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129 Cards in this Set
- Front
- Back
- 3rd side (hint)
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What evidence law applies on the MBE portion of the bar exam?
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Federal Rules of Evidence
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What evidence law applies to the essay potion of the Oregon Bar Exam?
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Federal Rules of Evidence or California Evidence Code
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What five MBE answers should you always assume are wrong?
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1. Inadmissible because not best evidence;|2. Inadmissible because of Dead Man's Statute (Abolished in federal and most states);|3. Inadmissible because self-serving and prejudicial;|4. The statement is part of the res gestae; (Latin phrases are usually wrong);|5. Not hearsay because it is the witness' own statement
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RELEVANCE
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Evidence is relevant if:
(a) It has any tendency to make a fact more or less probable than it would be without the evidence; and (b) The fact is of consequence in determining the action. |
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When is evidence relevant?
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When 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
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CA: The fact of consequence must also be in dispute
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CA Prop 8
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"Truth in Evidence Amendment." This makes all relevant evidence admissible in a criminal case, even if it is objectionable under the CEC (the Constitution overrules the CEC).
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Exceptions to Prop 8:|1. Exclusionary rules under US Constitution (e.g., the Confrontation Clause);|2. Hearsay law; 3. Privilege law; |4. Limits on character evidence about the victim in a rape case;|5. The rule prohibiting prosecution from offering evidence of defendant's character before defendant opens the door;|6. The secondary evidence rule (CA's Best Evidence Rule); and|7. CEC 352 (court's power to exclude if unfair prejudice substantially outweighs probative value
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Three-step approach for applying CA law on essay
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1. Raise all objections under CEC; |2. For each objections, mention if Prop. 8 overrules the objection;|3. If evidence seems admissible under Prop. 8, balance under CEC 352
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Is irrelevant evidence admissible?
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Irrelevant evidence is not admissible.
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When does the court have discretion to exclude relevant evidence?
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When the evidence's probative value is substantially outweighed by:|1. unfair prejudice;|2. confusion; or|3. judicial economy
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CA balances under CEC 352
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On the bar exam, what two situations indicate that relevant evidence's probative value should be weighed against unfair prejudice, confusion, or waste of time.
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1. Emotionally disturbing evidence; and|2. Evidence that is admissible for one purpose but inadmissible for another (Unfairly prejudicial if the jury is likely to use the evidence for the inadmissible purpose.)
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When should relevant evidence be excluded on public policy grounds and why?
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1. Liability insurance;|2. Subsequent remedial measures or repairs;|3. Settlements (pleas), offers to settle (plea), and related statements;|4. Payment or offers to pay medical expenses
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CA adds:|1. Expressions of sympathy;|2. Discussions during mediation proceedings
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Evidence of liability insurance is inadmissible when offered to prove what?
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1. culpable conduct; or|2. defendant's ability to pay a judgment
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Evidence of subsequent remedial measures is inadmissible when offered to prove what?
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1. culpable conduct; or|2. in products liability cases, defective product design (based on strict liability).
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CA does not apply the policy to proof of defective product design
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What exceptions exist to the rule that subsequent remedial measures are inadmissible to prove culpable product or defective product design?
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Evidence of subsequent remedial measures is admissible to rebut a defense that no feasible precautions could have been taken.
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Evidence of settlement, offers to settle, pleas, offers to plea, and related statements is inadmissible when offered to prove what?
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In civil cases, liability or fault; In criminal cases, guilt.
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CA: Discussions during mediation proceedings are also inadmissible
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What exceptions exist to the rule that settlements, offers to settle, pleas, and related statements are inadmissible to prove liability, fault, and guilt?
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1. Where no claim has yet been asserted at the time of settlement/offer to settle; and |2. Where there is no dispute as to liability or damages.
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Payment or offers to pay medical expenses are inadmissible when offered to prove what?
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Liability for the injuries in question.
