Evidence - Ca Bar Feb 2009

Front 1

Are admissions by a party offered by an opposing party admissible? What about vicarious admissions?

Back 1

Yes, admissions by a party are not hearsay.

Vicarious admissions (e.g., by an employee within the scope of his employment) are also not hearsay, and therefore admissible.

Front 2

In a civil trial, is character evidence admissible to prove that the litigant acted in conformity with that character?

Back 2

No, character evidence is inadmissible that the litigant acted in conformity with that character trait, UNLESS the litigant's character is directly in issue (e.g., defamation).

Front 3

In a criminal trial, when may evidence of a defendant's character be introduced?

Back 3

Only after the defendant himself has put his character in issue ("opened the door").

Front 4

What are the elements that you MUST analyze in an evidence essay?

"Elderly Ronald Reagan Pities Communists In Presidential Hall"

Back 4

(1) Examination (form of)
(2) Relevance
(3) Reliability
(4) Public policy exceptions
(5) Character evidence
(6) Impeachment
(7) Privilege
(8) Hearsay

Front 5

In a criminal trial, extrinsic evidence of other crimes or misconduct is admissible if:

Back 5

it is independently relevant to some issue other than the defendant's character.

Front 6

What are the rules regarding bolstering of a witness under FRE? CEC?

Back 6

FRE: No bolstering witness until witness has been impeached.

CEC: In criminal cases, Prop 8 allows both prosecutor and defendant to bolster a witness' credibility before it has been attacked.

Front 7

What are the requirements for the past recollection recorded exception to hearsay?

Back 7

Unavailability IMMATERIAL +
(1) the witness at one time had personal knowledge of facts recited in the writing; and
(2) writing was made by or under direction of witness or has been adopted by him; and
(3) the writing was timely made when matter was fresh in witness' mind.

Front 8

May a plea of plea of guilty, which defendant later withdrew, be admissible him?

Back 8

NO. A plea of guilty later withdrawn is NOT admissible unless:

(i) another statement made in the course of the same plea has been introduced and the statement ought in fairness be considered contemporaneously with the plea; or,

(ii) in a criminal trial for perjury, if the statement was made by the defendant under oath, on the record and in the presence of counsel.

Front 9

What are the two primary components to relevance?

Back 9

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.

(1) "Of consequence." -- evidence must be pertinent to the determination of the action.

(2) "More or less probable." -- evidence must make the fact of consequence more or less probable.

Front 10

Relevance vs. probative value.

Back 10

Relevance is a yes or nor proposition, where as probative value is a matter of degree.

Front 11

Evidence of liability insurance (FRE).

Back 11

INADMISSIBLE to prove culpable conduct or defendant's ability to pay a judgment.

ADMISSIBLE to prove anything else.

Front 12

Evidence of subsequent remedial measures or repairs (FRE).

Back 12

INADMISSIBLE to prove culpable conduct, or in a products liability action, defective product design.

ADMISSIBLE to rebut defense of no feasible precaution.

ADMISSIBLE to prove anything else.

Front 13

Settlements, offers to settle, and pleas (FRE).

Back 13

Applies only after someone sues and there is an existing dispute as to liability or damages.

Civil: INADMISSIBLE to prove liability or fault.

Criminal: pleas, offers to plea, and related statements INADMISSIBLE to prove guilt.

Front 14

Payment or offers to pay medical expenses (FRE).

Back 14

INADMISSIBLE to prove liability for injuries in question.

Related statements are ADMISSIBLE.

Front 15

Similar occurrences (FRE).

Back 15

Evidence about OTHER people or events is sometimes admissible when there are certain similarities between that evidence and the people and events at issue.

Examples: (i) previous similar acts to prove intent; (ii) evidence relevant to rebut a defense of impossibility; (iii) comparable sale relevant to establish value.

**Prior accidents usually irrelevant unless (1) pattern of fraudulent claims; or (2) preexisting condition.

Front 16

Habit evidence, routine practice, and industrial custom (FRE).

Back 16

Frequently repeated conduct.

ADMISSIBLE to show the person acted in accordance with the habit on the occasion in question.

Routine practice = habit of a business or organization.

Industrial custom is relevant to prove standard of care in negligence cases.

Front 17

What is the four question approach to CHARACTER evidence?

