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58 Cards in this Set

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What is the basic evidence essay outline?
1) Form
. .a) Legal Objection to Q/A
2) Purpose
. .a)Logical Relevance
. .b)Legal Relevance - Public Policy Exclusions and 403 Prejudice
. .c)Character Evidence
3) Presentation
. .a)Witness Reliability - Competency/ PK/ Impeach
. .b)Document Reliability
. .c)Opinion Testimony
. .d)Judicial Notice
. .e)Burdens of Proof
. .f)Presumptions
4) Hearsay
5) Privileges
What is the definition or relevant evidence?
Evidence that has any tendency to make the existance of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

**CA** Fact must also be in dispute

Note: This is a yes or no answer. Probability deals with degree.
Under what basis can a court refuse to admit relevant evidence?
Discretionary

Policy Reasons
When can the judge refuse to admit relevant evidence for discretionary reasons?
Discretionary 403: (Often an issue when evidence is admissible for limited purpose)
- Unfair Prejudice
- Confusion
- Waste of Time
When can the judge refuse to admit relevant evidence for policy reasons?
1) Liability insurance - Admissible for anything BUT:
- ability to pay, or fault

2) Subsequent Remedial Measures - Admissible for anything BUT:
- fault or defective design
**CA** CEC allows use in Product Defect Strict Liability

3) Settlement offers - Non-Severable
- Must be a DISPUTED claim
**CA** Prop 8 – withdrawn guilty pleas are admissible, but likely to fall to 352

4) Offers to pay medical expenses - Severable
**CA** CEC – Non Severable

**CA** Only Provisions:
5) Expression of Sympathy - Inadmissible in Civil, but Severable

6) Mediation Proceedings - Inadmissible
What is habit evidence?
Shows a specific response to a repeated stimulus. Used to show act in accordance with.
What is the four part character evidence analysis?
1) What is the purpose for which the character evidence is offered?
. .a)Character is an issue
. .b)circumstantial evidence of persons conduct
. .c)Impeach or support

2) What method is being used
. .a)Specific Acts or Conduct
. .b)Opinion
. .c)Reputation

3) Civil or Criminal

4) Does the evidence prove a pertinent character trait.
When is character evidence admissible in a civil case?
Generally Never

EXCEPTIONs:
Sexual Assault or Child Molestation
1) SA is allowed of prior sexual misconduct.
**CA** No exception

Allowed:
1) Purpose: When character is an ISSUE
2) Method: Any allowed
**CA** CEC Reputation and Opinion only

NOTE: No extrinsic evidence
When is character evidence admissible in a criminal case? (NOTHING about victims traits)
Generally the door is closed, until opened by defendant, but only opened to that trait.
- EXCEPTION: Sexual misconduct cases, prosecution can offer first.

Defendant can open door to his own character:
1) By entering evidence of his own charcter

Procedural
1) Purpose: Circumstantial, and issues
2) Method: SA only allowed on cross
**CA** CEC R,O only BUT Prop 8 allows SA anytime with 352 balancing

NOTE: No extrinsic evidence
When does defendant open the door to character evidence? (including victim)
Defendant can open door to his own character:
1) By entering evidence of his own charcter
2) By entering evidence of victim's character
- Rape – SA for source of evidence or consent only
**CA** Prop 8 – Prosecution can initiate evidence of character in victim, Vic door starts open
**CA** CEC – SA allowed regarding victim, ONLY opens to trait of VIOLENCE in defendant
3) In a homicide case, where defendant claims victim attacked first.
When are specific instances of defendants bad conduct allowed?
Admissible to prove anything OTHER than character.
- Extrinsic evidence is even admissible.

M otive
I ntent
M istake
I dentity - Must be pretty unique
C ommon Plan or Scheme

403 May always limit this type of testimony.
Who is competent to testify?
Anyone:
1) Personal Knowledge - Does fact perceived = fact testifying to?
2) Present Recollection
3) Communication
4) Sincerity - Oath

EXCEPTION - Judge and jury are barred from testifying.

