Mbe And California Evidence

Front 1

Form Considerations (4)

Back 1

Criminal or Civil?
California or Federal?
Direct or Cross?
Objections to Form: NULAACS

Front 2

Purpose Considerations (4)

Back 2

Logical Relevance

Legal Relevance: 403

Extrinsic Policy Considerations

Character Evidence (crim/civil)

Front 3

Presentation Considerations (5)

Back 3

Witness (Competency, PK, Impeachment)

Document reliability (authentication, BER)

Opinion Testimony

Judicial Notice

Burdens of Proof/Presumptions

Front 4

Ways to Challenge a witness

Back 4

Competency

PK

Impeachment

Front 5

Hearsay

Back 5

Double Hearsay
Exclusions--Not for truth or not a statement
Exemptions
Exceptions (unavailable/available)
Confrontation Clause

Front 6

Extrinsic Policy Considerations (4 + 1 CA)

Back 6

Liability Insurance
Offers to Pay Med expenses
Offers to Settle
Subsequent remedial measures
CA: *Expressions of Sympathy*

Front 7

Character Evidence allowed in Civil Cases

Back 7

Central to case (e.g. Negligent Entrustment; defamation)

Habit

Front 8

Character Evidence allowed in Crim Cases

Back 8

Open Door rule

MIMIC

Front 9

Ways to impeach a witness (4)

Back 9

Veracity (beware of form)
Bias/Motive
Perception/Recollection
Inconsistent statements

Front 10

Hearsay--Not offered for Truth or not statements (5)

Back 10

Verbal Acts--Independent legal significance
Impact on Listener
State of Mind
To show speaker's knowledge of facts stated
Machines
Commands/Questions

Front 11

Hearsay Exemptions

Back 11

Party Admission
Prior Inconsistent Statement Under Oath
Prior Consistent statement before charge of fabrication/bias
Prior ID by the declarant

Front 12

Party Admission--types (4)

Back 12

Party
Vicarious
Silence
Co-conspirator in furtherance

Front 13

Hearsay Exceptions--Unavailability required (4)

Back 13

Dying Declarations
Former testimony (similar opp/motive)
Statement against interest
Family History

Front 14

Hearsay Exceptions--Availability immaterial (non-documentary; 4)

Back 14

Excited Utterance

Present sense impression

Then existing state of mind or physical condition

Statements made for medical treatment or diagnosis

Front 15

Hearsay Exceptions--Availability immaterial (documentary & misc; 7)

Back 15

Business Records
Public Records
Learned Treatise
Recorded Recollections (PWAFAI)
Criminal Convictions directly relevant
Ancient Docs
Federal Catch-all

Front 16

Privilege Inquiry

Back 16

Privileged Relationship? (Marital/Spousal--confidentiality/testimonial priv)

Confidential Communication?

Holder of Privilege? Waived?

Exceptions

Front 17

Objections to Form

Back 17

NULAACS

Front 18

Prop 8

Back 18

You MUST mention Prop 8. This makes ALL relevant evidence admissible in a criminal case, even if objectionable under the CEC.

The constitution overrules the CEC.

Front 19

Exceptions to Prop 8 (6)

Back 19

1. Exclusionary Rules under the US Constitution
2. Hearsay
3. Privilege
4. Limits on character evidence to prove D AND V conduct
5. Secondary Evidence Rule (like BER)
6. CEC 352 (CEC 403 equivalent)

Front 20

What do you need to address is EVERY question?

Back 20

Relevance dude, relevance.

Front 21

Logical Relevance Defined

Back 21

Evidence is 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 without the evidence.

Front 22

Relevance vs. Probative Value

Back 22

Relevance is yes or no

Probative value is a question of degree

Front 23

California, additional relevance requirement

Back 23

To be relevant, the fact must also be in dispute

Front 24

Legal Relevance

Back 24

1. meets 403/ CEC 352 balancing

2. Extrinsic policy considerations

Front 25

Relevant Evidence is admissible any of the following provides otherwise (4)

Back 25

The United States Constitution;

a federal statute;

these rules; or

other rules prescribed by the Supreme Court.

Front 26

Discretion to Exclude Relevant Evidence

Back 26

If probative value is substantially outwighted by unfair prejudice, confusion, undue delay/waste of time.

403/CEC 352

Front 27

Unfair Prejudice

Back 27

1. Emotionally disturbing
2. Criminal Record
3. Admissible for one purpose but not another (e.g. impeachment/character)
4. NOT surprise (could only get a continuance for this)

Front 28

Evidence of Liability Insurance

Back 28

Inadmissible to prove culpable conduct like negligence OR D’s ability to pay a judgment.