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Are statements made in relation to settlement, offers to settle, and pleas (as opposed to the actual settlement, offer to settle, or plea itself) admissible when offered to prove liability, fault, or guilt?
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No.
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CA: The law is unclear as to whether Prop. 8 makes pleas later withdrawn, offers to plea, and related statements admissible. On an essay, raise the issue and mention that, even if Prop. 8 did apply, the court may still exclude it for unfair prejudice under CEC 352.
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Are statements made in relation to payment or offers to pay medical expenses (as opposed to the actual payment or offer to pay itself) admissible when offered to prove liability for the injuries in question?
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FRE: Yes.
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CA: No, admissions of fact made in the course of making such payments or offers (FRE only excludes such statements if part of a settlement offer).
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What is the CA rule regarding the admissibility of evidence of expressions of sympathy
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California 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.
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When is evidence of similar occurrences involving people or events other than those at issue in the current case relevant?
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When there are certain similarities between that evidence and the people and events at issue in the current case.
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Assess the relevance of similar occurrences involving people or events other than those at issue in the current case.
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Generally not relevant.
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What are the common bar exam scenarios where similar occurrences involving people or events other than those at issue in the current case are relevant?
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When the similar occurrence:|1. indicates causation;|2. indicates a pattern of fraudulent claims;|3. indicates a preexisting injury;|4. indicates intent;|5. rebuts a defense of impossibility; and|6. establishes the value of property (similar property, similar area, same time)
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When is relevant evidence of a person's habit admissible?
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When offered to show that the person acted in conformity with that habit on the occasion in question.
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How can character evidence be identified?
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It is a general statement about a person that conveys a moral judgment.
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How can habit evidence be identified?
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It is an objective description of a person's frequent, specific conduct and makes no moral judgment
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What is routine practice evidence?
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Evidence regarding a business's routine practices.
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When is relevant evidence of a business's routine practice admissible?
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To show that the business acted in conformity with that routine practice on the occasion in question.
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When is industrial custom evidence admissible in a negligence case?
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When it is relevant to prove the industry's standard of care.
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CHARACTER EVIDENCE TO PROVE CONDUCT
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The general rule is that the prosecution cannot initiate evidence of the defendant’s bad character merely to show that she is more likely to have committed the crime of which she is accused. However, if the defendant puts her good character into issue, the prosecution may rebut with evidence of the defendant’s bad character.
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What questions should you consider when determining whether character evidence is admissible?
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1. For what purpose is the character evidence offered?|2. What method or technique is being used to prove character?|3. Is the case civil or criminal?|4. Does the evidence prove a pertinent character trait?
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Ignoring admissibility, what are the purposes for which character evidence might be offered?
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1. To prove character because 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. To impeach or support a witness' credibility.
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What are the methods used to prove a person's character?
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1. specific instances of conduct;|2. a witness's opinion of the person's character; |3. a witness's testimony regarding the person's reputation
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General admissibility of character evidence in civil cases
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Inadmissible to prove conduct; with exceptions. Admissible when character is at issue in the case.
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CA: Inadmissible to prove conduct; no exceptions
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What is the federal exception that makes character evidence admissible to prove conduct in civil cases?
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Where the claim is based on sexual assault or child molestation; in such a case, defendant's prior acts of sexual assault or child molestation are admissible to prove defendant's conduct in this case
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This exception does not exist in CA
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In what commonly tested types of cases is character at issue?
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1. defamation;|2. negligent entrustment; and|3. child custody
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In criminal cases, when may the prosecutor generally admit evidence of defendant's character?
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When defendant opens the door to evidence of his own character.
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In criminal cases, when may the prosecutor generally admit evidence of the victim's character?
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When defendant opens the door to evidence of the victim's character.
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Prop. 8 does not change this rule
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In a criminal case, when may the prosecutor admit evidence of defendant's character to prove defendant's conduct before the defendant has opened the door?
