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Flashcards in Evidence Deck (61):
1

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(Prop 8)

  1. Exceptions
    1. The Confrontation Clause
    2. Hearsay
    3. Rape Shield
    4. The Exclusionary Rule
    5. Privilege
    6. Character Evidence of Defendant Presented  First by Prosecution
    7. Secondary Evidence Rule (CA's Best Evidence Rule)
    8. Expert Testimony
    9. Court's Power to Exclude if Unfair Prejudice Substantially Outweighs Probative Value
  2. Applying CA Evidence Law to a CA Criminal Case
    1. Raise All Objections under CA Evidence Code
    2. For Each Objection. Does Prop 8 Overrule the Objection?
      1. Is the Evidence Relevant?
      2. Do Any of the Exceptions Apply?
    3. Balance Probative Value against Unfair Prejudice

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Topics? (3)

(Relevance) 

  1. Logical Relevance
  2. Legal Relevance = Probative Value > Unfair Prejudice
  3. Judicial Notice

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(Relevance: Logical Relevance) 

  1. Of Consequence
    1. Time
    2. Event, OR
    3. Person in Controversy
  2. More or Less Probable
  3. Similar Occurrences
    1. To Prove Causation
    2. Prior Accidents or Claims of Plaintiff
      1. Exceptions
        1. Pattern of Fraudulent Claims
        2. Pre-Existing Condition
        3. Previous Similar Acts Relevant to Prove Intent
        4. Relevant to Rebut Defense of Impossibility
        5. Comparable Sales Relevant to Establish Value
        6. Habit Evidence
          1. Habit = ADMISSIBLE
          2. Character Evidence = INADMISSIBLE
        7. Routine Business Practices Relevant to Show Conduct in Conformity
        8. Industrial Custom Evidence Relevant to Prove Standard of Care

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(Relevance: Legal Relevance)

  1. Probative Value
  2. Unfair Prejudice
    1. Emotionally Disturbing Evidence
    2. Same Evidence both Admissible & Inadmissible

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(Relevance: Judicial Notice)

  1. Facts Appropriate for Judicial Notice
    1. Not Subject to Reasonable Dispute
      1. Generally Known Within the Jurisdiction, OR
      2. Capable of Accurate & Ready Determination by Resort to Sources Whose Accuracy Cannot Be Reasonably Questioned
  2. Proper Procedures for Judicial Notice
    1. Mandatory if Requested
      1. CA Distinction: Mandatory Judicial Notice
    2. Discretion of the Court if Not Requested
      1. Appellate Court Judicial Notice
    3. Timing
    4. Conclusive?
      1. Civil Cases = Yes
      2. Criminal Cases = No
        1. CA Distinction: Criminal Cases = Yes
  3. Only "Adjudicative" Facts NOT "Legislative" Facts
    1. "Adjudicative" Facts
    2. "Legislative" Facts

6

Topics? (5)

(Public Policy Exceptions)

  1. Liability Insurance
  2. Subsequent Remedial Measures or Repairs
  3. Settlements, Offers to Settle, Pleas & Related Statements
  4. Evidence of Payments/Offers to Pay Medical Expenses
  5. CA Distinction: Expressions of Sympathy

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(Public Policy Exceptions: Liabiliy Insurance)

  1. Inadmissible to Prove Culpable Conduct or Defendant's Ability to Pay a Judgment
    1. Policy
  2. Admissible to Prove Anything Else
    1. Inadmissible for One Purpose, Admissible for Another

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(Public Policy Exceptions: Subsequent Remedial Measures or Repairs)

  1. Inadmissible to Prove
    1. Culpable Conduct
      1. Policy
    2. Defective Product Design in Product's Liability Action
      1. Policy
      2. CA Distinction: Only Inadmissible to Prove Culpable Conduct/Admissible in Strict Product's Liability
  2. Admissible to Prove Anything Else
    1. To Rebut Defense of No Feasible Precaution
    2. Inadmissible for One Purpose, Admissible for Another