Limitations: It is admissible to prove anything else! e.g. control, scope of employment.

Front 29

Evidence of Subsequent Remedial Measures (FRE)

CA

Back 29

Not allowed to show culpability or product defect (not CA distinction-->admissible to show product defect)

Allowed to show anything else, like control.

Admissible to show feasibility of repair

Not applicable to prior remedial measures

Front 30

Evidence of Subsequent Remedial Measures (CA)

Back 30

Only inadmissible to prove negligence, NOT product defects in strict liability cases→ can admit in product case.

Front 31

Settlements and Offers to Settle (2 exceptions and 1 CA rule)

Back 31

In a civil case, evidence of settlements, offers to settle, AND related statements are inadmissible to prove liability or fault.

Exception: where no threat of litigation

Exception: if no dispute over liability or damages

CA: Discussions during mediation proceedings are also inadmissible.

Front 32

Discussions during mediation Proceedings

Back 32

Only specifically inadmissible in CA

Front 33

Guilty Pleas Later Withdrawn (FRE and CA)

Back 33

In a criminal case, pleas later withdrawn, offers to plea AND related statements are inadmissible to prove guilt.

This includes not just guilty pleas, but also nolo contendere.

Effect of Prop 8? Not clear, but could apply. Court could still exclude under 352.

Front 34

Payment or offers to pay medical expenses (FRE)

Back 34

Inadmissible when offered to prove liability for the injuries in question.

BUT related statements ARE admissible.

Front 35

Payment or offers to pay medical expenses (CA)

Back 35

Inadmissible when offered to prove liability for the injuries in question.

AND related statements ARE ALSO inadmissible.

Front 36

Big difference b/w offers to settle and offers to pay med expenses

Back 36

admissibility of related statements

Front 37

Expressions of Sympathy

CA

Back 37

CA ONLY

CA makes inadmissible in civil actions expressions of sympathy relating to suffering or death of an accident victim.

BUT statements of fault made in connection with such an expression are not excluded.

Front 38

Evidence of Similar Occurrence

Back 38

Not necessarily relevant, but can be (see individual slides, or p. 3)

Front 39

Similar Occurrences to prove causation

Back 39

e.g. everyone gets food poisoning

But can’t be too attenuated. Must be quite similar

Front 40

Evidence of Prior accidents (rule and 2 exceptions)

Back 40

Usually Irrelevant, Except:

1. To prove pattern of false claims

2. To prove preexisting condition (and disprove causation/damages)

Front 41

Previous similar acts to prove intent

Back 41

Unbroken string of prior acts is relevant.

e.g. long history of employment discrim

Front 42

Evidence of Habit or Routine Practice

Back 42

Admissible, but must distingusih from inadmissible character evidence, which says something general about a person, and conveys moral judgment about the person.

High bar for showing habit

Can also use to show conduct in conformity with routine business practice

Front 43

Industrial Custom

Back 43

Relevant to prove standard of care in negligence.

Front 44

Character Evidence Approach

Back 44

1. What purpose is the evidence being offered for?
2. What method or technique (O/R/S)
3. Civil or Criminal
4. does it prove a pertinent character trait?

Front 45

What are valid purposes for character evidence?

Back 45

1. Character is an issue in the case

2. 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 the witness.

Front 46

Character Evidence in Civil Case (Rule and Exceptions)

Back 46

Inadmissible to Prove Conduct

Exception: admissible where character is itself an issue in the case

FRE ONLY: where civil claim is based on sexual assault or child molestation.

Front 47

Civil Suits where character is itself an issue in the case

Back 47

1. Negligent entrustment
2. Defamation
3. Custody
4. Wrongful death/loss of consortion

Front 48

If Character evidence is admissible in a civil case, you can...

Back 48

Use any form: O/R/S

Front 49

Big Federal/California distinction re: character evidence in Cil case.

Back 49

FRE: Where civil claim is based on sexual assault or child molestation. In such a case, prior sexual assault/molestation are admissible to prove conduct, NO MATTER who offers it.

CA: No such exception

Front 50

Crim case: P enters evidence of previous sexual misconduct (CA distinction)

Ca broader or narrower?

Back 50

FRE: Sexual assault or child molestation case, prosecution can offer previous acts as evidence of conduct.

CA has broader version: also includes past evidence of domestic violence and elder abuse in cases about that

Front 51

Where court has admitted evidence of the victim’s character offered by the D...

(CA distinction)

Back 51

Prosecution can offer evidence that D has the SAME character trait.

