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88 Cards in this Set
- Front
- Back
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Evidence
1. FORM 2. PURPOSE 3. PRESENTATION 4. HEARSAY 5. PRIVILEGES |
1. In what way is the evidence being introduced?
2. What is the purpose for introducing the evidence? 3. How is the evidence being presented? 4. Any out of court statements introduced? 5. Any privileged relationships involved? |
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FORM: In what way is the evidence being introduced?
A. Form Objections (must be timely and specific or else waived) |
-Calls for Narrative (asking W to give a story)
-Non Responsive (answer goes beyond question's scope. FRE-only asking pty can object, CA=both can) -Leading Q (Q's suggest an answer to W. Cross must be w/i scope of direct, direct prelim matters ok) -Assumes Facts not in Ev (improper on direct or cross) -Argumentative (Q doesn't seek answer, just arguing) -Compound (multiple Qs) -Calls for Speculation, Asked and Answered, Vague and Ambiguous |
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FORM: In what way is the evidence being introduced?
B. Cross Examination |
A party has an absolute right to cross examine a W who testifies live. Cannot exceed scope of direct.
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FORM: In what way is the evidence being introduced?
C. ? |
Direct Examination
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PURPOSE: What is the purpose of introducing the evidence?
LogR, LegR, Char |
A. Logical Relevance -> relevant evidence is any evidence that tends to prove or disprove a material fact (CA=in dispute).
B. Legal Relevance: trial judge has broad discretion to exclude relevant ev if its PV is subst outweighed by danger of UP (moves jury to decide on emotion, confusion, delay, etc.) C. Character: (substantively, impeachment, or both?) Evidence of a person's character or trait of his character is inadmissible to prove that he acted in conformity with his propensity on the occasion in question. |
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Logical Relevance
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Relevant is any evidence that tends to prove or disprove a material fact. In CA, the material fact must be in dispute. Evidence must relate to time, event, OR person involved in the present litigation.
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Logical Relevance:
Similar Happenings Exceptions |
Similar happenings that don't relate to T/E/P can be relevant if:
1. Complicated Causation Issues 2. Prior Accidents/Claims by PL - to show plan of scheme or fraud, or damages were from prior injury to PL 3. Similar Accidents or Injuries caused by same event or condition are admissible to prove dangerous condition exists, DF's knowledge of dangerous condition, or dangerous condition was cause of present injury. 4. State of Mind or Intent, 5. Rebut a claim of Imposs, 6. Comparable sales to establish value, 7. Habit of Individual, 8. Routine Biz Practices, 9. Industry Custom |
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Legal Relevance
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Trial judge has broad discretion to exclude relevant information if its PV is substantially outweighed by the danger of UP (confusion, delay,emotion)
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Public Policy Exclusions
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1. Liab Insurance
2. Subseq Remedial Measures 3. Settlement Offers 4. Pmt or offer to pay Medical expenses 5. Guilty Pleas |
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Public Policy Exclusion:
Liab Insurance |
inadm to prove negl or ability to pay
adm to prove all else (ownership, control, impeach W cred, admission) |
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Public Policy Exclusion:
Subsequent Remedial Measures |
Inadm for negl, culpable conduct, defect for products liab.
Adm to prove all else. - Ownership, Control, Rebutting claim (CA- adm even in Products Liab Claim) |
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Public Policy Exclusion:
Settlement Offers |
Inadm to prove negl, culpable conduct, or amount of damages.
Applies iff 1) An Actual CLAIM AND 2) claim or Amount in DISPUTE. Conduct, statements during negotiations are also barred. |
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Public Policy Exclusion:
Pmt. or Offer to Pay Medical Expenses |
Inadm to prove culp conduct or liab for injuries.
FRE Exception - admission of accompanying offer to pay is admissible CA=not admissible. |
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Public Policy Exclusion:
Guilty Pleas |
WITHDRAWN guilty pleas or offers to plead are almost never admissible.
(accepted guilty pleas admissible) |
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Character Evidence
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Evidence of a Person's Character or trait of his character is inadmissible to prove he acted in conformity with that that propensity on the occasion in question.
