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146 Cards in this Set

  • Front
  • Back
Admissibility threshold
Evidence must be relevant & competent
Relevance Briefly
- Probative = Tends to prove or disprove

- Material = Any fact of consequence to the action
Competent
Does not violate an exclusionary rule.
Limited Admissibility
For one purpose but not another, or against one party but not another

Court must give instruction to jury and must balance to determine if admissible
Relevance CA distinction
Requires that the fact of consequence be in dispute.
FRE 403//CEC 352
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Exceptions if relevant and pass 403
- Causation
- Prior false claims orsame injury (to show current likely false or current injury bc of prior)
- Similar accident or injury caused by same event or condition to prove existence or knowledge
- Previous similar acts to prove intent
- Rebutting claim of impossibility
- Sales of similar property to prove value
- Habit
- Industry custom
CA Truth in Evidence Amendment
All relevant evidence admissible in crim case, even though objectionable under CEC.
Exceptions to CA truth in eveidence amendment
1. Exclusionary rules under the US Cttn
2. Hearsay
3. Privilege
4. Limits on character of rape victim
5. Rule prohibiting DA from first offering ev of D's character
6. Best evidence rule
7. CA 352 Balancing test (//FRE 403)
Exclusions for Public Policy
- Liability insurance
- Subsequent remedial measures
- Settlement offers/Negotiations
- w/drawn guilty pleas
- offers to pay medical expenses
-
CA Distinction: Subsequent Remedial Measures
- OK to show defect in strict products liability
CA Distinction: Settlement Offers/ Negotiation
Discussions during mediation inadmissible
CA Distinction: W/drawn Guilty Pleas
Unclear if Truth in Evidence makes inadmissible. On essay, raise issue and mention that even if TIE applies, ct may still exclude it for unfair prejudice
CA Distinction: Offers to pay medical expenses
- Admissions in conjunction inadmissible (no severance)
- Expressions of sympaty re:accident NOT admissible in civil. Statements of fault made in connection w/sympathy are admissible.
Character in civil cases
- Generally not admissible.
- Exception of using to prove conduct: D's prior acts w/sexual assault, child molestation.
- OK if directly in issue. Use of Reputation, Opinion, and Specific Acts
D's Character in Criminal Cases
D opens the door w/reputation and opinion evidence

DA rebuts: rep and opinion on X exam of D's W. Including specific acts. But, can't prove up if denies.
-- Calls different W re: rep/op
CA distinction to character evidence
CEC allows only rep and op to prove character on direct AND x-exam.

But, TIE all admissible subject to 352.
----> all 3 types OK on direct and X-exam
Victim's Character in Criminal Cases
- D may introducte rep/op evidence of bad trait of V when relevant and to show innocence. NOT RAPE.
- DA rebut w/rep and opinion of V's good character OR D's bad character for same trait.
CA distinctions character evidence of V
- Only where D admitted evidence of V's violent character can DA rebut w/evidence of D's violent character.

- Rep, op, and specific acts permitted on direct & x-exam after D opens the door of V's character.
Rape Vs and Character evidence
In civil or criminal case re: sexual misconduct, sexual behavior/disposition NOT admissible.
Exception to Rape Rule Crim
To prove source of physical evidence and consent, or anything at all if DA offers it.
Exceptions to Rape Rule Civil
OK if not excluded by other rules and probative value not outweighed by risk of harm to V or prejudice to any party.

- V must place rep at issue
Specific Acts of Misconduct
- Inadmissible if solely to show criminial disposition or bad character
- Admissible if indepently relevent to show MIMIC
- Prior acts of sexual assault/child molestation okay to show MIMIC
MIMIC
Motive
Intent
Mistake (lack thereof)
Identity
Common Scheme or Plan
CA distinction for specific acts
In prosecution for DV, DA may introduce evidence of D's prior acts of DV before D opens door
Judicial Notice
Taken of indisputable facts that are either notorious or manifest.
- Notorious = common knowledge
- Manifest = Capable of verification in easily accessible sources of unquestionable accuracy
CA distinction JN
- Whether requested or not, MUST JN matters generally known in jx.