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(Public Policy Exceptions: Settlements, Offers to Settle, Pleas & Related Statements)

  1. Requirements
    1. Claim Asserted or Implied
    2. Dispute Exists as to Liability or Damages
  2. Civil Case = Inadmissible to Prove Liability or Fault
  3. Criminal Case = Inadmissible to Prove Guilt
    1. Policy
    2. CA Distinction: Prop 8
  4. Exceptions
    1. No Claim Asserted Exception
    2. No Dispute as to Liability or Damages
  5. CA Distinction: Statements in Mediation Proceedings

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(Public Policy Exceptions: Evidence of Payments/Offers to Pay Medical Expenses)

  1. Inadmissible to Prove Liability
    1. Policy
  2. Limited to Payments/Offers Only
    1. CA Distinction

11

Topics? (2)

(Personal Knowledge, Testimonial & Documentary Evidence)

  1. Testimonial Evidence
  2. Documentary Evidence

12

Topics? (4)

(Personal Knowledge, Testimonial & Documentary Evidence: Testimonial Evidence)

  1. Basic Testimonial Qualifications
  2. Federal Rules of Competence
  3. Objections to Form of Testimony or Examination
  4. Opinion Testimony

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(Personal Knowledge, Testimonial & Documentary Evidence: Testimonial Evidence: Basic Testimonial Qualifications)

  1. Requirements
    1. Ability to Observe
    2. Ability to  Remember
    3. Ability to Communicate
    4. Appreciation of Oath Obligation
      1. CA Distinction: Appreciation of Legal  Duty to Tell the Truth
  2. Others
    1. No Judge
    2. No Jurors
    3. CA Distinction: Hypnotized Witness

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(Personal Knowledge, Testimonial & Documentary Evidence: Testimonial Evidence: Federal Rules of Competence)

  1. Personal Knowledge
    1. Present Recollection
    2. Hypnotized by the Police
    3. Burden of Proof = Sufficient to Support a Finding
    4. Personal Knowledge v. Hearsay Distinction
      1. Personal Knowledge: Fact Perceived = Fact Testified To
      2. Hearsay
  2. Oath Required

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(Personal Knowledge, Testimonial & Documentary Evidence: Testimonial Evidence: Objections to Form of Testimony or Examination)

  1. Calls for Narrative Answer
  2. Unresponsive Answer
    1. Motion to Strike 
      1. CA Distinction
  3. Leading Questions
    1. Defintion
    2. Direct Examination
      1. Exceptions
        1. Adverse Witness
        2. Hostile Witness, OR
        3. Witness that Needs Help
    3. Cross Examination
  4. Question Assumes Facts Not in Evidence
  5. Argumentative Question
  6. Compound Question
  7. Witnesses Reading Documents During Testimony

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(Personal Knowledge, Testimonial & Documentary Evidence: Testimonial Evidence: Objections to Form of Testimony or Examination: Witnesses Reading Documents During Testimony)

  1. Hearsay Objection
  2. Refreshing the Recollection of the Witness
    1. Must Testify From Refreshed Memory & Anything Can Be Used to Refresh
    2. Adversary Has Right to Inspect & Offer Into Evidence
  3. Witness's Memory Cannot Be Refreshed = Recorded Recollection Exception
    1. Requirements
      1. Witness Once Had Knowledge of the Facts
      2. Document Created by the Witness or Under Her Direction or Adopted by the Witness
        1. Adoption?
      3. Written or Adopted at Time When the Facts Where Fresh in the Witness's Memory
      4. Accurate When Made
      5. Insufficient Recollection to Testify to the Matters Contained in the Document

17

Topics? (2)

(Personal Knowledge, Testimonial & Documentary Evidence: Testimonial Evidence: Opinion Testimony)

  1. Lay Opinion = Generally Inadmissible
  2. Expert Opinion

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(Personal Knowledge, Testimonial & Documentary Evidence: Testimonial Evidence: Opinion Testimony: Lay Opinion)

