Evidence Bar Review

Front 1

Relevance

Back 1

Evidence is relevant if it has any tendency 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.

CA: disputed fact

Front 2

Liability insurance (inadmissible)

Back 2

Inadmissible to prove culpable conduct like:
negligence OR
defendant's ability to pay a judgement

Front 3

subsequent remedial measures or repairs. (inadmissible)

Back 3

a. after accident = inadmissible to prove culpable conduct except to rebut defense of no feasible precaution

b. in products liability = inadmissible to prove defective product design.

CA: ADMISSIBLE to prove defective product design in products liability

Front 4

Settlements, offers to settle and pleas, and related statements(inadmissible)

Back 4

Civil case= inadmissible to prove liability or fault

criminal case= inadmissible to prove guilt.

exceptions:
1. no claim filed or threatened
2. No dispute as to liability or damages
3. related statements to a payment or offers to pay MEDICAL EXPENSES

CA: Statement related to payment or offer to pay medical expenses INADMISSIBLE

CA: Expressions of sympathy are inadmissible but statements of fault that accompany are admissible

Front 5

Similar occurrences

Back 5

1. Similar occurrences sometimes admissible to prove causation

2. prior accidents or claims of plaintiff usually irrelevant. Except for:
a. pattern of fraudulent claims.
b. preexisting conditions

3. Previous similar acts relent to prove intent.

4. Evidence relevant to rebut a defense of impossibility

5. Comparable sales relevant to establish value.

6. Habit evidence.

7 Routine practice evidence.

8. Industrial custom evidence relevant to prove standard of care in negligence case.

Front 6

Character evidence in civil case.

Back 6

Character evidence in civil case

Inadmissible to prove conduct except:

1.where civil claim is based on sexual assault or child molestation.

CA: This exception does not exist in CA

2. character in issue.

3. Independently relevant. MIMIC (Motive, Intent, Mistake, Identity, Common Scheme)

Front 7

Character evidence in criminal cases - admissibility of evidence of defendant's character to prove conduct.

Back 7

Character evidence in criminal cases - admissibility of evidence of defendant's character to prove conduct.

Prosecution cannot be first to offer such evidence. Exceptions:
1. sex cases, first to offer evidence that D committed other acts of sexual assault or child molestation

2. where court has admitted evidence of victim's character offered by defendant, prosecution can be first to offer evidence that defendant has same character trait

CA: This exception only applies where defendant puts forth evidence of P's violent character, P can claim D has violent character.

3. MIMIC

4. Defendant offers evidence of his good character. Note: Specific instance conduct only admissible on cross.

CA: SIC admissible on both cross and direct

5. CA ONLY: OJ Rule. offer evidence of past elder or domestic abuse

Front 8

Character evidence in criminal cases- specific evidence

Back 8

Assuming door is open, reputation and opinion evidence are admissible on direct examination by any party, but not specific instances evidence.

On cross examination by any party, reputation, opinion, and specific instances are all admissible.

Front 9

Admissibility of victim's character.

Back 9

Prosecution cannot be the first to offer. Only after defendant opens door:
1. defendant offers evidence of victim's character, prosecution can rebut
2. homicide case, if defendant offer evidence victim attacked first, prosecution may offer evidence of the victim's character for peacefulness

Front 10

Rape shield statute

Back 10

Criminal rules:
Reputation/opinion evidence = inadmissible
Specific instances admissible=
i) thier party is source of semen or injury
ii) prior acts of consensual intercourse between defendant and alleged victim

civil rules: reputation/opinion/specific instance evidence is admissible if probative value substantially outweighs unfair prejudice, and for reputation evidence, plaintiff put her reputation in issue.

Front 11

Specific instances of defendant's bad conduct may be admitted to prove anything other than character that is relevant.