- Ct instructs jury it MUST accept JN'd facts in civil/criminal cases.
JN of Law
- Mandatory = federal and state laws and regulations

- Permissive = ordinances, foreign law, legislative, private resolutions and act
Real evidence
- Phyiscal evidence
Conditions of admission of real evidence
- Must be relevant
- Must be authenticated
- If condition significant, show in same condition at trial
- Other considerations? Physical inconvenience, indecency or impropriety, and undue prejudice
Authentication
The document is what the proponent claims it is.

- Through testimony of chain of possession
Documentary evidence
- Must be relevant
- Must be authenticated
- Docs can be authenticated by stip
Authentication of Writings
- Admission of party against whom offered
- Eyewitness testimony
- Handwriting
- Ancient documents
- Reply letters
- Photos
- X-rays, etc
Handwriting
- Opinion of law W w/personal knowledge. Cannot become familiar for purposes of testifying
- Expert comparison
- Comparison by trier of fact
Ancient Docs
> 20 yrs old (in CA 30 years)

In condition free from suspicion as to its authenticity

Found in place where such document would likely be
Photos
Id'd by W as portrayal of certain facts

Verified by W as correct representation of those facts

If unattended camera, camera working properly and photo developed from film from that camera.
X-ray and the like
Process accurate

Machine working

Operator qualified

Custodial chain
Authentication of Oral Statements: Voice ID
- Opinion of anyone who has heard voice at any time.
- Telephone conversations: party to conversation can authenticate w/any of the following:
--- recognized speaker's voice
--- speaker had unique knowledge
--- Called a particular person's # and speaker id'd self as person
--- Called a biz and discussed biz w/speaker
Self-Authenticating docs
- Certified copies of public records
- Official publications
- Trade inscriptions (EXCEPT CA)
- Acknowledged documents
- Certified biz records (EXCEPT CA)
Best Evidence Rule
To prove terms of a writing, original must be produced if terms are material.

Secondary evidence if the original is unavailable.
Best Evidence Rule DOES NOT apply when?
Fact to be proved exists independently of writing

Summaries of voluminous records

Certified public records
Definitions
Writing = writing, recording, photograph

Original = Original and any duplicate exector intended to have same effice

Duplicate = exact copy of original. Admitted unless authenticity of original is in dispute.
CA distinction to Best Evidence Rule
Called the Secondary Evidence Rule

Allows duplicates and other written evidence of the original's contents, such as handwritten notes
Secondary evidence of writing's contents ok if
Satisfactory explanatoin of the non-production (loss, destruction, outside of jx and unobtainable, original in adversary's possession y won't give.)
Testimonial/Written admission of party
Prove contents w/admission of party against whom offered

Need not account for original
Parol Evidence Rule
- If agreement reducted to writing, prior/contemporaneous negotiations and agreements merged into and inadmissible to vary writing's terms
Parol evidence rule does not apply to:
To complete an incomplete writing, or explain ambiguous terms

where a party alleges reformation

When admitted to show K void/voidable or condition precedent was not satisfied.
Competency of Witnesses
Capacity to Observe, Reflect, Communicate, and Appreciate obligation to speak truthfully.

CA has additional req to UNDERSTAND legal duty to tell truth.
2 Limits for Capacity
1. Personal knowledge
2. Declare to testify truthfully
Hypnotizatoin
In CA, W disqualified if hypnotized to helf refresh recollection UNLESS criminal case where W hypnotized by cops
Modifications of CL disqualifications
Infancy --> case by case

Insanity --> ok as long as meet 4 reqs

Judge/Jurors--> CANNOT testify in case where they're sitting
Form objections
- Leading
- Misleading
- Compound
- Argumentative
- Conclusionary
- Harassing/embarassing
- Calls for narrative answer or speculation
- Assume facts not in evidence
When are leading questions okay?
on X exam

for prelim matters

if W needs help to testify

if W is hostile
Improper answers
Non- responsive

Lack of foundation
When use of Memoranda by W ok?
Refreshing recollection and Past Recollection Recorded
Refreshing recollection
Any writing or thing