"Puppies Make Cute Pets"

Back 17

"Puppies Make Cute Pets"

(1) what is the Purpose for which the character evidence is offered?
[a] to prove character because
character is an issue
[b] to prove character as
circumstantial evidence of a
person's conduct
[c] to impeach or bolster witness

(2) what Method or technique is used to prove character?
[a] specific acts of conduct
[b] opinion
[c] reputation

(3) is it a Civil or criminal case?

(4) does the evidence prove a Pertinent character trait?

Front 18

Character evidence in CIVIL cases (FRE).

Back 18

<> INADMISSIBLE to prove CONDUCT, except for sexual assault or child molestation.

<> ADMISSIBLE if character is in issue.

Front 19

Character evidence of DEFENDANT in CRIMINAL cases (FRE).

Back 19

<> Door to Defendant's character starts out closed. Prosecution may only introduce character evidence when and if defendant opens the door by introducing evidence of a pertinent character trait of defendant's.
EXCEPT: (1) sexual crime; (2)
court has admitted evidence of
victim's character.

<> on DIRECT exam by any party (for prosecution, only after door open), reputation and opinion evidence is admissible, but NOT specific acts.

<> On CROSS exam by any party, reputation, opinion, and specific acts are all admissible.

Front 20

Character evidence of VICTIM in CRIMINAL cases (FRE).

Back 20

<> Door to Victim's character is closed at start of trial.

<> Defendant can open door by:
(i) offering evidence of victim's character; or
(ii) in a homicide case, if defendant offers evidence that victim attacked first, prosecution may offer evidence of victim's peacefulness.

<> DIRECT: reputation & opinion
<> CROSS: all character evidence

Front 21

Rape shield statutes.

Back 21

Special rules that apply to both civil and criminal cases.

<> Limit defense evidence of alleged victim's character when offer to prove consent.

<> CRIMINAL: (i) reputation and opinion evidence INADMISSIBLE. (ii) specific instances admissible ONLY to prove (a) third party is source of DNA or injury; or (b) prior acts of consensual sex between defendant and victim.

<> CIVIL: Reputation, opinion, and specific instances admissible if probative substantially outweighs unfair prejudice, and in the case of reputation, if plaintiff put her reputation at issue.

Front 22

Specific instances of defendant's bad conduct.

Back 22

<> INADMISSIBLE to prove defendant's character.

<> ADMISSIBLE to prove anything else (see MIMIC exceptions).

-- The "MIMIC" exceptions:
(1) Motive
(2) Intent
(3) Mistake (or absence of)
(4) Common Plan or Scheme

Front 23

Four requirements for COMPETENCY of a witness.

Mnemonic: "Peter Pan Cinderella Snow-white"

Back 23

Mnemonic: "Peter Pan Cinderella Snow-white"

(1) Personal knowledge
(2) Present recollection
(3) Communication
(4) Sincerity

Front 24

Objections to form of testimony and questions.

Back 24

Objections MUST be timely and specific. Otherwise waived.

<> Calls for narrative: must ask specific questions; otherwise risk of presenting prejudicial facts.

<> Unresponsive: when witness does not answer the question asked; or gives additional information that was not asked.

<> Leading question on direct: questions that suggest an answer.
*Leading questions OK on
direct if witness is hostile,
adverse, or needs help.

<> Assumes facts not in evidence: can't ask questions regarding facts that have not been admitted in evidence.

<> Argumentative: must ask question, not argue with witness.
*Attorney can makes such
arguments during closing.

<> Compound question: attorney may only ask one question at a time to avoid confusion.

<> Beyond scope of direct: cross examination must stay within the scope of the direct examination.

Front 25

Present recollection refreshed vs. past recollection recorded (FRE).

Back 25

<> Present recollection refreshed: a witness may use any writing or thing to refresh her present recollection, but CANNOT READ from the writing.

<> Past recollection recorded: this is an exception to the hearsay rule, used when witness has insufficient recollection as to facts he used to know and noted in writing. Must admit the document or thing into evidence by laying foundation.

<> TO LAY FOUNDATION:
(1) witness had personal knowledge of the facts in writing;
(2) writing was made by the witness or under his direction, or it was adopted by him;
(3) writing was made when matter was fresh in witness' mind;
(4) writing is accurate; and
(5) witness has insufficient recollection to testify fully and accurately.