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Character Evidence Approach
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1. Purpose for Which Character is offered?
2. By which method or technique? 3. Is it a Criminal or Civil Case? |
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1. Purpose for which character is offered?
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To prove char because char is directly in issue.
to prove char as circumstantial ev of person's conduct on the occasion in Q. To impeach credibility of witness, or support credibility of W. |
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2. By which method or Technique?
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Reputation (testimony of person's general rep in the community)
Opinion (testimony of person who knows the person) Specific Acts or conduct (SA) |
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3. Is it a Criminal or Civil Case?
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CIVIL- inadm by either pty to prove conduct. Adm if character is directly in issue (defam, neg hiring, neg entrust)
CRIMINAL- CA Prop 8, All relevant ev is admissible in criminal cases unless exempt. Judicial discretion to exclude ev. FRE ... |
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PRESENTATION: How is the evidence Being presented?
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A. Witness - Competency, W Uses Docs, or Impeachment
B. Doc Reliability C. Opinion Testimony D. Judicial Notice |
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Witness Competency
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Personal knowledge,
Present Recollection, Communication, Oath or Affirmation to tell truth (CA- and understand legal duty to do so) |
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Witness Use of Docs During Testimony
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Refresh Recollection (use anything)
Past Recollection Recorded (Foundation) |
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Impeachment
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PIS, Bias/Interest in Outcome, Prior Convictions, PBAs, Sensory Deficiencies
May Rehabilitate |
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Document Reliability
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Raise Authentication, BER, and Hearsay any time Document Appears.
Authentication - is what proponent claims it to be. Sufficient to support a jury finding of genuineness. BER - only need source doc when contents are in issue |
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Opinion Testimony
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Lay, Expert, Learned Treatises
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HEARSAY: Any out of court statements introduced?
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In CA, hearsay law is exempt from prop 8, usual rules of evidence apply even in a criminal case.
Hearsay is an out-of-court statement (verbal, written, or assertive conduct or omission) offered to prove the truth of the matter asserted. |
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Non-Hearsay
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Verbal Acts of Legally operative Facts
Effect on Listener/Reader Circumstantial Ev of Declarant's State of Mind |
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Non-Hearsay:
Exemptions (to hearsay) |
Party Admissions
Adoptive Admissions Vicarious Admission Co-Conspirator Statements (in furtherance) Prior Stmts by Witness - consistent, inconsistent, identification of person |
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Hearsay Exceptions:
Unavailability DAI, DD, FT |
Declarations Against Interest
Dying Declarations (FRE=homicide/civil, CA=All) Former Testimony |
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Hearsay Exceptions:
Reliability |
Excited Utterance
Present Sense Impression Stmt Describing infliction or threat of Phys Abuse (UNAVAIL as well) State of Mind (then existing) |
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Hearsay Exceptions:
Documentary |
Past Recollection Recorded
Business Records Official Public Records Judgment of Previous Criminal Conviction |
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Hearsay Exceptions:
Others |
Ancient Docs
Learned Treatises Federal Catch All ** |
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PRIVILEGES:
Any Privileged Relationship involved? |
In CA, privilege law is exempt from Prop 8, so usual rules of ev apply even in a criminal case.
1. Attorney Client Privilege 2. Doctor Patient Privilege 3. Spousal Testimonial Privilege 4. Spousal Confidential Comm Priv |
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Attorney Client Privilege
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except to further crime/fraud w/ prof services.
CA- atty reasonably believes necessary to prevent death/serious body harm. |
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Doctor Patient Privilege
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stmts pertinent to diagnosis/treatment only.
Except: patient's phys condition in issue, patient/phys in dispute, ends when patient dies, Doesn't apply to CRIM cases. |
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Spousal Testimonial Privilege
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FRE- criminal cases only, CA- both.
