Evidence - Mbe - California

Front 1

Relevance

Back 1

Evidence is relevant it if 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 w/out the evidence

Front 2

What does it mean to be "Of Consequence" for purposes of relevance?

Back 2

The evidence relates in some way to the substantive law

Front 3

Does the court have discretion to exclude relevant evidence?

Back 3

Yes.

Court has discretion to exclude if the PROBATIVE VALUE is SUBSTANTIALLY outweighed by UNFAIR PREJUDICE, CONFUSION or WASTE OF TIME.

**emotionally disturbing evidence or evidence admissible for one purpose but inadmissible for another

Front 4

What types of relevant evidence are excludes for policy reasons?

Back 4

1) Liability insurance
2) Subsequent remedial measures or repairs
3) Settlements, offers to settle and pleas
4) Payment or offers to pay medical expenses

Front 5

When is Liability insurance excluded as evidence?

Back 5

1) inadmissible to prove culpable conduct like negligence or D's ability to pay a judgment

*but can be admissible to prove anything else - (e.g. president of insurance corp., Scope of employment; ownership or control; to impeach or as part of an admission)

Front 6

What is the rule behind subsequent remedial measures or repairs

Back 6

Evidence of safety measures or repairs after an accident are INADMISSIBLE to prove culpable conduct or, in a products liability action, defective design.

**can be inadmissible to prove anything else - ownership or control, rebut a claim that the precaution was not feasible, or prove that the opposing party has destroyed evidence

Front 7

Can SRMR be admitted to rebut defense of no feasible precaution?

Back 7

yes. If D alleges there was nothing he could have done to avoid an accident, then SRMR admitted by P as REBUTTAL

Front 8

Settlements, offers to settle and pleas - what is the rule in civil cases?

Back 8

evidence of settlements, offers to settle, and related statements are INADMISSIBLE to prove liability or fault.

Front 9

Settlements, offers to settle and please - what is the rule in criminal cases?

Back 9

pleas, offers to plea and related statements are inadmissible to prove guilt. includes pleas of nolo contendere.

Front 10

Exception to settlement rule

Back 10

Where there is no claim yet asserted; settlement offers before a claim admissible.

**can also apply to situations where there is any THREAT of suit - at least an implicit threat of a lawsuit.

Front 11

Exception to settlements, offers to settle and pleas -

Back 11

where there is no dispute as to liability or damages

Front 12

Rule for Payment or offers to pay medical expenses

Back 12

Evidence of payments or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question. But related statements are still admissible.

Front 13

**remember - distinguish between the rule regarding settlement offers and rule regarding payment of medical expenses.

Back 13

none

Front 14

Similar occurrences

Back 14

Usually evidence is irrelevant if it is not about the specific people and events in use - HOWEVER, where there is SIMILARITIES between that evidence and the people and events at issue, evidence of other people allowed.

Front 15

Can similar occurrences be admissible to prove causation?

Back 15

Yes - *McDonalds example; same restaurant, same time, same item...

Front 16

Prior accidents as similar occurrences??

Back 16

No - prior accidents or claims usually irrelevant

Front 17

Exceptions to allowing prior accidents as evidence

Back 17

1) exception for pattern of fraudulent claims (e.g. P sued after each accident)

2) Exception for preexisting condition

Front 18

Can prior accidents prove intent?

Back 18

yes - similar acts relevant to prove intent (gender discrimination hiring)

Front 19

Similar occurrence - defense of impossibility

Back 19

allowed, relevant to rebut a defense of impossibility (eye ball in coke, rebut)

Front 20

Similar occurrences - to establish value

Back 20

Comparable sales relevant to establish value - where value is an issue

Front 21

Similar Occurrences - Habit

Back 21

Habit evidence is admissible - Habit of a person to act in a certain way is relevant and admissible to show that person acted in accordance w/ the habit on the occasion in question.

Front 22

Distinguish between habit and character evidence

Back 22

Character evidence is often inadmissible. Character evidence says something general about a person and conveys a moral judgment

Habit - describes SPECIFIC CONDUCT and makes no moral judgment

Front 23

Define Habit evidence, to be admissible:

Back 23

1) a specific conduct

2) no moral judgment

3) Frequently repeated conduct (lots of frequency)

Front 24

Routine practice evidence

Back 24

Routine business practice is relevant to show that conduct of the entity was in conformity w/ that practice on the occasion in question.

Front 25

What is the industrial custom evidence admissible to prove?

Back 25

Relevant to prove standard of care in negligence case

Front 26

What is the purpose for which character evidence is offered?

Back 26

1) Offered to prove character b/c character is an issue in the case.

2) Offered to prove character as circumstantial evidence of a person's conduct on the occasion in question.