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1. In cases of sexual assault or child molestation, prosecutor may offer evidence that defendant committed other acts of sexual assault or child molestation;|2. FRE: Where court has admitted evidence of the victim's character offered by defendant, prosecutor may admit evidence that defendant has the same character trait
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CA adds:|1. In prosecution for crime of domestic violence, prosecution may offer evidence that defendant committed other acts of domestic violence; and|2. Where court has admitted evidence of victim's character for violence offered by accused, prosecution ma offer evidence that accused has violent character (a narrower version of the FRE rule)
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What is the evidentiary effect of criminal defendant offering character evidence to prove conduct?
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Defendant opens the door, allowing prosecutor to admit character evidence to rebut defendant's character evidence.
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In a criminal case, once the door is open, what methods may be used to prove defendant's character on direct examination?
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FRE: Only reputation and opinion, not specific instances.
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CA: Only reputation and opinion, not specific instances; but Prop. 8 makes it all admissible, subject to CEC 352 balancing
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In a criminal case, once the door is open, what methods may be used to prove defendant's character on cross examination?
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FRE: Reputation, opinion, and specific instances
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CA: Only reputation and opinion, not specific instances; but Prop. 8 makes it all admissible, subject to CEC 352 balancing
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Specific instances of defendant's bad conduct may be admitted to prove anything other than character that is relevant, such as
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1. Motive;|2. Intent;|3. Mistake (absence of mistake);|4. Identity;|5. Common Plan or Scheme
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Can still be excluded if admission would result in unfair prejudice
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What actions by a criminal defendant open the door to evidence of victim's character to prove victim's conduct?
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FRE: 1. defendant offers evidence of victim's character;|2. in a homicide case, defendant offers evidence that victim attacked first.
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CA: 1. defendant offers evidence of victim's character;|2. Prop 8 (if the evidence of victim's character is relevant, it is admissible, subject to CEC 352 balancing)
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What happens when criminal defendant offers evidence that victim attacked first?
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Defendant opens the door, allowing prosecutor to admit evidence of victim's character for peacefulness, but only in homicide cases.
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Not in CA
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What happens when criminal defendant offers evidence of a character trait in victim to prove victim's conduct?
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Defendant opens the door, allowing prosecutor to admit evidence to rebut that trait in victim and to show that defendant has that same trait
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Same in CA
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In a criminal rape case, what types of character evidence are admissible to show victim's character and for what purpose?
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Only specific instances may be used, and only to show|1. third party is the source of semen or injury; or|2. prior acts of consensual intercourse between defendant and victim.
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CA: Rape shield statute makes inadmissible opinion evidence, reputation evidence, and evidence of specific instances of the victim's sexual conduct to prove consent; prior acts of consensual intercourse between defendant and victim are still admissible; Prop. 8 does not apply to evidence barred by this rule
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In a civil rape case, what types of evidence are admissible to show victim's character and for what purpose?
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Specific instance, opinion, and reputation all admissible if probative value substantially outweighs unfair prejudice and, in case of reputation evidence, victim put her reputation in issue.
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In a criminal case, once the door is open, what methods may be used to prove victim's character on direct examination?
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FRE: Only reputation and opinion, not specific instances.
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CA: Reputation, opinion, and specific instances
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In a criminal case, once the door is open, what methods may be used to prove victim's character on cross examination?
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FRE: Reputation, opinion, and specific instances
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CA: Reputation, opinion, and specific instances
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TESTIMONIAL EVIDENCE: COMPETENCY
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sss
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What qualifies a witness as competent to testify?
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1. Personal knowledge;|2. Ability to communicate; |3. Must take an oath or make an affirmation to tell the truth; and|4. Recollection
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CA: Witness must also understand legal duty to tell the truth
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What categories of people are absolutely disqualified from testifying?
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Judge and jurors in the present case.
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CA: Also disqualifies witnesses who have been hypnotized to help refresh recollection, except, in a criminal case, witness hypnotized by police using procedures that protect against suggestion.