Narrower CA version: Where court has admitted evidence of V’s character for VIOLENCE offered by the D, prosecution may offer evidence that accused has violent character.

Front 52

Crim case:

D can open the character door to show...

P can then...

Back 52

a PERTINENT character trait

P can then offer pertinent character evidence to rebut because defendant opened the door.

Front 53

Limitations on the form of Character evidence in a criminal case

Big CA distinction

Back 53

Direct Examination: R/O evidence are admissible by any party; Specific Instances not allowed

On Cross Examination→ Any party can show opinion/reputation/specific evidence.

CA: does not allow specific instances, even on cross.

Front 54

Admissibility of Evidence of V's character

Back 54

Most of the same rules aply

Prop 8 does not affect

Front 55

2 ways to Open the door to evidence of V's character

CA distinction

Back 55

Fed & CA: If D introduces V’s character, prosecution can rebut.

Fed only: In a homicide case only, if D argues that victim attacked first, prosecution can show victim’s character for peacefulness

Front 56

Crim case:

D can open the character door to show...

P can then...

Back 56

a PERTINENT character trait

P can then offer pertinent character evidence to rebut because defendant opened the door.

Front 57

If D introduces evidence of V’s character...

CA

Back 57

P can introduce evidence of D’s same character trait. But not other character traits.

CA limits this to showings of V/D’s character for violence.

Front 58

Limitations on the form of Character evidence in a criminal case

Big CA distinction

Back 58

Direct Examination: R/O evidence are admissible by any party; Specific Instances not allowed

On Cross Examination→ Any party can show opinion/reputation/specific evidence.

CA: does not allow specific instances, even on cross.

Front 59

Form of Evidence re: victim's character in a crim case

Big CA distinction

Back 59

Fed: Same Direct/Cross Examinations limitations apply.

CA: R/O/S are permitted on both direct and cross (compare to character evidence of D→ specific instances never allowed).

Front 60

Admissibility of Evidence of V's character

Back 60

Most of the same rules aply

Prop 8 does not affect

Front 61

Specific Instances re: character in CA

Back 61

Never allowed re: D

Always allowed re: V (assuming character evidence is allowed at all)

Front 62

2 ways to Open the door to evidence of V's character

CA distinction

Back 62

Fed & CA: If D introduces V’s character, prosecution can rebut.

Fed only: In a homicide case only, if D argues that victim attacked first, prosecution can show victim’s character for peacefulness

Front 63

Character evidence rules only apply if....

Back 63

the evidence is actually being introduced to show character

Front 64

If D introduces evidence of V’s character...

CA

Back 64

P can introduce evidence of D’s same character trait. But not other character traits.

CA limits this to showings of V/D’s character for violence.

Front 65

Rape Shield (Criminal)

Back 65

Reputation and opinion evidence is inadmissible.

Specific instances of alleged victim’s conduct is admissible ONLY to prove i) 3rd party is source of semen or injury; ii) prior acts of consensual intercourse b/e defendant and alleged victim.

Front 66

Rape Shield (Civil)

Back 66

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

NOTE the high burden for admissibility: Probative value must substantially outweigh....(reverse 403)

Front 67

Form of Evidence re: victim's character in a crim case

Big CA distinction

Back 67

Fed: Same Direct/Cross Examinations limitations apply.

CA: R/O/S are permitted on both direct and cross (compare to character evidence of D→ specific instances never allowed).

Front 68

Specific Instances re: character in CA

Back 68

Never allowed re: D

Always allowed re: V (assuming character evidence is allowed at all)

Front 69

Character evidence rules only apply if....

Back 69

the evidence is actually being introduced to show character

Front 70

Rape Shield (Criminal)

Back 70

Reputation and opinion evidence is inadmissible.

Specific instances of alleged victim’s conduct is admissible ONLY to prove i) 3rd party is source of semen or injury; ii) prior acts of consensual intercourse b/e defendant and alleged victim.

Front 71

Rape Shield (Civil)

Back 71

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

NOTE the high burden for admissibility: Probative value must substantially outweigh....(reverse 403)

Front 72

Specific Instances of D's bad conduct

Back 72

Inadmissible to show character

Admissible to show MIMIC

Touchdown problem: court always has discretion to exclude under 403/352

Front 73

Competency: who can testify (4 + 1 CA requirement)

Back 73

1. PK
2. Present Recollection
3. Ability to communicate (interpreter ok)
4. Sincerity (oath or affirmation)

CA: must also understand legal duty to tell truth

Front 74

Personal Knowledge requirement

Back 74

Does the fact testified to = the fact she perceived?