  1. Requirements
    1. Rationally Based on the Witness's Perception
    2. Helpful to Trier of Fact
      1. Legal Opinion Not Helpful
    3. Not Based on Scientific or Other Specialized Knowledge
  2. Traditional Categories for Admissible Lay Opinion
    1. General Appearance or Condition of a Person
    2. Voice or Handwriting ID
    3. Speed of an Automobile or Other Moving Object
    4. Intoxication
    5. Sanity
    6. Emotions
    7. Value of Witness's Own Property or Services
  3. Traditional Categories for Inadmissible Lay Opinion
    1. Agency or Authorization
    2. Contract or Agreement

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(Personal Knowledge, Testimonial & Documentary Evidence: Testimonial Evidence: Opinion Testimony: Expert Opinion)

  1. 5 Elements for Admissibility
    1. Helpful to Jury
      1. Helpful?
    2. Qualified Expert
    3. Belief to Reasonable Degree of Certainty
    4. Proper Factual Basis
      1. Admitted Evidence
      2. Personal Knowledge of Expert Witness, OR
      3. Inadmissible Evidence Reasonably Relied Upon by the Expert
    5. Reliable Scientific Principles Reliably Applied (aka Daubert Standard)
      1. Peer Reviewed & Published 
      2. Tested & Subject to More Testing 
      3. Low Error Rate 
      4. Reasonable Level of Acceptance 
    6. CA Distinction: Reliable Scientific Principles Reliably Applied (aka  Kelly Frye General Acceptance Standard)
  2. No Opinion on an Ultimate Issue
  3. Learned Treatise Hearsay Exception
    1. CA Distinction: Matters of General Notoriety or Interest

20

Topics? (2)

(Personal Knowledge, Testimonial & Documentary Evidence: Documentary Evidence)

  1. Authentication
  2. Best Evidence Rule

21

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(Personal Knowledge, Testimonial & Documentary Evidence: Documentary Evidence: Authentication)

  1. Burden of Proof = "Sufficient to Sustain a Finding"
  2. Evidence of Authenticity for Signatures
    1. Admissions
    2. Testimony of Eyewitness
    3. Handwriting
      1. Expert Opinion
      2. Lay Opinion
    4. Circumstantal Evidence
      1. Ancient Documents Rule
        1. Document is 20 Years Old or More
          1. CA Distinction
        2. Document Does Not On Its Face Present Any Irregularities
        3. Found in Place of Natural Custody
    5. Genuine Exemplar
    6. Self-Authenticating Documents = Authentication Not Necessary
      1. Certified Copies of Public Documents 
      2. Acknowledged Documents
      3. Official Publications
      4. Newspapers & Periodicals 
      5. Business Records 
        1. CA Distinction
      6. Trade Inscriptions
        1. CA Distinction
    7. Authentication of Non-Unique Items = Lay Chain of Custody

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(Personal Knowledge, Testimonial & Documentary Evidence: Documentary Evidence: Best Evidence Rule)

  1. "Writings"
    1. Videos
    2. Photos
    3. X-Rays
    4. Computer Disks
  2. Common Situations for Best Evidence Rule
    1. Writing is of Consequence in the Matter
    2. Knowledge of Witness Comes From Reading a Writing
  3. Evidence Admissible to Prove Contents of Writing
    1. Originals
    2. Duplicates
      1. Exception
      2. CA Distinction
    3. Testimony
  4. Voluminous Documents Exception

23

Topics? (8)

(Testimonial Privileges)

  1. Civil Cases Based on Diversity Jurisdiction
  2. Attorney-Client Privilege
  3. Spousal Privileges
  4. Doctor-Patient Privilege
  5. Psychotherapist-Patient & Social Worker-Client Privileges
  6. Counselor and Victim of Sexual Assault or Domestic Violence
  7. CA Distinction: Penitential Communications
  8. CA Distinction: Reporter's Immunity for Contempt for Refusing to Disclose Source

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(Testimonial Privileges: Attorney-Client Privilege)