NOT read into evidence, just used by W to job memory
Past Recollection Recorded
W has insufficient recollection to testify

Writing READ into evidence if:
- W has PK of facts in writing
- Writing made by, at direction of, or adopted by W
- Writing made when fresh in W's mind
- Writing is accurate

OPC can X exam W on writing and introduce portions
Opinion Testimony by Lay Witnesses
Must be rationally based on W's perception

Helpful to understanding W's testimony or determining fact

Not based on specialized knowledge.
Specific Situations of Opinion testimony by lay witnesses where ADMISSIBLE
- General appearance or condition or state of emotion of a person
- Sense recognition
- Voice or handwriting ID
- Speed
- Value of W's own services
- Rational or irrational nature of another's conduct
- Another's intoxication
Specific Situations of Opinion testimony by lay witnesses where INADMISSIBLE
whethre one acted as an agent or whether agreement made
Opinion testimony by expert
- Subject matter is one where special knowledge would assist
- Witness is qualified as expert
- Expert possesses r/able probability regarding his opinion
- Opinion supported by proper factual basis
- Opinion based on reliable principles that were reliably applied
Proper Factual Basis
-Personal observation OR
- Facts made known to expert at trial OR
- Facts not personally known to expert but supplied to him outside of court and of a type r/ably relied upon by experts in the field.
Federal/Daubert Test
Balance:::
- Peer review
- Publication
- tested and subject to retesting
- R/able acceptance
- Low error rate
CA Frye Test
Reliability of scientific opinions comes down to one factor:

Based on principles generally accepted by experts in the field.

Test not impacted by TIE bc a relevancy test
Expert opinion on ultimate issue
OK except for D's mental state in a criminal case if it's an element of crime or defense.
Texts/Treatises
- Expert may be X-examined re: statements in a reliable publication and statements read into evidence to 1) impeach expert or 2) be substantive evidence
CA distinction to Texts/Treatises
Treatise is only admissible to show matters of general notoriety or interest. VERY NARROW.
Scope of X-exam
Scope of direct and the r/able inferences drawn therefrom

Testing W's credibility
Collateral Matters
Stuck w/W's answers and no extrinsic evidence, unless it's to prove W's bias/interest or conviction
Accrediting/bolstering
Only after W impeached, unless evidence of W's timely complaint or prior identification
Bostering by contradiction
W testifies X, impeach w/ evidence of NOT X.

** CANNOT use extrinsic evidence if on a collateral matter.
Bolstering w/prior inconsistent statements
- By X-exam OR extrinsic evidence. Only use extrinsic ev if W given opp to deny/explain PIS.
- Comes in for substantive evidence if it was a sworn statement
- In CA, all PIS come in for truth, wheter sworn or not.
bolstering w/ Bias or interest
x-exam or extrinsic evidence
Bostering w/ Conviction
Prove w/X exam or record of judgment.

Any crime of dishonesty/false statement

Any felony (subject to 403)
Limits to use of prior convictions
Must be w/in 10 yrs

No juvenile convctions

No convictions procured by cttnl violation
Effect of pardon
Cannot use to impeach if W pardoned based on innocence or pardoned and no subsequent felonies.
California distinctions about prior convictions
- All felonies of moral turpitude admissible if pass 352.
- Felonies w/o MT are inadmissible (TIE doesn't trump)
- No misdemeanor convictions to impeach under CEC, but TIE allows in misdemeanors of MT in criminal if pass balancing test.

- No 10 year rule in CA, but it is considered for balancing purposes.
Prior bad acts
- X-exam
- NO extrinsic evidence
- Any act probative for truthfulness.