Perception need not be perfect

Front 75

Competency is determined by:

Back 75

The judge.

And judge has discretion to decide whether jury should hear preliminary determination hearings

Front 76

All witnesses are presumed competent except:

Back 76

Judge and Jury

Competent even if: atheist, young child, perjurer/insane person,

Front 77

Hypnosis to refresh?

Back 77

Allowed under FRE

CA: Hypnosis not allowed except, in a criminal case, witness was hypnotized by the police using procedures that protect against suggestions

Front 78

If Answer is Unresponsive

CA distinction

Back 78

move to strike the parts that go beyond the answer (only examining counsel)

Court may allow if it is relevant to an issue in the action and not otherwise barred.

CEC: motion to strike nonresponsive answer may be made by counsel for any party

Front 79

Leading Questions

Back 79

Not Allowed on Direct
Allowed on cross
OK on direct IF 1) adverse witness; 2) hostile witness; 3) witness needs help

Front 80

Witness's use of documents during testimony..watchout for...

Back 80

hearsay issues

Front 81

Refreshing recollection

Back 81

Anything can be used to refresh recollection, BUT the opponent may inspect and offer into evidence anything used to refresh.

Witness MUST claim she remembers--present recollection!

Front 82

Recorded recollection exception to hearsay rule

Back 82

PWAFAI

1. Personal Knowledge
2. Doc was made by the W or Adopted by him
3. When Fresh in memory
4. Accurate
5. Insufficient recollection to recall now

Front 83

Opinion Testimony

Back 83

Normally inadmissible, Except
1. Rationally based and helpful opinion testimony
2. Expert testimony

Front 84

Lay Opinion

Back 84

Admissible if rationally based on the W’s perceptions and helpful to the trier of fact.

Rationally based: has logical connection b/w perception and opinion

Helpful: gives more info to jury than just describing perception

Can’t be based on scientific or other specialized knowledge.

Front 85

Lay opinion generally allowed for:

Back 85

Speed of auto
sanity
intoxication
emotions
value of witness’ property

Handwriting/Voice ONLY IF they've seen the handwriting/heard the voice

Front 86

Expert Testimony Requirements (5)

Back 86

Humble Questions Create Badass Products

1. Helpful
2. Qualified
3. reasonably Certain
4. Factually based
5. Based on reliable Principles (see std.)

Front 87

Expert Qualification Requirement

Back 87

1. You CAN be qualified based on experienced. Don’t need credential. Just need some basis of specialized knowledge.
2. If opponent wants to challenge qualifications, can introduce extrinsic evidence to the judge for a determination.

Front 88

Proper Factual Basis for Expert Testimony

Back 88

1. Personal knowledge
2. Admitted evidence
3. Inadmissible evidence reasonably relied upon.

Front 89

Standard for reliable Principles for Expert Testimony (FRE)

Back 89

Daubert Standard (PTER)

a. Peer reviewed and published;
b. Tested and is subject to retesting;
c. Low Error rate
d. Reasonable level of acceptance

Front 90

Standard for reliable Principles for Expert Testimony (CA)

Back 90

General Acceptance Standard: The opinion must be based on principles generally accepted in the field

Not affected by Prop 8 b/c this goes to relevance.

Front 91

Learned Treatise Exception to Hearsay (CA distinction)

Back 91

A learned treatise is admissible to prove anything stated therein if it an accepted authority in the field.

CA: Only admissible to show matters of general notoriety or interest, meaning this exception is very narrow and almost never applicable.

Front 92

Evidence to support W credibility

Prior Consistent statements

Back 92

Inadmissible unless credibility is attacked first

Timing of consistent statement is crucial: Prior consistent statement is not hearsay and is admissible for all purposes if made before bribe or inconsistent statement. Otherwise, it is inadmissible for any purpose.

Front 93

3 step impeachment inquiry

Back 93

Is source of impeachment extrinsic evidence, or is it testimony at this proceeding of witness being impeached

2. If extrinsic, is it admissible given the impeachment technique

3. Any other foundation requirements

Front 94

Impeachment by Contradiction

Back 94

Extrinsic evidence is inadmissible to contradict a witness on a COLLATERAL matter→not material to issues in current case that says nothing about the witness’ credibility other than to contradict the witness.

