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62 Cards in this Set
- Front
- Back
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Evidence - The Big Picture, RECIPE H
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ISSUE: IS THE EVIDENCE ADMISSIBLE?
ISSUE: RECIPE H? Relevance Extrinisic policies Character evidence Impeachment Privileges Exclusion Hearsay |
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Relevance: Is the evidence relevant?
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Logical relevance:
Evidence is logically relevant when it proves or disproves a fact in dispute. Ask: 1. What fact am I trying to disprove? 2. Is the fact of consequence in the case? 3. Does the evidence help prove the fact? 4. Do any Special Rules apply? Similar tort claims Similar Ks or transactions Similar accidents or injuries Negative evidence |
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Similar tort claims
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Evidence of similar tort claims by P generally inadmissible to show invalidity of present claim because such evidence is too prejudicial, unless P has made similar false claims or a prior injury claim was made as to same part of P's body.
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Similar contracts or transactions
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Evidence of similar contracts or transactions are admissible to prove or clarify the terms of a transaction or agreement with an opposing party but not with third parties (although latter is held discretionary by some courts).
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Similar accidents or injuries
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Similar accidents or injuries are admissible to prove dangerousness of a particular condition or knowledge of that condition through prior or subsequent similar happenings if a substantial identity of all material circumstances is shown by proponent.
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Negative Evidence
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Proponent may prove that other similar happenings did not occur to prove safety of a particular condition or lack of notice if he shows SUBSTANTIAL IDENTITY OF MATERIAL CIRCUMSTANCES re: evidence & that the happening would have been observed by the witness if it had occured.
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LEGAL RELEVANCE
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Otherwise relevant evidence is INADMISSIBLE if probative value substantially outweighed by danger of unfair PREJUDICE, CONFUSION of the issues, MISLEADING of the jury, WASTE OF TIME.
OBJECTIONS TO THE FORM OF EXAMINATION: Leading questions (permitted on cross examination or direct examination of a hostile witness), misleading, cumulative, assuming facts not in evidence, compound, conclusionary, argumentative. |
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Reliability: IS THE EVIDENCE RELIABLE?
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All witnesses must have PERSONAL KNOWLEDGE of the events testified to and all document writings, voices, and physical objects must be AUTHENTICATED.
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WRITINGS
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PERSONAL KNOWLEDGE:
Testimony from any W with personal knowledge that the writing was prepared by the person claimed. IDENTIFICATN OF HANDWRITING: By layperson or expert testimony. PUBLIC RECORDS: By evidence that public record was in custody of proper office. ANCIENT WRITING: Non-suspicious 20-year old document found a place it would be expected to be. CA requires 30 yrs. SELF AUTHENTICATION: Certain documents require no extrinsic evidence of authenticity. |
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VOICES
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PERSONAL KNOWLEDGE:
Testimony from any W who has heard statement, saw speaker & knows who speaker was. IDENTIFICATION OF VOICE: Where speaker is unseen or unknown opinion identifying voice based on hearing the voice or expert testimony. DISTINCTIVE CHARACTERISTICS: Evidence of unique contents, internal patterns or other distinctive characteristics (e.g., accent) considered under the circumstances. |
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TELEPHONE CONVERSATIONS
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In addition to above methods, person can be identified by evidence that:
1. Telephone call was made to a phone number assigned to that person by telephone company & circumstances including self-identification show that person answering was the one called. 2. Business call where phone number assigned to a business & conversation related to business reasonably transacted over the phone. |
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PHYSICAL OBJECTS
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Physical objects such as guns, drugs, etc., can be identified by:
1. Personal knowledge: testimony recognizing object to be what it purports to be. 2. Distinctive characteristics or markings. 3. Chain of custody: testimony accounting for object's whereabouts from time of incident until trial (must also show no likely tampering). |
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Does the BEST EVIDENCE RULE apply?