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TESTIMONIAL EVIDENCE: FORM OF THE QUESTION
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sss
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Objections to the form of testimony or questions are waived unless what?
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Timely and specific objection is made.
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What objections exist to the form of questions or testimony?
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Clowns Use Live Animals And Costumes = |1. calls for narrative;|2. unresponsive;|3. leading;|4. assumes facts not in evidence;|5. argumentative, and |6. compound
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When is an objection of calls for narrative appropriate?
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When a question is so open-ended that witness may say something irrelevant or unfairly prejudicial and, thus, no notice of such a response is given to opposing counsel
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When is an objection of unresponsive appropriate?
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When the witness's response does not answer the question asked.
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When is an objection of "leading" appropriate?
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When counsel asks a question that suggests the answer and witness is being direly examined and is not hostile.
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When is an objection of "argumentative" appropriate?
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When counsel makes an argument disguised as a question.
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When is an objection of "compound" appropriate?
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When counsel asks more than one question at a time.
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TESTIMONIAL EVIDENCE: WITNESS USE OF DOCUMENTS
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xxx
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What is the appropriate objection whenever a witness reads a document into evidence?
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Hearsay.
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What may be used to refresh a witness's memory?
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Anything.
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What is the risk of refreshing a defendant's memory?
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Anything used to refresh may be inspected and offered into evidence by opposition.
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When is it appropriate to admit a recorded recollection into evidence?
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1. witness once had personal knowledge;|2. document was made by witness, under his direction, or adopted by him;|3. document prepared or adopted while witness's memory was fresh;|4. the document was accurate when made; and|5. witness now has insufficient recollection to testify re matters in document
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TESTIMONIAL EVIDENCE: OPINION TESTIMONY
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xxx
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When is opinion testimony by a lay witness admissible?
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1. it's rationally based on;|2. witness's perceptions;|3. helpful to trier of fact; and|4. not be based on scientific or specialized knowledge.
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What are the specific types of lay opinion that are generally admitted?
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1. speed of auto;|2. sanity;|3. intoxication;|4. emotions; and|5. value of witness's property.
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What are the requirements for admissibility of expert opinion testimony?
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1. Opinion must be helpful to the jury;|2. Witness must be qualified;|3. Witness must believe in opinion to reasonable degree of certainty;|4. Opinion must be supported by a proper factual basis; and|5. Opinion must be based on reliable principles reliable applied to the facts
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Same in CA
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How is the fifth factor of admissibility of expert opinion applied?
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Daubert: Reliability of scientific opinions determined by:|1. Publication/Peer review;|2. Error rate;|3. Results are tested and there is ability to retest; and|4. Reasonable level of acceptance (the reliability of non-scientific opinions is determined ad hoc looking at facts and circumstances of the case)
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Frye: Reliability of scientific opinions determined by:|1. The opinion must be based on principles generally accepted by experts in the field; this standard is not altered by Prop. 8 because it is a standard of relevance and Prop. 8 only makes evidence admissible once it is relevant (the reliability of non-scientific and medical opinions based on facts and circumstances of the case)
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What bases of information for expert testimony are appropriate?
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1. expert's personal knowledge;|2. evidence already admitted; or|3. inadmissible evidence normally relied on in the field.
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What is the learned treatise hearsay exception?
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Learned treatise is admissible to prove anything stated therein if it is an accepted authority in the field.
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CA: Very narrow exception; only admissible to show matters of general notoriety or interest, so it is almost never applicable
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TESTIMONIAL EVIDENCE: WITNESS CREDIBILITY
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xxx
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When is evidence offered to bolster a witness's credibility admissible?
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Only after the witness's credibility has been attacked.
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When is a witness's prior consistent statement admissible?
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Only when witness's credibility is attacked and the consistent statement was made prior to the event alleged to have provided the motive for falsity; FRE: hearsay exemption
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CA: Hearsay exception
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When may extrinsic evidence be admitted to impeach a witness?