  1. Definitions
    1. Intended to be Confidential
    2. Made to Facilitate Professional Legal Services
      1. Informal Conservations in Social Settings
    3. Client
    4. Attorney
    5. Representatives
      1. Of Client
      2. Of Attorney
    6. Corporate Clients
      1. CA Distinction
      2. "Mere Witness"
  2. Holder of Privilege?
  3. Exceptions
    1. Legal Services Sought to Further Crime or Fraud
    2. Alleged Breach of Duty Between Attorney-Client
    3. 2 or More Clients in Matter of Common Interest
    4. Competency or Intention of Client
    5. CA Distinction: Disclosure Necessary to Prevent a Crime Likely to Cause Death or Substantial Bodily Harm

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Types? (2)

(Testimonial Privileges: Spousal Privileges)

  1. Confidential Marital Communications
  2. Spousal Testimonial Privilege

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(Testimonial Privileges: Spousal Privileges: Confidential Marital Communications)

  1. Legally Valid Marriage
  2. Holder of Privilege = Both Spouses
  3. Non-Verbal Communications
    1. Majority View = Not Privileged
    2. Minority View = Privileged if at Home
  4. Effect of Divorce
  5. Exceptions
    1. Civil Actions Between Spouses 
    2. Criminal Prosecution Where One Spouse Charged with Crime Against Spouse or Children

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(Testimonial Privileges: Spousal Privileges: Spousal Testimonial Privilege)

  1. CA Distinction: Criminal & Civil - California recognizes a spousal testimonial privilege in both civil and criminal cases
  2. CA Distinction: Refusal to Take Stand Privilege
  3. Legally Valid Marriage
  4. Holder of Privilege?
    1. FRE & Minority View = Witness Spouse
    2. Majority View = Defendant Spouse
  5. Effect of Divorce
  6. Exceptions
    1. Civil Actions Between Spouses
    2. Criminal Prosecution Where One Spouse Charged with Crime Against Spouse or Children

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(Testimonial Privileges: Spousal Privileges: Doctor-Patient Privilege)

  1. CA Distinction - CA has adopted this privilege
  2. Rule
    1. Intended to be Confidential
      1. Expert Witness Doctors
    2. Made to Receive Medical Diagnosis or Treatment
    3. Pertinent to Medical Diagnosis or Treatment
  3. Exceptions
    1. Patient's Physical or Mental Condition in Issue
    2. Services Sought to Aid in a Crime or Fraud or Escape Capture after Crime or Tort 
    3. Alleged Breach of Duty Between Physician-Patient 
    4. CA Distinction: Criminal Cases
    5. CA Distinction: Required to Report to Public Office

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(Testimonial Privileges: Spousal Privileges: Psychotherapist-Patient & Social Worker-Client Privileges)

  1. Intended by Patient/Client to be Confidential
  2. Made to Facilitate Professional Psychological Services
  3. Exceptions
    1. Patient's Physical or Mental Condition in Issue
    2. Services Sought to Aid in a Crime or Fraud or Escape Capture after Crime or Tort
    3. Alleged Breach of Duty Between Physician-Patient
    4. CA Distinction: Danger to Herself or Others

30

Topics? (4)

(Character Evidence & Impeachment: Character Evidence)

  1. Character Evidence Checklist
  2. Civil Cases
  3. Criminal Cases
  4. Mimic Evidence

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(Character Evidence & Impeachment: Character Evidence: Character Evidence Checklist)

  1. Purpose for Which Character Evidence Offered?
    1. To Prove Character b/c Character Ultimate Issue in Case
    2. Circumstantial Evidence of Probable Conduct on the Occasion in Question
    3. To Impeach or Support Credibility of a Witness
  2. What Method or Technique is Used to Prove Character?
    1. Reputation or Opinion
      1. General Reputation in Community
      2. Opinion
    2. Specific Instances
  3. Is it a Civil or Criminal Case?
  4. Does the Evidence Prove a Pertinent Character Trait?