- In CA, inadmissible under CEC, but TIE makes admissible in criminal cases if act of MT.
- Prove w/xexam and extrinsic evidence, subject to 352.
What can be used for impeachment?
1. Contradiction
2. PIS
3. Bias or Interest
4. Conviction
5. Prior bad acts
6. Opinion/reputation for truthfulness
7. Sensory Defects or lack of PK
Sensory defects or lack of PK
- On X-exam or by extrinsic evidence
Impeachment of hearsay declarant
May be impeached w/evidence that would be admissible if the declarant was testifying in court.
Rehabilitation methods
- Explanation on redirect
- Other Ws re: reputation for truthfulness
- Prior consistent statements only to rebut claim of bias/interest, comes in for the truth
General objection (does not state grounds)
Sustained GOs upheld on appeal if there was any ground for the obj.

Overruled GO upheld on appeal unless the evidence was not admissible under any circumstance.
Specific Objection (states ground)
Sustained specific objection upheld on appeal only if the ground stated was correct or if the evidence excluded was not competent and could not be made so
Opening the door
One who introduces evidence of a particular subject asserts its relevance and cannot complain if OPY thereafter offers evidence of same subject.
Introduction of Part
OPY may require introduction of any other part that ought to be considered in fairness.
General considerations for privilege
- Federal courts recognize atty/clt, spousal, and psycotherapist-social worker/client.

In diversity cases, law of state applies, including privilege

Waiver: fail to claim, disclosure (not if eavesdropper is unknown), K
Atty Clt
1. Atty-Clt relationship
2. Confidential Communication
3. Client holds
4. Applies indefinitely
Atty-Clt Relationship
- Clt seeking prof. legal servs from atty at time of communication.
- Corporate clients: statements from officials/ees if authorized.

CA distinction w/corps: applies to communications from agent if she is the natural person to speak to lawyer on corp's behalf or if the ee/agent did something for which corp might be liable and the corp instructed ee/agent to talk w/atty.
Atty-Client Does NOT apply if:
- If atty acts for both parties and then parties sue each other
- Services sought to aid in crime/fraud
- Issue between parties claimint through same deceased client
- Atty v. client
- In CA, where atty r/ably believes disclosure req'd to prevent crime likely to cause death/substantial bodily harm.
Psychotherapist/Social Worker-Clt
Same as atty clt

In CA, doesn't apply where psychiatrist reasonably believes pt is danger to himself or others and disclosure is necessary
Husband and Wife
There are two types of privilege - one is the Spousal Priv and the other is the Marital Priv.

Neither applies if it's spouse v. spouse or if it's a criminal case and the spouse or kids are victims.
Spousal Privilege
To marry someone is to seal their lips.

- Cannot force spouse to testify against other in criminal case.

- Ends w/Marriage

- Witness spouse is the holder.

- In fed, it's crim only. In CA, it's both. And, the spouse is privileged to not even be called as a witness.

- Applies not only to communicative acts, but everything.
Marital Privilege
- Civil or Criminal Cases
- Only confidential COMMUNICATIONS made DURING marriage.

- Doesn't end w/divorce.

- Both spouses hold.
Self-incrimination
5th A

Civil and criminal

Cannot compel an answer that ties the W to the commission of a crime.
Governmental
For official information not otherwise known to the public or for the identity of an informant.
Physician-Pt
Only CA.
Patient is the holder.

- Professional relationship
- Info acquired while MD attending pt in treatment
- Only info necessary for treatment
When physician-pt does not apply
- Pt puts physical condition at issue
- Assistance sough to aid in crime/fraud/evasion
- In criminal cases
- Dispute btw MD and pt
- Information MD req'd to report to govt.
CA only privileges
Physician Pt

Counselor-Victim of DV or Sex Assault

Penitent-priest

No contempt for reports who refuse to disclose sources
Exclusion of Witnesses CANNOT be:
Party to case or designated officer/ee of party

Person whose presence is essential to presentation of party's case

Person statutorily authorized to be present
HEARSAY
A statement other than one made by the declarant while testifying at the trial offered to prove the truth of the matter asserted.
Statement
Oral or written assertion, or nonverbal conduct intended as an assertion
Offered to prove the truth of the matter
If any other purpose, not HS.

