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135 Cards in this Set

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RELEVANT EVIDENCE
Federal
Alll relevant evidence is admissible unless there is an exclusionary rule. Evidence having any tendency in reason to prove or disprove a fact of consequence. Does not have to be disputed.
RELEVANT EVIDENCE
California
Evidence is relevant if it has any tendency to prove or disprove a disputed fact of consequence.
Probative value
The evidence has probative value if it helps prove a material fact; before sure to identify what the evidence is being offered to prove
Materiality
1. addresses material fact
2. disputed
Exclusion of relative evidence
The judge has the discretion to exclude relevant evidence if the probative value is substantially outweighed by
1. the prejudicial effect
2. confusion
3. delay or
4. cumulativeness.
Prejudicial effect
If the evidence appeals to some unfair basis, such as emotion, there is undue or unfair prejudice.
Hearsay
A statement made out of court that is being offered for the truth of the matter asserted.
Statement
1. utterance by a person that says
2. something is so
3. a condition exists or
4. something happened
that says something is so, a condition exists, or something happened.
Non-hearsay (Federal)
1. Admission of a party opponent
2. Prior identification
2. Prior inconsistent statement
3. Prior consistent statement
Prior consistent statement (Federal)
1.Consistent with testimony
2.But made before an alleged motive to fabricate would have arisen
Prior consistent statement (California)
Made before an admitted inconsistent statement was made
Prior identification (Federal)
Declarant testifies and lays a foundation so that others can then testify. Declarant makes
1.a statement of identification
2.after perceiving the person.
Prior identification (California)
Declarant makes
1. A statement of identification of a person who participated in an event
2. Made when fresh in declarant’s memory
3. a true reflection of what the declarant thought at the time
Past recollection recorded (federal)
The declarant is available and testifies but has no present memory. The declarant had personal knowledge of the facts and there is a record that was either
1.Made by the witness-declarant
2. Or adopted by the witness-declarant
3. when the memory was fresh
4.recorded accurately
Past recollection recorded (California)
Same as federal except the record can also have been made
1.at the witness-declarant’s direction
2. or for the purpose of recording the declarant’s response (i.e. police reports, both parties have to testify)
Prior inconsistent statement (Federal)
1, Available declarant testifies to a prior statement (made before testifying) that is inconsistent with the present testimony. First statement was
1. made under oath
2.in a proceeding
The witness-declarant must have a chance to explain or deny after being confronted with the inconsistency.
Prior inconsistent statement (Federal)
Doesn’t have to be in a proceeding.

Same as federal except
1. you can give the witness-declarant a chance to explain or
2. make the witness subject to recall
Declarant unavailable
1. dying declaration
2. statement against interest
3. former testimony
4. physical abuse statement (CA only)
5. child abuse statement (CA only)
Dying declaration (Federal)
1. unavailable declarant in a homicide or civil suit
2. with the knowledge that death was imminent
3. and it was about the cause or circumstances of death.
Dying declaration (California)
Same as federald but the declarant must also have had personal knowledge of the cause or circumstances of death.
Statement against interest (Federal)
1. unavailable declarant who had no motive to falsify
2. knew at the time that the statement was against
3. a pecuniary or proprietary interest
4. or could subject him to criminal or civil liability.
If it is offered to exculpate a criminal defendant, the burden is on the offering party to show that it is trustworthy.
Statement against interest (California)
Same as federal except thatThe statement can also be one that is against the declarant’s societal interest and holds him up to ridicule, disgrace or hatred.
Former testimony (Federal)
An unavailable declarant’s testimony under oath at a previous hearing may be offered against
1.the same party
2.who had an opportunity to cross-examine with a similar interest as he has now.
The same party can include a predecessor in interest in a civil suit or the same defendant in a criminal suit. (In California, it can be a party who had a similar interest.)
Physical abuse statement (California only)
1. An unavailable declarant made the statement within five years of the filing of the civil case.
2. describes an injury or threat of injury
3. made at or near the time of the injury
4. and the statement was preserved by a writing, an electronic recording or by law enforcement.
5.and circumstances indicate trustworthiness.
Child victim statement
1. criminal case
2. declarant is under 12 years old and the child victim is still 18 or under
3. statement describes an act of child abuse
4. time, content and circumstances indicate reliability.
