Mbe Evid 1 2007

Front 1

Multiple choice evidence tricks

Back 1

Almost always wrong
1) Inadmissible because not the best evidence
2) Inadmissible because dead man’s statute.
3) Inadmissible because self serving, prejudicial
4) Statement is part of the res gestae
5) TV Objections

Front 2

California Truth in Evidence (generally)

Back 2

Applies in criminal case where evidence would be excluded. Except for hearsay, privilege, or CEC 352. Makes all relevant evidence in criminal case admissible, not withstanding cal evidence code.

Front 3

Logical relevance requires

Back 3

Always start evidence analysis with relevance.
1) Evidence is logically relevant if it has any tendency to make more or less probable the existence of any fact of consequence to the determination of the action
(a) California requires that the fact of consequence be in dispute.
2) Thus, i.e., evidence of parties subjective intent irrelevant to breach of K case.

Front 4

Legal relevance requires

Back 4

1) Assuming evidence is logically relevant, court may exclude evidence if probative value outweighed by unfair prejudice, confusion, waste of time.
(a) Note Surprise is not enough prejudice to exclude evidence
2) Balancing test.

Front 5

Evidence of liability insurance

Back 5

1) Liability insurance is inadmissible to prove
(a) liability
(b) or ability to pay.
2) Evidence of insurance admissible for all other purposes.

Front 6

4 types of otherwise relevant evidence excluded for policy reasons

Back 6

1) Evidence of liability insurance
2) Subsequent remedial measures
3) Settlements offers to settle & pleas
4) Payment or offer to pay medical expenses

Front 7

Subsequent remedial measures

Back 7

1) Subsequent remedial measures are inadmissible to prove culpable conduct or, under FRE, defects in products liability case.
2) Subsequent remedial measures admissible for all other purposes. I.e., custody & control, impossibility.
3) In products liability, to prove defective design, evidence of subsequent remedial measures inadmissible under FRE, admissible under CRE. CRE provides only that subsequent remedial measures inadmissible to prove culpable conduct, and in strict liability culpability not an issue.

Front 8

Settlements, offers to settle & pleas

Back 8

1) In civil case settlements, offers to settle and related statements are inadmissible to show liability or fault
2) In criminal case, pleas & offers to plea and related statements are inadmissible to prove guilt. Includes nolo pleas.
3) Exceptions
(a) Statements made before any claim was asserted or litigation anticipated. I.e. at car accident, driver, “all my fault. Let’s settle.”
(b) D on promissory note doesn’t dispute the debt amount, but offers lowball settlement offer. Admissible to show debt is valid.

Front 9

Evidence of payment or offer to pay medical expenses

Back 9

1) Evidence of payment or offer to pay medical expenses inadmissible to prove liability for the injuries in question. CRE also makes inadmissible statements of facts made in the course payment or offer to pay medical expenses.

Front 10

Evidence re similar occurrences defined

Back 10

1) Similar occurrences is evidence about persons or events other than those at issue.
(a) Similar occurrences is a more complicated “relevance” analysis. Similar occurrences is not exactly about the events in question.

Front 11

Similar occurrences evidence to prove causation.

Back 11

1) Similar occurrences evidence is sometimes admissible to prove causation.
(a) I.e. effect of D’s blasting on neighbor’s houses to prove causation as to plaintiff’s damages suffered.

Front 12

Similar occurrences evidence: prior accidents or claims

Back 12

1) Prior accidents or claims usually inadmissible. I.e. to show D is negligent.
(a) Exception for pattern of fraudulent claims.
(b) Exception for preexisting condition. Plaintiff has previously claimed the same injury asserted here.

Front 13

Similar occurrences evidence: Previous similar acts admissible to prove intent?

Back 13

Previous similar acts are admissible to prove intent. I.e. plaintiff claims gender discrimination may admit prior instances where qualified female not hired. Similar occurrences admissible to show intent.

Front 14

Similar occurrences evidence: Defense of impossibility

Back 14

Similar occurrences evidence admissible to show or rebut impossibility.

Front 15

Similar occurrences evidence: comparable sales

Back 15

Similar occurrences evidence of comparable sales admissible.

Front 16

Similar occurrences evidence: habit

Back 16

1) Evidence of habit admissible, but distinguish evidence of character, generally inadmissible. Habit of a person to act in a certain way is admissible to show conduct in accordance w the habit on the occasion in question
2) Character evidence says something general about a person and makes a moral judgment.
3) Habit refers to specific conduct in a specific situation w/out a moral judgment.

Front 17

Similar occurrences evidence: routine practice

Back 17

1) Routine business practice is admissible to show that conduct of an entity was in conformity with that practice on the occasion in Q

Front 18

Similar occurrences evidence: industrial custom

Back 18

1) Industrial custom evidence admissible to prove stnd of care.

Front 19

CHARACTER EVIDENCE 4 QUESTIONS

Back 19

1) What is the purpose for which the character evidence is offered?
(a) Because character is an issue in the case
(b) Character evidence offered to prove character as circumstantial evidence of a person’s conduct
(c) Character evidence as impeachment
2) What method or technique is used to prove character
(a) Specific acts of conduct
(b) Opinion
(c) Reputation
3) Civil or criminal case?
4) Does the evidence prove a pertinent trait of character?

