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65 Cards in this Set

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What is the barf for relevance?
Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would without the evidence
What is the difference between Ca and federal rule of relevance?
In ca, thefact must be disputed, Federal rules indicate that it require to be a fact of consequence.
What are the 6 steps to determine if evidence is relevant?
EPICSP
1. what is the evidence
2. What is it being offered to prove
3. what is the issue?
4. What does the code say
5. Will it come in some other way
6. Will it be more prejudicial than probative.
What is the barf for probative evidence?
Probative evidence is that which has a tendency to make what the party is offering to prove more likely.
What is the barf for when relevant evidence will be excluded?
Relevant evidence will be excluded its probative value is substantially outweighed by the danger of:
1. Unfair prejudice
2. Confusion of the issues
3. Misleading the jury
4. Waste of time
Federal rule adds: Needless presentation of cummulative evidence.
What is character?
A generalized description of one's disposition or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness.
What is habit?
It denots one's regular response to a repeated situation.
What is the rule for habit or custom?
Evidence of habit and custom is freely admissibl to showthatthe defendant followed this habit or custom on a particular occasion.
What is the barf for Exceptions-Certain similar occurrences are relevant?
Previous similar occurrences may be relevant if they are probative of a material issue and that probativeness outweighs the risk of confusion of unfair prejudice.
What is the barf for similar accidents or injuries caused by the same event or condition?
Evidence of prior accidents or injuries caused byhe same event or condition is admissible to prove 1) the existence of a dangerous condition 2) that the defendant had knowledge of he dangerous condition and 3)that the dangerous condition was the cause of the present injury
What is the barf or relevant evidence being excluded for public policy reasons?
Relevant evidence may be excluded for public policy reasons in the following situations:
1. Liability insurance
2. Subsequent remedial measures
3. Settlement offers or negociations
4. Withdrawn guilty pleas or offers to plea
5. offers to pay and payment of medical expenses
what is the barf for liability insurance?
Evidence of liability insurance is not admisible to show negligenceor ability to pay a substantial judgment. It may be admissible 1)to prove ownership or control 2) to impeach 3)as part of an admission
What is the barf for remedial measures?
When, after an injury or harm allegedly caused by an event, measures are taken that, if takn previously would have made the injury or harm les likely to occur.
What is the barf or admissibility of character evidence?
404 (a) Generally, character evidenc may not be admitted to show that a person acted in conformity with his character because it is very prejudicial.
What is the barf or when character evidence can be admitted?
There are exceptions when character evidnce is admissible to show the person actd in conformity with his character:
1. Character is an ultimate issue
2. Impeachment
3. Introduced by defendant in a criminal case.
4. Rebuttal by prosecution
5. Character of alleged victim
What is the barf or relevant evidence being excluded for public policy reasons?
Relevant evidence may be excluded for public policy reasons in the following situations:
1. Liability insurance
2. Subsequent remedial measures
3. Settlement offers or negociations
4. Withdrawn guilty pleas or offers to plea
5. offers to pay and payment of medical expenses
what is the barf for liability insurance?
Evidence of liability insurance is not admisible to show negligenceor ability to pay a substantial judgment. It may be admissible 1)to prove ownership or control 2) to impeach 3)as part of an admission
What is the barf for remedial measures?
When, after an injury or harm allegedly caused by an event, measures are taken that, if takn previously would have made the injury or harm les likely to occur.
What is the barf or admissibility of character evidence?
404 (a) Generally, character evidenc may not be admitted to show that a person acted in conformity with his character because it is very prejudicial.
What is the barf or when character evidence can be admitted?
There are exceptions when character evidnce is admissible to show the person actd in conformity with his character:
1. Character is an ultimate issue
2. Impeachment
3. Introduced by defendant in a criminal case.
4. Rebuttal by prosecution
5. Character of alleged victim
What is the barf or relevant evidence being excluded for public policy reasons?
Relevant evidence may be excluded for public policy reasons in the following situations:
1. Liability insurance
2. Subsequent remedial measures
3. Settlement offers or negociations
4. Withdrawn guilty pleas or offers to plea
5. offers to pay and payment of medical expenses
what is the barf for liability insurance?
Evidence of liability insurance is not admisible to show negligenceor ability to pay a substantial judgment. It may be admissible 1)to prove ownership or control 2) to impeach 3)as part of an admission
What is the barf for remedial measures?
When, after an injury or harm allegedly caused by an event, measures are taken that, if takn previously would have made the injury or harm les likely to occur.
What is the barf or admissibility of character evidence?
404 (a) Generally, character evidenc may not be admitted to show that a person acted in conformity with his character because it is very prejudicial.
What is the barf or when character evidence can be admitted?
There are exceptions when character evidnce is admissible to show the person actd in conformity with his character:
1. Character is an ultimate issue
2. Impeachment
3. Introduced by defendant in a criminal case.
4. Rebuttal by prosecution
5. Character of alleged victim
What is the barf for when crimes and wrongs as evidence can come in?