5. advance notice required
Admission of a party opponent
1. Party or authorized representative
2. personal knowledge not required
3. made a statement showing belief (not attributing comments to someone else)
4. offered against the party.
Adoptive admission
Declarant is not a party but the party shows
1. Adoption of, or belief in, the statement
2. That can be express or implied.
3. It must be offered against the party.
An adoptive admission by silence is only valid if a reasonable person in similar circumstances would have objected to the statement unless it were true.
Agency admission (Federal)
A statement by a party’s agent. Must establish
1.the agency relationship
2. statement made during relationship
3. agent had any kind of authority to bind principal
4. offered against party
Agency admission (California)
Must be an actual authorized statement
Co-conspirators (Federal)
Non-hearsay. Must show
1. Conspiracy existed; can use statements themselves as part of the evidence but need corroboration
2. Statement made in the course of the conspiracy
3. and in furtherance of it
Co-conspirators (California)
Must show
1.Independent evidence of the conspiracy
2. declarant liable even for comments made prior to joining (9th circuit -- only liable for comments made after joining)
Present state of mind or physical condition (Federal only)
Must show that state of mind or physical condition
1. Is a material issue
2. Statement was of existing (present state of mind and not expressing memory or belief.
California -- unless untrustworthy
Present state of mind (Hillmon doctrine)
Must show
1. Act of declarant is a material issue (not state of mind)
2. Statement can prove or explain declarant’s act or conduct
This is the “I’m going to Colorado” present intention to do a future act exception from Hillmon.
California -- unless untrustworthy
Physical condition (Federal only)
Declarant does not have to be the patient. Must show
1. Made for purpose of medical diagnosis or treatment
2. Describing present or past symptoms, pain and sensations
3. Describing medical history and cause but not fault
Present sense impression (Federal onlly)
1. Describes or explains an event or condition
2. Made while perceiving it or immediately thereafter
Excited utterance
Declarant saw
1. startling event
2. statement relates to that event
3. made while under the stress of the event
Test for excited utterance
Whether declarant would have had time to think up a lie
Business records (Federal)
1 a writing describing an act, condition or event
2. or a writing with opinions and diagnoses
3. made in the regular course of business (including illegal activities)
4. business duty to record
5.at or near the time of the event described
Business records trusthworthiness (Federal)
1.a trustworthy source, method and time of preparation
2. Will be admitted unless opponent shows it lacks trustworthiness
Business records (California differences)
1. Opinions and diagnoses not permitted
2. burden on propoent to prove trustworthy source, method and time of preparation
Non-hearsay
1.Non-assertive conduct
2.Commands or directives (such as “Watch out!”)
3.Questions (but watch out for hidden hearsay in questions that are really statements)
4.Readings from machines or devices and signs
Ways a statement could be not offered for its truth
The statement does not have to be believed if it is being offered to prove
1. State of mind
2. Knowledge or notice
3. Act of independent legal significance
4. A verbal act. which is offered for what it does, not for what it says
Non-assertive conduct
Non-assertive conduct can be action only; action plus words explaining the action or words only. It is action that was not intended to be a substitute for words.
Words are non-assertive conduct only if they do not directly state the matter/issue that it is being used to prove.
WITNESSES
California
All witnesses are presumed competent to testify unless a statute applies to disqualify. A witness is not qualified to testify if
1. not capable of expressing self (through age, disease, etc.)
2. does not understand the duty to tell the truth t
3. does not have personal knowledge
4. is a judge/juror in the case (if there is an objection, otherwise can testify)
WITNESSES
Federal
Everyone is competent to testify unless a rule disqualifies them.
The only disqualification rules are Edit
1. Lack of personal knowledge
2. Judge/juror in case (no objection needed)
3. Apply state competency rules in case where state substantive law applies
Mentally ill persons, intoxicated persons, drug abusers and children are not automatically disqualified.
UNAVAILABILITY
Federal
Under the Federal Rules, a witness is unavailable if they are dead or there is a question of
1. Privilege
2. Refusal
3. Incapacity
4. Subpoena (beyond the reach of)
5. Memory (lacking)

PRISM
JUROR MISCONDUCT
Common law
Under the common law rule, juror information could not be admitted to impeach the verdict except about outside influences.
