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Flashcards in Evidence Deck (48)
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When are Prior Inconsistent Statements Admissible?

May be used to impeach a witness and are not considered hearsay. Extrinsic evidence of a PIS is admissible only when it addresses a central issue of the case.

Witness must be given a chance to explain or deny the inconsistent statement.


What Are the Restrictions on Holding a Reporter in Contempt of a Court Order to Testify?

An order of contempt of court against a reporter will not be issued if the reporter refuses to divulge information given to her in confidence and in furtherance of her role as public reporter.


What is the Domestic Violence Counselor Privilege?

In CA, conversations that domestic violence counselors have with clients are privileged if they contain statements relating to the consultation or otherwise contain information that would be detrimental to the client if disclosed.


When are Statement of A Party Opponent Admissible?

They are not hearsay, so they are admissible so long as they are relevant.

In CA, an employee statement is only admissible on an employer's behalf if the employer would be liable for the employee's conduct in the instance.


What is Relevance?

Tends to make an issue in the case more or less probable.


What is CA Proposition 8?

All relevant evidence is admissible in a criminal case even if objectionable under the CA Evidence Code, and will be admitted based on CEC 352 (FRE 403) balancing.

Evidence must still be excluded on Constitutional grounds; bases of hearsay; bases of privilege; character evidence with no exception; secondary evidence (?); balancing prejudice and probative value


What is a Declaration of Past Physical or Mental Condition?

An exception to the hearsay rules.

Declarant must be unavailable and the statement may be admitted to prove the declarant's condition if her condition is at issue. There is no need for actual medical treatment.

This exception is valid in CA only.


What is a Statement Describing Infliction or Threat of Abuse?

An exception to the hearsay rules.

Declarant is:

1) unavailable;

2) statement is made at or near the time of injury or threat;

3) statement describes or explains the injury or threat in recording to police or other professional; and

4) the circumstances indicate trustworthiness.

In CA only


What are the Requirements of the Public Records Exception the Hearsay Rule?

The record must:

1) describe the activity or policy of a public office;

and 2) is observed pursuant to legal duty

or 3) contains results from an investigation enacted under legal authority.

In CA:

1) within scope of duty,

2) at or near the place it was recorded,

and 3) circumstances indicate trustworthiness.


What are the Requirements of the Business Records Exception to the Hearsay Rule?

Document must be:

1) Observed in the regular course of business, contemporaneously recorded;

2) business regularly keeps the record; and

3) contents consist of info observed by employees or fits into another exception

In CA: Business records with a simple opinion are not required to be certified by a custodian of record.


What are the Requirements for the Statement for Medical Treatment Exception to the Hearsay Rule?

FRE: Statement to medical professional concerning present or past symptoms or cause of condition for purposes of treatment.

CA: only admissible for statements of minor describing child abuse.


What Are the Requirements of the Then-Existing Physical or Mental Condition Exception to the Hearsay Rule?


1) contemporaneous statement;

2) concerning declarant's condition; or

3) state of mind (including intent).

Does not include statements of memory or belief about past condition.


What Are the Requirements of the Present Sense Impression Exception to the Hearsay Rule?

Statement 1) describing event or condition 2) made while or soon after the declarant perceived it.

CA: only statements related to the declarant's conduct are admissible.


What Are the Requirements of the Excited Utterance Exception to the Hearsay Rule?

Statement 1) concerning a startling event that was 2) made by the declarant while under the stress of the event.


What Are the Requirements for the Dying Declaration Exception to the Hearsay Rule?

Declarant is unavailable, statement describes cause or circumstances of death by one who believes they are about to die.

CA: declarant must actually die for the statement to be admissible.


What Are the Requirements for the Statement Against Interest Exception to the Hearsay Rule?

1) Declarant is unavailable;

2) statement was against financial or penal interest when made.

In a criminal case, statements against penal interest offered to exculpate must be supported by corroborating circumstances.

CA: includes statements against social interests.


What is Required to Admit a Declarant's Former Testimony as an Exception to the Hearsay Rule?

1) Declarant is unavailable;

2) opposing party had opportunity or similar motive to cross examine (or, in civil only: opposing party is successor in interest to party with opportunity to cross).

CA: successor/predecessor in interest status not required in order to admit testimony.

Unavailability is assumed where residence more than 100 miles away.


What Facts are Subject to Judicial Notice?

Matter of common knowledge within territorial jurisdiction, the matters are capable of verification by resort to unquestionable sources.

Up to the jury to accept or reject in criminal cases.


What is Required to Admit Voluminous Documents or Summaries?

Admissible if originals are available for inspection.


What is the Standard for General Admissibility?

Offered to prove a fact of consequence, that makes the fact more or less probable.

CA: fact must be in dispute.


What is Required to Admit an Ancient Document under the Exception to the Hearsay Rule?

Authenticity may be inferred where the document is at least 20 years old, is facially free of suspicion, and the document is found where one would expect to find it.

CA: 30 years.


What is Required to Authenticate Evidence?

Party seeking to introduce evidence must provide a foundation for a reasonable juror to conclude that the item is what it claims to be.


How May Prior Consistent Statements Be Used at Trial?

May be used to rehabilitate only if the opposing party impeaches the witness's credibility with a motive to lie and the statement was made before the motive to lie arose.


How May a Witness's Character for Truthfulness Be Put at Issue?

May be proved after attack by reputation or opinion testimony.


When Are Convictions Admissible?

FRE: Any crime involving a false statement is admissible. Other felonies may be admitted to impeach but are subject to 403. Convictions within 10 years of trial may be admitted to impeach but are subject to 403.

CA: All felonies of moral turpitude are admissible subject to balancing. Other felonies are inadmissible. Prop 8 may allow a judge to admit a misdemeanor of moral turpitude under the CEC 352 balancing test.


What is Required to Admit a Learned Treatise?

A treatise used by experts in aid of testimony is admissible to prove anything stated therein if it is an accepted authority among professionals in the field.

One expert in the case must establish that they rely on the text, or the court must take judicial notice.

CA: only admissible to show matters of general notoriety and the text itself is admissible to the jury as evidence.


What is Required to Admit an Expert Opinion?


1) expert is qualified;

2) opinion has reasonable degree of certainty;

3) based on proper foundation; and

4) opinion is based on reliable principles reliably applied.

CA: same but reliable principles must be generally accepted.


What are the Limitations on Opinion Testimony?

Must be rationally based on witness perception and is helpful to the jury.

CA: can be based on specialized knowledge (e.g. treating physician) and is subject to judge's discretion.

Individual may testify regarding any opinions formed on the basis of facts independently acquired and informed by his or her training, skill, and experience, including opinions regarding causation and the standard of care. (Schreiber)


Past Recollection Recorded

Writing may be read to the jury if the witness had personal knowledge, now forgets, the writing was made when the witness's memory was fresh, was made or adopted by the witness, and the witness testifies that the writing is accurate.


Present Recollection Recorded

Witness may be shown any thing that may refresh his memory on the question, the opposing party may inspect, use on cross and enter into evidence.