3) offered to impeach or support the credibility of a W.

Front 27

What method or technique is used to prove character?

Back 27

1) Specific acts of conduct

2) Opinion

3) Reputation

Front 28

What are the four questions to ask in a character evidence issue?

Back 28

1) What is the purpose for which the character evidence is offered?

2) What method or technique is used to prove character?

3) Is it a civil or criminal case?

4) Does the evidence prove a pertinent character trait?

Front 29

Rule, in character evidence in CIVIL cases

Back 29

Character evidence is INADMISSIBLE to prove conduct except where civil claim is based on sexual assault or child molestation. In such a case, D's prior acts of sexual assault or child molestation are ADMISSIBLE to prove conduct in this case.

Front 30

Character evidence admissible where character in issue - types?

Back 30

1) defamation of character

2) negligent entrustment

3) child custody disputes

Front 31

What method is allowed when character is at issue?

Back 31

ALL - specific conduct, opinion, reputation

Front 32

Rule, Character evidence in CRIMINAL cases

Back 32

*courtroom analogy

Determine whether the character is D or the victim - usually only the D can open the doors - and usually opened separately

Front 33

Criminal - Character evidence of D's character to prove conduct

Back 33

Prosecution cannot be first to offer such evidence. The door is closed at the start of trial when the prosecution begins its case in chief.

Front 34

What are the exceptions to when character evidence can be brought by prosecution?

Back 34

1) In cases of sexual assault or child molestation, prosecution can be first to offer evidence that D committed other acts of sexual assault or child molestation

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

Front 35

When D opens door to D's character - what happens?

Back 35

Prosecution can now admit evidence to rebut

**remember - evidence must always concern a pertinent character trait

Front 36

What is rule during direct evidence - where door is open for character evidence?

Back 36

Reputation and Opinion evidence are admissible on direct by any party, BUT NOT specific instances evidence.

Front 37

What about on Cross Exam?

Back 37

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

Front 38

Admissibility of evidence of VICTIM's character

Back 38

*same generally

Prosecution cannot be first to offer character evidence to prove conduct: the trial begins w/ the door to the victim's character closed.

Front 39

What are the two ways D can open the door to victim's character?

Back 39

1) if D offers evidence of victim's character, prosecution may rebut

2) in a HOMICIDE case, if D offers evidence victim attacked first, prosecution may offer evidence of victim's character for peacefulness.

*on direct exam - rep and opinion, but no specific instances - Cross - all are permitted.

Front 40

When can BOTH doors (D and Victim) open together?

Back 40

when court admits defense evidence of victim's violent character, prosecution offers evidence of D's violent character.

Front 41

Rape Shield statute - explain

Back 41

In criminal and civil cases involving rape or other sexual assault, limiting defense evidence of alleged victim's character when offered to prove consent.

Front 42

Rape Shield - specific to Criminal rules...

Back 42

Reputation and opinion evidence are inadmissible.

Specific instances of alleged victim's conduct admissible only to prove:

1) third party is source of semen or injury, OR

2) prior acts of consensual intercourse between D and alleged victim.

Front 43

Rape Shield - specific to Civil rules...

Back 43

Reputation, opinion and specific instances evidence is admissible if probative value SUBSTANTIALLY outweighs unfair prejudice and in the case of reputation evidence, P put her reputation in issue.

Front 44

MIMIC - what is it?

Back 44

specific instances of D's bad conduct may be admitted to prove ANYTHING other than character that is relevant - MIMIC

Motive, Intent, Mistake [absence of mistake], Identity, Common Plan or Scheme

**discretion to exclude MIMIC evidence for unfair prejudice

Front 45

Identity - specific instances

Back 45

Allowed for ID purposes, but there must be SIMILARITY and UNIQUENESS required to prove identity.

Front 46

Testimonial Evidence

Four requirements for Competency:

Back 46

1) Personal Knowledge

2) Present Recollection

3) Communication

4) Sincerity

Front 47

Personal knowledge rules

Back 47

1) must be something W perceived to the fact testified to - if not, PK is the objection.

2) if quoting someone or explicitly refer to someone's out of court statement - hearsay objection

3) Perceptions may be limited

Front 48

Present recollection

Back 48

W must testify from present recollection, not from some record regarding matters the W once knew but has now forgotten

Front 49

Communication

Back 49

W must be able to relate perception either directly or through interpreter

Front 50

Sincerity

Back 50

W must take oath or make affirmation to tell truth

Front 51

Objections to form of testimony and questions

Back 51

*need timely and specific objection

1) Calls for narrative

2) Unresponsive

3) Usually no leading on direct - telling the W which answer you want

4) Leading OK on cross - but cross must stay within scope of direct.