JUROR MISCONDUCT
Federal
Under Fed. 606(b), no juror affidavits or testimony about matters during deliberations or the effect on juror’s deliberations except
1. outside influences
2. extraneous information
JUROR MISCONDUCT
California
A juror can relate events/statements that occurred during deliberations that were likely to have an influence on deliberations. Usually presented by affidavit only and judge has discretion to allow testimony by juror. But no info allowed about the juror’s deliberation process.
BEST EVIDENCE RULE
Common law
Under the common law, the part who offers to prove the contents of a writing (which is any physical embodiment of information, such as pictures and recordings) must offer the original. Secondary evidence is not admissible. That includes
1.No photocopies
2.No oral descriptions of documents
BEST EVIDENCE RULE
Federal
Only the original or duplicate of a writing is admissible to prove the contents of the writing. It is not admitted if there is a genuine question of authenticity.
BEST EVIDENCE RULE
Federal exceptions
Secondary evidence (copies or oral testimony describing contents) can be used if
1.original is lost or destroyed not by bad faith by proponent
2. original is not obtainable by judicial process
3. original is under proponent’s control and actual or implied notice to produce is not followed
4. writing is a public record (a copy, not oral testimony can be used)
5. writing is voluminous record (a summary, chart or calculation will be admitted as long as opponent can inspect the originals). No oral testimony allowed about particular records.
AUTHENTICATION
Documents
The document does not speak for itself. It requires a sponsoring witness to vouch that the item is what it purports to be. The sponsoring witness must tell how he/she knows the document is authentic.
AUTHENTICATION
Conversations
A statement of identity by the speaker is not enough. A sponsoring witness is needed who
1.saw the person speak and can identify them in court
2.recognized the voice of the speaker
3. telephoned the listed phone number of a business (and it can be presumed that the person who answered can speak for the business)
unless the speaker demonstrates special knowledge that only he/she would know. Proponent must show the judge that there is substantial evidence sufficient to infer authenticity, but then it becomes a jury question.
AUTHENTICATION
Handwriting
Handwriting can be authenticated by
1. lay opinion of someone familar with the handwriting
2. experts
3. trier of fact
JUDICIAL NOTICE Generally
Judicial notice is the court’s recognition of facts as true without the presentation of evidence. A judge may take judicial notice of facts of common knowledge in the community known to the clear majority of people in the jurisdiction. The facts must indisputable, well-established and authoritatively settled.
WHEN JUDICIAL NOTICE IS TAKEN
The judge may receive evidence to determine if the matter is really beyond dispute. Once the judge takes judicial notice, no further contrary evidence can be presented to the jury and the jury will be instructed to accept the matter as fact.
CALIFORNIA
Judicial notice allowed only as authorized by statute.
MANDATORY JUDICIAL NOTICE
California
Judicial notice only as allowed by statute. Whether advance notice is given or not, the judge must taken take judicial notice of
1.state and federal law
2. rules of professional conduct
3.rules of state court procedure
4.meanings of words, phrases and expressions
5. facts of generalized knowledge that are universally known and cannot be disputed
PERMISSIVE JUDICIAL NOTICE
California
The judge may take judicial notice without advance notice or insufficient information is given to the court.
If advance notice and sufficient information are supplied, the judge must take judicial notice of
1. law of other states
2. regulations of public entities
3. official acts of any branch of government
4. court records
5. court rules
6. facts of generalized knowledge in the court’s jurisdiction that cannot be reasonably disputed
7. facts are capable of immediate and accurate determination by resort to sources of indisputable accuracy
JUDICIAL NOTICE
Federal
Judge may take judicial notice or
Must take judicial notice if
1. requested by a party
2. and supplied with the necessary information
3. of adjudicative facts (necessary to decide case)
4. that are not reasonable subject to dispute
5. that are generally known in the court’s jurisdiction
6. or capable of accurate and ready determination
HABIT
A habit is a specific repetitive response that always occurs. It happens numerous times, not once in a while.
