Evidence Flashcards
General Essay Question Format
- Form (In What way is the evidence being introduced?)
- Purpose (What is the purpose for introducing the evidence?)
- Presentation (How is the evidence being presented?)
- Hearsay (Are any out of court statements being introduced?)
Form - Type of Question - Leading Question
No leading questions are allowed unless:
1. Cross-Examination
2. Preliminary Questions
3. Introductory Questions
4. Non-Crucial Matters
5. Refresh Witness Memory
6. Examining Hostile Witness or Adverse Party
Form - Type of Question - Improper Question
- Misleading
- Compound (more than one question within a question)
- Argumentative
- Conclusory
- Cumulative
- Unduly harassing or embarrassing
- Assumes facts not in evidence.
Form - Use of Writing - Present Recollection Revived
Any writing or thing may be used to refresh a witness’s present recollection, requires:
- Witness must state he has forgotten something
- Witness may not read directly from the writing while testifying
- Opposing counsel must be given the opportunity to see the writing and enter it into evidence
- The writing is not admitted into evidence
Form - Use of Writing - Past Recollection Recorded
An exception to the hearsay rule, allowing a memorandum or record of an event to be read into evidence if:
- It is on a matter the witness once knew about but cannot recall well enough to testify fully and accurately
- Was made or adopted by the witness when the matter was fresh in their memory
- Accurately reflects the witness’s knowledge
Purpose - Logical Relevance
Evidence that has any tendency in logic to make a material fact more or less probable than it would be without the evidence. May not be logically relevant if evidence involves some other time, event, person than what is directly involved in the case.
California additionally requires that the material fact actually be in dispute.
Purpose - Logical Relevance - Exceptions
(1) Causation: otherwise logically irrelevant evidence can be used to show cause and effect,
(2) Prior Accidents/Claims: Plaintiff’s prior accidents/claims are not admissible except to show common plan of fraud or if prior accidents relevant on issue of P’s damages. Other accidents involving same instrumentality which occurred under the same/similar circumstances are admissible top show notice/knowledge of municipality and that instrumentality is a danger,
(3) Intent: to infer intent from prior conduct (pattern of discrimination in hiring for example)
(4) Rebuttal of Impossibility, (5) Comparable Sales to Establish Value, (6) Habit Evidence,
(7) Business Routine: admissible to infer at time of event acted in conformity w/ usual bus routine (like habit),
(8) Industrial Trade or Custom: admissible as non-conclusive evidence of standard of care,
Purpose - Legal Relevance
Even logically relevant evidence may be excluded if its probative value is substantially outweighed by (1) danger of unfair prejudice, (2) confusion of the issues, (3) misleading of the jury, (4) undue delay, (5) waste of time, or (6) cumulative evidence.
Purpose - Legal Relevance - Exceptions
(1) Liability Insurance: Is not admissible to show person acted negligently or wrongfully or to show an ability to pay damages. Is admissible to show ownership and control when those elements are at issue; to impeach credibility of a witness by showing interest/bias/motive to fabricate or exaggerate.
(2) Subsequent Remedial Measures: Inadmissible to show negligence, culpable conduct, or product defect. Admissible to show ownership/control when those elements are at issue; to impeach for feasibility of precautionary measures when that is at issue (where D says not way to make product safer).
(3) Settlements: Settlements Themselves, Settlement Offers, and Offers to Plead Guilty in Criminal Cases are Inadmissible to prove fault, liability, or amount of damages. Any admissions of fact, liability, or damage made in the course of offer to compromise a claim disputed as to liability/amount are also inadmissible.
(4) Offer to Pay Medical Expenses: Inadmissible even where not a settlement offer, but admissions of fact accompanying that offer are admissible.
(5) CA Specific: (a) Discussions during mediation, (b) statements related to offer to pay medical expenses, (c) expressions of sympathy in civil actions [related statements of fault are admissible].
Purpose - Legal Relevance - Character Evidence - Civil
Inadmissible: if offered by either party to show that either party acted in conformity with a specific character trait.
Admissible: if character itself is a material issue in dispute (defamation, negligent hiring, deceit/fraud). Can use Specific Acts, Opinion, and Reputation for this purpose.
Purpose - Legal Relevance - Character Evidence - Criminal
Inadmissible: if offered by prosecutor to show that the D has a propensity to commit crimes.
Admissible: if offered by D to show character not in keeping with the offense charged. D may offer a witness who testifies regarding good Reputation or Opinion on a relevant character trait (ex. peacefulness in an assault case). D does not put character at issue just by testifying, only when they put their credibility in issue may they be impeached.