Evidence of other crimes or bad acts is not admissible when offered for the purpose of suggesting that because the defendant is a person o criminal character, it is more probable that he committed the crime with which he is charged. However, other crimes may be introduced for other purposes such as:KIPPOMIA
Knowledge
Intent
Preparation
Plan
Opportunity
Motive
Identity
Absence of mistake or fact
In California it is added: Or whether a deendant in a prosecution or an unlawful sexual act or attempted unlawful sexual act did not reasonably and in goo faith believe that the victim consented.
What is the difference between federal and state evidence rules?
In state court and federal diversity cases you usethe Ca rules. Ca Law may also apply in non diversity cases where there is an ancillary state claim in federal court. Federal rules still apply to the federal claim.
What are thedifferences between federal and ca rules regarding defendants prior sexual conduct?
- Federal allows child molestation. Federal has no time limit. The federal rule also applies in civil cases.
- Ca allows prior domestic violence and abuse of an elder or dependent evidence to be admissible. But those acts musthave occurred in the past ten years, unless the court determines that the admision ofthis evidence is in the interest of justice
What is the barf for the rape shield statute?
FRE 412 Rape shield statutes have ben enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is highly prejudicial
What are some of the distinctions between Federal and State law regarding admissibility of evidence pertaining to the victims prior sexual conduct?
Both Fed and Ca
* Evidence of victims motive to lie
* Evidence of victims and defendants past sexual conduct
--- Only Federal-----
* When offered to prove that defendant was not source of injury, semen of other physical evidence
* When it would violate the con rights of the defendant if it was excluded
* Evidence of an alleged victim's rep may be admissible only if it was placed in controversy by victim.
---Only Ca-------------
* In a civil case if plaintiff brings COA for loss of consortium
* Can not bring in evidence of how victim was dressed unless court finds it relevant and admissible
What is Ca 1107 Battered Womens syndrome statue?
Testimony offered by either party regarding he battered women's syndrome may be admissible, including the nature and effect of physical, emotional or mental abuse on the beliefs perceptions, or behavior of victims of domestic violence. However, it canno be offered against a criminal deendant to prove the occurrence othe act or acts of abuse which formed the basis of the criminal charge.
What is the barf for remedial measures?
General rule for Fed and ca- Subseqnent remedial measures are not allowed into evidence when offered to show negligence or culpable conduct. (Federal adds defect in design or the need for a warning)Only federal law allows exceptions:
1. ownership
2. control
3. Feasibility of precautionary measures
4. impeachment of factual assertions defendant makes about the product.
* The first three can only be introduced if controverted*
What is the general rule for offers in compromise?
The fact that a party has offered to settle a claim may not be admissible to prove he liabiility or amount.
What is the differences between Federal law and Ca law regarding admitting evidence of an offer in compromise?
Federal Rule 408- You can offer the evidence for another purpose such as proving bias or prejudice of a witness, negativing a contention of undue delay or proving an effort to obstruct a criminal investigation or prosecution.
CA 1152
- May come in Re: covenant of good faith and fair dealing
- May come in to show validity of claim partially satisfied
- May come in to show a novation.
What is the general rule regarding admission of criminal pleas?
Evidence of the following types of pleas in any civil or criminal proceeding is not admissible against the defendant who made the plea
1. plea of guilty later withdrawn
2. Plea of nolo contendere
3. Statements made during plea discussions
4. Statements made in court during plea proceedings
Guilty plea followed by conviction is res judicata as to question of guilt
In Ca- Pleading guilty is not res judicata as to a vehicl code infranction violation
What is the barf for hearsay?
Out of court statement offered to prove the truth of the matter asserted.
What is the barf for statement?
an oral or written assertion, or nonverbal conduct intended as an assertion.
When are statements not hearsay?
801
1. Utterance itself is h ultimate issue in the case
2. offered to prove something other than the truth
3. offered to prove that the statement was actually made, not necesarily true
4. offered to show effect on the mind of the bearer
5. words of operative legal significance
What is the difference regardings admisions in the federal rules versus California rules?
The rderal rules treat admissions as non-hearsay. In california, they are hearsay, with an exception.
What is an adoptive admission?
Admision made by declarant and you, the party adopted it as your own either because you say that you are adopting it or you are silent.
What is an authorized admission?
A statement by a person authorized by he party to make a statement concerning the subject matter of the statement.
What is the difference in Federal and Ca rules for authorized admissions?
In federal court, if the statement is made during and within the declarants scope of employment, it may be admissible against the employer as an admission of the employer

In california, the declarant must be authorized tomake the statement and that comes in. But a statement made by an employee in the course of his employment may not come in during respondeat suprior cases against the employer.
What is the barf for an admision of a co-conpirator?
1. It be made while participating in the conspiracy and in furtherance of the objective of that conspiracy.
2. must be made prior to or during the time that theparty was participating in that conspiracy.
What is the federal rule for a statement under belief of impending death?
804 b 2
1. Declarant is unavailable (does not need to die)
2. In a prosecution for homicide of in a civil action
3. Statement by the declarant
4. When declarant believed that death was immenent
5. Concerning the cause or circumstances of his imminent death
What is the difference between admissions and declarations against interest?