HABIT RULE
Evidence of a person’s habit or an organization’s custom or practice is admissible to show that someone behaved in a certain way on a particular occasion in a civil or criminal case. It can be admitted even without an eyewitness or any corroboration of the event to prove that the conduct was in conformity with the routine practice.
SIMILAR HAPPENINGS RULE
The trial judge has the discretion to admit evidence of
1. Prior or subsequent incidents
2. under substantially similar circumstances
3. involving the same places and things
4.to prove dangerousness or lack of
5. if there is little danger of confusion, unfairness or undue expenditure of time
HABIT
A habit is a specific repetitive response that always occurs. It happens numerous times, not once in a while.
HABIT RULE
Evidence of a person’s habit or an organization’s custom or practice is admissible to show that someone behaved in a certain way on a particular occasion in a civil or criminal case. It can be admitted even without an eyewitness or any corroboration of the event to prove that the conduct was in conformity with the routine practice.
SIMILAR HAPPENINGS RULE
The trial judge has the discretion to admit evidence of
1. Prior or subsequent incidents
2. under substantially similar circumstances
3. involving the same places and things
4. to prove dangerousness or lack of
5. if there is little danger of confusion, unfairness or undue expenditure of time
SUBSEQUENT PRECAUTIONS RULE
Remedial measures taken after the disputed event that are likely to make the event less likely to recur are inadmissible to prove liability or negligence.
SUBSEQUENT PRECAUTIONS
Exceptions
If relevant, evidence of subsequent precaution can be used to show
1. Control of property
2. impeach a claim that repair is impossible
3. impeach a claim that the item/design is as safe as possible
OFFERS IN COMPROMISES
The following types of statements, if made to a person who has a claim of loss/damage, are inadmissible to prove liability:
1. Made during negotiations to settle a lawsuit
2. To compromise/satisfy a claim
3.For humanitarian motivations
4. CA ONLY: out of sympathy or benevolence
5. Actual settlement is also inadmissible
OFFERS IN COMPROMISE Exceptions
An offer in compromise that is inadmissible to prove liability is admissible to prove some other legitimate purpose, such as
1.obstruction of ju stice
2.impeachment
3.also note – it does not apply if liability and damages are not disputed
CRIMINAL PLEA
When inadmissible
The following are inadmissible:
1. Offer to plead guilty
2. Statements made in connection with an offer to plead guilty
3. Withdrawn guilty plea
Pleas that are not withdrawn are admissible if relevant
FEDERAL
No contest pleas inadmissible if a subsequent action whether a felony, misdemeanor or infraction
NO CONTEST PLEA
California
No contest pleas are inadmissible if for a misdemeanor or infraction but are the same as a guilty plea for felonies
PRODUCT RULE
The chances of several things happening is equal to the product of each independent thing happening separately, but there must be a basis to decide the probability of each independent event.
STEPS FOR ADMISSIBILITY OF SCIENTIFIC EVIDENCE
Proponent must establish the reliability of the general methodology. If it is an established technique, it can be shown through case precedents.
ESTABLISHED TECHNIQUES
The following have been sufficiently established as reliable in California: fingerprints, handwriting analysis, ballistics, skin, hair, blood, DNA, breath and urine tests, radar speed, bite marks and dog trail evidence unless it goes too far.
SCIENTIFIC EVIDENCE
California Kelly/Leahy test
Before a new scientific technique can be introduced, the proponent must present
1. testimony from a qualified expert
2. demonstrating that the scientific technique is well-recognized, is not experimental and
3. has gained general acceptance in the field
This applies to scientific tests, not medical opinions.
WAGE – Well-recognized, Accepted Generally, Expert testifies
SCIENTIFIC EVIDENCE
Federal Daubert test
The court shall admit scientific, technical or other specialized knowledge if it assists the trier of fact. There is no mention of a generalized acceptance test.
The expert must base testimony on sufficient facts and must use reliable principles and scientific methods. The court will consider these factors:
1. was the theory tested
2. has it had peer review or been published
3. what is the known error rate
4.general acceptance can be considered but is not required
LIE DETECTORS
Most jurisdictions refuse to admit lie detectors in criminal cases, and willingness or unwillingness to take a lie detector test is not admissible. May be admissible upon stipulation in California. If admitted, must prove the test was done by a qualified expert and was properly administered in the particular case.