Front 95

Impeachment by PIS of a W now testifying. (Big CA exception)

Back 95

Declarant MUST be available

IF PIS was under oath --> can use to impeach or substantively

If PIS was not under oath--> can only use to impeach, subject to 403. Otherwise, inadmissible hearsay

CA: Hearsay if ADMISSIBLE to prove truth, but admissible under exception, which extends to ALL inconsistent statements, whether or not under oath. BIG Exception.**

Front 96

Impeachment with Evidence of Bias, Interests, Motive (2)

Back 96

You can introduce evidence of bias/interest/motive to impeach

Extrinsic evidence is admissible only if witness given opportunity to explain or deny. (Foundation Requirement).

Front 97

PIS Foundation requirement and extrinsic evidence

Back 97

Extrinsic evidence of PIS is admissible only if witness is given opportunity to deny or explain PIS

Extrinsic not admissible on a collateral matter

Front 98

Impeachment with Conviction for Crime involving False Statement (FRE)

Back 98

MUST admit All convictions (felonies AND misdemeanors) for crimes of false statements (e.g. perjury, fraud, forgery).

NO discretion or balancing of unfair prejudice against probative value

If 10 years old or more --> only admit if their probative value outweighs risk of unfair prejudice (reverse 403)

Front 99

Impeachment with FELONY Conviction for Crime involving Moral Turpitude (CA)

Back 99

CEC: All felonies involving moral turpitude are admissible BUT court must balance

Moral Turpitude = crimes of lying, violence, theft, extreme recklessness, and sexual misconduct, but NOT crimes for merely negligent or unintentional acts.

Front 100

Impeachment of a W with MISDEMEANOR convictions involving moral turpitude (CA)

Back 100

CEC makes misdemeanor convictions inadmissible to impeach.

BUT under PROP 8: misdemeanors can be admitted in a CRIMINAL case if involving a crime of moral turpitude, subject to balancing.

CIVIL case: CEC controls; misdemeanor impeachment inadmissible

Front 101

Impeachment with evidence of conviction for a crime NOT involving false statements (FRE)

Back 101

Felonies ONLY that do not involve false statements (e.g. murder, robbery, rape) may be admissible to impeach but court MAY exclude for unfair prejudice.

Misdemeanors that do not involve false statements are inadmissible to impeach.

Front 102

Impeachment with evidence of conviction for a crime NOT involving moral turpitude (CA)

Back 102

Felonies NOT involving moral turpitude are inadmissible in California.

Prop 8 does not make these admissible because crimes not involving moral turpitude are not relevant for impeachment.

Front 103

Extrinsic evidence re: impeachment with criminal convctions

Back 103

If conviction is otherwise admissible under above rules, the conviction may be proved with extrinsic evidence

Front 104

Balancing Standards for Impeachment convictions more than 10 years old (CA distinction)

Back 104

FRE: inadmissible unless probative value outweighs unfair prejudice (higher standard than 403)

CEC: normal balancing

Front 105

Impeachment with Non-Conviction misconduct evidence bearing on Truthfulness (FRE)

Extrinsic Evidence?

Back 105

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.

No extrinsic evidence

Front 106

Impeachment with Non-Conviction misconduct evidence bearing on Truthfulness (CA)

Extrinsic evidence allowed?

Back 106

Inadmissible under CEC but Prop 8 makes it admissible in CRIMINAL cases if relevant; to be relevant, the misconduct must be an act of moral turpitude;

Both cross exam AND extrinsic evidence permitted, subject to balancing.

Front 107

Impeachment with Reputation and Opinion Regarding Truthfulness--extrinsic allowed?

Back 107

Extrinsic Evidence is admissible (e.g. reputation evidence)

Front 108

Definition of Hearsay

Back 108

An out of court statement offered to prove the truth of the matter asserted in that statement.

Front 109

Hearsay Exemption Terminology (CA distinction)

Back 109

CA calls them all exceptions, not exemptions

Front 110

If only part of a hearsay statement is admissible...

Back 110

redact the bad part

Front 111

Admission by Silence (3)

Back 111

Party must have heard and understood the statement;

Must have been physically and mentally capable of denying the statement; and

A reasonable person would have denied the accusation under the same circumstances.

Front 112

Party Admissions and the personal knowledge requirement

Back 112

NOT subject to PK requirement

Front 113

Vicarious party admission

Back 113

1. Authorized spokesperson of party or
2. employee of party concerning matter within the scope of employment and made during employment relationship.

Front 114

Adoptive admissions

Back 114

Nonparty makes statement and party indicates belief in its truth

Front 115

Co-conspirator statement

Back 115

NOT hearsay if made during course and in furtherance of conspiracy

Front 116

CA Rule on Vicarious Party admissions

Back 116

Statement by employee is vicarious party admission of employer only where THAT employee’s negligence is the basis for employer’s liability under respondeat superior.