5) Leading OK on direct if adverse W, hostile W, W needing help

6) Assumes facts not in evidence

7) Argumentative

8) Compound

Front 52

When can a W use documents during testimony?

Back 52

1) Refreshing recollection - anything can be used to refresh, but allows opponent to inspect and offer into evidence anything used to refresh.

**if W still can't remember **** - offer it into evidence, exception to hearsay rule.

Front 53

Recorded recollection exception to hearsay - elements:

Back 53

1) W once had personal knowledge of the facts

2) the document was made by the W or under the W's direction or was adopted by the W (W agreed to contents)

3) Document was written or adopted at a time the facts were fresh in the W's memory

4) the document was accurate when made.

5) The W now has insufficient recollection to testify as to the matters contained in the document

Front 54

Opinion Testimony

Back 54

Normally inadmissible - lay and expert opinion may be admitted - rules

Front 55

Lay Opinion - needs:

Back 55

1) if rationally based on the W's perceptions and helpful to the trier of fact - HELPFUL - the law opinion gives jury MORE information than would testimony limited to describing W's perceptions.

(W's perception, rationally based; helpful to the jury) - perception must be sufficient.

**legal conclusions are NOT helpful

Front 56

Expert Opinion - requires:

Back 56

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

Front 57

What is helpful?

Back 57

expert uses specialized knowledge to reach conclusion the avg juror could not figure out herself

Front 58

Qualifications?

Back 58

Not just a degree - experience works

Front 59

Degree of Certainty

Back 59

Reasonable degree of certainty "i Believe, in a reasonable degree of certainty"

Front 60

Opinion must be based on ONE of the following:

Back 60

1) admitted evidence

2) personal knowledge

3) inadmissible evidence reasonably relied upon

Front 61

What is the standard - where opinion must be based on reliable principles that were reliably applied?

Back 61

1) Peer reviewed and published

2) tested and subjected to retesting,

3) low error rate

4) reasonable level of acceptance

Front 62

Evidence of W credibility

Back 62

watch out for hidden hearsay issues when a prior statement of a W if offered to attack or support credibility

Front 63

Evidence to support credibility

Back 63

Inadmissible unless credibility is attacked first

Front 64

Non-hearsay - prior consistent statement

Back 64

Prior consistent statement is admissible for all purposes if made before bribe or inconsistent statement - otherwise, it is inadmissible for any purpose

**turns on timing

Front 65

Impeachment - what's the approach?

Back 65

1) is source of impeachment extrinsic evidence or testimony at this proceeding of W being impeached?

2) If extrinsic, is it admissible given impeachment technique?

3) any other foundation requirements?

Front 66

Extrinsic Evidence

Back 66

any evidence other than testimony given at this proceeding by the W being impeached; e.g. testimony of other w/s, writing, prior statements of the W who is now testifying

Front 67

Impeach by Contradiction

Back 67

Extrinsic evidence inadmissible to impeach on collateral matter

Front 68

Collateral matter

Back 68

a fact not material to the issues in the case, that says nothing about the W's credibility other than to contradict the W.

Front 69

Impeachment by Prior Inconsistent Statement (PIS)

Back 69

impeachment by prior inconsistent statement, so relevant - just to impeach NOT to prove anything else

by cross or extrinsic evidence, that the W has, on another made statements inconsistent w/ his present testimony - need proper foundation for extrinsic evidence laid - and must be relevant

Front 70

PIS of witness who testifies at trial

Back 70

NOT hearsay if given under oath at trial or depo.; otherwise it is hearsay and inadmissible if offered to prove truth

Front 71

Is PIS admissible to impeach on collateral matter?

Back 71

NO, cannot impeach on collateral matter

Front 72

Foundation requirement for extrinsic evidence for PIS

Back 72

extrinsic evidence admissible only if W given opportunity to explain or deny

Front 73

Impeachment w/ evidence of Bias, interest, motive

Back 73

admissible, where W would have an interest in the case

Front 74

Foundation requirement for impeachment of bias/interest/motive

Back 74

extrinsic evidence admissible only if W given opportunity to explain or deny

Front 75

Habit

Back 75

describes a person's regular response to a specific set of circumstances.

Front 76

Can attorney on cross examination impeach W?