Permits spouse to refuse to testify against another as to anything. Valid marriage @ time of trial. |
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Spousal Confidential Comm Privilege
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CCs during marriage (not if aids in commission of a crime)
Valid marriage at time of COMM. Protects only confidences. Applies in Civil and Criminal cases, Both spouses hold privilege (can prevent other from testifying) |
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Physician-Patient Privilege
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A statutory privilege protecting statements by a patient while made to a physician in a professional capacity;
does not apply to non-medical matters such as the details of the accident and doesn't survive patient's death. |
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CA Proposition 8
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Part of the CA Constitution
Under Prop 8, all relevant evidence is admissible in CA criminal cases unless the ev falls within an exemption. Prop 8 preserves judicial discretin to exclude evidence that would otherwise be admissible. The rule against hearsay evidence is exempt from prop 8. (write this after every hearsay explanation. |
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Business Records Exception
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The business records exception allows admission of a writing made in the regular course of business
at or near the time of the event by one who is under a duty to record such information. |
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Admission by Party Opponent
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A statement amounting to a prior acknowledgement by a party of a relevant fact is admissible as
nonhearsay under the FRE or a hearsay exception under CA law. The statement need not be against the declarant's interest when made. |
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Vicarious Admission
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Under the FRE, vicarious admission by principal-agent and authorized admission is admissible evidence.
CA has no specific counterpart to this exception, however the CEC does allow for authorized admissions. |
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FRE Principal-Agent Exception
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Statements made by an agent concerning any matter within the scope of her agency made during the existence of her employment are not hearsay and are admissible against the principal.
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Multiple Hearsay
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"Because there is multiple hearsay, a separate hearsay exception must exist for each level of hearsay."
(the rule against hearsay is exempt from Prop 8) |
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Circumstantial Evidence of a Declarant's state of Mind
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Statements made by a declarant that serve as circumstantial evidence of the declarant's state of mind are NOT HEARSAY.
Such statements are not offered to prove the truth of the matter asserted, but only that the declarant believed them to be true. |
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Present State of Mind
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A statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible.
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Motion to Strike: Leading Question
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A question is leading on direct examination when it suggests a specific answer.
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Motion to Strike:
1) Assumes Facts not in Evidence 2) Narrative Answer |
1) A question that refers to a piece of evidence which has not been introduced into evidence.
2) A question is improper if it calls for a narrative answer. The examiner must proceed by question and answer, rather than asking the witness to tell a story. (Answers are "stricken" if objections are sustained) |
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Character Evidence
Specific Acts |
Both under the FRE and CEC, specific acts of misconduct are generally admissible unless independently relevant to some issue other than character.
Under FRE & Prop 8, does not allow a CA prosecutor to initiate the use of character to prove the DF's conduct on the occasion in question unless the DF first puts the character in issue (open's the door). However, EE of other crimes or misconduct is admissible if independently relevant to some issue other than DF's character (circ ev of motive to assault) |
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Best Evidence Rule (BER)
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In proving the contents of a writing, where the terms are material, the original writing must be produced.
Secondary ev f the writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original or duplicate is unavailable. |
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Admissibility of Written Police Reports
(Business Records) in a criminal case |
Generally, police reports are NOT admissible against a criminal DF under the business records exception.
Some jdx admit if it only contains routine info, rather than observations or opinions of officers. In CA, may admit as long as sources of info for entries in the record indicate the record's trustworthiness. If based on victim or witness statements who have no business duty to report the info, it will be inadmissible. Must be some independent ground of admissibility to establish the truth of the assertions contained in it. FRE=police report inadmissible in crim case. CA=admissible if trustworthy, and rejects police reports that seem unreliable. |
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Present Sense Impression
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An exception to hearsay. Declarant's stmt made concurrently while declarant was perceiving the event is admissible.
CA has no hearsay exception for PSI. |
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Impeachment:
Bolstering a Witness |
Under FRE, a party may not bolster or accredit the testimony of her W until the witness has been impeached.
In Criminal cases under Prop 8, both the prosecution and DF may bolster a W's credibility BEFORE it has been attacked. |
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Judicial Notice
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Judicial notice is proper where the fact is a notorious fact or is easily verifiable from sources of undisputed accuracy.
(A judge's personal experience regarding a matter is not a universally known fact and cannot be easily verified). What the judge knows is not the same as what he may judicially notice. |
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Judge as a Witness
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A judge cannot serve as a witness.