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(Character Evidence & Impeachment: Character Evidence: Civil Cases)

  1. Admissible Where Character at Issue
    1. Civil Cases Where Character at Issue
      1. Defamation of Character
      2. Negligent Entrustment
      3. Child Custody Dispute
    2. Type of Character Evidence Admissible = All Methods OK
      1. Specific Instances, OR
      2. Reputation or Opinion
  2. Inadmissible to Prove Conduct
    1. Exception: Sexual Assault or Child Molestation
      1. CA Distinction
  3. Rape Shield Statute = Limit Defense's Use of Evidence of Victim's Character Offered to Prove Consent
    1. Reputation 
      1. Victim Put Her Own Reputation At Issue
      2. Probative Value Substantially Outweighs Unfair Prejudice 
    2. Opinion Evidence & Specific Instances 
      1. Probative Value Substantially Outweighs Unfair Prejudice 

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Topics? (3)

(Character Evidence & Impeachment: Character Evidence: Criminal Cases)

  1. To Prove Conduct of Defendant
  2. To Prove Conduct of Victim
  3. Rape Shield Statute

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(Character Evidence & Impeachment: Character Evidence: Criminal Cases: To Prove Conduct of Defendant)

  1. Prosecution Cannot Introduce First During Case in Chief
    1. CA Distinction: Prop 8
    2. Two Exceptions
      1. Sexual Assault or Child Molestation
      2. Victim's Character Offered By Defendant
        1. CA Distinction: Limited to Trait of Violence
        2. CA Distinction: Victim's Character for Violence Offered by Defendant
      3. CA Distinction: Domestic Violence
  2. Defendant Can Introduce First
  3. Prosecution Can Rebut
  4. What Form of Character Evidence? 
    1. Direct Examination 
      1. Reputation & Opinion Evidence = Yes
      2.  Specific Instances of Conduct = No
    2. Cross Examination = All Methods OK
      1. Reputation 
      2. Opinion, OR
      3. Specific Instances
        1. CA Distinction

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(Character Evidence & Impeachment: Character Evidence: Criminal Cases: To Prove Conduct of Victim)

  1. Prosecution Cannot Introduce First During Case in Chief
    1. Defendant Offers Evidence of Victim's Character
      1. Prosecution Can Rebut 
    2. Defendant Offers Evidence that Victim Attacked First in Homicide Case
      1. CA Distinction
      2. Prosecution Can Rebut w/ Victim's Peaceful Character
      3. Prosecution Can Rebut w/ Defendant's Same Character Trait
    3. CA Distinction: Prop 8
  2. Defendant Can Introduce First
  3. What Form of Character Evidence?
    1. Direct Examination
      1. Reputation & Opinion Evidence = Yes
      2. Specific Instances of Conduct = No
        1. CA Distinction
    2. Cross Examination = All Methods OK
      1. Reputation 
      2. Opinion, OR
      3. Specific Instances 

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(Character Evidence & Impeachment: Character Evidence: Criminal Cases: Rape Shield Statute)

  1. CA Distinction: Prop 8
  2. Reputation & Opinion Evidence Inadmissible
  3. Specific Instances Admissible Only When Offered to Prove
    1. Third Party Cause of Semen/Injury, OR
    2. Prior Acts of Consensual Intercourse Between Defendant & Alleged Victim

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(Character Evidence & Impeachment: Character Evidence: MIMIC Evidence)

  1. Court Has Discretion to Exclude for Unfair Prejudice
  2. Burden of Proof = Preponderance of the Evidence Standard
  3. Mimic Facts
    1. Motive
    2. Intent
    3. Absence of Mistake or Accident
    4. Identity
      1. Similarity
      2. Uniqueness
      3. Modus Operandi
    5. Common Plan or Scheme

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Topics? (8)

(Character Evidence & Impeachment: Impeachment)