Front 117

Witness’s Prior Consistent statement offered to rebut a charge of recent fabrication or improper influence or motive

Back 117

FED & CA: Admissible if made before bribe or inconsistent statement. FRE calls it an exemption.

CA: This is hearsay within an exception

Front 118

Declarant Unavailable Requirements (FRE

Back 118

1. Privilege
2. Dead or Sick
3. Absent: proponent cannot procure D’s attendance by process or other reasonable means.
4. Refuses to testify despite court order (FRE only)
5. Memory Fails (FRE only)

Front 119

CA Witness Unavailability Requirements

Back 119

1. Privilege
2. Dead or Sick
3. Absent:
4. D suffers TOTAL memory loss or refuses out of fear (compare to FRE)

Front 120

Former Testimony Exception (CA distinctions)

Back 120

Declarant must be unavailable AND it is being offered AGAINST the person who offered on her own behalf in the earlier proceeding, or against successor in interest of such person

FRE & CA: opponent had similar opportunity AND motive; OR

FRE Civil case: D had a privity-type relationship with someone who had opportunity/motive

CA broader version: Civil case, someone ELSE had opportunity/motive to examine the W. Need Not be privity/predessecor; just needs to be someone in similar position.

Front 121

Former Testimony Exception and Grand Jury testimony

Back 121

Prior testimony in a grand jury proceeding is not allowed (b/c no similar motive/opportunity)

Front 122

Declaration against interest (2)

(CA Distinction)

Back 122

Admissible if, at time it was made, it was against the FINANCIAL interest of declarant or would have subjected declarant to CRIMINAL liability.

Must not have had motive to misrepresent the statement, and must have been aware the statement was made

Fed only: If the statement is offered to exculpate the accused (i.e. by showing someone else confessed to the crime), there must be corroborating evidence to admit the statement.

CA Broader: Exception includes statements against social interest because it risks making declarant an object of “hatred, ridicule, or social disgrace in the community.”

Front 123

Declaration against interest timing requirement

Back 123

Must be against interest WHEN MADE

Front 124

Dying Declaration

CA

Back 124

Civil and Homicide Only (CA always for civil and crim)

Must be made in belief of impending death

Must describe the circumstances or cause leading to death

No death necessary (CA requires death)

Must be unavailable

Front 125

Dying Declaration--CA distinctions

Back 125

CA: Applies in all civil and criminal cases and D must actually be dead.

Front 126

Excited Utterance Exception

Back 126

Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement cause by event or condition.

Front 127

Present Sense Impression Exception

Back 127

Hearsay statement is admissible if describing an event or condition made while declarant was perceiving the event or condition or immediately thereafter.

Need not be excited, but must be a statement made SIMULTANEOUS to occurrence described.

Front 128

Then Existing Physical or Mental Condition

Back 128

Admissible to show that state of mind (e.g., intent in Hillmon)

But a statement describing a memory or belief is not admissible to prove the fact remembered or believed.

Front 129

Statement of past or present mental or physical condition made for medical diagnosis or treatment (FRE)

Back 129

Hearsay statement made by one person concerning the past or present mental or physical condition, or its cause, of that person OR ANY OTHER PERSON, is admissible if made for and pertinent to medical diagnosis.

Front 130

California's version of the medical diagnosis exception

CA

Back 130

CA is narrower: Statement of past or present mental or physical condition is admissible if made for medical diagnosis or treatment, BUT ONLY IF declarant is a minor describing an act of child abuse or neglect.

Front 131

CA ONLY hearsay exception: Declarant's past physical or mental condition

Back 131

A statement of declarant’s past physical or mental condition, including a statement of intention, is admissible to prove that condition if it an issue in the case.

No requirement that statement be made for medical purposes.

Declarant must be unavailable.

Front 132

Business Records Exception (5)

CA distinction

Back 132

REKTKR

1. Record of Events, conditions, opinions, or diagnoses
2. Kept in the course of regularly conducted business activity
3. Made at or near Time of matters described
4. By a person with Knowledge of the facts in that record
5. It was Regular practice of business to make such record.

CA: does not include opinion or diagnoses, but courts will still admit them if they are simple. (e.g. broken leg but not PTSD)

Front 133

Business records prepared in anticipation of litigation

Back 133

Not admissible

Front 134

Trial court discretion re: business records

Back 134

Can exclude any business record if the source of information or other circumstances indicate the record lacks trustworthiness.

