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173 Cards in this Set
- Front
- Back
Form Considerations (4)
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Criminal or Civil?
California or Federal? Direct or Cross? Objections to Form: NULAACS |
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Purpose Considerations (4)
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Logical Relevance
Legal Relevance: 403 Extrinsic Policy Considerations Character Evidence (crim/civil) |
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Presentation Considerations (5)
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Witness (Competency, PK, Impeachment)
Document reliability (authentication, BER) Opinion Testimony Judicial Notice Burdens of Proof/Presumptions |
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Ways to Challenge a witness
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Competency
PK Impeachment |
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Hearsay
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Double Hearsay
Exclusions--Not for truth or not a statement Exemptions Exceptions (unavailable/available) Confrontation Clause |
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Extrinsic Policy Considerations (4 + 1 CA)
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Liability Insurance
Offers to Pay Med expenses Offers to Settle Subsequent remedial measures CA: *Expressions of Sympathy* |
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Character Evidence allowed in Civil Cases
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Central to case (e.g. Negligent Entrustment; defamation)
Habit |
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Character Evidence allowed in Crim Cases
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Open Door rule
MIMIC |
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Ways to impeach a witness (4)
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Veracity (beware of form)
Bias/Motive Perception/Recollection Inconsistent statements |
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Hearsay--Not offered for Truth or not statements (5)
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Verbal Acts--Independent legal significance
Impact on Listener State of Mind To show speaker's knowledge of facts stated Machines Commands/Questions |
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Hearsay Exemptions
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Party Admission
Prior Inconsistent Statement Under Oath Prior Consistent statement before charge of fabrication/bias Prior ID by the declarant |
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Party Admission--types (4)
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Party
Vicarious Silence Co-conspirator in furtherance |
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Hearsay Exceptions--Unavailability required (4)
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Dying Declarations
Former testimony (similar opp/motive) Statement against interest Family History |
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Hearsay Exceptions--Availability immaterial (non-documentary; 4)
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Excited Utterance
Present sense impression Then existing state of mind or physical condition Statements made for medical treatment or diagnosis |
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Hearsay Exceptions--Availability immaterial (documentary & misc; 7)
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Business Records
Public Records Learned Treatise Recorded Recollections (PWAFAI) Criminal Convictions directly relevant Ancient Docs Federal Catch-all |
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Privilege Inquiry
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Privileged Relationship? (Marital/Spousal--confidentiality/testimonial priv)
Confidential Communication? Holder of Privilege? Waived? Exceptions |
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Objections to Form
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NULAACS
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Prop 8
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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. |
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Exceptions to Prop 8 (6)
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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) |
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What do you need to address is EVERY question?
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Relevance dude, relevance.
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Logical Relevance Defined
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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.
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Relevance vs. Probative Value
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Relevance is yes or no
Probative value is a question of degree |
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California, additional relevance requirement
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To be relevant, the fact must also be in dispute
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Legal Relevance
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1. meets 403/ CEC 352 balancing
2. Extrinsic policy considerations |
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Relevant Evidence is admissible any of the following provides otherwise (4)
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The United States Constitution;
a federal statute; these rules; or other rules prescribed by the Supreme Court. |
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Discretion to Exclude Relevant Evidence
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If probative value is substantially outwighted by unfair prejudice, confusion, undue delay/waste of time.
403/CEC 352 |
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Unfair Prejudice
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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) |
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Evidence of Liability Insurance
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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. |
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Evidence of Subsequent Remedial Measures (FRE)
CA |
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 |
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Evidence of Subsequent Remedial Measures (CA)
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Only inadmissible to prove negligence, NOT product defects in strict liability cases→ can admit in product case.
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Settlements and Offers to Settle (2 exceptions and 1 CA rule)
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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. |
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Discussions during mediation Proceedings
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Only specifically inadmissible in CA
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Guilty Pleas Later Withdrawn (FRE and CA)
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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. |
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Payment or offers to pay medical expenses (FRE)
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Inadmissible when offered to prove liability for the injuries in question.
BUT related statements ARE admissible. |
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Payment or offers to pay medical expenses (CA)
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Inadmissible when offered to prove liability for the injuries in question.