  1. 3 Step Approach
  2. Prior Consistent Statement to Bolster Credibility
  3. Impeachment by Prior Inconsistent Statement
  4. Impeachment by Evidence of Bias, Interest or Motive
  5. Impeachment by Evidence of Prior Conviction
  6. Impeachment by Non-Conviction Misconduct That Bears on Truthfulness
  7. Impeachment by Reputation or Opinion Evidence Regarding Truthfulness of Witness = Admissible to Impeach By
  8. Impeachment by Sensory Deficiencies

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(Character Evidence & Impeachment: Impeachment: 3 Step Approach)

  1. Type of Evidence
    1. Intrinsic Evidence
    2. Extrinsic Evidence
  2. If Extrinsic, Admissible? 
  3. Requirements for this Type of Impeachment

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(Character Evidence & Impeachment: Impeachment: Prior Consistent Statement to Bolster Credibility)

  1. No Evidence Supporting Credibility Admissible Until Witness Impeached
  2. Exceptions
    1. Timely Complaint
      1. By Rape Victims, OR
      2. Of Coerced Confession
    2. Prior Consistent Statement of Identification
  3. Prior Consistent Statement Admissible for All Purposes if Made Before Bribe or Inconsistent Statement

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(Character Evidence & Impeachment: Impeachment: Impeachment by Prior Inconsistent Statement)

  1. Extrinsic Evidence of Prior Inconsistent Statement Inadmissible to Impeach on Collateral Matter
  2. Collateral Matter
  3. Prior Inconsistent Statement Admissible to Impeach
  4. Prior Inconsistent Statement Inadmissible to Prove the Truth
    1. CA Distinction: Prior Inconsistent Statements Hearsay Exception
    2. Prior Inconsistent Statement Given Under Oath = Admissible to Prove Everything
  5. Extrinsic Evidence Foundation Requirement

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(Character Evidence & Impeachment: Impeachment: Impeachment by Evidence of Bias, Interest or Motive)

  1. Admissible to Impeach
    1. Cross Examination, OR
    2. Extrinsic Evidence
  2. Extrinsic Evidence Foundation Requirement

43

Structure?

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(Character Evidence & Impeachment: Impeachment: Impeachment by Evidence of Prior Conviction)

 

  1. Misdemeanors & Felonies Involving False Statements = Admissible to Impeach
    1. CA Distinction: "Act of Moral Turpitude?"
      1. Lying 
      2. Violence 
      3. Theft 
      4. Extreme Recklessness 
      5. Sexual Misconduct 
      6. Not Negligent Crimes 
      7. No Unintentional Acts 
    2. No Power to Balance if Admissible for One Purpose, Inadmissible for Another
      1. Exception: Conviction More Than 10 Years Old
        1. CA Distinction
  2. Misdemeanors & Felonies That Do Not Involve False Statements = May Be Admissible to Impeach
    1. Misdemeanor Not Involving Lying = Inadmissible to Impeach
      1. CA Distinction
      2. CA Distinction: Misdemeanors Inadmissible to Impeach in CA Civil Case
    2. Felony Convictions Not Involving Lying = May Be Admissible to Impeach
      1. Impeaching the Accused
      2. Impeaching Anyone Else
    3. Power to Balance if Admissible for One Purpose, Inadmissible for Another
  3. Form
    1. By Cross-Examination, OR 
    2. Extrinsic Evidence = Record of judgment 

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Structure?

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(Character Evidence & Impeachment: Impeachment: Impeachment by Non-Conviction Misconduct That Bears on Truthfulness)

  1. CA Distinction: no such impeachment under the CA Evidence Code.  Prop 8, however, makes such evidence admissible in a CA criminal case if the evidence is relevant. Relevant? Misconduct must be an act of moral turpitude.
  2. Admissible if the Acts Involved Lying
  3. No Extrinsic Evidence
    1. CA Distinction: Prop 8

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Two methods?

(Character Evidence & Impeachment: Impeachment: Impeachment by Reputation or Opinion Evidence Regarding Truthfulness of Witness = Admissible to Impeach By)

  1. Cross-Examination, OR 
  2. Extrinsic Evidence

46

Structure?