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In proving the contents of a writing, the original writing itself must be produced or shown to be unavailable by the proponent of secondary evidence unless the writing refers to a collateral issue.
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In Proving the Contents of a Writing
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BEST EVIDENCE RULE only applies when evidence offered is intended to prove what is in the writing. Contents are in issue when:
WRITING HAS INDEPENDENT SIGNIFICANCE: actions based on a will, K, lease, disclaimer, defamatory writing or recording, photos in pornography cases, X-rays. WRITING IS OFFERED AS EVIDENCE: X-ray to prove injury, receipt to prove payment. Letters, memos, notes to prove knowledge. TESTIMONY OF W. WHO RELIES ON WRITING: W is a mere conduit for the writing itself, e.g., testimony based on X-ray, tape, business record. |
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The Original Writing Itself
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Includes: Writing, recording or photo itself; counterpart of original intended to have same effect as original; duplicate originals produced from same impression as original or from the same plate Federal courts treat duplicate as original unless there is a genuine question of authenticity or court believes it to be unfair.
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Must Be Produced or Shown to Be Unavailable
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The original need not be offered into evidence but must be available for inspection and examination.
• Unavailability is met where: • Original is lost or destroyed and no fraud by proponent. • Where original is unobtainable (out of court's jurisdiction). • Where original in control of opponent with notice to produce. • Opponent who fails to provide original letter cannot later refute secondary evidence. • Impracticality exists where voluminous records or certified copies of public records. |
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By the Proponent of the Secondary Evidence Unless the Writing Refers to a Collateral Issue
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Proponent of the evidence has burden of proof. BEST EVIDENCE RULE not applicable where writing is not closely related to a controlling issue.
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WITNESS REQUIREMENTS
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1. Does W have personal knowledge?
2. Under oath or affirmation? 3. Capacity to perceive and tell truth? 4. Is W a judge, juror or attorney? Judge cannot testify in trial in which she is sitting; juror cannot testify at trial but can testify as to extraneous prejudicial information brought to jury's attention or whether there wa any improper outside influence; attorney can testify but this causes ethical problems. |
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LAYWITNESS
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Knowledge required by opinion must be rationally based on personal perception:
1. Adequate opportunity to perceive. 2. Personal knowledge not required for opinion of sanity by subscribing W or about oneself. 3. Opinion must be necessary to effective communication of the perception or specially helpful to a clear understanding of the facts (sensory descriptions, measurements, identifications, physical conditions of others, mental meaning of conduct). 4. Matter is within common experience (i.e., drunk condition/appearance, handwriting, speed, odor). |
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EXPERT WITNESS
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An expert may testify if the matter is sufficiently beyond the jury's common experience and would assist the trier of fact if:
1. The expert is QUALIFIED as an expert. 2. There is a PROPER BASIS for the expert's opinion. 3. Expert opinion may be based on any proper matter including materials not in evidence and assumed facts. 4. Expert can render an opinion on ultimate factual issue under FED (but cannot testify whether D in criminal case did or did not have the mental state, where mental state in issue); can be cross-examined re: statements in treatises if shown to be reliable by admission of W; other expert testimony or judicial notices; may base his or her testimony on inadmissible hearsay, so long as it is relevant, but when expert bases his testimony on what others say, they can be called as witnesses. |
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DEAD MAN ACTS
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When offered in a civil action against a deceased estate, a party or person interested in the outcome is incompetent to testify about a conversation with the deceased. (FRE only; not CA)
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WHEN A WITNESS IS UNAVAILABLE?
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1. Where declarent dead.
2. Mentally/physically incapable. 3. Beyond subpoena power of court. 4. Protected by privilege. 5. Used reasonable diligence. 6. Unavailability not planned. 7. Declarant has no present memory of events. 8. Declarant refuses to obey court order. 9. Declarant's testimony could not be obtained by deposition. 10. CA does not recognize lack of memory or refusal to testify as grounds for unavailability. |
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JUDICIAL NOTICE
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The court may recognize as true an indisputable fact that is common knowledge or capable of verification through sources of unquestionable accuracy.