Front 135

Public Records Exception (California distinctions

CA

Back 135

Needs to be in ONE of these categories:

1. Record describes Activities and policies of the office

2. Record describes matters observed pursuant to Duty imposed by law --> BUT NOT police reports in crim cases.

3. Record contains factual findings resulting from Investigation made pursuant to authority granted by law --> BUT criminal case, prosecution cannot use (CA does not have this restriction, but remember CC)

Front 136

Major limitations on Public records exception

Back 136

No police reports against D in crim cases

No use of investigation findings against D by prosecutor (FRE)

Only covers layers of hearsay created by public servants→so witness statements in public record is no good.

Front 137

CA Public records exception

Back 137

Record made by a public employee is admissible if:

1. making record was within scope of her duties,

2. record was made at or near time of the matters described, and

3. circumstances indicate trustworthiness

NOTE: A certified copy of a judgment of conviction is admissible under the CA PUBLIC RECORDS EXCEPTION in both criminal and civil cases.

Front 138

Judgment of Previous Felony Conviction (2- FRE)

Back 138

1. Hearsay statement describing a felony conviction is admissible in both criminal and civil cases to prove any fact essential to judgment.

2. But when offered by prosecution to prove anything other than impeachment, judgments against persons other than the accused are inadmissible.

Front 139

Judgment of Previous Felony Conviction Exception in CA

Back 139

The felony conviction exception applies only in civil cases. Prop 8 does not change this.

BUT prop 8 permits the prosecutor or defendant to impeach a witness using a criminal conviction (felony or misdemeanor) if it involves moral turpitude.

AND certified copies of convictions can come into crim and civil cases through the public records exception.

Front 140

Catch All exception

Back 140

Must be better than any other available evidence, and have circumstantial guarantees of trustworthiness

Front 141

Confrontation Clause

Back 141

CC excludes an out-of-court statement against a criminal defendant if declarant:

1. does not testify at trial,
2. is now unavailable,
3. the statement is testimonial, and
4. D had no chance to cross examine declarant about the statement when it was made.

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What's Testimonial

Back 142

Includes:
1. statements made in court;
2. statements made to further a police investigation aimed at producing evidence for the prosecution.

4. NOT any statement made to police during an ongoing emergency-->can be admitted over CC protest

Front 143

Authentication (Defined)

Back 143

Every item of non-testimonial evidence (e.g. writings, photos, guns) must be authenticated.

This means you're proving it is what you say it is.

Front 144

Authentication (Standard)

Back 144

Low standard: sufficient to sustain a finding

Front 145

How to authenticate a signature?

Back 145

1. Admission—put D on stand: is this your signature?
2. Eyewitness testimony
3. Expert opinion – handwriting expert
4. Lay opinion – witness has seen D’s signature before
5. Circumstantial evidence
6. A genuine exemplar

Front 146

Ancient Docs Rule (CA distinction)

Back 146

The authenticity of a document is established if (i) it’s 20 years old or more; (ii) does not on its face present any irregularities, (iii) was found in a place of natural custody (where you’d expect it to be found).

CA: need to be 30 years

Front 147

Self-authenticating writings (7)

Back 147

Certified copies of:
1. Public Docs
2. Notarized docs
3. Official publications
4. Newspapers
5. Periodicals
6. Business records (fed only)
7. Trade instriptions (fed only)

Front 148

Photos

Back 148

Often a PK problem

But, e.g., can say it was a "fair and accurate depiction of what the intersection looked like”

Front 149

Authentication of non-unique items

Back 149

Proponent must lay chain of custody demonstrating that this is the specific item proponent claims it is.

Small break-->still admissible

Big break --> inadmissible

Front 150

Best Evidence Rule/Secondary Evidence Rule --> When does it apply?

Back 150

only where evidence is offered to prove the contents of a writing.

And the writing must not be collateral to the matter in controversy.

Writings = not only documents but also videos, photos, x-rays, audio recordings, computer disks, or any tangible collection of data.

Front 151

Best Evidence Rule/Secondary Evidence Rule --> What does it require

Back 151

rule requires use of the original, but with many exceptions

Front 152

When is evidence being offered to prove the contents of a writing? (2)

Back 152

1. Case turns on content of written instrument (e.g. contracts, wills, etc.)

2. Knowledge obtained from writing.

Front 153

Voluminous Documents exception to...

Back 153

An exception to BER

Documents can be summarized if originals available for inspection.

Front 154

If Best Evidence Rule applies, what type of evidence is admissible to prove the contents of the writing?

CA distinction

Back 154

1. Originals

2. Duplicates, EXCEPT when there is a genuine question as to the authenticity of the original.

3. Testimony regarding the contents of the writing may be admissible where original lost or destroyed, unless bad faith by proponent.