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(Character Evidence & Impeachment: Impeachment: Impeachment by Sensory Deficiencies)

  1. Defects in Capacity 
    1. Perceptive Disabilities 
    2. Lack of Memory 
    3. Lack of Capacity
  2. Lack of Knowledge
    1. Expert Witnesses 
    2. Opinion Witnesses 
    3. Character Witnesses

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Structure?

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(Character Evidence & Impeachment: Rehabilitation)

  1. Explanation on Redirect 
  2. Good Reputation for Truthfulness 
  3. Prior Consistent Statement: Not permitted
    1. Exceptions
      1. Made Before the Alleged Bribe of the Witness
      2. Made Before Alleged Inconsistent Statement

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Who may not be excluded from the court room? (4)

(Character Evidence & Impeachment)

  1. a party who is a party
  2. an officer or employee of a party after being designated as the party's representative by its attorney
  3. a person whose presence a party shows to be essential to presenting the party's claim or defense
  4. a person authorized by statute to be present

49

Topics? (8)

(Hearsay)

  1. Definition
  2. Generally Inadmissible
  3. Not Hearsay
  4. Hearsay Exemptions
  5. Hearsay Exceptions - Declarant Unavailable
  6. Hearsay Exceptions - Unavailability Immaterial
  7. Residual Hearsay
  8. Confrontation Clause

50

Structure?

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(Hearsay: Definition)

  1. Statement
    1. Assertive Conduct
  2. Out of Court
  3. Offered to Prove the Truth of the Matter Asserted

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Structure?

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  2. _

(Hearsay: Generally Inadmissible)

  1. Out-of-Court Declarant is In-Court Witness
  2. Multiple Hearsay

52

Structure?

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(Hearsay: Not Hearsay)

  1. Statements of Independent Legal Significance
    1. Contracts
    2. Defamation
    3. Adverse Possession
    4. Dispute Over Ownership of Personal Property
  2. Statement Offered to Show Effect on Listener
  3. Knowledge of the Facts Stated
  4. Circumstantial Evidence of Speaker's State of Mind

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CA?

Structure?

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(Hearsay: Hearsay Exemptions)

CA Distinction - no such Hearsay Exemptions in CA. CA only recognizes Hearsay Exceptions.

  1. Admission of Party Opponent
    1. CA Distinction: Admission of Party Opponent Exception
    2. Statement By Party 
    3. Offered By Opponent 
    4. Not Subject to Personal Knowledge Requirement or Opinion Rules
  2. Vicarious Party Admissions
    1. Authorized Spokesperson
    2. Principal-Agent
      1. CA Distinction: Vicarious Party Admissions Exception
    3. Adoptive Admission
    4. Co-Conspirators Statement During Course & In Furtherance of Conspiracy
  3. Prior Statements by Witness
    1. Prior Inconsistent Statement Given Under Oath
      1. CA Distinction
    2. Prior Consistent Statement
      1. CA Distinction
    3. Prior Statement of Identification

54

Topics? (4)

(Hearsay: Hearsay Exceptions - Declarant Unavailable)

  1. Unavailable?
  2. Former Testimony Exception
  3. Statements against Interest
  4. Dying Declarations = Civil Cases & Homicide Prosecutions Only

55

Structure?

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(Hearsay: Hearsay Exceptions - Declarant Unavailable: Unavailable?)

  1. Exempted Due to Privilege 
  2. Declarant is Dead or Sick 
  3. Cannot Procure Declarant's Attendance By Process or Other Reasonable Means 
  4. Declarant Refuses to Testify Despite Court Order
    1. CA Distinction
  5. Declarant's Memory Fails
    1. CA Distinction
  6. CA Distinction: Total Memory Loss or Refusal to Testify due to Fear

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Structure?