If he takes judicial notice of a fact from his personal knowledge, the jury would have to assess the credibility of the statement. He cannot do this as it is essentially placing himself as a witness (expert). |
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Settlement Offers
(Public Policy Exclusion) |
Offers to settle and admissions made during the course of settlement negotiations are not admissible.
FRE also excludes any conduct or statements made in the course of negotiations. Public policy favors the settlement of disputes without litigation, and settlement would be discouraged if either side were deterred from making offers they believed would make it into evidence |
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Subsequent Repairs
(Public Policy Exclusion) |
Evidence of subseq repairs is NOT admissible to prove negligence,
but may be admissible to show ownership and control. The purpose of this rule is to encourage people to make repairs. |
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Liability Insurance
(Public Policy Exclusion) |
Ev that a person was or was not insured is NOT admissible on issue of whether the DF acted negligently or otherwise wrongfully.
As part of admission: Where ad mission of liab is so coupled with reference to liab insurance coverage that the reference to insurance cannot be severed without lessening its value as an admission, the reference to insurance coverage WILL BE admitted.** (ie: liab insurance is inadmissible UNLESS fact cannot be detached from an admission of liability) The purpose of this rule is to encourage people to carry insurance. |
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Letter Authentication
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Before a writing or secondary evidence of its contents is admissible...
the writing must be authenticated by proof showing that writing is what proponent claims it to be. May also be authenticated by evidence of the genuineness of maker's handwriting. |
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Opinion Testimony by Expert
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An expert may testify if:
- subject matter requires the testimony, - witness is a qualified expert (SKEETS), - Expert witness possesses reasonable probability regarding his opinion, and - opinion is supported on a proper factual basis --> NO expert opinion where only related to HIS OWN experience. |
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Judicial Determination of Hearsay
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Judge has discretion about where to decide the question of hearsay.
(1) In the presence of the jury, OR (2) outside jury presence. *Whether it will prejudice the DF. |
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Jury Determination of Authenticity
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Authenticity of a document is a preliminary fact to be decided by the jury.
Before the writing is to be received in evidence, it must be authenticated by proof showing the writing is what the proponent says it is. Someone familiar w. handwriting of signature may authenticate the document, and it is up to the jury to decide if it is genuine. |
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Dead Man Act
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Must be a "protected" party:
A party or person interested in the event or her predecessor in interest, is INcompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successor in interest of the deceased (the protected party). Designed to protect those who claim directly under the decedent from perjured claims. |
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DF Bribes W to testify Falsely
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May be used as an Admission by a Party Opponent.
DF bribe is a prior acknowledgement to one of the relevant facts. Party admissions are not hearsay (FRE) Bribe may manifest an awareness of liability of guilt. Admissible where liability is "in issue" (relevant). |
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Bias b/c of relationship with party
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Prosecution may ask witness about their relationship with a party to show bias (motive to lie) for impeachment purposes.
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To Attack Expert Credibility
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May cross examine an expert on statements contained in any scientific publication that is established as a reliable authority.
Reliable? (1) Directly from expert or on cross, (2) Another expert testifies to reliability, or (3) Judicial notice (commonly known to be reliable). |
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Are specific bad acts of a witness admissible?
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If they tend to prove or disprove that the CREDIBILITY of the witness, they are relevant and should be admitted.
Specific Bad Acts that show the witness unworthy of belief (ex: lying, deceit) are probative of truthfulness. ON CROSS Ex: Filing a false income tax return reflects on the witness' veracity and thus, his credibility. Such a person should respond when asked about it even if they were never convicted. Also, NO EE admissible to prove the act. |
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Is a guilty plea in a civil case admissible in a civil case?
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Yes, it is an admission by a party opponent, and non-hearsay.
It is not conclusive and can be explained, but if it amounts to prior acknowledgement of a relevant fact now in the civil case, it is admissible. Ex: A plea of guilty to a traffic infraction is a formal judicial admission. The plea is admissible, but CONVICTION IS NOT (b/c a felony) |
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Records prepared in anticipation of litigation by business.
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Not a business record exception, and therefore it is hearsay.
It is not made in the course of regular conducted business activity*. |
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Motion to Strike
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Ordinarily, an objection must be made after the question is asked, but before the witness answers.