- Verbal acts or legally operative facts
- Statements offered to show their effect on the hearer or reader

- Statements offered as circumstantial evidence of declarant's state of mind
NON HS under Fed Rules
- Admissible as Substantive Evidence
- Prior Statements by Witnesses
- Admission by Party Opponent
- Adoptive statements
- Vicarious admission
Non-Hearsay Prior Statements
- Sworn PIS (in CA, all PIS)
- PCS only to rebut claim of bias
- Prior Identification
Non Hearsay Admissions by Party Opponent
- Prior acknowledgement of OPY of a relevant fact.
- In CA, Admissions ARE hearsay, but admitted under an exception.
Non-Hearsay Adoptive Admission
- Expressly or impliedly adopting or acquiescing in statement.

- Silence adoptive if party 1) heard and understood, 2) was capable of denying and did not, and 3) r/able person would have denied the accusation.
Non-Hearsay Vicarious Admission
- If prove relationship (statement alone is not enough)
- P-A: Statements A authorized to make for P, statements by A re: matter w/in scope of agency
- Partners: if re: matters in scope of partnership
- Co-conspirators: made to 3P in furtherance of conspiracy
- NO VA just b/c co-parties to action.
CA distinction on Vicarious Admission
Statement by ee of party is a party admission of er only where negligent conduct of that ee is the basis for the er's liability.
When is a declarant unavailable?
- Privilege
- Refuse to testify despite ct order
- Lack of memory
- Death or physical/mental illness
- Absent from Jx and proponent unable to r/ably procure attendance.
- In CA, also total memory loss and refusal to testify out of fear.
Hearsay exceptions requiring declarant unavailable
- Former testimony
- Statement against interest
- Dying declaration
- Statement of personal/family history
- Statement against party procuring unavailability
Former testimony
- Party against whom testimony offered was party to former action, or predecessor in interest if civil
- Same subject matter
- Sworn testimony
- Chance to X-exam (Grand Jury Testimony nope)
- CA rules: no predecessor in interest rule.
- FT admissible in civil case if any party in prior had opp and similar interests of party against.
- FT is offered against the person who offered it in her own behalf in the earlier proceeding or against a successor in interest of such person.

- Deposition testimony ok if >150 miles from ct. Otherwise, FT not for depo testimony
Statements against interest
- Single remark, not a long narrative
- Against pecuniary, proprietyary, or penal interest.
- If exculpatory and criminal D introduces to show innocence, must have corroborating circumstances indicating trustworthy (NOT CA)
- Declarant aware against interest when made
- In CA, statements against social interest.
Dying declaration
- Criminal homicide case and any civil case
- Declarant believed death imminent
- Statement re: cause/circumstances of impending death
- In CA, exception applies in ALL criminal and civil cases, and the declarant must actually be DEAD.
Statement Re: Personal or Family History
Re: births, marriages, divorces, genealogical status, etc.

Declarant member of family or intimately associated.
Hearsay exceptions where availability immaterial
- Present state of mind
- Excited utterance
- Present sense impression
- Declarations of physical condition
- Past or present physical condition made for diagnosis or treatment
- Biz records
- Past recollection recorded
- Offical records and writings
- Ancient docs
- Learned treatises
- Reputation
- Family records
- Market reports
present state of mind
- Statement of declarant's then-existing state of mind.
- State of mind
- Emotion
- Sensation (if memory or belief, not to prove the truth of those)
- Usually used to show intent
Excited Utterance
Re: startling event, made while u nder stress of the event
Present sense impression
- Made while/immediately after perceiving.
- In CA, state ment explaining conduct of the declarant, made while the declarant engaged in that conduct.
Statement describing infliction or threat of physical abuse
ONLY CA

Statement at or near the time of the injury/threat, by an UNAVAILABLE declarant describing/explaining the infliction or threat, in writing or recorded or made to police or medical professional, under trustworthy circumstances.