AND related statements ARE ALSO inadmissible. |
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Big difference b/w offers to settle and offers to pay med expenses
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admissibility of related statements
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Expressions of Sympathy
CA |
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. |
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Evidence of Similar Occurrence
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Not necessarily relevant, but can be (see individual slides, or p. 3)
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Similar Occurrences to prove causation
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e.g. everyone gets food poisoning
But can’t be too attenuated. Must be quite similar |
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Evidence of Prior accidents (rule and 2 exceptions)
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Usually Irrelevant, Except:
1. To prove pattern of false claims 2. To prove preexisting condition (and disprove causation/damages) |
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Previous similar acts to prove intent
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Unbroken string of prior acts is relevant.
e.g. long history of employment discrim |
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Evidence of Habit or Routine Practice
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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 |
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Industrial Custom
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Relevant to prove standard of care in negligence.
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Character Evidence Approach
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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? |
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What are valid purposes for character evidence?
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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. |
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Character Evidence in Civil Case (Rule and Exceptions)
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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. |
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Civil Suits where character is itself an issue in the case
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1. Negligent entrustment
2. Defamation 3. Custody 4. Wrongful death/loss of consortion |
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If Character evidence is admissible in a civil case, you can...
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Use any form: O/R/S
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Big Federal/California distinction re: character evidence in Cil case.
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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 |
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Crim case: P enters evidence of previous sexual misconduct (CA distinction)
Ca broader or narrower? |
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 |
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Where court has admitted evidence of the victim’s character offered by the D...
(CA distinction) |
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. |
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Crim case:
D can open the character door to show... P can then... |
a PERTINENT character trait
P can then offer pertinent character evidence to rebut because defendant opened the door. |
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Limitations on the form of Character evidence in a criminal case
Big CA distinction |
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. |
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Admissibility of Evidence of V's character
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Most of the same rules aply
Prop 8 does not affect |
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2 ways to Open the door to evidence of V's character
CA distinction |
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 |
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Crim case:
D can open the character door to show... P can then... |
a PERTINENT character trait
P can then offer pertinent character evidence to rebut because defendant opened the door. |
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If D introduces evidence of V’s character...
CA |
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. |
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Limitations on the form of Character evidence in a criminal case
Big CA distinction |
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. |
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Form of Evidence re: victim's character in a crim case
Big CA distinction |
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). |
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Admissibility of Evidence of V's character
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Most of the same rules aply
Prop 8 does not affect |
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Specific Instances re: character in CA
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Never allowed re: D
Always allowed re: V (assuming character evidence is allowed at all) |
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2 ways to Open the door to evidence of V's character
CA distinction |
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 |
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Character evidence rules only apply if....
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the evidence is actually being introduced to show character
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If D introduces evidence of V’s character...
CA |
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. |
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Rape Shield (Criminal)
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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. |
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Rape Shield (Civil)
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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) |
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Form of Evidence re: victim's character in a crim case
Big CA distinction |
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). |
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Specific Instances re: character in CA
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Never allowed re: D
Always allowed re: V (assuming character evidence is allowed at all) |
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Character evidence rules only apply if....
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the evidence is actually being introduced to show character
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Rape Shield (Criminal)
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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. |
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Rape Shield (Civil)
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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) |
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Specific Instances of D's bad conduct
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Inadmissible to show character
Admissible to show MIMIC Touchdown problem: court always has discretion to exclude under 403/352 |
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Competency: who can testify (4 + 1 CA requirement)
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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 |
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Personal Knowledge requirement
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Does the fact testified to = the fact she perceived?
Perception need not be perfect |
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Competency is determined by:
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The judge.
And judge has discretion to decide whether jury should hear preliminary determination hearings |
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All witnesses are presumed competent except:
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Judge and Jury
Competent even if: atheist, young child, perjurer/insane person, |
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Hypnosis to refresh?
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Allowed under FRE
CA: Hypnosis not allowed except, in a criminal case, witness was hypnotized by the police using procedures that protect against suggestions |
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If Answer is Unresponsive
CA distinction |
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 |
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Leading Questions
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Not Allowed on Direct
Allowed on cross OK on direct IF 1) adverse witness; 2) hostile witness; 3) witness needs help |
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Witness's use of documents during testimony..watchout for...