Back 11

Motive
Intent
Mistake (absence of mistake)
Identity
Common plan or scheme

Front 12

Competency requirements

Back 12

1. personal knowledge
2. present recollection
3.communication
4. sincerity

Front 13

Objections to form of testimony and questions

Back 13

1.argumentative (Q)
2.compound (Q)
3.unresponsive (A)
4.usually no leading on direct except if adverse or hostile witness, witness needing help
5. leading OK on cross
6. calls for narrative (Q)
7. assumes facts not in evidence (Q)

Front 14

elements of recorded recollection exception to hearsay

Back 14

1. witness once had personal knowledge of the facts
2. the document was made by the witness or under the witness' direction or was adopted by the witness
3. the document was written or adopted at the item when the facts were fresh in the witness' memory.
4. the document was accurate when made
5. the witness now has insufficient recollection to testify as to matters contained in the document

Front 15

Opinion testimony -lay testimony

Back 15

Lay opinion is admissible if rationally based on the witness' perceptions and helpful to the tier of fact. Cannot be based on scientific or other specialized knowledge.

CA: Can be based on scientific, technical, or other specialized knowledge.

Front 16

Expert opinion

Back 16

Opinion must be:
1. helpful to jury
2. witness must be qualified
3. witness must believe in opinion to reasonable degree of certainty
4. opinion must be supported by a proper factual basis
5. opinion must be based on reliable principles that were reliably applied.

Front 17

basis for opinion

Back 17

1. admitted evidence
2. personal knowledge
3. inadmissible evidence reasonably relied upon

Front 18

Daubert/Kumho standard

Back 18

If technique is not generally accepted among scientist in the field it is acceptable if it has been peer reviewed and published in scientific journals, has been tested and is subject to retesting, has a low error rate, and has a reasonable level of acceptance.

CA standard: Based on scientific principles which are generally accepted in the relevant scientific field/

Front 19

Prior consistent statement

Back 19

Not hearsay and admissible for all purposes if made before bribe or inconsistent statement.

Front 20

Hearsay

Back 20

Out of court statement offered to prove the truth of the matter asserted in that statement

Front 21

Hearsay exemptions

Back 21

1. admission of party opponent

Exemptions applicable to an out of court statement from a declarant who now testifies at trial:
1. prior consistent statement given under oath at trial or deposition
2. prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive
3. statement of identification made after perceiving the person
CA: ID while fresh in memory and wit must confirm made prior ID statement

Front 22

Declarant is unavailable if

Back 22

1. court excepts declarant from testifying due to privilege
2. declarant is dead or sick
3. proponent of statement cannot procure declarant's attendance by process or by other means
4. declarant refuse to testify despite court order.
5. declarant's memory fails

Front 23

declarant unavailable exceptions

Back 23

1. declaration against interest
2. dying declaration
CA: Declarant must be dead AND about what killed him

Front 24

declarant can be available exceptions

Back 24

1. excited utterance
2. present sense impression
3. declaration of then existing physical or mental condition
4. statement of past or present mental or physical condition made for medical diagnosis or treatment

Front 25

Business records exception

Back 25

1. a record of events, conditions, opinions or diagnosis
2. kept in course of regularly conducted business activity
3. made at or near time matters described
4. by person with knowledge of the facts in that record
5. it was regular practice of business to make such record

Front 26

Public records exception

Back 26

1. record describes activities and policies of the office.
2. record descries matters observed pursuant to duty imposed by law (but not police reports in criminal cases)
4. record contains factual finding resulting from investigation made pursuant to authority granted by law, unless untrustworthy

Front 27

Former testimony exception

Back 27

Declarant unavailable, admissible if:
1. the party agaisnt whome the testimony is now being offered had, during the earlier proceeding, an opportunity to examine that person and the motive to conduct that exam was similar to the motive the party has now, OR

2. in a civil case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity-type relationship with someone who was a party that that earlier proceeding and who had an opportunity and a similar motive to examine the witness in that earlier proceeding.

CA: party against whome testimony is now offered was not a party in the earlier proceeding but a party in that earlier proceeding had an opportunity to examine the witness and an interest to conduct that exam similar to the interests of the party against whom the testimony is now offered OR
the former testimony is offered against the person who offered it in evidence in her own behalf in the earlier proceeding, or against a successor in interest of such person.