Front 26

Lay opinion testimony (FRE).

Back 26

Admissible only if rationally based on witness' perceptions and helpful to jury or court.

<> CANNOT be based on scientific evidence or specialized knowledge.

<> NO legal conclusions.

<> EXAMPLES of permissible lay opinion testimony: speed of car, sanity, intoxication, emotions, value of witness' property.

Front 27

Expert opinion (FRE).

Back 27

FIVE REQUIREMENTS for admissibility of expert opinion:

(1) Helpful -- expert uses specialized knowledge to reach conclusion the average juror could not figure out.

(2) Qualifications -- based on (i) academic credentials or (ii) related experience.

(3) Degree of Certainty -- must hold opinion to a reasonable degree of certainty.

(4) Basis of opinion must be from: (i) admitted evidence; (ii) personal knowledge; or (iii) inadmissible evidence reasonably relied on.

(5) Reliable -- opinion must be based on reliable principles that were reasonably applied (see below).

<> RELIABILITY: Daubert/Kumho standard (sliding scale test): (i) testable, falsifiable; (ii) peer reviewed; (iii) known error rate, standards of operation; (iv) generally accepted by relevant scientific community.

Front 28

Prior CONSISTENT statements (evidence of witness credibility). (FRE)

Back 28

INADMISSIBLE unless credibility of witness is attacked first.

<> EXCEPTION: prior consistent statement is admissible for all purposes if made BEFORE bribe or inconsistent statement.

Front 29

What is extrinsic evidence in relation to impeachment of a witness?

Back 29

Any evidence other than testimony given that THIS particular proceeding by this witness being impeached.

Examples of EXTRINSIC evidence:
-- testimony of other witnesses, writings, prior statements of the witness who is now testifying.

Front 30

Impeachment of witness by contradiction (FRE).

Back 30

Permissible if it is a contradiction relating to a material issue in the case (not collateral).

<> Extrinsic evidence is INADMISSIBLE to impeach on a collateral matter (a fact not material to the issues in this case). So, no contradiction on collateral matters.

Front 31

Impeachment of witness by prior INCONSISTENT statement (FRE).

Back 31

<> Prior inconsistent statement (PIS) of witness made at present trial or at deposition is NOT hearsay; otherwise it is hearsay and inadmissible.

<> PIS admissible only if witness is given opportunity to explain or deny.

<> Extrinsic evidence of PIS is inadmissible to impeach on a collateral matter.

Front 32

Impeachment of witness with evidence of Bias, Interest, or Motive (FRE).

Back 32

Admissible, because it shows that witness has motive for testifying.

-- Witness must have opportunity to deny or explain.

Front 33

Impeachment with conviction for crime involving false statement (FRE).

Back 33

All convictions for crimes of FALSE STATEMENT are admissible, no balancing required, unless conviction older than 10 years.

Front 34

Impeachment with conviction for crime NOT involving false statement (FRE).

Back 34

Felonies that don't involve false statement (murder, robbery, rape) may be admissible to impeach a witness, but judge may exclude on balancing.

Misdemeanors are INADMISSIBLE for purposes of impeachment.

Front 35

Impeachment with non-conviction misconduct bearing on truthfulness (FRE).

Back 35

ADMISSIBLE to impeach in both civil and criminal cases, if the acts involved lying.

<> NO EXTRINSIC evidence to impeach with non-conviction misconduct.

<> Can ONLY question witness about her misconduct.

Front 36

Impeachment with reputation and opinion regarding truthfulness (FRE).

Back 36

ALWAYS admissible as long as offered for truthfulness, NOT anything else.

Front 37

What is the RESIDUAL CATCH-ALL exception to hearsay?

Back 37

The FRE provides a general catch-all exception for hearsay statements not covered by specific exceptions.

THREE REQUIREMENTS:
(1) Trustworthiness -- must have "circumstantial guarantees" of trustworthiness.

(2) Necessity -- statement must be offered on a material fact, and must be more probative as to that fact than any other evidence which the proponent produce so that the "interests of justice" will be served by its admission.

(3) Notice to Adversary -- proponent must give notice in advance of trial to the adverse party as to the nature of the statement so that the adversary has an opportunity to prepare.

Front 38

Prior identification.

Back 38

Admissible only if witness is available to testify at trial and be subject to cross-examination.

Applies to a police sketch.