence are admissible in criminal cases, even if objectionable under Evidence code. |
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What are exceptions to Prop 8? |
1. Exclusionary rules under U.S. Constitution, like Confrontation Clause 2. Hearsay 3. Privilege 4. Limits on character evidence to prove defendant's conduct 5. Limits on character evidence to prove victim's conduct 6. Secondary evidence rule (i.e. best evidence rule) 7. CEC 352 (power to exclude if unfair prejudice substantially outweighs probative value) |
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What is the expression sympathy rule? |
In California, expressions of sympathy relating to suffering of victim are inadmissible, but statements of fault are admissible. |
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How does federal law of defendant's character evidence in criminal trials differ from California law? |
Both - generally, no character evidence unless defendant offers it first. 1. Both: in sexual assault / molestation, prosecution can first offer previous acts 2. Federal: when defendant admits victim's character, prosecution can admit defendant's same character (Cal: only for violent character) 3. California: in domestic violence / elder abuse, prosecution can first offer previous acts |
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How does federal law of victim's character evidence in criminal trials differ from California law? |
Both: generally, prosecution can't use victim's character unless defendant offers first. 1. Federal: prosecution can use victim's peacefulness if D offers self-defense in murder (not in Cal) 2. Federal: reputation and opinion on direct, + specific instances on cross (Cal: all on direct and cross) |
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What duty does California add when determining competency of witness? |
Witness must understand legal duty to tell truth (both - personal knowledge, recollection, oath/affirmation, communication) |
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How does relevance of expert testimony differ in federal courts from California courts? |
Both: helpful, qualified, reasonably certain, supported by factual basis Fed: Reliable (Daubert/Kumho) - peer review, error rate, retest possible, reasonable acceptance Cal: Reliable - based on generally accepted scientific principles |
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How does impeachment with prior felony conviction differ in federal courts vs California courts? |
Fed: Conv. of false statement admissible, no balancing. Balancing for other felonies. Cal: Conv of "moral turpitude" admissible, with balancing. No admission for other felonies. Matter of relevance, no Prop 8. |
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How does impeachment with prior misdemeanor conviction differ in federal courts vs California courts? |
Fed: Conv. of false statement admissible, no balancing. No admission for other misdemeanors. Cal: All inadmissible to impeach (and substantive, unless character tendered). BUT Prop 8 makes moral turpitude admissible, so balance. This means all sinadmissible in civil cases. |
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How does non-conviction misconduct, bearing on truthfulness, differ in federal courts vs California? |
Fed: Admissible (if act of lying) in criminal and civil actions, but no extrinsic evidence. Cal: Not admissible under CEC, but Prop 8 makes admissible if relevant (i.e. crime of moral turpitude). Extrinsic evidence permitted, subject to balancing. |
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How does vicarious opposing party statements (admissions) differ in federal court vs California? |
Fed: statement by employee in scope of employment during emp. relationship is admission. Cal: only when negligent conduct of employee is basis of employer's liability. |
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What forms of unavailability differ in Cal. vs. federal court? |
Fed: Refusal to testify after court order Fed: Memory failure Cal: total memory loss Cal: refusal to testify from fear |
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How does present sense expression differ in federal courts vs California courts? |
Fed: Description of event or condition made while declarant perceived it Cal: Description of conduct of declarant made while declarant was doing that conduct |
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What is the OJ Exception? |
In California present sense impression allows statement made at or near time of injury or threat, by unavailable declarant, describing infliction or threat, in record by police or medical professional, under trustworthy circumstances. |
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How does the public records exception differ in federal courts vs California? |
--Fed Record describes activities or policies of officer; OR Record describes matters observed pursuant to duty (but not police reports in crim); OR Record contains factual findings resulting from investigation pursuant to authority granted by law, unless trustworthy (civil only) --Cal Record made by public employee in scope of duties, made near time matters described, and trustworthy (Confrontation Clause). |
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How does attorney-client privilege differ in California? |
Fed: privilege survives death Cal: Privilege ends at death and estate discharged |
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How does the A-C privilege differ in federal courts vs. California? |
In California, privilege does not apply when lawyer reasonably believes disclosure is necessary to prevent crime that is likely to result in death of substantial bodily harm. |
