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23 Cards in this Set

  • Front
  • Back
evidence fed:

a. Logical Relevance: Whether it tends to prove or disprove a material fact.
evidence fed:

i. Ultimate Issue Only: Character evidence is admissible in all forms to prove character when it is the ultimate issue in the case (specific acts of past conduct, opinion testimony, and/or reputation evidence allowed)
ii. Character evidence is not admissible to serve as circumstantial evidence of how the defendant probably acted at a given time (not admissible as to any party whether offered by plaintiff or defendant)
iii. Other party put into issue their character for truthfulness by taking stand, other side may introduce character evidence of untruthfulness
character evidence civil cases
evidence fed:

i. Prosecution cannot initiate
1. Character evidence to serve as circumstantial evidence of the defendant’s criminal disposition or guilt is not admissible at the initiative of the prosecution unless the accused first offers character evidence to show good character or innocence
2. A defendant does not put his character in issue merely by taking the stand (but does put into issue his character of truthfulness – can impeach)
character evidence criminal case
evidence fed:

ii. Character evidence offered by the defendant can only be presented through opinion testimony and/or reputation evidence and must be related to trait associated with crime!
1. Relevant Good Character - peacefulness for violent crimes; honesty for dishonest crimes; etc.
character evidence criminal case
evidence fed:

iii. Character evidence offered by the prosecution can be presented through:
1. Cross examination of the defendant’s character witness regarding any specific prior acts which would tarnish the reputation of the accused or which would affect the witness’s opinion of the accused
a. Prosecutor must take the answer given by the witness (cannot rebut with extrinsic evidence)
2. Calling his own character witness to testify as to the accused reputation or his opinion of the accused (no specific prior act testimony allowed)
character evidence criminal case
evidence fed:

i. Evidence of a defendant’s prior acts of sexual assault or child molestation is admissible in a case where the defendant is accused of committing an act of sexual assault or child molestation, as long as the party intending to offer this evidence discloses it to the defendant 15 days before trial (or later with good cause) ** Does not have to be convictions, just ACTS!
character evidence: prior sexual acts or child molestation
evidence fed:

regular responses, you can use habit and routine to prove conduct and conformity.
character evidence habit and routine
evidence fed:

a. Federal Rules
i. Subsequent Remedial Measures: inadmissible unless evidence is to show ownership or control, the feasibility of that precautionary measure, and for impeachment.
ii. Liability insurance only admissible to show agency, ownership or control, and bias
iii. Offers to Plead: An offer to plead guilty is inadmissible because we want to encourage settlements and negotiations.
iv. Offer to Pay Medical Bills: inadmissible to prove liability.
policy exclusions
evidence fed:

a. Competency: whether the witness is competent to testify about the matter.
b. Impeachment: can impeach them for competency, bias, and character.
witness creditbiilty
evidence fed:

i. Leading:
1. Proper when: (1) When the witness is a hostile witness. (2) In direct and preliminary matters. (3) Also, when you are examining expert witness’s and trail witness. (4) Refresh Recollection.
ii. cross examination:
1. Can only ask questions within the scope of direct examination.
iii. Compound:
1. Can only ask one thing at a time. If there is an and in a question then it is probably compound.
iv. Non-Responsive
v. Facts Not In Evidence
witness credibility: exam (form of examintaiton of witness)
evidenec fed:

d. Recollection
e. Bias: What is there interest in there outcome. Expert witness fees. Want to think about all the things that can color there testimony.
f. Felony Convictions: where a felony is more then 10 years old, it can only be admitted if its probative value outweighs its prejudicial value.
witness credibility
evidence fed:

a. Have to lay a foundation.
b. To authenticate a document:
i. You can use personal knowledge
ii. You can bring someone in to testify to distinctive markings on document
iii. Chain of Custody
iv. Some documents are self authenticating.
c. Any time you see a writing, any document, we have to talk about 4 things. Relevance, Authentication, Best Evidence Rule and Hearsay. All 4 of these are at issue in any writing in a fact pattern.
evidence fed:

a. Relevance
b. Authenticate
c. Best Evidence Rule
i. Rule: To prove the contents of a writing, recording, or photograph the original is required.
ii. Does not apply where the contents are introduced to show a collateral issue. So if it not an important issue to the case argue that it is a collateral issue.
d. Hearsay

a. Lay Opinion
b. Expert Opinion
i. Rule
1. the opinion has to assist the trier of fact (make sure it is relevant and reliable and outside our common experience)
2. The witness has to be qualified (some specialized knowledge, skill, or training in the field)
3. Proper factual basis.
4. And have a reasonable probability regarding there opinion that is generally accepted in a scientific community.
opinion testimony

a. Rule
i. Relationship exist (proper)
ii. Confidential
iii. Communication
iv. Holder of the privilege
v. Waiver of the Privilege
vi. Exceptions
b. Spousal Testimonial Privilege
c. Confidential Marriage Privilege
d. Physician Patient Privilege
e. Attorney Client Privilege
f. Psycho Therapist Patient Privilege

a. Approach
i. Is it Hearsay?
ii. Is it offered for a non hearsay purpose?
iii. Is it excluded by “statutory magic” (these are the ones that the federal rules of evidence call as non hearsay and California calls it hearsay with an exception).
iv. If it is hearsay does an exception apply?
1. Declarant Unavailable
a. if they are dead or disabled in some way
b. Absent from the hearing and haven’t been able to procure there attendance
c. testify to lack of memory
d. Three of them:
i. Dying Declaration
ii. Declaration against interest
iii. Former Testimony.
2. Availability Immaterial
hearsay approach
evidence fed:

b. Hearsay is an out of court statement offered to prove the truth for the matter asserted.
i. Statement made out of court
ii. Someone testifying as to the statement.
iii. Can substitute conduct for words.
iv. Silence is not hearsay unless the silence is being used to assert something.
v. Offered to prove the truth of the matter asserted.
evidence fed:

i. Words which are crimes themselves: there are words that are being offered that a crime occurred.
ii. Words that have independent legal significance: words that are used to create a contract.
iii. Words that are verbal conduct: demands, threats to rob someone.
iv. State of Mind: words which are circumstantial evidence to show state of mind.
v. Words from which you can infer the effect on the listener:
vi. Words which I can show a relationship between persons or property.
vii. Words from which you can infer the nature, or character of the location.
viii. Prior inconsistent statements to impeach someone’s credibility.
ix. Prior consistent statements to rehabilitate credibility.
not hearsay
evidence fed:

i. Prior Inconsistent Statements
ii. Prior Consistent Statements
iii. Prior Identification
iv. Admissions by a party opponent
v. Adoptive Admissions
vi. Authorized Admissions
vii. Co Conspirator Statements: have to have independent proof that conspiracy existed. Have to show that the declarant and the defendant were members of the conspiracy; statement was made during the conspiracy, and in furtherance of the conspiracy to me admitted under the exception.
hearsay statutory magic
evidence fed:

i. Presence first impression
ii. Exited utterance
iii. Statements for purpose of medical treatment or diagnosis
iv. past recollection recorded
v. Business records exception: made near or at the time that the information was transmitted from a source with personal knowledge, kept during the regular course of the business, with someone with the duty to report are admissible if the circumstances indicate trustworthiness.
exceptions to hearsay
evidence fed:

vi. State of mind: understand the distinction for when it is being offered not for its truth to show state of mind v. direct statements about state of mind.
1. Direct Statement: A statement about my past or physical condition is an example
excptions to hearsay
evidence fed:

a. Rule: Facts may be judicially noticed if they are not subject to reasonable dispute because either 1. They are generally known within the territorial jurisdiction, or 2. Capable of accurate and ready determination by sources whose accuracy cannot be questioned.
b. In criminal cases because we are worried about violating the 6th amendment, we say that they may accept the fact as true but they are free to also disregard it.
c. In civil cases the jury must accept fact as true.
judicial notice
evidence fed:

a. Presumption
i. Are an inference that the jury must draw unless it is rebutted by contrary evidence.
b. Burden of Proof
i. Preponderance of the Evidence and Beyond a Reasonable Doubt, Clear and Convincing.
trail appeal