EXPERIMENTS
The essential elements of the experiment must be substantially similar to those at the time, but minor differences go to the weight of the evidence, not its admissibility.
PHOTOGRAPHS AND DEMONSTRATIVE EVIDENCE
A foundation must be laid showing that the photograph or chart, or whatever, is an accurate representation. The foundation can be laid by anyone familiar with the photo or chart; does not have to be the photographer or creator.
PRIVILEGE
Federal
The courts can define privileges according to the common law in the light of reason and experience.
PRIVILEGE
California
Privileges apply to all proceedings. No privileges other than created by statute.
PRIVILEGE WAIVER
California
A waiver of privilege is unnecessary if a third party is present. A waiver takes place if
1.holder discloses a significant part of a confidential communication
2.holder consents
3. party holder fails to object/claim privilege
There is no waiver if
1.Disclosure is coerced or by erroneous court order
2 Non-holder waives
3.Disclosure occurs in another privileged setting
4. Disclosure was reasonably necessary for accomplishment of the purpose of the consultation
PRIVILEGE
Attorney-client
The client has the privilege not to disclose the contents of a confidential communication concerning the obtaining of legal advice from his attorney. The attorney shall claim the privilege unless the client has authorized disclosure.
The privilege applies to communications, not the underlying facts. Person reasonably believed by the client to be an attorney
The attorney-client relationship begins at the time of the initial consultation even if no money is paid and the attorney does not take the case.
PRIVILEGE
Attorney-client with corporate client
Under the Upjohn case, the privilege applies to
1. Communications between a counsel acting in a legal capacity
2. And lower-level corporate employees
3. Who are supplying information not available to upper-level employees
4. For the purpose of obtaining legal advice for the corporation
PRIVILEGE
Attorney-client exceptions CA
The attorney-client privilege does not apply if
1. The communication was for the purpose of committing a crime or fraud
2.Dispute over breach of duty
3. if disclosure needed to prevent a criminal act
4.Clients are suing each other
PRIVILEGE
Attorney work product CA
The work-product doctrine is a qualified privilege that
1. applies to communications other than with the client
2. plus conclusions
Because it is a qualified privilege, it may not apply if the other side can show sufficient need. Sufficient need cannot be shown to gain access to information that shows the attorney’s mental processes.
PRIVILEGE
Attorney-client after death
CA: Survives until probate ends
Federal: may survive death
PRIVILEGE
Patient-physician CA
The patient is the holder of the privilege to prevent disclosure of confidential communications, which includes information discussed and physical examination. The physician shall assert the privilege unless authorized by the patient to disclose. Privilege only applies in civil case not based on criminal conduct.
PRIVILEGE
Patient-physician exceptions CA
Exceptions include
1. waiver by consent, presence of unnecessary third party or disclosing a substantial portion
2.patient-litigant put forth the medical issue in the lawsuit
3. planning crime or fraud
4.breach of duty
5.or it is a criminal proceeding
PRIVILEGE
Patient-psychotherapist
The patient is the holder of the privilege to prevent disclosure of confidential communications, which includes information discussed and results of a mental examination. The therapist shall assert the privilege unless authorized by the patient to disclose. The privilege applies in criminal and civil cases.
PRIVILEGE
Patient-psychotherapist exceptions CA
Exceptions include
1. waiver by consent, presence of unnecessary third party or disclosing a substantial portion
2. patient-litigant put forth the medical issue in the lawsuit
3. planning crime or fraud
4. breach of duty
5. the therapist is court-appointed to judge insanity or competency
6. necessary to prevent danger to person or property
(objective test used)
PRIVILEGE
Who is covered
The privilege will apply if the client/patient reasonably believed the person to be someone to whom the privilege would apply -- attorney, psychotherapist, mental health worker, sexual abuse counselor and necessary third parties.
PRIVILEGE
Marital communications
Both spouses have the privilege (whether the claiming spouse is a party or not) to refuse to disclose confidential communications made during the marriage even if testifying after the marriage ends. It does not apply to pre-marriage communications.