BE CAREFUL!! Watch for confrontation clause issues.
Declarations of physical condition
Spontaneous declaration of present bodily condition to anyone.
Past or present physical condition made for diagnosis or treatment
- Must be made for and pertinent to diagnosis or tx.
- in CA, only applies to a minor describing act of child abuse.
- In CA, a statement of an unavailable decs past physical/mental condition,
is admissible to prove condition if it is at issue. No req that the statement made for medical purposes
Declarations of physical condition
Spontaneous declaration of present bodily condition to anyone.
Biz records
- Record of events, conditions, opinions, or diagnoses kept in the course of regularly conducted biz activity
- Entry made in regular course of biz
- Entrant has PK of the matters in the record, OR someone w/ Duty to transmit matters to entrant had PK
- Entry made near time of event.
- Authentication - by custodian's testimony or event recorded.
- In CA, exception doesn't refer to opinions or diagnoses, but cts still will admit simple ops and dxes
Public records and reports
- Setting forth office/agency activities
- Matters observed pursuant to duty imposed by law, except police observations in criminal cases
- Factual findings from investigation authorized by law (if civil action or against gov in criminal axn)
- Generally not admissible against D in criminal case
- Record of vital stats
- Judgments
CA distinction in pub records and reports
No restriction on DAs.

Record made by public ee admissible if:
1. makeing record w/in scope of duties
2. Record made at or near time of matters described
3. Circs indicate trustworthiness
Judgments
OFFICIAL, NOT PUBLIC RECORDS.
- Felony convictions only. In criminal and civil cases used to prove any fact essential to prior judgment.
- In crim case, gov may use for this purpose ONLY agaisnt D and to impeach against others.
CA distinction re: judgments
- ONLY CIVIL
- TIE permits DA and Def in criminal case to impeach a W with a criminal conviction of MT. BUT, certified copy of judgment or conviction is admissible under the public records exception in both civil and criminal cases.
Reputation
Character, personal or family history, land boundaries, community's general history
Family records
Bibles, engravings, portraits, tombstones, family trees
Market reports
Reports and other compliations if generally used and relied upon
Catch-All
Hearsay not fitting under any other exception admitted if:
1. Trustworthy
2. Necessary
3. Notice given to OPY
Confrontation Clause
Prior testimonial evidence inadmissible against criminal D unless declarant unavailable and D chance to X-exam at time statement made.
Burden of Production
- Party w/burden of pleading generally has burden of producing or going forward w/evidence sufficeint to make PFC.
- Once party satisfies, OPY must come forward w/ evidence to rebut
Burden of Persuasion
- After meet production, question is did party w/persuasion burden meet it?
- Civil cases - preponderance of the evidence, sometimes clear and convincing.
- Criminal cases - beyond a r/able doubt.
Presumptions
A rule requiring a particular inference be drawn from an ascertained set of facts.
Form of substantive proof in presumptions
Proof of the presumed fact rendered unnecessary once introduce evidence of basic fact that gives rise to the presumption.
Effect of presumption
Shifts burden of production
How to rebut presumption
with contradicting presumed fact.
Presumption in Crim Cases
If true presumption arises in crim case, judge cannot instruct jury that it must find presumed fact against judge.
Presumption v. Inference
Inference may allow party to meet the burdent of production, but does not shift the burden
Specific presumptions
1. Legitimacy
2. Against suicide in civil
3. Sanity
4. Death from 7 yr absence
5. Ownership of car - agent driver
6. Chastity
7. Regularity
8. Continuance
- mail delivery if properly stamped, addressed, mailed.
9. Solvency
10. Bailee's negligence
11. Marriage
Judge's relationship in case
- Decides questions of law.
- Decides competency of evidence.
- Prelim decisions:
a) HS exceptions
b) Privilege
c) Expert testimony
d) mental competence (can use any relevant evidence in making decision.
Jury's Role
- Decides questions of fact
- Decides relevance of evidence
- Prelim decisions:
a) Agency
b) Authenticity
c) Credibility
d) PK