**CA** Witness must also understand legal duty to tell truth
What happens with witnesses who have been hypnotized in **CA**?
The are disqualified.

EXCEPT:
When procedures are used to protect against suggestion.
What are the 6 testimonial objections?
1) Narrative - No specific question
2) Unresponsive - witness fails to answer the Q
3) Leading - OK on cross, maybe ok on direct
4) Assumes Facts not in Evidence - Counsel asks a question that has no basis.
5) Argumentative - Arguing with witness
6) Compound - More than one question.
What can be used to refresh the witness's recollection, and what is the process?
Anything

Witness must state that she now remembers.

Opponent may insepct and offer into evidence anything used to refresh.
When is lay opinion testimony admissible?
Generally inadmissible

Lay Opinion:
1) Based on perception
2) Rationally based
3) Helpful to jury
When is expert opinion testomony admissible?
Expert Opinion:
1) Helpful to jury
2) Qualified - Education/Experience
3) Reasonable degree of certainty
4) Proper factual support
5) Based on reliable principles
. .a) Fed - PEER REVIEWED, tested, published . . .
. .b) **CA** GENERALLY ACCEPTED as valid and reliable in the relevant scientific field.
. . . . -Does not apply to nonscientific or medical testimony.
What is the Learned Treatise exception?
Admissible to prove anything stated therein if it is an accepted authority in the field.

**CA** Only admissible to show matters of general notoriety. So it is pretty useless.
When can you support witness credibility?
Credibility must be attacked first.

Prior consistent statements are admissible for ALL uses:
- But must be made before inconsistent statement.
What can you impeach a witness regarding?
Impeach them on:
1) Contradiction
2) Bias or Motive
3) Crime involving LYING
4) Felony NOT involving LYING - MAYBE
5) Bad Conduct regarding LYING
6) Impeach regarding reputation for TRUTHFULNESS
7) Sensory deficiencies
What are the requirements to use a prior inconsistent statement?
Admissible To Impeach:
1) Any statement - But can only be admitted to impeach

Admissible to Prove Truth: -
1) Fed Hearsay Exemption - Given under oath
**CA** Hearsay with exception, NO requirement to be under oath

Extrinsic Evidence:
1) NOT collateral
2) Given opportunity to explain or deny statement
What are the requirements to impeach by evidence of bias?
Admissible To Impeach

Extrinsic Evidence:
1) NOT collateral
2) Given opportunity to explain or deny statement
What are the requirements to impeach by a conviction of a crime?
Federal:
- Dishonesty = Must admit < 10yr, older 403
- Felony Not Dishonest = 403
- Misdemeanor = No

Record of Judgment
- Note only to impeach. But a Felony can be used prove essential fact - hearsay exception

**CA**
- Felony + Moral Turp = Balance 352
- Misdemeanor + Moral Turp
. . .Criminal = CEC No, Prop 8 = 352
. . .Civil = Not Amissible
- Felony or Misdeameanor Alone = Not Admissible, irrelevant
NOTE: No 10 year limit in CA, but 352 likely has same effect
What are the requirements to impeach for bad acts not amounting to a conviction?
Limited to questioning, NO extrinsic evidence allowed.