PRIVILEGE
Marital communications exceptions
Exceptions include
1. waiver by consent or disclosure by the objecting spouse, and presence of unnecessary third party
2. planning a crime or fraud
3. certain types of crimes – bigamy, crimes against spouse and crimes connected to those crimes, and crimes against a child of party or spouse
4. competency hearing
5. juvenile court proceedings
6. offered by criminal defendant spouse
7. suits between spouses
PRIVILEGE
Spousal testimonal
Under Evid. 970, 971, a spouse holds the privilege not to testify against a spouse in a criminal or civil proceedings. This includes the privilege not to be called to testify. It applies during marriage and includes matters heard/observed before marriage unless the spouse knew the other had been arrested prior to the wedding.
PRIVILEGE
Spousal testimonal privilege exceptions
Exceptions include
1. termination of marriage
2. Same crimes as for confidential communications privilege
3. spousal or child support hearing
4. juvenile court proceedings
5. actions by one spouse against another
6. competency
PRIVILEGE
Priest-penitent
Both the clergyman and penitent hold the privilege not to disclose confidential penitential communications unless waived by the objecting holder. One holder can prevent disclosure even if the other is willing.
PRIVILEGE
Official information
The public entity holds the privilege to refuse to disclose “information” that is
1. Acquired in the course of duty by a public employee
2. In confidence
Disclosure is
1. either forbidden (absolute privilege) because of a statute or regulation, such as tax records from taxing agency, or
2. by a balancing of necessities (qualified privilege).
PRIVILEGE
Informants CA
The public entity has the privilege to refuse to disclose (usually in pretrial proceedings) the identity of a person who supplied information in confidence to law enforcement that discloses a violation of law. Disclosure is
1. either forbidden (absolute privilege) because of a statute or regulation
2. or not permitted if disclosing the identity of the informer is against the public interest because the necessity for preserving the confidentiality of his identity outweighs the necessity for disclosure in the interest of justice.
CHARACTER
Character refers to a person’s general disposition.
CHARACTER RULE
Character evidence is inadmissible if being offered to show that the person acted in conformity with that character trait on a particular occasion unless an exception applies.
TYPES OF CHARACTER EVIDENCE
Opinion, reputation or specific acts.
CHARACTER EVIDENCE
When character is at issue
The basic character rule does not apply if character is at issue as in
1. a libel/slander suit
2. trier of fact needs to know plaintiff’s character to determine liability (was defendant’s statement false?)
3. and to determine damages (based on the extent of the falsity)
CHARACTER EVIDENCE
For non-character purpose
MIMIC: Motive, Intent, Mistake (absence of), Identity, Common Scheme or Plan
Specific acts for non-character purpose can be use to show
1.Part of same transaction as the crime
2. Continuing scheme, plan or design (can be used to show identity or intent of perpetrator, or that a particular act occurred)
3. Distinctive mode of operation (to show intent, identity or particular act occurred)
4.Passion, sexual attraction for a person (to show intent)
5.Lack of mistake (to prove intent, deliberation, knowledge, motive and malice – for example, familiar with drugs)
6. Consciousness of guilt (admission by conduct)
CHARACTER EVIDENCE
When specific act evidence admissible for non-character purpose
The specific act evidence must have
1 .Relevance to issue other than character
2. Acquittal of prior crime does not determine admissibility in later trial (CA and majority view)
3.Sufficient similarity to present allegation. There must be substantial similarity to prove identity (signature quality) but lesser similarity might prove act occurred or intent (in specific intent crimes)
4. must be subject to balancing test of probative value against prejudicial effect.
CRIMINAL DEFENDANT’S GOOD CHARACTER
In a criminal case, defendant can offer reputation or opinion evidence (but not specific acts) of defendant’s character on a relevant character trait to prove that defendant acted with conformity with that trait at the time of the crime
CRIMINAL DEFENDANT’S BAD CHARACTER
Prosecution cannot offer evidence of defendant’s bad character in its case in chief, but if defense offers evidence of defendant’s good character, prosecution can offer rebuttal evidence of defendant’s bad character.
