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CA Bar Prep > Evidence > Flashcards

Evidence Flashcards

1
Q

Relevant Evidence

A

Evidence is relevant if it has a tendency to prove or disprove a material fact

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2
Q

Subsequent Remedial Measures

A

Evidence of safety measures or repairs after an accident are not admissible excpt to prove. Covers any measures taken, even firing someone after an incident

(1) ownership and cntrol
(2) rebut claim that repairs were not possible

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3
Q

Liability Insurance

A

Evidence that a person has insurance is not allowed except to prove

  1. ownership and control
  2. impeachment
  3. admission = statement admitting to vfault for injury and mentioning insurance is admissible
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4
Q

Offers to pay medical bills

A

not admissible. However admissions are admissible but any statements regarding medical expenses is inadmissible

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5
Q

Offers to settle

A

statements made to settle are not admissible. claim has to be filed already. A disputed claim. Statements not made to pay expenses are admissible.

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6
Q

Offers to plead guilty

A

Not allowed

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7
Q

Present Recollection Refreshed

A

Witness showed item to refresh memory and witness then testifies from memory. No hearsay problem since witness ends up testifying from memory

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8
Q

Doctor Patient Privilege

A

For this exception to apply the information must be necessary for the physician to act for the patient (must be medical) If the statement does not relate to treatment it is not protected by the privilege

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9
Q

Martial Testimony

A

One spouse cannot be compelled to testify against the other spouse

  • spouses have to be currently married
  • applies to information before or during marriage
  • holder= witness spouse

If the witness and the defendant are married at the time of trial, the witness cannot be placed in contempt for refusing to testify against the defendant regardless if it’s just describing the clothes their spouse was wearing that day. The privilege applies regardless if the testimony would involve confidential communication.

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10
Q

Confidential Martial Privilege

A

One spouse cannot disclose the confidential communications of the other made during the marriage

  • survives marriage
  • only covers statements during marriage ., not physical acts
  • holder = both spouses. One can prevent the other from testifying

The privilege does not apply if the confidential communication was to aid, plan to commit a crime or fraud. Marital privilege doesn’t apply to fraud actions

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11
Q

Exceptions to privileges

A
  1. communications for furtherance of crime or fraud

2. dispute with lawyer

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12
Q

Character

A

in some cases evidence of a persons character may be offered as evidence when

  1. character is at issue
  2. Evidence of how a person probable acted during the events in the case. Defendant can only use opinion and reputation. If character at issue (civil) then defendant can use specific acts
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13
Q

Character Civil Case

A

Character is not admissible in civil cases unless a person’s character is at issue

  1. defamation
  2. negligent entrustment
  3. wrongful death

If charcter is at issue, all three forms of character evidence is admissible. Opinion, reputation and specific bad acts.

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14
Q

Character Criminal Cases

A

Defendant can present evidence of his good character traits to try to establish that he acted in conformity with the good character and therefore did not commit the crime.

Defendant can also introduce reputation or opinion evidence of bad character traits of the victim if relevant to show defendants innocence. (self defense)

If defendant opens the door then plaintiff can put their foot in the door and rebut with evidence of bad character. Plaintiff can without using extrinsic evidence

  1. cross the witness and can ask if witness knew or heard of specific bad acts by the defendant.
  2. Plaintiff can call their own witnesses to provide reputation or opinion testimony about defendants bad character

Once defendant opens the door by introducing evidence to their good character, the plaintiff may rebut. However,, the plaintiff is constrained in the same manner as the defendant and character must be introduced through reputation or opinion evidence only. no specific acts

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15
Q

Character can be used to prove Mimic

A 
Motive
intent 
mistake 
identity 
common scheme or plan
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16
Q

Habit

A

A regular response to a repeated sitution and is admissible to show conduct in conformity

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17
Q

Impeachment

A

A witness can be impeached

  1. Sensory deficiencies
  2. Bias
  3. Prior inconsistent statement
  4. criminal convictions
  5. Prior Bad Acts

You can impeach a witness because of competency . A witness cant be impeached by a statement in a police report because the police report is not the witness statement

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18
Q

Prior Inconsistent Statement

A

Can impeach a witness with prior inconsistent statement as long as they have the opportunity to either explain or deny.