Purpose - Legal Relevance - Character Evidence - Criminal - D Opens Door
A prosecutor may cross-examine D’s witness regarding the basis for her testimony, including whether she knows or has heard of Specific Acts of the D’s misconduct. Must accept witness’s answer and no extrinsic evidence of the prior misconduct is allowed.
Prosecutor may also call another witness to testify to the D’s bad Reputation or their Opinion of D’s character.
Purpose - Legal Relevance - Character Evidence - Victim’s Character in Self Defense
D may offer initial Reputation or Opinion evidence to show V’s character to infer V was the initial aggressor as part of a self-defense plea in homicide or assault cases.
Prosecutor can respond with evidence of V’s good Reputation or evidence of Opinion of D.
Specific Acts which are known to or communicated to D in self-defense situation before the crime is admissible to show fear ( “ I told my friend I was afraid of D because they had stabbed Roger”).
Purpose - Legal Relevance - Character Evidence - Victim’s Character Sexual Misconduct
Criminal: D cannot admit evidence of V’s sexual history to prove consent with Opinion or Reputation evidence. Can use Specific Acts to show a different source of semen or prior consent with D, as excluding this evidence would violate Const. rights.
Civil: Evidence of sexual disposition or behavior only if probative value substantially outweighs danger of harm to the victim and unfair prejudice to the D. D must give notice and an in camera hearing must occur.
Purpose - Legal Relevance - Character Evidence - MIMIC Exceptions
Specific Acts are admissible in both criminal and civil matters where offered to show (1) Motive, (2) Intent, (3) Absence of Mistake, (4) Identity, (5) Common Plan or Scheme
Subject to balancing by Judge
Special rule for sexual assault/child molestation - prior similar acts allowed to show propensity (do not have to be charged) and D doesn’t need to open any doors.
California Constitutional Rule in Criminal Cases - Prop. 8
All relevant evidence is admissible in a criminal case even if objectionable under the Evidence Code
Section 352: unfair prejudice substantially outweighs probative value
Relevance: Prop. 8 only applies to relevant evidence, so if the evidence is not relevant for any reason (character), Prop. 8 is inapplicable and does not permit evidence. However, impeachment evidence of almost any kind is relevant, and thus Prop. 8 can override.
Exceptions: (1) Exclusionary Rules under U.S. constitution, (2) hearsay, (3) Privilege, (4) Limits on Character Evidence, (5) Secondary Evidence Rule.
Presentation - Witness
Witnesses must be competent to testify, demonstrated by the fact that they (1) posses personal knowledge of the matter testified to and (2) swear under oath. CA also requires that the witness confirm they understand their legal duty to tell the truth.
Presentation - Impeachment - Prior Inconsistent Statement
On some prior occasion witness made an inconsistent statement in a formal proceeding and under penalty of perjury.
Presentation - Impeachment - Bias, Interest, Motive
Evidence that a witness is biased or has an interest in the outcome of a suit can be introduced to show that the witness has a motive to lie or exaggerate.
Presentation - Impeachment - Prior Conviction of a Crime (Federal)
Evidence of a criminal D’s conviction, up to 10 years prior, is admissible if the judge rules the probative value outweighs the risk of unfair prejudice. This discretion does not apply if the prior conviction was for a crime involving dishonesty.
Presentation - Impeachment - Prior Conviction of a Crime (California)
Only felonies (without limitation) and criminal misdemeanors involving moral turpitude are admissible under Prop 8, subject to PV/UP balancing.
Presentation - Impeachment - Bad Reputation or Opinion of Witness
Witness can be impeached by another witness testifying to reputation in community for truthfulness if the statement is made in good faith.
Presentation - Impeachment - Specific Instances of Misconduct
A witness may be interrogated upon cross-examination with respect to an act of misconduct relating to truthfulness. Good Faith is required.
CA does not allow this but Prop. 8 might make it relevant in criminal cases, if an act of moral turpitude and provable by any means.
Presentation - Impeachment - Rehabilitation
On redirect, witness may explain or clarify facts brought out in cross-ex.
Good Reputation - When character for truth and veracity has been attacked, other witnesses may be called to testify to the good reputation (for the truth of the statement).
Can also use prior inconsistent statement to rebut charge that the witness is lying because of some motive. can show witness made the prior statement before the alleged motive surfaced. The statement can come in for its truth.