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(Hearsay: Hearsay Exceptions - Declarant Unavailable: Former Testimony Exception)

  1. Offered Against Someone Who Had an Opportunity to Examine & Similar Motives, OR
  2. Civil Actions Only = Offered Against Someone Who Has a Predecessor in Interest Who Had an Opportunity to Examine & Similar Motives
    1. CA Distinction: Civil Cases Only = Offered Against Someone Who Was Not a Party But a Party Had Opportunity & Similar Motive to Examine
  3. CA Distinction: Offered Today Against the Party Who Originally Offered the Testimony in a  Prior Proceeding
  4. CA Distinction: Deposition Testimony in Civil Action

57

Structure?

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(Hearsay: Hearsay Exceptions - Declarant Unavailable: Statements against Interest)

  1. Against Financial Interests of Declarant, OR
  2. Would Subject the Declarant to Criminal Liability
    1. Offered to Exculpate the Accused
  3. CA Distinction: Statements against Social Interests

58

Structure?

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(Hearsay: Hearsay Exceptions - Declarant Unavailable: Dying Declarations = Civil Cases & Homicide Prosecutions Only)

  1. Subject Matter Requirement = Cause or Circumstances Leading to Impending Death
  2. Death of Declarant Not Required
    1. CA Distinction: Declarant Must Die
  3. CA Distinction: Applies in All Civil & Criminal Cases

59

Structure?

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(Hearsay: Hearsay Exceptions - Unavailability Immaterial)

  1. Excited Utterances
    1. Startling Event or Condition 
    2. Declaration Must be Made While Under Stress of Excitement
  2. Present Sense Impressions
    1. Statement Describing or Explaining an Event or Condition
      1. CA Distinction: only about Declarant's conduct
    2. Made While the Declarant Was Perceiving Event or Condition or Immediately Thereafter
  3. CA Distinction: Statements Describing the Infliction or Threat of Physical Abuse (aka the 01  Exception)
  4. Present State of Mind
    1. An Intention = A State of Mind
    2. Memory or Belief
  5. Statements of Past or Present Mental or Physical Condition Made for Medical Diagnosis or Treatment
    1. CA Distinction: only admits statements of past or present mental or physical conditions if made for medical diagnosis or treatment but only if the declarant is a  minor who is describing an act of child abuse or neglect
    2. Additional CA Distinction: Statements of Past Physical or Mental Condition (Including Statements of Intention)
  6. Business Records Exception
    1. Requirements
      1. Record of Events, Conditions, Opinions or Diagnoses
        1. CA Distinction
      2. Kept in Ordinary Course of Business 
      3. By Person with Duty to Record 
      4. By Person with Knowledge of the Information in the Record 
      5. Made At or Near the Time of the Matters Described 
      6. Must Be Trustworthy
    2. Foundation Required
      1. ​By Testimony
      2. By Affidavit
  7. Public Records Exception
    1.  Record Describes Activities of the Office
    2. Record Describes Matters Observed Pursuant to Duty Imposed by Law
      1. Unavailable to Prosecution in a Criminal Case
        1. CA Distinction
    3. Record Contains Factual Findings Resulting From an Investigation Made Pursuant to Authority Granted by Law Unless it is Untrustworthy 
      1. Unavailable to Prosecution in a Criminal Case
        1. CA Distinction
  8. Judgments of Previous Conviction
    1. CA Distinction: Exception Only Applicable in Criminal Cases
    2. Offered by the Prosecution for Purposes Other than Impeachment judgments Against People Other than the Accused = Inadmissible

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Structure?

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(Hearsay: Residual Hearsay)

  1. Statement is Offered as Evidence of a Material Fact
  2. Statement is More Probative on the Point for Which It Is Offered Than Any Other Evidence
  3. Interests of Justice Best Served by Admission
  4. Advanced Notice to Adverse Party

61

Structure?

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(Hearsay: Confrontation Clause)

  1. Only relevant against criminal defendant
  2. Declarant Does Not Testify at Trial 
  3. Declarant Now Unavailable
  4. Statement is Testimonial
    1. Testimonial Hearsay
  5. Defendant Had No Opportunity to Cross Declarant about Statement When Made