4. CA allows duplicates and handwritten notes re: the contents of the original

Front 155

Common Law Privileges

Back 155

atty:client,
spousal,
pysch-patient;
social worker-client.
NOT doctor-patient

Front 156

Privileges in a Diversity case

Back 156

state privilege laws apply in fed court.

Front 157

Attorney Client Privilege

Back 157

1. Any communication b/w L-C intended to be confidential and made to facilitate legal services, unless waived.

2. Includes any communication with atty representative, like a doctor he sends you to.

Front 158

Atty-Client Privilege and corporate clients

Back 158

FRE: Corp EE communications are privileged, if EE authorized to communicate on behalf of corp. Not if mere witness.

CA: privilege applies to communications from EE/agent if she is the natural person to speak to the lawyer on behalf of the corp in the matter, or EE/agent did something for which the corporation may be held liable, and the corporation instructed her to tell its lawyer what happened. Practically, it’s the same as FRE.

Front 159

Confidentiality requirement re: atty client privilege

Back 159

Communication must be intended by client to be confidential

Overheard conversation at a party aren’t privileged

But wiretapped phone conversation is.

Front 160

3 exceptions to attorney client privilege

Back 160

1. professional services were sought to further what client knew or should have known to be a crime or fraud

2. Relates to alleged breach of duty between lawyer and client.

3. Two or more parties consult an atty on a matter of common interest and the communication is offered by on of these parties against another

Front 161

CA only exception to attorney client privilege

Back 161

Privilege does not apply where lawyer reasonably believes disclosure of communication is necessary to prevent crime that is likely to result in death or substantial bodily harm (but apply the PR rules)

Front 162

Pyschotherapist-Patient & Social Worker – Client Privilege

CA distinction

Back 162

privileged, if intended to be confidential and made to facilitate rendition of profl services, unless waived. Same basic privilege as Atty-Client.

CA Only: psychotherapist does not apply if psychotherapist has reasonable cause to believe that the patient is in danger to himself or others, and that disclosure is necessary to end the danger.

Front 163

Doctor-Patient Privilege

CA

Back 163

CA only (or through diversity)

Any statement made confidentially, for the purposes of diagnosis or treatment

Front 164

Exceptions to Doctor Patient Privilege

CA

Back 164

1. Patient puts physical condition at issue (e.g. 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 from physician-patient relationship, as in medical malpractice action.

4. CA Only: does NOT recognize the privilege in ANY criminal case, or in any instance wher doctor is requirted to report to a public office

Front 165

Spousal testimonial privilege (4)

CA distinction

Back 165

Permits witness to refuse to testify against his/her spouse as to anything.

Applies only in criminal case

Witness owns the privilege

Must be married at time of trial

CA: Applies in civil and criminal cases, and spouse of party is privileged not even to be called to the witness stand.

Front 166

Spousal Confidential Communication

Back 166

Applies at time of statement

Must have been confidential when said

Both H&W own the privilege

Front 167

Requirements for both Spousal Privileges

Back 167

1. Must be a legally valid marriage
2. Neither privilege applies in a civil action between spouses or in a criminal prosecution where one spouse is charged with a crime against the other spouse or their kids.

Front 168

Other CA Privileges

Back 168

i. Counselor-Sex Abuse victim or DV victim.
ii. Penitent and Clergy
iii. Immunity for court reporter who refuses to disclose sources

Front 169

Facts appropriate for Judicial Notice

Back 169

Court can take JN of facts not subject to reasonable dispute IF:

(i) generally known within the jurisdiction, or

(ii) capable of accurate and ready determination by resort to resources whose accuracy cannot be reasonably questioned.

Front 170

Procedure for taking JN

CA distinction

Back 170

Party must request judicial notice to compel it. If not requested, court has discretion to take notice

CA: whether requested or not, court must take judicial notice of matters generally known within the jurisdiction.

Front 171

Civil vs. Criminal re: Judicial Notice

CA distinction

Back 171

Civil: Jury MUST take noticed fact as conclusice

Crim: Jury MAY accept it

CA: Jury MUST accept for both crim and civil

Front 172

Present Sense Impression (CA)

Back 172

CA has no present sense impression exception to hearsay

But allows for contemporanous statement that the declarant makes to explain or quantify something the declarant is doing at the time statement is made.

Front 173

Bolstering

CA distinction

Back 173

FRE: Can't bolster witness veracity unless first attacked

Prop 8: both prosecutor and defendant can bolster before attack