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65 Cards in this Set
- Front
- Back
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What is evidence?
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Evidence means testimony, writings, material objects or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.
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When do federal rules apply?
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Proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrate judges. Exceptions: Grand jury proceedings, extradition or rendition, prelims, probation, warrants, etc.
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What is required for an appellate court to consider an error?
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1) it must effect a substantial right 2.) it must be preserved for appeal.
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What must you do in order to preserve an error for appeal?
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Must be raised and preserved by the attorney, waive objection if you don’t state it. 1) Object: stating the grounds of the objection if it isn’t apparent from the context or 2) Offer of proof: make the substance of the evidence known to the court.
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How do you make an offer of proof?
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Excuse the jury, proceed with examination (employed in exceptional circumstances), Summarize excluded testimony (sidebar), Submit document for the record (used infrequently). In CA no offer of proof required during CX.
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What are the Five Steps to Making a record?
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Attorney offers evidence in the form of exhibits or testimony, May become the subject of objections, Trial judge is called upon to make rulings on admissibility, Admissible evidence is presented before the fact-finder, If properly preserved, both the evidence and the objections may be reviewed by an appellate court.
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What are the three classes of error in rule 103?
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1) Harmless error - raised at trial and properly preserved but found no effect substantial rights. 2) Reversible error (prejudicial error) - an error that is harmful and preserved – warrants relief – 3) Plain error (telling the appellate court you are incompetent.) Only errors that are serious or egregious, substantial, manifest, highly prejudicial or grave. Plain error can be found only if failure to correct would be a miscarriage of justice. No Plain Error in CA.
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Factors the court will consider in determining if an error is harmless or reversible.
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Criminal v. civil, Jury v. bench, Strong cases v. weak cases - closer cases the evidence was more likely to make a difference, Peripheral issues v. central issues, Minor error v. major error, Error affecting constitutional rights vs. error affecting statutory rights
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People v. Partida
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In criminal cases in California, you must make your objection timely, it must be specific, and it must be right. Constitutional issues can be raised on appeal even if they aren’t raised initially.
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Define Relevant Evidence (FRE 401)
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"Relevant evidence" means any evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Think of each piece of evidence as a brick in the wall.
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When is relevant evidence admissible?
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Relevant evidence generally admissible; irrelevant evidence inadmissible
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Evidence of Flight:
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has a tendency to establish guilt, but is insufficient to prove guilt or create a presumption of guilt.
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Attack Outline for Relevance.
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1) What is the questioned evidence? 2) What is the fact sought to be proved? 3) Is that a fact of consequence to the action? (Examine substantive law and the pleadings.) 4) Does the evidence make the fact more or less probable? (Is it the most plausible conclusion? Goal is to show that evidence is to show that your inference is more probable.)
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Challenging Relevance
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1) Find alternative explanations - explain away the inferences 2) deny the evidence itself 3) there is another explanation for the case (not the evidence).
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Circumstantial Evidence versus Direct Evidence
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Circumstantial evidence requires jury to draw inferences to reach a relevant conclusion. Circumstantial evidence includes fingerprints, DNA evidence, etc. Direct evidence includes only testimony of a witness with sensory perception of the actual event. Direct evidence – you don’t have to draw an inference – direct testimony – you either believe it or you don’t.
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FRE 403 Balancing
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UCD Monday Night Wrestling: Although relevant, evidence may be excluded if its probative value is substantially outweighed (1) by the danger of unfair prejudice, OR (2) confusion of the issues, OR (3) misleading the jury, OR (4) by considerations of undue delay, OR (5) waste of time, OR (6) needless presentation of cumulative evidence.
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Limiting Jury Instructions
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When evidence admissible as to one party for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
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Old Chief v. United States
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Alternative means of proof may eliminate or lessen the need to introduce unfairly prejudicial evidence. But generally cannot stipulate to prevent introduction of evidence.
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Authentication vs. Identification
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You authenticate documents and identify things.
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Before a document is introduced, what must happen?
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It must be authenticated. Ultimately the jury decides if it is real, however, the judge makes an initial detrmiantion based on what a reasonable juror would believe.
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How do you authenticate an expert witness?
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Witness has to claim they are an expert under oath.
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How do you authenticate handwriting?
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Either by someone who is familiar with the handwriting, or through expert witness comparing something that is already authenticated.
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Things with distinctive characteristics
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Can be authenticated by their Distinctive characteristics and the like
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How do authenticate a Voice?