Front 20

Character evidence in civil case.

Back 20

1) Inadmissible to prove conduct, except under FRE, where claim of sexual assault or child abuse.

Front 21

Character evidence to prove character

Back 21

1) Character evidence to prove character, not conduct, admissible where character is in issue. I.e. defamation. OR parent’s negligence in letting kid w character of reckless driver, drive.
2) What methods to prove character?
(a) If character in issue, all methods permissible.

Front 22

Character evidence in criminal case
Character of D

Back 22

In criminal case, Q is whether character evidence is admissible to prove conduct?
1) Character of D
(a) Prosecution can’t be first to offer character evidence
(b) Except. Sexual assault or child abuse.
(c) FRC: Except if evidence admitted re character of accused, prosecution may show same character of D
(d) CRC: Except for DV, prosecution may show prior acts.
(e) D MAY admit evidence of character for the purpose of proving conduct. IF D opens the door, prosecution may admit evidence to rebut. Only pertinent traits.
1. Method of proof: On direct, reputation & opinion. NOT specific instances.
2. on cross, FRC allow specific instances. CRE does not.
3. NOTE on direct, can’t call witness to testify about specific instances: NOT he beat you, didn’t he.

Front 23

Character evidence in criminal case
Character of V

Back 23

Most same rules for D apply to V
1) Only D can be first to offer character of victim evidence to prove conduct.
(a) FRE. For homicide, prosecutor can show V’s peaceful character if D alleges V attacked first.
(b) FRE allows reputation and opinion, no specific instances on direct, ok on cross. In calif, all methods, including specific instances, allowed on direct and cross.
2) Once D offers evidence of V’s violent character, can DA offer evidence of D’s character?
(a) CRE & usually FRE No! two separate doors for character evidence, each opened separately.
(b) But under FRE, if D opens door to V’s character, DA may show D has the same trait. I.e., violence.
3) Remember, these rules only apply to evidence offered to show character! Specific instances of past conduct are admissible on other issues. I.e. state of mind!

Front 24

Character evidence in criminal case
Rape or sexual assault

Back 24

1) Special rules limit defense evidence of alleged victim’s character when offered to support defense of consent
2) Reputation and opinion inadmissible.
3) Specific instances admissible to prove only that physical evidence attributable to 3d party or prior consensual conduct between D & V.
4) Specific instance evidence requires notice and in camera review.
5) CA truth in evidence amnd does not apply.

Front 25

Specific instances of D’s bad acts admissible for anything other than character!

Back 25

MIMIC
1) M Motive
2) I Intent
3) M Mistake (absence of mistake)
4) I Identity (modus aparendi or “signature” crime) Requires similarity & uniqueness.
5) C Common plan or Scheme
Still, legal relevance. Court has discretion to exclude for unfair prejudice! Always analyze balancing test!

Front 26

TESTIMONIAL EVIDENCE. COMPETENCY 4 REQUIREMENTS

Back 26

1) Personal knowledge
(a) Distinguish hearsay. Does the fact perceived = the fact testified to? No? then no PK. Yes, hearsay. “D shot V” W is blind and bases testimony on what somebody said. Fact testified ≠ fact perceived. Not hearsay. Lack of personal Knowledge!
(b) Perception need not be perfect. W saw shooting, wasn’t wearing glasses? Still personal knowledge, however imperfect.
2) Present recollection
(a) W must testify from present recollection, not re matters W once knew but has not forgotten.
3) Communication
(a) No drooling.
4) Sincerity
(a) Oath or affirmation. California requires W understands the oath—legal duty. Atheists ok.
5) All other grounds for competency abolished. Cept judges and jurors in this case.

Front 27

Form of testimony & questioning: calls for narrative

Back 27

1) I.e. “tell us what happened.” Impermissible because witness may interject irrelevant or prejudicial testimony.

Front 28

Form of testimony & questioning: unresponsive

Back 28

1) Answer the question. The question asked! Object & move to strike.

Front 29

Form of testimony & questioning: leading

Back 29

1) Leading Q suggests its answer. Usually, leading question prohibited on direct.
(a) Ok on cross of adverse W if w/in scope of direct.
(b) Leading ok on direct if adverse witness,
(c) Ok for direct witness
(d) Ok for witness needing assistance. Young, slow.

Front 30

Form of testimony & questioning: Assumes facts not in evidence

Back 30

1) Q based on evidence not before the jury.
(a) “When did you stop beating your wife?”
1. here Q is misleading also.

Front 31

Form of testimony & questioning: argumentative

Back 31

1) Q merely argues the case, not actually eliciting evidence.
(a) “Do you expect the jury to believe that baloney?”

Front 32

Form of testimony & questioning: compound

Back 32

1) Asserting more than one question and unclear which Q witness is answering.