Two Types: NOTORIOUS FACTS: matters of common knowledge in the community (e.g., "The Golden Gate Bridge is located in San Fran, CA.") MANIFEST FACTS: Facts capable of certain verification (e.g., "The CA Bar Exam is given twice each year.") |
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PROCEDURAL ASPECTS OF JUDICIAL NOTICE
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Procedural aspects of judicial notice:
1. Party must formally request judicial notice. 2. Judicial notice is conclusive in a civil case (e.g., blood test disproving paternity is conclusive). 3. In a criminal case, the jury is instructed that it may, but is not required, to accept a judicially noticed fact. |
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EXTRINSIC POLICIES
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Does an extrinsic policy bar admissions of the evidence?
• Liability insurance. • Subsequent remedial measures. • Offers to compromise/settle a claim. • Offer to pay medical expenses. • Pleas and offers to plea. |
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LIABILITY INSURANCE
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Evidence that a person was or was not insured at a time of injury is inadmissible to prove negligence but may be admissible to prove:
1. Agency 2. Ownership or control. 3. Bias or prejudice of a witness. RATIONALE: Irrelevant, "deep pocket" concerns and to hold otherwise would discourage people from carrying insurance. |
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SUBSEQUENT REMEDIAL MEASURES
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Evidence of a remedial measure, taken or authorized by a civil D after an injury occurred is inadmissible to show negligence or culpable conduct unless to prove:
• Ownership or control. • Feasibility of precautionary measures (if disputed). • Impeachment of D. • Strict liability actions (some states). RATIONALE: to encourage repair. |
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OFFERS TO COMPROMISE/SETTLE A CLAIM
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Evidence respecting an offer to compromise or settle a claim is inadmissible to prove the validity of the claim unless to prove:
• Bias in the witness. • Explain delay (if undue delay claimed). • Obstruction of justice. RATIONALE: To encourage out-of-court settlement. Federal Rules of Evidence (FRE) bars all statements made. |
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OFFER TO PAY MEDICAL EXPENSES
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Offers to pay or payment of medical expenses by D are inadmissible to show liability for injury.
RATIONALE: Law favors humanitarian motives and relevant statements can be severed to exclude prejudicial admissions. FRE admits an admission of fact that is made with an offer to pay medical expenses, while CA excludes both the admission and the offer to pay. |
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PLEAS AND OFFERS TO PLEA
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Evidence of an offer to plea guilty, no contest or actual pleas later withdrawn (as well as any statement made in connection therewith) are inadmissible in any civil or criminal case. Such evidence is admissible to prove perjury or impeach testimony, if in the form of a voluntary and reliable statement made on record in court.
RATIONALE: To encourage plea bargaining; prejudice to jury. A guilty plea, however, is admissible as an admission of guilt. |
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CHARACTER EVIDENCE: IS THE EVIDENCE CHARACTER EVIDENCE?