**CA**
Inadmissible under CEC
In Criminal cases Prop 8:
- allowed if involved moral turpitude;
- allows Extrinsic Evidence
What are the requirements to impeach by reputation or opinion?
Extrinsic Allowed - No foundation required

But limited to truthfulness.
What is the definition of Hearsay?
An out of court statement offered to prove the truth of the matter asserted. **CA** Exempt from Prop 8.
What is the hearsay analysis?
1) Find statement
2) What is it being offered to prove
3) Would the jury be misled if the declarant was lying?
What are some common non-hearsay examples?
1. Nonassertive Conduct
2. Statement Not Offered for Its Truth
. .a. Independent Legal Significance
. .b. Effect on Listener
. .c. Circumstantial Evidence of Declarant’s state of mind
What are the hearsay exemptions under federal law?
1. Prior Inconsistent Statement Made Under Oath
. .a. Inconsistent
. .b. Given Under Oath
**CA** is an exception, and does NOT require OATH
2. Prior Consistent Statement Offered to Rebut of Lying or Exaggerating
. .a. Consistent
. .b. Statement made before motive to lie arose
3. Prior Statement of Witness Identification
4. Admission if Party-Opponent - Requirements on separate card.
What are the types of non-hearsay admissions?
1. Express Admission
2. Adoptive Admission
3. Vicarious

NOTE: Exemption under FED, EXCEPTION in **CA**
What is required for an express admission?
- Think More like “emission” anything that they say
- Personal Knowledge is not required
- Includes any Guilty Pleas for any type of offense
What is required for an adoptive admission?
1) Expressly or impliedly adopting the statement of another; OR
2) Silence
. .a) Heard it;
. .b) Capable of denying; AND
. .c) A reasonable person would have denied

Remember: Personal Knowledge is not required.
What is required for a vicarious admission?
1) Principle-Agent
. .i. Authorized - Express or implied authorization
. .ii. Within scope of agency while employed
**CA** Only within scope if employer is liable because of employee's act

2) Co-Conspirators
. .i. Made in furtherance of conspiracy
. .ii. Testimonial only admissible if can cross examine (CC issue)
What is required to be unavailable?
Fed
1) . . .
2) Refuses to Testify <- FED ONLY
3) Memory fails <- FED ONLY

**CA** ONLY additions
1) Suffers TOTAL memory loss
2) Won't testify out of fear
What is required for the former testimony exception?
1) Unavailable
2) Prior testimony at a hearing or depostion under oath
3) Party offered against had ability to examine
. .a) Criminal – Same Party
. .b) Civil – Same party or one in privity
. . . - **CA** No privity only similar motives
. . . - **CA** Or Offered against party who placed in evidence in prior case
. .c) Former action involved same subject matter, similar motives
. .d) Opportunity to develop the declarant’s testimony
What is required for the declaration against interest exception?
1) UNAVAILABLE
a. Against Financial, Criminal Interests, when made
. .i) **CA** includes Social Interests too
b. Exculpatory statements require corroboration
. .i)**CA** no corroboration required
What is required for the dying declaration exception?
1)UNAVAILABLE
a. Civil – Any / Criminal – Homicide only
. .i) **CA** Any Case
b. Believed death was imminent
. .i) **CA** must die
c. Statement regarding cause or circumstances
What is required for the excited utterance exception?
1) Regarding a startling event
2) while under the stress of the event
What is required for the present sense impression exception?
1) Concurrent w/ perception
**CA** Regarding the declarants actions only
What is required for the present physical or mental condition exception?
Admissible to show the condition or state of mind.
Not admissible to prove the fact remembered or perceived
What is required to admit a past or present mental condition made for medical diagnosis or treatment?
1) Made for the purpose of medical diagnosis or treatment
. .a) Doesn’t require that it be to a doctor.
2) Concerning past or present mental or physical condition

**CA** this only applies if under 12 and regarding child abuse.
What is the infliction or Threat of Abuse Hearsay Exception in **CA**?
1. Statement
2. Made at or near time of injury or threat
3. Unavailable
4. Describing or explaining infliction or threat
5. In writing, or recorded, or made to police or medics
6. Trustworthy Circumstances
What is required to admit a past or present mental condition in **CA**?
1) Is at issue in the case
2) Declarant is unavailable

NOTE: Can be made to anyone not just doctor.
What is required for the business records exception?
1) Record of events, conditions, opinions, or diagnoses
. .a) Only simple Diagnosis & Opinion
2) Kept in the course of regularly conducted business activity
3) Made at or near time of matters described
4) By person with knowledge of the facts in that record
5) Regular practice to make such a record
What is required for the public records exception?
Admissible if within ONE of the following:
1) Record describes activities of the office;
2) Record describes matter observed pursuant to duty imposed by law; OR
3) Record contains factual findings resulting from investigation made pursuant to authority granted by law.