PROSECUTION’S REBUTTAL EVIDENCE OF DEFENDANT’S BAD CHARACTER
The prosecution can then call its own witnesses in regard to defendant’s bad character. It can also cross-examine the defense witness and
1. must ask questions in good faith but available proof is not needed
2. must have reasonable belief in the existence of the evidence
3. may inquire about specific acts, facts, rumors, convictions and arrests
4. but prosecution is bound by the witness’ answer and cannot offer extrinsic evidence
5. this kind of questioning is subject to judge’s discretion (403/353 analysis)
SEXUAL OFFENDER CHARACTER
California
In a criminal charge of sexual assault or molest, the prosecution may offer
1. evidence of specific sexual acts by the defendant (not reputation or opinion)
2. for the character evidence purpose
3. with 30 days’ notice
4. and must balance prejudice v. probative value
SEXUAL OFFENDER CHARACTER
Federal
In a criminal charge of sexual assault or molest or a civil sexual harassment case, the prosecution/plaintiffs may offer
1. evidence of specific sexual acts by the defendant (not reputation or opinion)
2. for any relevant purpose
3. with 15 days’ notice
4. and must balance prejudice v. probative value
VICTIM’S BAD CHARACTER
TO PROVE SELF-DEFENSE
A criminal defendant may offer evidence of the victim’s bad character to prove
1. Defendant acted reasonably because he knew victim’s violent character, which made him fearful, so thar when he saw actions by defendant created fear for his safety and he then acted reasonably to defend himself.
2. Victim was the actual aggressor. Defendant may not have known of victim’s violent character but others testify to the victim’s bad character to show likelihood that victim acted in conformity with his violent character and attacked victim.
VICTIM'S GOOD CHARACTER
First rebuttal
The prosecution cannot offer evidence of the victim’s good character in its case in chief, but can offer such evidence if the defense opens the door by presenting evidence of victim’s bad character.
Federal: Reputation and opinion only.
CA: Reputation, opinion and specific acts.
HOMICIDE VICTIM'S CHARACTER
Federal first rebuttal
In a federal homicide case, if the defense offers any evidence of any type that the victim was the aggressor, the prosecUtion can rebut with evidence of victim’s character for “peacefulness”
VICTIM'S BAD CHARACTER
In a criminal case, if the defense offers evidence of the victim’s bad character
Federal: for any relevant trait
CA: for violence
The prosecution can offer rebuttal evidence of defendant bad character on the same trait
Federal: Reputation and opinion only.
CA: Reputation, opinion, specific acts
RAPE SHIELD LAW
California
In a criminal case, evidence of victim’s character to show consent is not allowed except to show
1. Sexual relationship with the defendant
RAPE SHIELD LAW
Federal
In a criminal case or civil sexual misconduct case, evidence of victim’s character to show consent is not allowed except to show
1. sexual relationship with the defendant
2. source of semen or injury as being someone other than the defendant
3. if civil plaintiff puts reputation at issue
4.subject to reverse 403 test
BASIC METHODS OF IMPEACHMENT
Can impeach a witness through showing contradictions, character (lack of credibility), mental state, motive or bias
DIRECT EXAMINATION
Cannot lead a witness on direct examination except in special circumstances:
1.
Experts
2.
Children
3.
Hostile witnesses
4.
Preliminary matters
EXAMINATION OF OWN WITNESS
Under common law, one could not impeach one’s own witness, but modernly any party may attack the credibility of a witness,
COLLATERAL EVIDENCE
Collateral means the fact is not directly at issue
COLLATERAL EVIDENCE RULE
Can cross-examine a witness on a collateral point that is intended solely to impeach the witness’ credibility, but
1.
Must be bound by the answer
2.
Cannot introduce extrinsic evidence
3.
Unless the evidence would have been admissible independent of the impeachment purpose.
WITNESS CREDIBILITY FACTORS
Credibility bears on any matter that has any tendency in reason to prove or disprove the truthfulness of the testimony, such as demeanor; character; capacity to perceive, recollect, communicate; opportunity to perceive; bias, interest, motive; prior consistent statement; prior inconsistent statement and other evidence of the existence or not of a fact testified to by the witness.
WITNESS’ CHARACTER IN GENERAL
Evidence of a witness’ good character is not admitted unless bad character is admitted first except that it does not apply in CA criminal cases (Prop. 8), must be attack on witness’ bad character
WITNESS’ BAD CHARACTER
Witness’ bad character for
1.
CA: dishonesty or lack of veracity