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put someone on the stand who knows the voice
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How do you authenticate Telephone conversations?
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not enough that someone identifies themselves, must be some other evidence, like “I am responding to your call from earlier today” To identify callee: recognize voice or how they answered the phone.
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How do you authenticate Public Records?
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a certified copy.
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How do you authenticate Ancient documents
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Gotta look old, gotta be in a place where old stuff would be: over 20 years old, 30 in California.
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How do you authenticate computer result
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show the result, show the system works to produce an accurate result.
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Self-Authenticating documents
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(902): some documents are so likely to be authentic that they are self authenticating – Ex: Newspaper, Public Records
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How do you identify things?
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Either chain of custody for non-unique items or prove unique characteristics: show that the object is unique, the witness on the stand observed the unique characteristic on a previous occasion, the witness identifies this as the same object they saw before., the witness testifies that the object has not materially changed since they saw it last.
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Best Evidence Rule
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Only applies to writing, recordings and photographs. Duplicates okay, copies aren’t. Photocopy is a duplicate, exact image of what it looked like. To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. The original is not required if-- Originals lost or destroyed in good faith, Original is not obtainable, Original is in possession of opponent. If the copy is in dispute, then the copy is the best evidence. Original document is the document that is in dispute. Summaries of voluminous writings – OK.
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Herzig v. Swift
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An event that occurs in the world that happens to be recorded in a writing can be proven by two ways: Produce the writing, Produce a witness
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Meyers v. United States:
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If there are two ways to prove a point you can do it any way you want. It is only when you try to prove it with a document that the best evidence rule applies
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California’s Secondary Evidence Rule:
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Okay not to use “best evidence” unless evidence is disputed or unfair. Prefers a copy of an item to oral testimony as to the contents of an item. But oral testimony can be given, if necessary.
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Character Evidence in general.
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The propensity of a person to act in a particular fashion, in general, not admissible as proof that they acted in accordance with their character on a particular occasion.
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Character evidence of defendant in a civil case
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1) When character is “in issue” in a civil case - may be proven by reputation, opinion, and specific instances of conduct. 2) In a civil case concerning sexual assault or child molestation, even uncharged similar conduct is admissible.
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Character evidence of defendant in a criminal case
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1) Defendant’s character is never “in issue.” Prosecution may not offer evidence during the case in chief. 2 ) Evidence of a defendant’s character can be admitted in rebuttal when first offered by the defense. Can only make proof through reputation or opinion. 3) In a criminal case in which defendant is accused of an offense of sexual assault or child molestation, evidence of defendant’s commission of another offense or offenses of sexual assault or child molestation is admissible, and may be considered for its bearing on any relevant matter.
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Evidence of the victim’s character in a civil case
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1) Evidence of a party’s reputation in civil case is admissible only if a part of the case in chief or defense. BUT YOU DON’T KNOW THAT!
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Evidence of the victim’s character in a criminal case
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1) In a criminal case, evidence of the victim’s reputation is admissible if first offered by the defendant. Only by reputation and opinion. 2) In a homicide case, if the defendant offers evidence that the deceased was the first aggressor, the prosecution may then offer rebuttal evidence of the peacefulness of the victim. Proof may be made only be reputation and opinion. 3) Evidence of a victim’s sexual activity is strictly regulated. Exceptions: evidence of specific instances of sexual behavior to show that another than the accused was the source of physical evidence such as semen, evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the misconduct offered to prove consent, evidence that if excluded would violate the constitutional rights of the defendant.
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When are specific instances of conduct admissible?
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Specific instances of conduct are admissible to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident or any purpose other than character (propensity), so long as the probative value of the evidence as to its not-for-character purpose is not substantially outweighed by the risk of prejudice. Prosecution must provide notice. However, when evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
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Beechum Theory of Intent
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Uncharged misconduct: To prove intent, evidence of uncharged acts must be the same intent as the charged offense. Under Beechum – you intended to steal before, you probably intend to steal again. Government has to prove the uncharged acts and that it was the defendant who did the uncharged acts. Some courts require clear and convincing evidence that the uncharged act occurred and some courts require that a reasonable juror could find that the uncharged act occurred. Can be subsequent bad acts.
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How to defeat (argue against) uncharged misconduct evidence
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1) Argue no notice 2) Then argue that none of the 404b theories apply 3) Then object under 403 - The more similar the uncharged misconduct is, the more likely that the jury will use the evidence in the wrong way (unfairly prejudicial)
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How does Motive as a theory of admissibility work?