  • Cant be used as substantive evidence unless made under oath at a prior proceeding.
  • Can use extrinsic evidence
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19
Q

Criminal Convictions

A

Can impeach a witness with a criminal conviction if

  1. any crime involving dishonesty or false statement regardless if misdemeanor or felony
  2. Any felony
20
Q

Prior Bad Acts

A

A party can be impeached by prior bad acts during cross. A party can ask about prior bad acts. No extrinsic evidence and witness can deny

21
Q

Hearsay

A

Hearsay is an out of court statement made by someone other than the declarant to prove the truth of the matter asserted

22
Q

Not Hearsay

A

Statement not offered to prove the truth but instead to prove

  1. effect on the listener
  2. state of mind (anger,sadness, instanity)
  3. Notice
23
Q

Former Testimony

A

Declarant is unavailable. Testimony given as a witness at another hearing or deposition, is admissible if the declarant is unavailable, same subject matter and the party it is being used against was a party to both and was offered opportunity to examine the declarant,

Witness is unavailable if they refuse to testify

24
Q

Statement Against Interest

A

Declarant is unavailable to testify. Statement admissible if at the time it was said, it was contrary to the declarants interest, or leaves them subject to a civil or criminal lawsuit. A reasonable person would not have made the same statement unless they believed the statement was true.

25
Q

Dying Declaration

A

Statement made while believing death was imminent

26
Q

Exicitted Utterance

A

Starling event. Statement made while under the stress of the event

27
Q

Presence Sense Impression

A

Describes event/condition while perciciving it

28
Q

Then Existing State of Mind

A

A statement is admissible if it is about a current mental or physical condition. Statement must be in the present tense “i cant feel my leg”

29
Q

Statements of Medical Diagnosis or Treatment

A

A statement is admissible if made for the purpose of getting a diagnosis or treatment even if it concerns a past condition “My leg hurts. I was hit by a car”.

Statements pointing to people responsible for the condition they are seeking treatment for is considered irrelevant to medical diagnosis or treatment and do not fall within the exception. But statements explaining how the injury occured is okay as long as it does not point to people

30
Q

Vicarious Statement

A

A statement made by an employee or agent is admissible as a vicarious statement

31
Q

Past Recollection Recorded

A

“reading something into evidence” Applies when a party is seeking to read into evidence the contents of a writing that was made or adopted by the witness Hearsay problem. looking at the document does not refresh memory. The lawyer cannot offer the document into evidence but can merely read the evidence. The adverse party can enter it into evidence.

  • must have firsthand knowledge
  • fresh at time of recording
  • witness forgot
32
Q

Business Record

A

When a party tries to enter into evidence a business record it must …

  1. Business activity
  2. Regular practice to keep that information
  3. by someone with firsthand knowledge
  4. business duty to report
  5. timely made
33
Q

Public Record

A
  1. Agency records own acts
  2. duty to report
  3. investigative reports

CANT BE USED AGAINST A CRIMINAL DEFENDANT

34
Q

Judicial Notice

A
  • not subject to responsible dispute
  • generally known in the jurisdiction
  • can be readily determined
35
Q

Best Evidence Rule

A

A original document is superior evidence Secondary evidence, like a copy, will not be admissible if the original document exists and can be obtained.

36
Q

Authentication

A

Evidence will not be admitted into evidence unless it is both relevant and authenticated. Evidence can be authenticated by

  1. witness with personal knowledge
  2. Self-authenticated (public records or newspaper)
37
Q

Lay Opinion Testimony

A

Opinions of lay witnesses is admissible

  1. opinion based on own perception or first hand knowledge
  2. general appearance or condition of a person
  3. emotional state of a person
  4. senses
  5. identifying handwriting
38
Q

Judicial notice (M)

A

courts have taken judicial notice that radar devices are valid. Expert testimony is not needed to establish the scientific validity of radars

39
Q

Admissibility of Duplicates

A

A duplicate is admissible to the same extent as an original unless..

  1. a genuine question is raised to the authenticity of the original
  2. person contests the authenticity of the original
  3. unfair to admit the duplicate in lieu of original
40
Q

Prior Consistent Statement

A

When a witness is called a liar on the stand a prior consistent statement will be admissible to rehabilitate the witness and prove they aren’t lying

41
Q

Conspiracy existed (M)

A

The judge determines if a conspiracy existed and if the defendant and declarant are members of it

42
Q

Photograph as Evidence (M)

A

A photograph is viewed merely as a graphic portrayal of oral testimony and is admissible no matter who took the photo or when the photo was taken, even if two years after the accident if the witness can testify that it is a correct and accurate representation

43
Q

Similar Crimes in Sexual Assualt

A

In a criminal case in which a defendant is accused of sexual assault, the court may admit evidence that the defendant committed any other sexual assault cases. The prosecutor can argue that these past crimes demonstrate a likelihood they committed the crime.

44
Q

Defamatory Statements (M)

A

Defamatory statements are not hearsay

45
Q

Hearsay Exception Reputation Concerning Personal or Family History (M)

A

A reputation among a person’s family or among a person’s associates or in the community about someone’s birth, adoption, or similar facts of personal or family history is admissible and an exception to hearsay.

CA Bar Prep (11 decks)

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