2+3 Can be used in Civil cases ONLY

**CA** Police report ok in criminal, but likely excluded by 352 as untrustworthy
When can a judgment of a previous conviction be admitted?
Can admit the document into evidence.

1) Must be a Felony to prove essential fact
. .a) Can only use conviction of OTHERS for IMPEACHMENT cannot be admitted.
**CA** Civil only
**CA** But Prop 8 allows in a criminal case to impeach a witness using a criminal conviction if it involves moral turpitude.
What are the requirements of the confrontation clause?
Applies when:
1) Criminal Case
2) Out of Court Statement

Excludes:
1) Statements which are testimonial
. .a) Statements made to police to aid in investigation
2) Where witness is unavailable
3) No chance to cross examine
What must be authenticated?

And what is the standard?
All non-testimonial evidence.

Sufficient to sustain a finding that it is what it claims to be.
How are photos authenticated?
Does this photo FAIRLY AND ACCURATELY DEPICT what the scene looked like at the time of the accident.
What is the best evidence rule and when/how does it apply?
Original Document Rule

Applies only where evidence offered to prove the contents of a writing.
- Case turns on contents
- Knowledge obtained from writing
- Exception for voluminous documents

Items is admissible to prove a writing:
1) Originals
2) Duplicate - produced by same impression that produced original
. .a) EXCEPTION: where there is a genuine question as to the authenticity.
3) Testimony allowed if document is lost
. .a) UNLESS: Proponent caused the loss
What privileges apply in federal court?
Federal Question = Federal privileges

Diversity = State privileges
What are the requirements for the attorney-client privilege?
1) A communication between an attorney and a client
. .a) Includes agents of attorney
. .b) Must be intent to create a professional relationship
2) Intended by the client to be confidential (OBJECTIVE)

Corp Priv:
1) Authorized the employee/agent to communicate to the lawyer.
**CA** No privilege for employee who is a mere witness.

Exceptions:
1) Client knew or should have known it was a crime or fraud
2) Communication regards alleged breach of attorney's duty
What is required for the Psychothereapist-Patient & Social Worker Privileges?
1) A communication between parties
2) intended to be confidential
3) Made to render professional services.

**CA** Exception where person is a risk to himself or others.
What is the doctor-Patient privilege?
Not in FRE, but applies in diversity cases

1) Confidentially conveyed to a physician
2) For purpose of obtaining diagnosis
3) Pertinent to Diagnosis or Treatment

EXCEPTIONS:
1) Puts physical condition at issue
2) Sought to aid in crime or fraud
3) Case alleging breach of duty by doctor

**CA** Doesn't recognize in Criminal Cases
What is the Spousal Privilege?
Spousal testimononial privilege:
- permits witness to refuse to testify against her spouse in a CRIMINAL case
- Ends at end of marriage
**CA** Applies in Civil cases too

Marital confidential communication privilege:
- Protects confidential spousal communication during marriage.
- Both holders, continues forever
When is judicial notice proper?
Facts appropriate for notice:
1) Generally known facts.
2) Facts established by sources of unquestionable accuracy

In criminal case court instructs jury that it MAY but is not required to accept noticed fact
**CA** CA says must in criminal cases
What are the exceptions to Proposition 8?
1) Privilege
2) Hearsay
3) The rule keeping defendant's door closed for character
4) Best Evidence rule
What is the analysis under Prop 8?
1) Raise all objections under CEC
2) Then for each mention if prop 8 overrules
3) Balance under 352