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Any time, except to contradict on a collateral matter. Witness must be given an opportunity to explain or deny the extrinsic evidence.
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What is a collateral matter?
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A fact that is material to neither the case or the witness' credibility.
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When is a witnesses prior inconsistent statement admissible?
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FRE: Admissible if offered only to impeach. If given under oath, exemption to hearsay and admissible to prove truth of facts asserted (impeachment and substantive evidence of facts); otherwise, hearsay and inadmissible to prove those facts (impeachment but not substantive evidence of facts)
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CA: Admissible if offered only to impeach. Hearsay if offered to prove truth of facts asserted, but admissible under exception, which extends to all inconsistent statements of witness, whether or not under oath
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When may a witness be impeached by evidence of a prior felony conviction involving false statement?
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FRE: Any time; but, if it has been more than ten years since judgment/release, it is inadmissible unless probative value outweighs unfair prejudice.
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CA: All felonies involving "moral turpitude" are admissible, but court must balance under CEC 352 (time considerations are used in balancing) (Moral turpitude include crimes of lying, violence, theft, extreme recklessness, and sexual misconduct, but not crimes for merely negligent or unintentional acts)
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When may witness be impeached by prior felony convictions not involving false statement?
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FRE: Felony convictions within the last ten years are admissible if relevant, but the court may exclude if unfair prejudice outweighs probative value. If it has been more than ten years since judgment/release, it is inadmissible unless probative value outweighs unfair prejudice.
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CA: Felonies not involving moral turpitude are inadmissible (Prop. 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment)
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When may witness be impeached by prior misdemeanor convictions?
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FRE: All misdemeanors involving false statements are admissible (no balancing, except for old convictions); all other misdemeanor convictions are inadmissible to impeach
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CA; CEC makes misdemeanor convictions inadmissible to impeach; but, because of Prop. 8, misdemeanors can be admitted in a criminal case if involving a crime of moral turpitude, subject to balancing under CEC 352 (this means that misdemeanors are inadmissible in CA to impeach in a civil case)
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When may a witness be impeached by non-conviction misconduct bearing on truthfulness?
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FRE: Admissible in civil and criminal cases, subject to balancing; must be act of lying; extrinsic evidence inadmissible, but may ask witness about her misconduct on cross
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CA: Inadmissible under CEC, but Prop. 8 makes it admissible in criminal cases if relevant (i.e., an act of moral turpitude); both cross-examination and extrinsic evidence permitted, subject to balancing
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Is impeachment based on reputation or opinion for honesty allowed using extrinsic evidence?
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Yes.
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HEARSAY: DEFINITION
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xxx
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What is hearsay?
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An out of court statement offered to prove the truth of the matter asserted in that statement
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Common situations where out-of-court statement not offered to prove the truth of the matter asserted?
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1. Statement has independent legal significance;|2. Offered to show effect on listener;|3. Offered to show speaker's knowledge of facts stated;|4. Offered as circumstantial evidence of defendant's state of mind.
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HEARSAY: EXEMPTIONS AND EXCEPTIONS
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xxx
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List hearsay exemptions (considered non-hearsay, even though hearsay) and whether declarant must be unavailable.
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1. Admission by party-opponent;|2. Prior inconsistent statements given under oath;|3. Prior consistent statement offered to rebut charge of recent fabrication or improper influence/motive; and|4. Statement of identification made after perceiving a person.
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CA: These are all exceptions, not exemptions (no exemptions under the CEC)
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Is an admission by party-opponent admissible even if declarant had no personal knowledge?
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Yes.
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When is statement made by non-party still admissible as admission by party-opponent (vicarious admission)?
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When made by party-opponent's|1. expressly or impliedly authorized spokesperson; or|2. employee (a) concerning something in scope of employment (b) while employed;|3. When party-opponent adopts the statement;|4. Co-conspirator made the statement.