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STATE RULE:
Evidence of a person's character or disposition is inadmissible proof of the conduct of that person except as otherwise proved by law. Identify the type (3 forms): • REPUTATION: Community reputation. • OPINION: Personal opinion of character. • SPECIFIC INSTANCES OF CONDUCT. APPLY EXCEPTIONS: NON-CONDUCT USE? Where character is an ultimate issue or knowledge of character is at issue, character of the accused; victim's character offered by accused; circumstantial proof of a fact; habit; witness' character re: credibility. |
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Exception #1: Criminal Cases
Character of the Accused Victim's Character Offered by the Accused |
CHARACTER OF THE ACCUSED:
Criminal D may offer reputation or opinion evidence (but not specific acts) which tends to prove innocence, and then, and only then, may prosecutor rebut by evidence of bad character in the form of opinion/reputation evidence. CL permits only reputation evidence. VICTIM'S (V) CHARACTER OFFERED BY THE ACCUSED: Criminal D may offer evidence of V's character in the form of opinion or reputation evidence, and prosecution may rebut with reputation of opinion evidence of V's good character or the D's bad character for the same trait. In RAPE cases, evidence of V's past sexual behavior in the form of specific acts is admissible if it proves (a) that D is not the source of semen or injury, (b) sexual conduct w/D showing consent, (c) written motion and offer of proof followed by in-camera hearing required. CA allows D to introduce specific act evidence to prove V's character. |
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OTHER EXCEPTIONS:
(2) Circumstantial Proof of a Fact, (3) Habit (4) Witness' Character RE: Credibility? |
CIRCUMSTANTIAL PROOF OF A FACT:
Specific acts are admissible in independently relevant to show: (a) motive, (b) opportunity, (c) intent or knowledge, absence of mistake or accident, (d) modus operandi, preparation or plan, (e) identity HABIT: Invariable automatic pattern of behavior offered to prove conduct in conformity to habit or routine practice of organization. WITNESS' CHARACTER RE: CREDIBILITY: Reputation for truth and veracity; personal opinion; felony convictions; misdemeanor convictions involving dishonesty; prior bad acts; reversed/unconstitutional convictions; juvenile convictions. Prior acts of sexual assault or child molestation are admissible in civil or criminal case where D is accused of committing sexual assault or child molestation, but party seeking to disclose must do so 15 days before trial. |
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IMPEACHMENT:
Is the Evidence "Impeachment" Evidence? "C.A.R.B.I.C. C." |
Impeachment by (CARBIC C):
1. Prior felony CONVICTION 2. Specific ACTS, REPUTATION or opinion evidence. Under the MAJ view, a witness may be impeached by bad acts but FRE allows only if the act of misconduct is probative of truthfulness. Some states, such as CA, permit W to be impeached with any misdemeanor conviction that involves moral turpitude in a criminal case. 3. By proof of BIAS through cross-examination or extrinsic evidence. 4. By proof of witness' prior INCONSISTENT statement. 5. By proof of deficiency in COMPETENCY (capacity, memory, perception). 6. CONTRADICTION of W's testimony. |
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COLLATERAL MATTER RULE
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Extrinsic evidence not obtained from W on X-exam is inadmissible to impeach witness unless a proper foundation is laid. The evidence must be relevant to some issue in the case, must go to a material matter, and the W must be given an opportunity to explain or deny the evidence.
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PRIVILEGES:
Does a privilege apply? |
• Attorney Client Privilege
• Spousal Witness • Marital Communications • Physician-Patient • Self-incrimination |
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ATTORNEY-CLIENT PRIVILEGE
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1. Who holds the privilege? Holder is THE CLIENT, but attorney must assert the privilege on behalf of the client.
2. Is the communication covered by the privilege? The privilege applies to all COMMUNICATIONS MADE IN THE COURSE OF THE ATTORNEY-CLIENT RELATIONSHIP. 3. Communication must be made IN CONFIDENCE? 4. WAIVER? Only client or estate can waive. EXCEPTIONS: (a) in suit between attorney and client, (b) future crime or fraud, (c) will disputes. |
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SPOUSAL WITNESS PRIVILEGE
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Applies in criminal cases. Under Modern trend, a minority of states permits the privilege in civil actions.
1. Holder is D-spouse (MAJ) or W-spouse under (FED & MIN view) 2. Valid marriage is required. 3. Privilege lasts only during marriage and terminates upon divorce or annulment (ex-spouse has no privilege). |
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MARITAL COMMUNICATIONS
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1. Holders are both spouses
2. Applies to all confidential communications made while parties were H and W 3. Does not apply in criminal action where testifying spouse or spouse's child is the victim, or where criminal D wants to introduce such evidence. 4. MIN view also protects non-verbal conduct if it occurs in the home. |
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PHYSICIAN-PATIENT PRIVILEGE
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1. Holder is the patient.