Back 76

yes. discretion of the court; done in:

1) good faith
2) reasonable belief that bad act committed - pertaining to truthfulness, need not have been committed of a crime

Front 77

Impeachment of W -

Back 77

A W other than the accused may be impeached by:

1) any felony conviction (unless the judge determines that its probative value is substantially outweighed by Rule 403 considerations), OR

2) conviction of any other crime requiring proof of admission of an act of dishonesty or false statement

Front 78

Impeachmetn w/ conviction for Crime Involving False Statement

Back 78

All conviction (felonies and misdemanors) crimes of false statement - admissible

*no balance of 403 for convictiones more than 10 years old

*character/conduct not allowed
*impeachment purposes - credibility as a W

Front 79

Impeachment w/ conviction for a crime not involving false statement

Back 79

Felonies that do not involve false statement (e.g., murder, robbery, rape) may be admissible to impeach but court may exclude for unfair prejudice. Misedemeanors that do not involve false statement are inadmissible to impeach

*may be proved w/ extrinsice evidence

*if more than 10 years since the date of conviction or relase from prison, inadmissible unless probative value outweighs unfair prejudice

Front 80

10 year rule - impeachment by convictions

Back 80

admissible ONLY if the party offering it, shows probative value outweighs unfair prejudice.

Front 81

Impeachment w/ non-conviction misconduct evidence bearing on truthfulness

Back 81

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

Front 82

Impeachment w/ reputation and opinion regarding truthfulness

Back 82

1) Extrinsic evidence admissible

Front 83

Hearsay

Back 83

1) usually inadmissible

2) out of court statement offered to prove the truth of the matter asserted in that statement

*declarant (available or not) - cannot be crossed - statement used to prove those facts = hearsay

Front 84

Hearsay - "Statement"

Back 84

verbal or written expression of a person or conduct by a person intended to communicate (assertive conduct)

Front 85

Statements - involving machines

Back 85

not hearsay generally, but where a person is involved w/ the machine (punching in data) then the machine's output is hearsay as a statement

Front 86

Hearsay - out of court

Back 86

out of the court room, at current trial. prior proceeding testimonies are still hearsay.

Front 87

Offered to prove the truth of the matter asserted - what is the step approach

Back 87

1) Find the statement

2) ask what is it offered to prove - ask, is the question asking you? if not, ask yourself which party is offering the statement, and then ask how would this statement be relevant to that party's case.

3) given what it's offered to prove, will jury be misled if the out of court speaker was lying or mistaken, yes - hearsay; no - not hearsay

Front 88

Independent legal significance - hearsay?

Back 88

No. sometimes consider the substantive law. if the statement would provide legal significance, not hearsay.

*making statement is part of the element of the claim

Front 89

Effect on listener, hearsay?

Back 89

No. (e.g. what the statement would inflict/effect on the listener)

*signs/warnings - effect on reader, not hearsay

Front 90

Speaker's knowledge of facts stated, hearsay>?

Back 90

no.

e.g. gang member, robbery - the evidence of facts stated

Front 91

Circumstantial evidence of state of mind, hearsay?

Back 91

No.

e.g. dracula, insanity argument - circumstantial evidence - not proving he IS insane, but could be

Front 92

Out of court declarant is in court court W - hearsay?

Back 92

yes - offered to prove the truth of the matter asserted.

Front 93

Admissions of Party Opponent

Back 93

Exemption, not hearsay.

Statement by party, or by someone whose statement is attributable to a party, offered by a party opponent.

Front 94

Party admissions - distinguish from statements against interest exception

Back 94

Not hearsay - statement by party opponent - that at the time, the statement was against his interest DOESN'T Matter - "admission" can be to any statement good or bad - just that it's a statement by a party, and offered by the other side, that's it.

Front 95

Are party admissions subject to personal knowledge or opinion?

Back 95

No not subject to personal knowledge requirement or opinion rule.

e.g. plane crash - "damn we ****** up again" not hearsay.

Front 96

Vicarious party admissions

Back 96

statement by:

1) authorized spokesperson of party or

2) employee of party concerning matter w/in scope of employment and made during employment relationship

*authorization expressed or implied

Front 97

Adoptive admission

Back 97

nonparty makes statement and party indicates belief in its truth; and co-conspirator statement (made during course and in furtherance of conspiracy) - ALL are not hearsay.

Front 98

Exemptions from usual hearsay definition

Back 98

exemptions apply to an out of court stateemnt from a declarant who now testifies at trial:

1) prior inconsistent statement given under oath at trial or deposition

2) prior consistent statement offered to rebut charge or recent fabrication or improper influence or motive;

3) statement of ID of a person made after perceiving the person

Front 99

Former testimony exception

Back 99

Testimony given by a person in earlier proceeding or depo is admissible IF:

1) the party against whom the testimony is now offered had, during earlier proceeding, and opportunity to examine,

**see page 31

**declarant must be unavailable

Front 100

Declarant is unavailable

Back 100

1) court exempts declarant from testifying due to privilege

2) dead/sick

3) proponent of statement cannot procure dec's attendance by process or other reasonable means,