If the motion is not objectionable but the answer is, a motion to strike would be appropriate. Failing to make a timely objection despite the opportunity to do so would make the testimony admissible. Therefore, there would be no basis for a motion to strike such testimony. |
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Is medical diagnosis for insurance purposes privileged?
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NO! To be privileged, the information must be acquired by the physician in the course of treatment, and the condition is not in issue.
Otherwise, it's probably an admission by a party opponent for hearsay purposes, and therefore admissible. |
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Presumption of Death by Statute
(For unavailability exception) |
A jury must find that a person is dead when the basic facts that support the presumption are proven at trial and no other evidence is introduced, the jury must find in accordance with the presumption.
(Ex: a man missing for 7 years presumed dead by statute) This presumption is rebuttable, not conclusive. |
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Is character evidence as proof of conduct in a civil case admissible?
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NO. Unless character is directly in issue (defam, fraud, negl entrust, etc)
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Witness bias or interest: what does it tend to show?
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Evidence that a W is biased or has an interest in the outcome of the suit tends to show that the W has a motive to lie.
W may always be impeached by evidence of interest or bias on CROSS, or EE + proper foundation. |
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Judicial Notice in a Criminal Case
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The Judge may take judicial notice of a matter of knowledge in the community, BUT in a criminal case, the JURY is NOT REQUIRED to accept the fact as conclusive.
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Hearsay Exception:
Statement Against interest |
Statement of a person, now UNAVAILABLE as a W, against a person's Proprietary, Penal, or Pecuniary interest when made, as well as collateral facts contained in the statement, are admissible.
Declarant Rqmts: (1) PK of the Facts, (2) aware statement was against his interest, (3) No motive to misrepresent when making the statement. |
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Hearsay Exception:
Former Testimony |
Testimony of a now unavailable witness made at another hearing (grand jury transcript) is admissible as long as there is sufficient similarities of parties and issues so that the opportunity to develop testimony or cross examine was meaningful.
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Clergy Penitent Privilege
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Similar to A-C priv.
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Prior Inconsistent Statement
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They may be used to impeach a witness (hearsay declarant).
To impeach the credibility of a W a party may show that on another occasion, the W made statements that are inconsistent with the same material part of his testimony. |
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Former Testimony
(Civil Trials) |
Sufficient similarity of parties so that the opportunity to cross-examine was meaningful.
For CIVIL, ptys need not be identical, but party in original axn must be PREDECESSOR IN INTEREST to a party against who the testimony is being offered. |
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Interpreters
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Must be qualified as an EXPERT witness.
Must take an OATH to make a truthful translation. Witness may use interpreter if they would otherwise have difficulty communicating. |
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Dying Declaration
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Declarant myst believe death to be imminent and
CRIMINAL= only admissible in homicide cases. CIVIL= ALL cases. |
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Lay Opinion of VOICE
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A voice may be identified by the opinion of anyone who has heard the voice at anytime.
Witness must prove personal knowledge of the voice before lay opinion may be admitted. |
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Witness Testifies from a Writing (BER?)
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Because a witness is testifying from a writing, the original must be produced or shown to be unavailable.
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Excited Utterance Exception to hearsay
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Declaration made UNDER THE STRESS of excitement SOON AFTER the startling event is admissible.
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PSI in CA?
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A statement made concurrently with a sense impression is admissible.
CA has NO hearsay exception for PSI. |
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Authentication- Voice (Telephone Conversations)
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Where a W is not familiar with the caller's voice, he cannot testify that it was the caller who called absent other evidence.
However, telephone conversations may be authenticated by other means, such as SPEAKER having KNOWLEDGE OF SPECIFIC FACTS known to a particular person. |
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Vicarious Admission by Principal-Agent and Authorized Admission
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CA has no specific counterpart to this exception, however, the CEC does allow for AUTHORIZED admissions and admissions in RESPONDEAT SUPERIOR CIVIL cases , where the liability of a party to a civil action is based upon the liability of the declarant.
However, the statements by an agent must be made during the existence of the employment relationship to be admissible against the principal (NOT when an employee is fired). |