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The uncharged act gave D motive to commit the charged act. This inference is okay. Ex: silencing a witness Not okay to say D had an inclination for that particular motive – forbidden chain of inference.
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Doctrine of Chances
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If the probability of the prior acts occurring along with currently charged act is so slim, without a common actor, then the evidence of the prior act is admissible.
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When is Habit admissible as evidence?
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Evidence of habit is admissible to show that conduct conformed to habit. Has to be highly specific repetitive behavior. Less unfair prejudice. Character tends to have a moral tinge to it, habit does not. If you have habit evidence and an eyewitness, you have to use the eyewitness.
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California Rules Regarding Character in Criminal Cases
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1) Specific instances of conduct can also be used to show either Victim’s character or Defendant’s character when defendant introduces the victim’s character as an issue in a Criminal Case. 1103 a and b. 2) Evidence that defendant committed prior similar acts is admissible in a criminal case where defendant is of sexual assault, child molestation, domestic violence, abuse of an elder or dependent person, possessing pornographic materials depicting minors, employing minors for sexual depictions, and distributing obscene material to minors. 3) California Rape Shield Law: Bars evidence of conduct, reputation, and opinion offered by the defense to prove consent.
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Exclusionary Rules: Types of evidence that can’t be admitted
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Exclusionary Rule: Subsequent Remedial Measures – can’t be admitted to show negligence, culpability, defect in product or design, or need for warning. Can go to impeach defenses of ownership, control, or feasibility, Exclusionary Rule: Settlement Efforts – Settlement negotiations and statements made during them are not admissible compromise negotiations are inadmissible to show liability for or invalidity of a claim or amount, Exclusionary Rule: Medical Payments and Liability Insurance - Evidence of furnishing or promising to pay medical expenses is not permissible to show liability for injury, Exclusionary Rule: Criminal Negotiations - Evidence of a previously withdrawn guilty plea, negotiations for plea and no contest pleas are not admissible against a defendant, Exclusionary Rule: Liability Insurance - Evidence that a person was or was not insured against liability is not admissible to prove negligence or wrongful acts.
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Impeachment of Witnesses
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Can Impeach your own witness, Under CL: Voucher rule – one who called a witness vouched for his witness. Could not impeach your own witness unless the witness unexpectedly testified in a manner injurious to the calling party. Current Federal Rules: A party can impeach it’s own witness (607). How to impeach? Five methods – BICCC (Always ask yourself – what is the evidence being offered to prove?)
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Impeaching Witnesses: Bias
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Bias includes some reason independent of the merits of the case to give testimony favoring one side or the other. May arise from a variety of sources: personal relationship, animosity, financial interest in the outcome, desire to curry favor with the prosecution. You can use extrinsic evidence to prove bias subject to 403 balancing & relevancy inquiry. If the person admits the bias, there is probably no point in proving the bias through other witnesses. Most attorneys will question a witness first about his own bias.
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Impeaching Witnesses: Prior Inconsistent Statement
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If a witness’s statement is offered as proof it is hearsay, However, a witness’s previous statement can be used to impeach the witness. The jury is then instructed to treat the previous statement for a purpose of showing the witness has a tendency to change his story. And that it is not offered as substantive evidence of the defendant’s guilt. If an attorney knows a witness will testify inconsistently to a prior statement and calls them only for the purpose of admitting their prior inconsistent statement the PIS is inadmissible. Use of extrinsic evidence – when may it be offered to prove a witness made a statement. Under the Federal rules – extrinsic evidence is admissible even if the witness has not been first asked about it. However, the witness must be given an opportunity to explain the statement and b) opposing counsel must have an opportunity to question the witness. Thus, witness must be subject to recall. Can be waived in the interests of justice.
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Impeaching Witnesses: Contradiction
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Try to get the witness to contradict something to which they had previously testified. When will the impeaching party be allowed to offer extrinsic evidence for the purposes of contradicting some aspect of the witness’s testimony? Extrinsic evidence will not be permitted for the purposes of contradiction if the contradiction goes to a collateral matter. (Collateral Extrinsic Impeachment Rule, Collateral Fact Rule.) A matter is collateral if it relates to a tangential issue. The only point of contradicting on this point is to show that the witness is also lying about something that is not important to the case. Big Red Barn – Does this go to show that the witness was mistaken about what she saw or heard? California has barred the collateral fact rule, it just has to be probative and not prejudicial.