4) dec refuses to testify despite court order, or

5) declarant's memory fails

Front 101

Former testimony exception - specific instances

Back 101

1) opp. to examine
2) declarant unavailable
3) similar motive to examine
4) Deposition testimony - allowed
5) predecessor in interest

Front 102

Predecessor in interest

Back 102

there was a representative, who HAD a similar motive - there was a CLOSE privity relationship between the former and latter party

Front 103

Declaration against interest exception

Back 103

hearsay statement is admissible if, at time it was made, it was against the financial interest of dec or would have subjected dec to criminal liability. If the statement is offered to exculpate accused, there must be corroborating evidence to admit the statement. *unavail. dec.

*different from party admission - dec. against interest made by anyone

Front 104

Dying declaration exception

Back 104

Hearsay statement by one believing he is about to die & describing cause or circumstances leading to impending death is admissible in civil action and in HOMICIDE prosecution. Declarant need not die but must be unavailable.

*focus - cause or circumstances leading to death

Front 105

Excited utterance exception

Back 105

Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition. No need to show dec unavailable.

Front 106

Present sense impression exception

Back 106

admissible, if describing or explaining an event or condition made while dec was perceiving the event or condition or immediately thereafter. No need to show dec unavailable.

*same time - timing is contemporaneous as the events perceived

Front 107

Exception for declaration of then existing physical or mental condition (state of mind)

Back 107

hearsay statement of declarant's then existing physical of mental condition or state of mind is admissible to show the condition or state of mind. But a statement describing a memory or belief is NOT admissible to prove the fact remembered or believed.

**no need to show dec. unavailable

Front 108

Exception for statement of past or present mental or physical condition made for medical diagnosis or treatment

Back 108

hearsay statement by one person concerning the past or present mental or physicla condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis or treatment. No need to show dec unavailable.

Front 109

Business records exception

Back 109

admissible if:

1) a record of events, conditions, opinions or diagnoses;

2) kept in course of regularly conducted business activity

3) made at or near time of matters described

4) by person w/ knowledge of the facts in that record,

5) it was regular practice of business to make such record

*can exclude if untrustworthy - no need to show dec unavailable

*can cover all levels of hearsay

Front 110

Public records exception

Back 110

admissible IF within:

1) record describes activities of the office

2) record describes matters observed purusant to duty imposed by law; or

3) record contains factual findings resulting from investigation made purusaunt to authority granted by law, unless untrustworthy.

*criminal case - prosecution cannot use 1 or 2.

*no need to show dec. unavail

Front 111

Judgment of previous conviction

Back 111

statement describing felony conviction (copy of the judgment of conviction) admissible in both civil and criminal cases to prove any fact essential to the judgemnet, but when offered by prosecution for purposes other than impeachment, judgments against person other than the accused are inadmissible.

*no need to show dec. unavail.

Front 112

Confrontation Clause

Back 112

*see page 37

Front 113

Authentication

Back 113

every item of non-testimonial evidence - must be authenticated - proving it is what the proponent of that evidence claims it to be - "sufficient to sustain finding"

Front 114

Methods of authentication

Back 114

1) Admission
2) Eyewitness testimony
3) Expert opinion
4) Lay opinion
5) Circumstantial evidence - unlimited, "ancient documents rule"
6) Genuine exemplar

Front 115

Ancient documents rule

Back 115

authenticity est if:

1) document is 20 years old or more

2) does not on its face present any irregularities, and

3) was found in a place of natural custody

Front 116

Self Authenticating writings

Back 116

for certain writings, authentication is unnecessary.

e.g.
1) public documents certified
2) acknoledged doc
3) official publications, newspapers, periodicals,

Front 117

Trade inscriptions

Back 117

tag or label that purports to have been attached in course of business and indicates ownership, control or origin.

Front 118

Authenticating PHOTOS

Back 118

watch for personal knowledge. does fact testified to = fact perceived?

*e.g. photo to W of intersection

Front 119

Authenticating non-unique items

Back 119

items that are facially indistinguishable from other like items (bag of white powder) - to authenticate, proponent must lay CHAIN OF CUSTODY demonstrating that this is the specific item porpoentn claims it to be.

*small breaks in the chain - is ok - still sufficient to sustain a finding. NOT big breaks.

Front 120

Best Evidence Rule

Back 120

Applies only where evidence offered to prove the CONTENTS of a WRITING. Writings = not only documents but also videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data. The rule requires original, but w/ many exceptions.

Front 121

When is evidence being offered to prove contents of a writing?

Back 121

1) case turns on contents of legal instrument.