Front 28

Confrontation clause

Back 28

CC excludes an out-of-court statement if declarant does not testify at trial, is now unavailable, the statement is "testimonial", and defendant had no chance to cross-examine declarant about the statement when it was made.

Front 29

Ancient documents rule

Back 29

authenticity is established if:
1. document is 20 years old or more
2. does not on its face present and irregularities
3. was found in a place of natural custody

Front 30

self-authenticating documents

Back 30

Include: certified publib documents, acknowledged document, official publications, periodicals, business records, and trade descriptions

Front 31

Authentication of non-unique items

Back 31

chain of custody

Front 32

Best evidence rule

Back 32

applies only where offered to prove the contents of a writing, requires proof of contents with original.Exception: testimony can be used if original is lost or destoryed, unless bad faith by proponent of the testimony.

CA: Duplicates include handwritten notes

Front 33

Type of evidence admissible to prove the contents of a writing

Back 33

1. originals
2. duplicates

Front 34

spousal privileges

Back 34

spousal testimonial privilege: permits witness to refuse to testify against spouse

2. spousal confidential communication

Front 35

Doctor-patient privilege

Back 35

No doctor-patient privilege under federal law, but when it does apply

A patient has a privilege to prevent disclosure of information for the purpose of obtaining diagnosis or treatment and the information was pertinent to diagnosis or treatment

Front 36

Extrinsic Evidence

Back 36

Any evidence other than testimony given at this proceeding by the witness being impeached. E.G., extrinsic evidence = testimony of other witnesses, writings, prior statements of the witness who is now testifying.

Front 37

Impeachment by contradiction

Back 37

Extrinsic evidence inadmissible to contradict on collateral matter.

Collateral matter = a fact not material to the issues in the case that says nothing about witness' credibility other than to contract the witness.

Front 38

Impeachment by Prior Inconsistent Statement

Back 38

1) PIS of witness who testifies at trial = not hearsay if given under oath at trial or deposition. Otherwise = hearsay and inadmissible if offered to prove truth but ADMISSIBLE to IMPEACH

CA: PIS admissible to prove truth and impeach even if PIS was NOT under oath

2)Extrinsic evidence of PIS inadmissible to impeach on collateral matter.

3) Foundation requirement: extrinsic evidence admissible only if witness given opportunity to explain or deny.

Front 39

Impeachment with evidence of bias, interest, or motive.

Back 39

Extrinsic evidence admissible if witness given opportunity to explain or deny.

Front 40

Impeachment with conviction for crime involving false statement

Back 40

All convictions for false statements are admissible. No balancing of unfair prejudice against probative value except for convictions more than 10 years old.

CA: All felonies involving a crime of moral turpitude are admissible. Misdemeanors involving a crime a moral turpitude are admissible in a criminal case, subject to balancing.

Front 41

Impeachment with conviction for a crime not involving false statement

Back 41

Felonies that do not involve false statement may be admissible to impeach but court may exclude for unfair prejudice.

Misdemeanors that do not involve false statement are inadmissible to impeach.

CA: All felonies involving a crime of moral turpitude are admissible. Misdemeanors involving a crime a moral turpitude are admissible in a criminal case, subject to balancing.

Front 42

Impeachment with non-conviction misconduct evidence bearing on truthfulness

Back 42

Acts of misconduct that did not result in a conviction are admissible to impeach in both civil and criminal cases if the acts involved lying. Extrinsic evidence to prove the acts is inadmissible. Impeacher only may cross-examine witness about her misconduct.

CA: Under Prop 8, acts of moral turpitude are admissible in CRIMINAL case subject to balancing.

Front 43

Impeachment with reputation and opinion regarding truthfulness.

Back 43

extrinsic evidence admissible

Front 44

Analysis

Back 44

1.Form

2. Purpose
a.Logical relevance
b. legal relevance
c. character
d. impeachment

3. Presentation
a. person
b. document
c. judicial notice

4. Hearsay

5. Privilege