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CA: Statement by employee of party is party admission of employer only where negligent conduct of that employee is basis for employer's liability in the case under respondeat superior (employer is responsible for employee's words only if also responsible for employee's wrongful conduct)
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List hearsay exceptions and whether declarant must be unavailable.
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Declarant must be unavailable:|1. Former testimony;|2. Declarations against interest;|3. Dying declarations.||Declarant need not be unavailable:|3. Excited utterance;|4. Present sense impression;|5. Statement of then-existing mental or physical condition;|6. Statement made for medical diagnosis/treatment;|7. Business records;|8. Public records;|9. Judgments of previous convictions
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What is an admission?
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A statement made by party, or someone whose statement is attributable to a party, offered by a party opponent
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When is testimony admissible under the former testimony exception to the hearsay rules?
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1. Declarant unavailable and opposing party had both opportunity and similar motive to examine the declarant in a prior proceeding; or|FRE: 2. In a civil case, declarant unavailable and the opposing party was not present at the prior proceeding, but had a privity-type relationship with a party in the prior proceeding who had an opportunity and similar motive to examine the declarant in the prior proceeding
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CA: 2. In a civil case, declarant unavailable and a party in the earlier proceeding had the opportunity and similar interest to examine the declarant in the prior proceeding; or|3. In a civil case, declarant unavailable and former testimony offered against a successor in interest to the person who offered it in her own behalf in a prior proceeding; or|4. In the same civil case, declarant is unavailable or lives more than 150 miles away (the former testimony exception only applies to depositions given in the same civil case under this last option)
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When is declarant considered unavailable?
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1. Declarant has a privilege;|2. Declarant is dead or sick;|3. Proponent cannot produce declarant through reasonable means;|FRE: 4. Declarant refuses to testify despite court order;|FRE: 5. Declarant's memory fails.
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CA: 4. Declarant refuses to testify despite court order or out of fear;|5. Declarant's memory fails on the subject of her statement or she suffers total memory loss
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When is testimony admissible under the declaration against interest exception to the hearsay rules?
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1. Declarant is unavailable (need not die); and|2. At the time it was made, the statement was against the declarant's financial interest or would have subjected the declarant to criminal liability. FRE: In a criminal case, evidence that exculpates defendant must be supported by corroborating circumstances showing that the declarant's statement is trustworthy
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CA: Also within the exception is a statement against social interest because it risks making declarant an object of hatred, ridicule, or social disgrace in the community
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When is testimony admissible under the dying declaration exception to the hearsay rules?
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FRE: 1. Declarant is unavailable;|2. Declarant believes he is about to die;|3. Statement describes cause/circumstances leading to his death; and|4. It is a homicide prosecution or civil case
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CA: Exception applies in all civil and criminal cases and declarant must be dead
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When is testimony admissible under the excited utterance exception to the hearsay rules?
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1. Declarant need not be unavailable;|2. Statement relates to a startling event or condition; and|3. Made while declarant was under the stress of excitement caused by event or condition
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Same in CA
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When is testimony admissible under the present sense impression exception to the hearsay rules?
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FRE: 1. Declarant need not be unavailable;|2. Statement explains or describes event or condition;|3. Statement made while declarant was perceiving event or condition or immediately thereafter
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CA: 1. Statement explaining conduct of declarant made while declarant was engaged in that conduct; or|2. Statement of an unavailable declarant made at or near time of injury or threat that describes or explains injury or threat, in writing or recorded or made to police or medical profession, under trustworthy circumstances (narrower than FRE; with OJ Exception, watch for Confrontation issue)
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When is testimony admissible under the then existing physical or mental condition exception to the hearsay rules?
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1. Declarant need not be unavailable;|2. Statement concerns declarant's then existing physical or mental condition or state of mind
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A statement describing a memory or belief is not admissible to prove the fact remembered or believed
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When is testimony admissible under the statement of past or present mental or physical condition made for diagnosis or treatment exception to the hearsay rules?