*where contents of K (legal instrument) is available

2) Knowledge obtained from writing - BER applies (e.g. W testifying that D got knowledge from a written instrument)

Front 122

Voluminous documents exception

Back 122

can be summarized if originals available for inspection.

Front 123

Assuming BER is applied - what type of evidence is admissible to prove the contents of a "writing"?

Back 123

1) Originals - e.g. computer printouts and public docs, certified copies

2) Duplicates usually also admissible

Front 124

Exception to admissibility of duplicates or other written evidence that is not the original

Back 124

this evidence is NOT admissible where there is genuine question as to the authenticity of original

Front 125

Contents can be proven by testimony, IF

Back 125

original lot or destroyed, unless bad faith by proponent of testimony.

Front 126

Privileges

Back 126

1) a/c
2) spousal
3) psychotherapist/patient
4) social worker-client

**in civil actions under diversity jxn, STATE privileges apply in federal court

Front 127

A/C Privileges

Back 127

communication between a/c or their reps intended by client to be CONFIDENTIAL and made to FACILITATE LEGAL SERVICES is privileged in all civil and criminal proceedings unless waived by the cl.

Front 128

Exceptions to Privilege (a/c)

Back 128

not apply:

1) pro. services sought to further what cl knew or should hav eknown to be a crime or fraud, or

2) communication relates to alleged breach of duty between lawyer and cl, or

3) two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another.

Front 129

Psychotheraptist-Patient - Social worker privilege

Back 129

Same basic rules

confidential and made to facilitate rendition of professional psychological services

Front 130

Doctor - patient

Back 130

NO doctor-patient privilege under the FRE but must (including CA) have adopted the privilege -apply STATE privilege laws

Front 131

Patient must show (privilege)

Back 131

privilege to prevent disclosure of info confidentially conveyed to a physician where the patient conveyed the info for the purpose of obtaining diagnosis or treatment and the info was pertinent to diagnosis or treatment.

Front 132

Exceptions to Dr-Patient privilege

Back 132

where:

1) the patient puts his physical condition in issue, as in a personal injury suit,

2) where physician's services sought to aid in crime or fraud or to escape capture after a crime or tort

3) in case alleging breach of duty arising out of physician-patient relationship, as in a malpractice action. *CA does not recognize the privilege in criminal cases

Front 133

Spousal Privileges

Back 133

1) Spousal testimonial privilege permits W to refuse to testify against his/her spouse as to anything. *applies only in criminal cases.

2) Spousal confidential communication privilege protects confidential spousal communications during marriage. **applies in both criminal and civil cases.

**need valid legal marriage, not applicable to crimes against the spouse/kids

Front 134

Judicial Notice

Back 134

Process of establishing facts w/out presenting evidence. Two issues:

1) facts appropriate for judicial notice,

2) procedure for taking judicial notice

Front 135

Facts appropriate for Judicial Notice

Back 135

courts can take judicial notice of facts not subjected to reasonable dispute b/c they are either:

1) generally known within the jxn or

2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

Front 136

Procedure for taking Judicial Notice

Back 136

party must request judicial notice to compel judicial notice and, if not requested, court has discretion to take judicial notice. Civil case - jury instructed to accept fact as conclusive; Criminal case - jury instructs, may accept but not required to accept the judicial notice fact

Front 137

Evidence - essay form:

Back 137

1) Form
2) Purpose
3) Presentation
4) Hearsay
5) Privileges

Front 138

Analysis - Party Opponent

Back 138

nonhearsay - an admission is a statement made or act done that amounts to a prior acknowledgement by one of the parties of one of the relevant facts. **vicarious admission (admission was authorized - done w/in scope of the duty, while principal-agent relationship existed)

Front 139

Statement against interest

Back 139

*dec unavailable

A statement of an unavailable declarant is admissible if it is against the declarant's pecuniary, proprietary or penal interest when made. **objective

Front 140

Excited utterance - analysis

Back 140

An excited utterance is a statement made during or soon after a startling event while under the stress of excitement.

Front 141

Present Sense Impression

Back 141

A declarant's statement made concurrently while the declarant was perceiving an event is admissible. *describing perception of what was going on.

Front 142

Present sense impression (CA)

Back 142

no hearsay exception for present sense impression - CA does allow for contemporaneous statements that the declarant makes to EXPLAIN, qualify or make understandable something that the declarant himself is doing at the very time he makes the statement.

Front 143

Analysis - Character Evidence

Back 143

Character evidence is generally not admissible in civil cases to prove negligence or fault. Character not at issue.