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Impeaching Witnesses: Capacity & Competence
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Every person is competent to be a witness unless they aren’t. Witness must be competent in the following: (Witcomp) Why tell the truth, Sufficient intelligence, Understanding the difference between truth and falsehood, Ability to communicate so as to be understood, Ability to observe, Sufficient memory capacity, Personal knowledge. Can use extrinsic evidence to show incapacity.
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State Dead Man Statutes
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Rule: "if the lips of one party are sealed by death, the lips of the surviving party is sealed by law." Written contract is admissible. Oral statements are not. California has no dead man statute
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Hypnotized Witnesses
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United States Supreme Court prohibits use of a per se rule against permitting a hypnotized witness to testify. Neutralizing factors: Allowing only evidence that may be corroborated by other evidence, Permit only certain types of hypnotists, Complete record of the memories before, during and after hypnotism
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Judge and Jury as Witnesses
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Presiding judge may not testify at trial as a witness. A member of the jury may not testify as a witness before that jury in the trial of a case in which the jury is sitting. California: A judge or juror may testify if all parties agree.
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Impeaching Witnesses: Character
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Purpose: Show that his character for truthfulness is bad. Jury may infer he is acting in accordance with his untruthful character.An exception to the general rule – character evidence may be used to impeach a witness. Three ways by which to prove a witness’s untruthful character. Opinion or reputation for untruthful testimony, specific acts not resulting in a conviction, Impeachment with crimes.
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Opinion or reputation for untruthful testimony
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Impeaching party may call impeaching witness to testify as to reputation or opinion. No specific instances. The proponent of the witness can call a witness to testify as to witness’s good character but only if character has first been attacked. Good reputation witnessed can be challenged. Have you heard questions can be asked on CX? Specific instances are allowed here. Did you know questions? Opinion witness.
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Specific acts of the defendant not resulting in a conviction.
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Evidence of the specific acts of the defendant. In the discretion of the court, the witness may be asked on CX about specific things he has done that bear on his truthful disposition: False statement, embezzlement The conduct must be probative of untruthful character. Questions about violent conduct are not allowed. The CX is bound by the answer. No extrinsic evidence may be offered to support the questions.
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Impeachment with crimes involving false statement.
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Federal rules: crimes involving false statement may be used to impeach a witness. They are probative of an untruthful character. Can be used with defendant as well, if defendant is on the stand as a witness. Judge is given no discretion because it is so probative of truthfulness. Examples include perjury, false statement, criminal fraud, false pretenses, embezzlement Ask: Does it involve deceit, untruthfulness or falsity?
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Impeachment with crimes not involving false statement.
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Felonies can be used if they pass a balancing test. Felonies are punishable by death or imprisonment over a year. For criminal defendants, the probative value must outweigh the prejudice; for other witnesses, Rule 403 applies, so that the evidence is admissible unless "substantially" outweighed by prejudice. In comparison, then, conviction impeachment is more easily admissible for non-criminal-defendant witnesses than for defendant witnesses.
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Time Period for which prior crimes can be used against a testifying witness.
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10 years from date of release, Balancing test for remote convictions. If it is remote, it may be used to impeach, but only if it’s probative value substantially outweighs its prejudicial effect (backwards). Must give notice if over 10 years old.
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Manner of proving witnesses have engaged in prior crimes:
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Can be shown by public record or asking the witness. Only relates to the fact of the conviction. Improper to reveal details of the crime.
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Impeachment w/ prior convictions in California
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Proposition 8 requires that all relevant evidence be admitted. CA Courts have held that evidence of prior conviction is only relevant if it involves a crime of moral turpitude. “Moral turpitude”-lying, violence, theft, extreme recklessness, sexual misconduct; but not crimes for merely negligent or unintentional acts. 788: Felonies can be used. Criminal Conduct that amounts to a misdemeanor is admissible, however evidence of the conviction itself is not admissible.
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Bolstering Witnesses
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Cannot build up before witness is attacked. We assume witnesses are credible until they are attacked. Background facts about the witness in an effort to help the jury to see her standing in the community. You may not build her character unless attacked. Cannot offer evidence of her character at the outset. Cannot show the jury she has made prior consistent statements.
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Rehabilitation of Witnesses
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after attack, Rehabilitation must match the impeachment technique. If showing bias, must try to show lack of bias. If lack of capacity, try to show capacity. If character of truthfulness has been attacked, offer reputation or opinion witnesses. What about PIS? You can explain the inconsistency. Can you show consistent statements? No, you may not do this. Once a witness has been shown to have “different stories” it is irrelevant how many times they’ve told each story.
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