1. Declaratiosn requires personal knowledge, admission does not.
2. declaration needs to b against the interest of the party when made, not so with admissions
3. the party can be available in admissions
4. declaration against interest can be introduced by anyone, admission can only be made by opposing party.
What is the general rule for an excited utterance?
A statement purporting to narrate, describe, or explain an act, condition or event perceived whil the declarant was under the stress of the excitement caused by the event or condition is admissible as an exception to the hearsay rule.
What is the difference between the Ca and Fed rule for excited utterances?
The federal rule ismore expansive than the california rule in that the statement need only relate to a startling event.
What is the general rule for medical diagnosis/treatment?
Statements made for purposes of medical diagnosis or treatment and discribing medical history, or past or present symptons, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment may be admissible.
What is the difference between the Ca and Fed rule regarding Medical Diagnosis?
Ca adds a trustworth testimony compnent. Also, in Ca, the exception only applies to a statement made by a victim who is a minor at the tim of the proceedings, provided the statement was made when the victim was under the age of 12 dexcribin any act, or attempted act, of child abuse or neglect.
What is the barf for former testimony?
Testimony given in an earlier proceeding if the witness is unavailable for trial.
What is the difference between the Ca and Fed rules regarding Former testimony?
In ca, the former testimony may be offered against a person not a party to the former proceding except the former testimony can only be offered in civil actions. In federal, the person must have been a party to the prior proceeding.
What is the barf for present sense impression?
A statement must be made while the declarant was engaged in such conduct. Fre says that the declarant does not have to be the one engaging in the conduct.
What is the difference between Ca and Federal Rules regarding Present Sense Impression?
In Ca, the statement must be made while the declarant was engaged in such conduct. FRE says that the declarant does not have to be the one engaging in the conduct.
In Ca, the statement clarifies ambiguous conduct,the conduct does not have to be ambiguous in federal.
What is the barf for business records?
Evidence of a writing made as a record of an act, condition, or event may be admisible when offered to prove the act, condition or event, diagnosis if
1. The writing was made in the regular course of a business and directly related to the function of the busienss and was the regular practice of the business to make such a record
2. the writing was made at or near the time of the act, condition or event
3. By a party with knowledge\
4. The source of information and method and time of preparation where such as to indicate its trustworthiness.
What is California Evidence Code 1272?
Absence of an entry in business records:
(a) itwas the regular course of that business to make records of all such acts, conditions, or events at or near the time of the act, condition, or event and to preseve them.
(b) The sources of information and method and time o preparation of the records of that business were such that the absence of a record is a trustworthy indication that the act or event did not occur or the condition did not exist.
What is the difference in the rule of prior identification in the Ca vs Fed rule?
Under the federal rule, prior identification is not hearsay. In Ca, it is an exception
Discuss the delcarant having to be availible under the prior identification rule
Unlike most exceptions to the hearsay rule, which require unabailability of the declarant at trial, a prior identification may be admissible only if the declarant is available at trial to be cros-examined or the prior identification comes within the former testimony exception to the hearsay rule.
Are inconsistent statements and prior consistent statements exceptions?
yes
What is the barf for defendants previously existing state of mind?
1251- Evidence of a statement of the declarants state of mind, emotion, or physical sensation including a statement of intent, plan motive design, mental feeling pain or bodily health at a time prior to the statement may be admisible if
1. The declarant is unavailable as a witness
2. The evidence is offered to prove such prior state of mind, emotion, or physicial sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion of physical sensation.
What is the hillman doctine?
The doctine allos the use of hearsay evidence when it is offered to prove or explain acts or conduct of the declarant. A statement of the declarant's intent to do certain acts is admissible to prove that he did those acts.
What is the differnce between Ca and Fed rules regarding learned treatises?
In california, the witness hasto refer to or rely on the treatise as a part of his opinion.
What is the barf for the residual exception?
A statement with substantial guarantees of trustworthiness may be admissible i:
1. offered to prove a material fact in the case
2. it is the mose probative evidence available.
3. There is no other way for that material fact to be proved and
4. Ifthe court finds that it would be in the intrest of justice to ad mit it.
What are some of the constitutional problems with the exceptions that require that the declarant must be unavailable?
6th amendment clause: Courts must decide whether the confrontation clause permits the government to eny the accused his usual right to force the declarant to submit to cross examination.
How can hearsay may be admissible under the confrontation clause?
1. the evidence falls within a firmly rootedhearsay exception, which means that the exception has been around for so long and so widely accepted that nobody would dispute that it is a problem.
2. It contains particularized guarantees of trutworthiness such that adversarial testing would be expected to add little, if anything to the statements reliability.
What is the multiple hearsay rule?
1201 and FRE 805- A statement within the scop of an exception to the hearsay rule is not inadmissible on the ground that the evidence of such statement is hearsay evidence if such hearsay evidence consists o one or more statemtns each of which meets the requirements of an exception to the hearsay rule.