Front 144

Analysis - Prior convictions

Back 144

allowed, on c/e to impeach a W, by prior convictions - no foundation req'd - before a W can be impeached, must be given the opportunity to explain or deny the conduct

Front 145

Dying Declaration - Analysis

Back 145

applies in a homicide or civil action; made by unavailable declarant, who believes death is imminent concerning the cause or circumstances of impending death - admissible - CA - allowed in any kind of case (civil or criminal) where it is relevant to know what killed the declarant.

Front 146

Past bodily condition

Back 146

Statements of a declarant's past bodily condition are generally excluded. However, under the FRE, a statement or description of a past symptom, sensation or condition is admissible if made for the diagnosis or treatment of the declarant or is pertinent to such diagnosis or treatment.

*CA - bodily condition is admissible only if the declarant is unavailable - only used as evidence of the declarant's past bodily condition when that is itself the issue.

Front 147

Analysis - Effect on hearer/listener

Back 147

to show the statement's effect on the hearer/reader.

Front 148

Former Testimony exception - to the hearsay rule

Back 148

the testimony of a now unavailable W given at another hearing or in a depo taken in accordance w/ the law is admissible in a subsequent trial as long as there is a sufficient similarity of parties and issues to that the opportunity to develop testimony or c/e at the prior hearing or depo was meaningful.

Front 149

Patient - Doctor privilege - can it be used when physical condition at issue?

Back 149

no - when the issue is about the physical condition of the patient (personal injuries suit for injuries) there is no privilege available.

Front 150

State of mind - exception to hearsay - analysis

Back 150

It is hearsay, but falls under the exception for declarations of STATE OF MIND, including declarations of intent offered to show subsequent acts of the declarant (intent to do something is the future is admitted as circumstantial evidence that the intent was carrier out) that he acted in conformity therewith.

Front 151

Are felony judgments admissible to prove any essential fact

Back 151

yes - but must be a felony conviction - punishable by an excess of one year

Front 152

Admissions rule

Back 152

a statement made, or an act done, that amounts to a prior acknowledgement by one of the parties of one of the relevant facts. e.g. attempts to bribe Ws, may be held to manifest awareness of liability or guilt.

Front 153

prior inconsistent statement made under oath

Back 153

or deposition is admissible nonhearsay, and may be used as substantive evidence as well as for impeachment.

Front 154

Can the court stop c/e

Back 154

yes, court has discretion to the extent or scope of c/e - judge may exercise reasonable control over the examination of Ws to aid the effective ascertainment of truth, to avoid wasting time, and to protect Ws from harassment or undue embarrassment.

Front 155

what is the scope of c/e

Back 155

1) matters brought out on direct examination and inferences naturally drawn therefrom; and

2) matters affecting the credibility of the W

Front 156

Lay opinion testimony - W - elements

Back 156

1) rationally based on the perception of the W

2) helpful to a clear understanding of the W's testimony or to the determination of a fact in issue; and

3) not based on scientific, technical, or other specialized knowledge

Front 157

Past recollection recorded - factors to foundation requirements

Back 157

A writing may be introduced under the exception to the hearsay if:

1) the W at one time had personal knowledge of the facts reciting in the writing;

2) the writing was made by the W or under his direction, or was adopted by the W;

3) the writing was timely made when the matter was fresh in the mind of the W;

4) the writing is accurate; and

5) the W is presently unable to remember the facts sufficiently to testify fully

Front 158

Analysis - Admission by party opponent

Back 158

A statement amounting to a prior acknowledgment by a party of a relevant fact is admissible as nonhearsay under the FRE or as a hearsay exception under CA law.

Front 159

Hearsay, exception - effect on hearer/listener/reader

Back 159

A statement that is inadmissible hearsay to prove the truth of the matter asserted may nevertheless be admitted to show the statement's effect on the hearer or reader.

Front 160

Character evidence - of D

Back 160

under both the FRE and CEC, specific acts of misconduct are generally inadmissible unless independently relevant to some issue other than character. P8 does not allow a prosecutor to initaite the use of character evidence to prove the D's conduct on the occasion in question.

Front 161

Business records/police reports

Back 161

Generally, police reports are not admissible against criminal D under the business records exception. Some jxn admit police reports if they contain onlyu routine information rather than observations or opinions of officers. In CA, a police report may be admissible against a criminal D under the business records exception as long as the sources of information for entires in the record indicate the record's trustworthiness.

Front 162

W's character attack

Back 162

no allowed in FRE, unless it is at issue prior to; if not, the evidence is not allowed. CA - allows either side to bolster creditibility before it has been attacked.

Front 163

Present sense impression

Back 163

W's statement made concurrently while the W was perceiving the events reported - CA has no hearsay exception for present sense impression.

Front 164

RELEVANCY - analysis

Back 164

evidence is logically 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 w/out the evidence. - CEC requires the fact of consequence to be in dispute to be relevant.