Front 33

WITNESS USE OF DOCS DURING TESTIMONY

Back 33

1) Where witness has forgotten, and wants to use a record to help remember.
2) Potential hearsay problem since document is an out of court statement.
3) I.e. Dr. says, “I’ve seen so many patients I don't recall plaintiff.” Given doc and says “it says here plaintiff suffered broken back.” Objection. Hearsay.

Front 34

REFRESHING RECOLLECTION

Back 34

1) W can’t recall. Ask: might the record refresh your memory? Yes. Read record silently. Now I remember.
2) Requires that witness actually presently recollect: “Now I remember!”
3) Tangible objects can be used to refresh recollection.
4) Anything used to refresh recollection must be produced and admitted.
5) Present recollection refreshed = now I remember!

Front 35

REFRESHING RECOLLECTION past recollection recorded

Back 35

Where attempt to refresh recollection fails, W still can’t remember, after reviewing the document, the out of court statement. Past recollection recorded exception overcomes hearsay exception if:
1) Witness once had personal knowledge. “I was the Dr so I once knew what the injury was.”
2) Doc was made or adopted by W. Typed up by secretary, but signed, acknowledged somehow.
3) Doc was written or adopted at a time when the facts were fresh in the witnesses memory.
4) Doc was accurate when made
5) AND witness presently has insufficient recollection to testify to matters contained
If satisfied, doc can be read, not admitted, to jury.

Front 36

OPINION TESTIMONY RULE (2 EXCEPTIONS)

Back 36

Normally inadmissible
1) Except lay opinion, if rationally based on perception and helpful to the trier of fact. Can’t be based on scientific or specialized knowledge.
(a) Permitted as to speed of car, sanity, intoxication, emotions, value of a witnesses property. “I got a good look, I’d say he was doing 80 mph.” Admissible lay opinion.
(b) Helpful. If the jury could figure it out themselves, no opinion allowed.
(c) No lay opinion as to ultimate questions and legal issues.
2) Except: expert opinion

Front 37

EXPERT OPINION 5 REQUIREMENTS

Back 37

1) Helpful to jury
2) Qualified—special knowledge or experience.
3) Reasonable degree of certainty. Expert must be reasonably certain re her opinion. Otherwise? Mere Speculation!
4) Supported by proper factual basis. Ok to base opinion on admitted evidence, not personal knowledge.
(a) Method: hypo Q. “Dr. assuming ABC, what’s your opinion.” Hypo must accurately summarize admitted evidence.
(b) OR expert may base opinion on extrinsic evidence not before jury (i.e. hearsay!) if it is typically relied on in the field. Dr can base opinion on lab report, even though rpt is inadmissible hearsay.
5) Proper theoretical principles
(a) FED: Daubert. reliable principles reliably applied. Error rate, retesting, reasonably accepted in the field. New Science! No whacko.
(b) CAL: Jelly-Frye. Principles generally accepted in the field. Scientific principles must be generally accepted in the field. No New Science.
6) Learned treatise hearsay exception
(a) Fed: admissible to prove anything if accepted authority in the field.
(b) CAL: Narrower. Only admissible for matters of general notoriety or interest. I.e. almanacs?

Front 38

Evidence of Witness Credibility

Back 38

1) Evidence supporting credibility inadmissible unless credibility has been attacked. (buttressing)
2) Watch for hearsay, especially when credibility evidence is a prior statement.

Front 39

Prior consistent statement

Back 39

1) Prior consistent stmnt admissible if made before alleged bribe or separate inconsistent statement.
2) And, FRE, prior consistent statement made before alleged bribe admissible for all purposes. It’s NOT HEARSAY
3) CAL. It is hearsay, but within an exception. So admissible for all purposes.

Front 40

Impeachment Evidence 3 step

Back 40

1) Is the source of extrinsic evidence or cross of witness being impeached.
(a) Extrinsic is any evidence except by this witness before this jury.
2) If extrinsic is it admissible given impeachment technique?
(a) Contradiction. I.e. Witness states Fact A. Impeach with fact B, established by other witnesses. Extrinsic evidence inadmissible to impeach on collateral matter. Collateral is not essential to the case and is not relevant to credibility except to contradict.
(b) Prior inconsistent statement.
(c) Bias, interests, motive
3) Any other foundation requirements.

Front 41

Impeachment: prior inconsistent statement

Back 41

Prior inconstant statement may be relevant to prove credibility, and truth of statement.
1) FRE: PIS not hearsay if given under oath otherwise hearsay and inadmissible to prove the truth
2) CRE: hearsay, admissible under hearsay exception for all prior inconsistent stmnts of this witness whether or not offered for the truth.

Front 42

Impeachment: prior inconsistent statement. Extrinsic evidence

Back 42

Extrinsic evidence inadmissible to impeach on collateral matter.

Front 43

Impeachment evidence: foundation requirement

Back 43

Extrinsic evidence admissible only if opportunity to explain or deny.

Front 44

Impeachment: Bias, interests, motive

Back 44

Evidence of bias, interests, or motive admissible if foundation requirement met—opportunity to explain or deny.

Front 45

Evidence of D holding smoking gun at murder scene. D admits guilt, but pleads insanity. Relevant?

Back 45

Relevant under FRE. Not relevant under CEC. CEC requires issue be in dispute