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FRE: 1. Declarant need not be unavailable;|2. Statement describes past or present mental or physical condition, or cause, of declarant or another person; and|3. Statement made for and pertinent to medical diagnosis or treatment.
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CA: 1. Same as FRE, and declarant is a minor describing an act of child abuse or neglect (narrower); or|2. Statement of an unavailable declarant's past physical or mental condition, including a statement of intention, if the condition is an issue in the case; no requirement that statement be made for medical purposes
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When is testimony admissible under the business records exception to the hearsay rules?
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FRE: 1. Declarant need not be unavailable;|2. Record of events, opinions, or diagnoses;|3. Kept in course of regularly conducted business activity;|4. Made at or near time of matters described;|5. By, or under direction of, person with personal knowledge of the facts; and|6. It was regular practice of the business to make such a record (court may exclude if untrustworthy).
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CA: 1. Declarant need not be unavailable;|2. Record of events or conditions;|3. Kept in course of regularly conducted business activity;|4. Made at or near time of matters described;|5. By, or under the direction of, person with personal knowledge of the facts; and|6. Record is trustworthy.
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When is testimony admissible under the public records exception to the hearsay rules?
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Declarant need not be unavailable|1. Record describes activities or policies of the office;|2. Record describes matters observed pursuant to duty imposed by law;|3. Record contains factual findings from investigation made pursuant to authority granted by law, unless untrustworthy.
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CA: 1. Record made by public employee;|2. Making of record was within scope of duties;|3. Record was made at or near time of matters described; and|4. Circumstances indicate trustworthiness
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When is testimony admissible under the judgment of conviction exception to the hearsay rules?
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Declarant need not be unavailable. FRE: A felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment; but, when offered by prosecution for purposes other than impeachment, judgments against person other than the accuses are inadmissible
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CA: The specific exception for convictions applies only in civil cases. Prop. 8 does not change this hearsay law. But Prop. 8 permits the prosecutor or defendant in a criminal case to impeach a witness using a criminal conviction (felony or misdemeanor) if it involves moral turpitude. A certified copy of a judgment of conviction is admissible under the CA public records exception in both civil and criminal cases.
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When is testimony admissible under the catch-all exception to the hearsay rules?
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Evidence that is trustworthy and more probative of a particular material fact than any other evidence is admissible at the court's discretion.
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When does the confrontation clause exclude out-of-court statements?
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1. Declarant does not testify at current trial, |2. Declarant is now unavailable, |3. Statement is testimonial; and|4. Defendant had no chance to cross-examine at time statement was made.
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When is a statement considered testimonial?
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1. Made in court; or|2. Made to police in investigation to produce evidence for prosecution.
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WRITINGS AND OTHER PHYSICAL EVIDENCE: AUTHENTICATION
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Authentication of real evidence requires only enough evidence to support a finding that the matter is what its proponent claims it is. It is not required that the proponent establish its genuineness by a preponderance of the evidence as a condition to admissibility. All that is necessary under the Federal Rules of Evidence is proof sufficient to support a jury finding of genuineness.
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What is authentication?
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Every item of non-testimonial evidence must be authenticated; this means proving it is what the proponent of that evidence claims it to be; the burden of proof is low: sufficient to sustain a finding.
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How can a signature be authenticated?
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1. Admission;|2. Eyewitness testimony;|3. Expert opinion;|4. Lay opinion;|5. Circumstantial evidence (Ancient documents rule);|6. Genuine exemplar
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What an ancient documents?
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1. Twenty years old or more;|2. Does not, on its face, present irregularities; and|3. Is found where such a document would be expected to be found.
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CA: Document must be 30 years old or more
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What writings are self-authenticating?
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1. Certified copies of public documents;|2. Acknowledged (notarized) documents;|3. Official publications;|4. Periodicals;|5. Business records; and|6. Trade inscriptions
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CA: Does not include Business Records or Trade Inscriptions
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How can non-unique items be authenticated?