Front 165

Present sense of mind - hearsay exception

Back 165

a statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible.

Front 166

When is character evidence admissible as substantive evidence, rather than to impeach?

Back 166

1) prove character when it is the ultimate issue in the case; or

2) serve as cricumstantial evidence of how a person probably acted.

Front 167

Self-Authenticating Documents - list

Back 167

*documents that "prove themselves"

1) certified copies of public records,

2) official publications,

3) newspapers and periodicals,

4) trade inscriptions,

5) acknowledged documents

6) commercial paper and related documents, and

7) certified business records

Front 168

Ws must possess what four basic testimonial attributes?

Back 168

1) capacity to observe
2) to recollect,
3) to communicate
4) appreciate the obligation to speak truthfully, otherwise the W is an *******

Front 169

W must have what????

Back 169

must have PERSONAL KNOWLEDGE

Front 170

How is proper foundation laid out for prior inconsistent statements?

Back 170

W had opportunity to explain or deny. Exception: the inconsistent statements by hearsay declarants may be used to impeach despite the lack of a foundation; or where justice interest requires;

PIS - usually hearsay, admissible only to impeach, but if it was given under oath at a prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence of the facts stated.

Front 171

Bias or interest

Back 171

evidence that a W is biased or has an interest in the outcome of a suit tends to show that the W has a motive to lie

*Need foundation for extrinsic evidence - needs to be asked about the facts on cross-exam first.

Front 172

Conviction of a crime

Back 172

Any crime involving dishonesty - felony/misdemeanor - all in;

Felonies NOT involving dishonesty - discretion by court to exclude IF

1) the W being impeached is a criminal D, and prosecution has not show that the conviction's probative value outweighs its prejudicial effect; or In the case of all other Ws, the court determines that the conviction's probative value is substantially outweighed by its prejudicial effect.

Front 173

Can remote crimes being introduced as prior conviction/felonies to impeach?

Back 173

NOT - if more than 10 years old since the date of conviction or the date of release from confinement (whichever is later).

*no foundation required fro extrinsic evidence - just by cross exam. or introducing a record of the judgment

Front 174

Specific Instances of Misconduct - Bad Acts

Back 174

W may be interrogated upon c/e w/ respect to an act of misconduct only if the act is probative of truthfulness - requires:

1) inquiry in good faith by cross examiner

2) NO ex. evidence, only on c/e; cannot inquiry about past arrests, *arrests alone are not bad acts

Front 175

Opinion or Reputation Evidence for Truthfulness

Back 175

A W may be impeached by showing that he has a poor reputation for truthfulness.

Front 176

Sensory Deficiencies

Back 176

W may be impeached by showing, either on c/e or by ex. evidence, that his faculties of perception and recollection were so impaired as to make it doubful that he could have perceived those facts.

Front 177

Attorney - Client Privilege - needs:

Back 177

1) A/C relationship
2) statements made in confidence
3) presence of representatives of att or client does not destroy confidentiality
4) Cl holds privilege
5) Privilege applies indefinitely

Front 178

Physician - Patient privilege

Back 178

1) professional relationship exists
2) info. is acquired while attending the patient in the course of treatment; and
3) the info is necessary for treatment. (non-medical info is not privileged)

Front 179

When is the physician-patient privilege NOT applicable

Back 179

1) patient puts his physical condition in issue
2) physician's assistance was sought to aid wrongdoing
3) dispute between the physician-patient
4) patient agreed to waive privilege
5) federal case applying the federal law of privilege

Front 180

Spousal Immunity

Back 180

privilege when invoked, a married person whose spouse is a D in a criminal case may not be called as a W by the prosecution NOR be compelled to testify against the spouse in any criminal proceeding, regardless of whether the spouse is the D. lasts only during the marriage. belongs to W-spouse - may choose testify if he/she wants.

Front 181

Privilege of Confidential Marital Communications

Back 181

in any civil/criminal case, confidential comm between a h-w during a valid marriage are privileged. Need the existence of a marital relationship when the communication is made. Communication made IN RELIANCE UPON THE INTIMACY of the marital relationship.

Front 182

Judicial Notice

Back 182

ederal Rule of Evidence 201, evidence of certain facts is not required, because the judge must take "judicial notice" of such facts. To require the court to take judicial notice, the fact must be one which is not subject to reasonable dispute, either because it is: 1) generally known within the territorial jurisdiction of the court; or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, and a party must request judicial notice of the fact and provide the court with the necessary information to substantiate the fact.

Front 183

Judicial Notice - differences in criminal/ Civil

Back 183

In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed, but in a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.