2. Physician must be (or reasonably believed to be) authorized to practice. 3. Applies to all communications made during the course of consultation, tests, results, etc. 4. Exceptions: (a) in a suit between physician and patient, (b) patient has put his mental or physical state in issue, (c) physician is appointed by the court, (d) crime or Fraud, (e) reports to social workers or public agencies. 5. MAJ and CA extend this privilege to psychotherapist-patient relationship. CA does not apply privilege if disclosure necessary to protect patient from being a danger to herself or others, or if patient is under 16 and disclosure in the child's best interests. |
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CLERGYMAN-PENITENT PRIVILEGE
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1. Both clergyman and penitent are holders.
2. Clergyman must be member of religion/church authorized to hear penitential communications and is under a duty to keep a secret. 3. Only confidential communications are privileged (observations are not). EXCEPTIONS: None. |
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PRIVILEGE AGAINST SELF-INCRIMINATION
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ACCUSED:
Under the 5th Amendment, the accused has the privilege not to take the witness stand but not in grand jury, legislative, or administrative hearings. WITNESS: Witness has privilege not to disclose matter that would tend to incriminate him/her in all proceedings where formal testimony is required Client is the holder of the privilege, but attorney may also assert privilege. |
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GENERAL CONSIDERATIONS RE: PRIVILEGES
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INESSENTIAL THIRD PERSON'S PRESENCE:
Prevents privilege where person's presence does not advance the purposes of the relationship. NON-PRIVILEGED PERSON'S PRESENCE: Prevents privilege unless that person is separately privileged (e.g., spouse). EAVESDROPPERS, at common law, MAY TESTIFY (modern view contra) but the communication is still privileged with respect to those in the protected relationship. CA allows privilege holder to stop an eavesdropper from revealing confidential information. |
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HEARSAY
Definition and questions you must ask |
An assertion made by an out-of-court declarant offered to prove the truth of the matter stated:
1. Is there an assertion? Verbal v. non-verbal communication? 2. Was the statement made out of this court hearing? 3. Who is the declarant? 4. Is it offered to prove the truth of the matter stated? May be offered to prove relevant state of mind, impeachment or rehabilitation or words which have legal significance (will or K words, defamation, questions or commands) 5. Does an exception to the hearsay rule apply? |
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HEARSAY EXCEPTIONS
"D.A.D. S.E.E. B.O.P.P. P.I.C.I" |
DECLARATIONS against interest
ADMISSIONS DYING declaration SENSE impression EXCITED utterance EXPERT cross-examination MENTAL state EQUIVALENCY BUSINESS record exception OFFICIAL written statement PAST recollection recorded PRIOR testimony PHYSICAL state IDENTIFICATION CONSISTENT statement / INCONSISTENT statement |
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DECLARATION AGAINST INTEREST
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Statement by:
1. Unavailable declarant 2. Against financial (CL) or penal interest 3. Against declarant's interest when made 4. Reasonable person would not have said it unless true. |
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ADMISSIONS
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DIRECT ADMISSION:
Statement offered against party made by the party admitting culpability/liability ADOPTIVE ADMISSION: Statement offered against a party made in presence of a party where party's conduct/silence manifests adoption of the truth. "FRE" EMPLOYEE/AGENT: Statement offered against party made by party's employee/agent during relationship concerning matter within scope of employment. CO-CONSPIRATOR: Statement offered against party made by co-conspirator of party made in furtherance of conspiracy and independent evidence of the conspiracy exists. Admissions are considered NON-HEARSAY under the FRE. |
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DYING DECLARATIONS
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Statement by:
• Unavailable declarant (CL/CA: must be dead) • Who believed death was imminent. • Relation to circumstances or threatened death. • With personal knowledge. • CL-exception only applies in homicide cases. |
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SENSE IMPRESSION
(FRE, not CL or CA) |
(FRE, not CL or CA) - Statement:
1. Describing or explaining event or condition. 2. Made during or immediately after declarant was perceiving event. CA admits contemporaneous statements made to explain, qualify, or make understanding what the declarant is doing when statement was made. |
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EXCITED UTTERANCE
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Statement made regarding:
• Exciting event • Made under stress of excitement (CL: Statement must be spontaneous and made immediately after event) • Relating to the event • Declarant has personal knowledge |
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EXPERT CROSS-EXAMINATION
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• During expert's examination
• Writings established as reliable treaties, periodicals, or pamphlets through W's testimony, testimony or judicial notice • May be read into evidence (not admissible as an exhibit) |
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MENTAL STATE
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Statements of present mental state (i.e., "I will kill you") admissible to prove existence of mental state if at issue or to prove conduct of third party. Statements of past mental state only admissible to prove facts re: declarant's will.