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hearsay issues
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Refreshing recollection
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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! |
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Recorded recollection exception to hearsay rule
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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 |
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Opinion Testimony
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Normally inadmissible, Except
1. Rationally based and helpful opinion testimony 2. Expert testimony |
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Lay Opinion
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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. |
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Lay opinion generally allowed for:
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Speed of auto
sanity intoxication emotions value of witness’ property Handwriting/Voice ONLY IF they've seen the handwriting/heard the voice |
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Expert Testimony Requirements (5)
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Humble Questions Create Badass Products
1. Helpful 2. Qualified 3. reasonably Certain 4. Factually based 5. Based on reliable Principles (see std.) |
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Expert Qualification Requirement
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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. |
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Proper Factual Basis for Expert Testimony
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1. Personal knowledge
2. Admitted evidence 3. Inadmissible evidence reasonably relied upon. |
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Standard for reliable Principles for Expert Testimony (FRE)
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Daubert Standard (PTER)
a. Peer reviewed and published; b. Tested and is subject to retesting; c. Low Error rate d. Reasonable level of acceptance |
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Standard for reliable Principles for Expert Testimony (CA)
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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. |
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Learned Treatise Exception to Hearsay (CA distinction)
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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. |
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Evidence to support W credibility
Prior Consistent statements |
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. |
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3 step impeachment inquiry
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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 |
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Impeachment by Contradiction
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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.
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Impeachment by PIS of a W now testifying. (Big CA exception)
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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.** |
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Impeachment with Evidence of Bias, Interests, Motive (2)
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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). |
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PIS Foundation requirement and extrinsic evidence
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Extrinsic evidence of PIS is admissible only if witness is given opportunity to deny or explain PIS
Extrinsic not admissible on a collateral matter |
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Impeachment with Conviction for Crime involving False Statement (FRE)
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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) |
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Impeachment with FELONY Conviction for Crime involving Moral Turpitude (CA)
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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. |
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Impeachment of a W with MISDEMEANOR convictions involving moral turpitude (CA)
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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 |
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Impeachment with evidence of conviction for a crime NOT involving false statements (FRE)
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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. |
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Impeachment with evidence of conviction for a crime NOT involving moral turpitude (CA)
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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. |
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Extrinsic evidence re: impeachment with criminal convctions
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If conviction is otherwise admissible under above rules, the conviction may be proved with extrinsic evidence
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Balancing Standards for Impeachment convictions more than 10 years old (CA distinction)
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FRE: inadmissible unless probative value outweighs unfair prejudice (higher standard than 403)
CEC: normal balancing |
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Impeachment with Non-Conviction misconduct evidence bearing on Truthfulness (FRE)
Extrinsic Evidence? |
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 |
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Impeachment with Non-Conviction misconduct evidence bearing on Truthfulness (CA)
Extrinsic evidence allowed? |
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. |
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Impeachment with Reputation and Opinion Regarding Truthfulness--extrinsic allowed?
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Extrinsic Evidence is admissible (e.g. reputation evidence)
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Definition of 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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Hearsay Exemption Terminology (CA distinction)
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CA calls them all exceptions, not exemptions
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If only part of a hearsay statement is admissible...
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redact the bad part
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Admission by Silence (3)
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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. |
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Party Admissions and the personal knowledge requirement
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NOT subject to PK requirement
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Vicarious party admission
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1. Authorized spokesperson of party or
2. employee of party concerning matter within the scope of employment and made during employment relationship. |
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Adoptive admissions
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Nonparty makes statement and party indicates belief in its truth
|
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Co-conspirator statement
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NOT hearsay if made during course and in furtherance of conspiracy
|
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CA Rule on Vicarious Party admissions
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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.
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Witness’s Prior Consistent statement offered to rebut a charge of recent fabrication or improper influence or motive
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FED & CA: Admissible if made before bribe or inconsistent statement. FRE calls it an exemption.
CA: This is hearsay within an exception |
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Declarant Unavailable Requirements (FRE
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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) |
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CA Witness Unavailability Requirements
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1. Privilege
2. Dead or Sick 3. Absent: 4. D suffers TOTAL memory loss or refuses out of fear (compare to FRE) |
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Former Testimony Exception (CA distinctions)
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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. |
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Former Testimony Exception and Grand Jury testimony
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Prior testimony in a grand jury proceeding is not allowed (b/c no similar motive/opportunity)
|
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Declaration against interest (2)
(CA Distinction) |
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.” |
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Declaration against interest timing requirement
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Must be against interest WHEN MADE
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Dying Declaration
CA |
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 |
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Dying Declaration--CA distinctions
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CA: Applies in all civil and criminal cases and D must actually be dead.
|
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Excited Utterance Exception
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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.
|
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Present Sense Impression Exception
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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. |
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Then Existing Physical or Mental Condition
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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. |
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Statement of past or present mental or physical condition made for medical diagnosis or treatment (FRE)
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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.
|
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California's version of the medical diagnosis exception
CA |
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.