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1. Chain of custody;|2. Indelible marking.
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What is the Best Evidence Rule (Secondary Evidence Rule)?
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Only the original item is admissible to prove the contents of the writing.
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Secondary Evidence Rule is exempt from Prop. 8, so it applies even in a criminal case
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Other than the original, what tangible evidence is admissible to prove contents of a writing?
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FRE: Duplicates are usually admissible (a copy of original produced by same impression that produced original; a handwritten copy is not a duplicate).
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CA: Admits duplicates and other written evidence of contents of original (e.g., handwritten notes)
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When is testimony admissible to prove contents of a writing?
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Testimony regarding contents of writing may be admissible where original lost or destroyed, unless bad faith by proponent of testimony
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PRIVILEGES
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Attorney - Client; Spousal
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Choice of law
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FRE: In a civil suit brought in federal court under diversity jurisdiction, state privilege law applies
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CA: Most privilege law is exempt from Prop. 8, so even in a criminal case the usual rules of privilege apply.
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When is testimony privileged?
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FRE: 1. Attorney-Client;|2. Psychotherapist-Patient;|3. Spousal Privileges
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CA: Also recognizes|4. Doctor-Patient;|5. Confidential communications between a counselor and a victim of sexual assault or domestic violence;|6. Penitent-Clergy; and|7. Immunity from contempt for a journalist who refuses to disclose sources.
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When does the attorney-client privilege apply?
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1. Communications between attorney and client or their representatives;|2. Intended to be confidential;|3. Made to facilitate legal services.
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When does the attorney-client privilege apply in a corporate setting?
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FRE: Privilege applies to communications from employees/agents if they were authorized corporation to make the communication to the lawyer on behalf of corporation.
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CA: Privilege applies to communications from employee/agent if he is the natural person to speak to lawyer on behalf of corporation in the matter, or employee/agent did something for which corporation may be held liable and corporation instructed him to tell its lawyer what happened (no significant difference in application)
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What are the exceptions to attorney-client privilege?
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1. Professional services sought to further crime or fraud;|2. Two or more persons consult attorney on a matter of common interest and the communication is offered by one of the these parties against the another;|3. Communication relates to alleged breach of duty between lawyer and client.
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CA: Adds that the 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
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What are the exceptions to the psychotherapist-patient and doctor-patient privilege?
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1. Patient puts his mental or physical condition in issue;|2. professional services were sought to aid in crime or fraud or to escape capture;|3. Cases alleging breach of duty between psychotherapist or doctor and patient.
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CA: 4. Psychotherapist privilege does not apply if the psychotherapist has reasonable cause to believe that the patient is a danger to himself or others, and that disclosure is necessary to end the danger;|5. Doctor-patient privilege does not apply in criminal cases or to information that doctor is required to report to a public office (e.g., gun shot wounds and some communicable diseases)
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What is the spousal testimony privilege?
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Permits witness to refuse to testify against spouse as to anything. FRE: Applies only in criminal cases
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CA: Applies in civil and criminal cases and spouse of party is privileged not even to be called to witness stand
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What is the spousal communication privilege?
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Applies in both criminal and civil cases and protects confidential spousal communications during marriage
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What facts are appropriate for judicial notice?
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1. Facts generally known in the jurisdiction; or|2. Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
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What is the procedure for taking judicial notice?
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Party must request judicial notice to compel judicial notice and, if not requested, court has discretion to take judicial notice
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CA: Whether requested or not, court must take judicial notice of matters generally known within jurisdiction
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What is the effect of judicially noticed facts in a civil case?
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FRE: Court instructs jury that it must accept judicially noticed fact
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CA: Court instructs jury that it must accept judicially noticed fact
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What is the effect of judicially noticed facts in a civil case?
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FRE: Court instructs jury that it may accept judicially noticed fact, but is not required to do so
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CA: Court instructs jury that it must accept judicially noticed fact
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