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EQUIVALENCY
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(FRE) - Statement which is:
1. Trustworthy equivalent to other exceptions 2. Relating to material facts 3. More probative than other available evidence 4. Notice to adverse party, including particular of statement, name and address of declarant 5. Interest of justice will be served |
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BUSINESS RECORD EXCEPTION
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• Written statement
• Made in regular course of business • Near time of receipt of information • Declarant has personal knowledge or source reliable • Unless circumstances indicate lack of trustworthiness |
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OFFICIAL WRITTEN STATEMENT
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1. Written statement
2. By a public official 3. Setting forth activities of public office or observations made or recorded in course of legal duties 4. Factual findings of an official investigation unless untrustworthy Examples include birth, death and marriage certificates, relevant court judgments, and official government records |
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PAST RECOLLECTION RECORDED
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1. Written statement or record
2. Declarant has personal knowledge or source is reliable 3. Made when facts were fresh 4. No present recollection 5. Declarant testifies that it accurately reflects her prior knowledge 6. May be read into evidence 7. Opposing party may offer document into evidence |
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PRIOR TESTIMONY
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Statement:
1. In form of testimony given under oath 2. Given in former hearing or deposition 3. Party against whom is offered had opportunity and similar incentive to examine testimony (CL: Parties/Issues must be identical) 4. Declarant unavailable. CA allows any prior inconsistent statement as substantive evidence of its truth, while FRE requires statement to be made under oath at prior hearing, trial or deposition before it is admissible for its truth. However, CA and FRE allows admission of any prior inconsistent statement for impeachment purposes. |
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PHYSICAL STATE
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1. PRESENT PHYSICAL STATE:
Statement or description of present sensation or condition may prove existence of condition. 2. PAST PHYSICAL STATE (FRE only): Statement or description of medical history, past symptoms or sensations or character or nature of external cause admissible if made for diagnosis or treatments and if pertinent to diagnosis/treatment. 3. CA admits statements of past bodily conditions made to anyone. |
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IDENTIFICATION
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1. Prior statement of W-declarant
2. Identifying a person 3. Made after perceiving that person. CA also requires: (a) statement made while event was fresh in W's memory (b) W must testify as to prior identification and confirm that it was his opinion when made. |
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CONSISTENT STATEMENT
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1. Prior statement of W-Declarant
2. Offered to rebut accusation that witness is lying or exaggerating 3. Made after the motive to lie or exaggerate arose Under the FRE, prior statements are considered NON-HEARSAY |
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INCONSISTENT STATEMENT
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1. Prior statement of witness
2. inconsistent with his testimony 3. given under penalty of perjury 4. at a deposition, trial or other proceeding NOTE: Prior inconsistent statements are considered NON-HEARSAY under the FRE. |
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LIMITATION ON USE OF HEARSAY IN A CRIMINAL CASE
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In a criminal case, hearsay statements which are "testimonial" are inadmissible despite the application of a hearsay exception unless:
1. The prosecution proves that the declarant is unavailable for cross-examination AND 2. The declarant was subject to cross-examination by the adverse part at the time the statement was made. "Testimonial statements" are statements made in anticipation of a criminal trial. |