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CA ONLY hearsay exception: Declarant's past physical or mental condition
|
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. |
|
Business Records Exception (5)
CA distinction |
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) |
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Business records prepared in anticipation of litigation
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Not admissible
|
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Trial court discretion re: business records
|
Can exclude any business record if the source of information or other circumstances indicate the record lacks trustworthiness.
|
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Public Records Exception (California distinctions
CA |
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) |
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Major limitations on Public records exception
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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. |
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CA Public records exception
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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. |
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Judgment of Previous Felony Conviction (2- FRE)
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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. |
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Judgment of Previous Felony Conviction Exception in CA
|
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. |
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Catch All exception
|
Must be better than any other available evidence, and have circumstantial guarantees of trustworthiness
|
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Confrontation Clause
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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
|
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 |
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Authentication (Defined)
|
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. |
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Authentication (Standard)
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Low standard: sufficient to sustain a finding
|
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How to authenticate a signature?
|
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 |
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Ancient Docs Rule (CA distinction)
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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 |
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Self-authenticating writings (7)
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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) |
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Photos
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Often a PK problem
But, e.g., can say it was a "fair and accurate depiction of what the intersection looked like” |
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Authentication of non-unique items
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Proponent must lay chain of custody demonstrating that this is the specific item proponent claims it is.
Small break-->still admissible Big break --> inadmissible |
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Best Evidence Rule/Secondary Evidence Rule --> When does it apply?
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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. |
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Best Evidence Rule/Secondary Evidence Rule --> What does it require
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rule requires use of the original, but with many exceptions
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When is evidence being offered to prove the contents of a writing? (2)
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1. Case turns on content of written instrument (e.g. contracts, wills, etc.)
2. Knowledge obtained from writing. |
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Voluminous Documents exception to...
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An exception to BER
Documents can be summarized if originals available for inspection. |
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If Best Evidence Rule applies, what type of evidence is admissible to prove the contents of the writing?
CA distinction |
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 |
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Common Law Privileges
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atty:client,
spousal, pysch-patient; social worker-client. NOT doctor-patient |
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Privileges in a Diversity case
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state privilege laws apply in fed court.
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Attorney Client Privilege
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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. |
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Atty-Client Privilege and corporate clients
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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. |
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Confidentiality requirement re: atty client privilege
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Communication must be intended by client to be confidential
Overheard conversation at a party aren’t privileged But wiretapped phone conversation is. |
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3 exceptions to attorney client privilege
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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 |
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CA only exception to attorney client privilege
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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)
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Pyschotherapist-Patient & Social Worker – Client Privilege
CA distinction |
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. |
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Doctor-Patient Privilege
CA |
CA only (or through diversity)
Any statement made confidentially, for the purposes of diagnosis or treatment |
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Exceptions to Doctor Patient Privilege
CA |
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 |
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Spousal testimonial privilege (4)
CA distinction |
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. |
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Spousal Confidential Communication
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Applies at time of statement
Must have been confidential when said Both H&W own the privilege |
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Requirements for both Spousal Privileges
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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. |
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Other CA Privileges
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i. Counselor-Sex Abuse victim or DV victim.
ii. Penitent and Clergy iii. Immunity for court reporter who refuses to disclose sources |
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Facts appropriate for Judicial Notice
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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. |
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Procedure for taking JN
CA distinction |
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. |
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Civil vs. Criminal re: Judicial Notice
CA distinction |
Civil: Jury MUST take noticed fact as conclusice
Crim: Jury MAY accept it CA: Jury MUST accept for both crim and civil |
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Present Sense Impression (CA)
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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. |
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Bolstering
CA distinction |
FRE: Can't bolster witness veracity unless first attacked
Prop 8: both prosecutor and defendant can bolster before attack |