Flashcards in Evidence Deck (89):
what is relevant evidence?
1. ANY TENDANCY to make the existence
2. of ANY FACT of CONSEQUENCE to the determination of the action.
3. MORE or LESS probable than it would be without the evidence.
Does the court have the discretion to exclude relevant defense?
When do courts have discretion to exclude relevant evidence?
If they find that PROBATIVE VALUE is subtantially outwieghted by UNFAIR PREDJUDICE.
what are two examples of unfair prejudice?
1. emotionally disturbing evidence or
2. evidence admissible for one purpose but inadmissible for another purpose.
What three situations will the court exclude relevant evidence for policy reasons?
1. Liability Insurance
2. Subsequent remedial measures or repairs
3. Settlements, offers to settle and pleas
4. Payment or offers to pay medical expenses
When is evidence of LIABILITY INSURANCE inadmissible?
1. To prove conduct like negligence.
2. D's ability to pay a judgment.
**But is admissible to prove anything else (bias or scope of employment)
When is evidence of a SUBSEQUENT REMEDIAL MEASURE OR REPAIR inadmissible?
1. To prove conduct like negligence
2. In a products liability action, to prove defective design product design.
**But is admissible to prove anything else
When is evidence of SETTLEMENTS, OFFERS TO SETTLE PLEAS AND RELATED STATEMENTS inadmissible?
1. In civil cases, evidence of settlements, offers to settle, and related statements are inadmissible to prove liability or fault.
2. In a criminal case, pleas later withdrawn, offers to plea and related statements are inadmissible to prove guilt.
In a civil case, does there have to be a claim filed or threatened under the settlement exception?
In a civil case, does there have to be a dispute to liability under the settlement exception?
When is evidence of PAYMENT OR OFFERS TO PAY MEDICAL EXPENSES inadmissible?
1. To prove Liability for injuries in question.
When is evidence about other people of events relevant?
When there are certain SIMILARITIES between that evidence and the people & events at issue.
1. Similar occurrences sometimes admissible to prove causation. Same place and Time
2. Previous similar acts to prove intent.
3. Evidence to rebut a defense of impossibility.
4. Comparable sales relevant to establish value.
5. Habit evidence (frequently repeated specific conduct that conveys no moral judgment)
6. Routine practice evidence
7. Industrial custom evidence relevant to prove standard of care.
What is character evidence?
A general statement that conveys moral character.
Is character evidence generally admissible?
No generally inadmissible.
What is the four question approach to character evidence?
1. What is the Purpose for which the character evidence is offered?
2. What Method or Technique is used to prove character?
3. Is it a Civil or Criminal case?
4. Does the evidence prove a Pertinent character trait?
What are the three purposes for which character evidence can be offered?
1. Character is an issue
2. Person's Conduct
3. To Impeach or Support the credibility of a witness.
what are the three methods used to prove character?
1. Specific Conduct
Is character evidence admissible to prove CONDUCT in a civil case?
No, unless civil claim is based on sexual assault or child molestation.
D's prior acts of sexual assault or child molestation are admissible to prove conduct in this case.
Is character evidence admissible where Character is in issue?
What are some civil cases where character is in issue?
Defamation, Negligent entrustment, Child custody disputes, and Loss of consortium.
What methods are ok to prove character are OK when character is in issue?
All three: Specific Conduct, Opinion, Reputation.
When can Prosecution be the first to offer evidence of defendant's character to prove conduct.
1. In cases of sexual assault or child molestation.
2. Where court has admitted evidence of victim's character offered by D, prosecution can be first to offer D has SAME CHARACTER TRAIT.
In criminal cases, who has control of the doors to Character evidence?
1. Usually only the D can open these doors.
When Defendant opens door, can the Prosecution do?
The prosecution can offer pertinent character evidence to rebut.
Must character evidence always concern a pertinent character trait?
Yes, evidence that is relevant to the crime.
What methods are admissible on Direct Examination?
Opinion and Reputation evidence, but not specific instance evidence.
On cross examination, what kind methods of evidence are admissible.
all three. Reputation, opinion and specific instances are all admissible.
when can the prosecution offer character evidence of the victim?
1. If D offers evidence of victims character, prosecution may rebut.
2. In a HOMICIDE CASE, if D offers evidence victim attacked first, prosecution may offer evidence of victims character for peacefulness.
What is Rape Shield Statute?
limits defense evidence of alleged victim's character when offered to prove consent.
How doe the Rape Shield apply to Criminal Law?
1. Reputation and Opinion admissible.
2. Specific instances of alleged victim's conduct admissible only to prove (i) third party is source of semen or injury, or (ii) prior acts of consensual intercourse between defendant and alleged victim.
How does the Rape Shield apply Civil Law?
Specific Instances evidence is admissible if probative value substantially outweighs unfair prejudice, and
In case of reputation evidence, plaintiff had to put her reputation in issue.
Can specific instances of D's bad conduct be admitted to prove anything other than character that is relevant?
What else can specific instances of D's bad conduct be admitted for?
These always lead to a touchdown question bc it involves a touchdown question.
What is testimonial evidence?
evidence that comes out of mouth of witness
what are the four requirements?
1. Personal Knowledge
Witness must have perceived the facts with senses.
The witness has ability to communicate perception directly or through interpreter.
3. Present recollection
Witness must testify from present recollection
Witness must take oath or make affirmation to tell truth
What are 6 objections to form of testimony and questions.
1. Calls for narrative
3. Leading objections
4. Assumes facts not in evidence
what is a call for narrative objection?
Ask specific/focused questions?
what is an unresponsive objection?
Witness does not answer question asked.
when are leading questions ok?
1. on cross examination
2. on direct when asking adverse witnesses, hostile witness, or witness needing help.
What is an assumes facts not in evidence objection?
when counsel asks questions on evidence that has not been offered.
when do you raise an argumentative objection?
when the counsel is not really asking a question. Posturing
when do you raise a compound objection?
when counsel asks more than one question at a time.
If the witness reads from an out of court document is there an objection?
what if witness looks at the out of court document and then says "now i remember"?
not hearsay because there is no reading.
can anything be used to refresh recollection?
yes anything to refresh recollection.
may the opponent inspect and offer into evidence anything used to refresh?
what if witness reads report and cannot still cannot remember what happened?
We can get the record of the document if:
1. the witness once had personal knowledge of the facts.
2. the document was made by the witness or under the witness discretion or was adopted by witness.
3. document was written or adopted when the facts were fresh in the witnesses memory.
4. the document was ccrurate when made.
5. now the witness has insufficient recollection to testify, and can read document out loud to jury.
Is opinion testimony usually inadmissible?
when can opinions be admitted?
when its a Lay opinion or Expert opinion.
What are the three requirements for a lay opinion (non specialized knowledge) to be admissible?
1. Based on Witness' Perception
2. Rationally Based
3. Helpful to the jury
Lay opinion gives jury MORE information than would testimony limited to describing witness' perceptions.
What are the five requirements for an expert opinion to be admissible?
1. HELPFUL to the jury
Expert uses specialized knowledge to reach conclusion the average juror could not figure out for herself.
2. Witness must be QUALIFIED.
Based on Experience
3. Witness must believe in opinion to a REASONABLE DEGREE of certainty.
4. Opinion must be supported by a PROPER FACTUAL basis.
5. Opinion must be based on RELIABLE PRINCIPLES that were RELIABLY APPLIED. (DAUBERT/KUMHO)
What is the Daubert standard to reliable principles
1. Peer reviewed
3. Tested and subject to Retesting
4. Low Error Rate
5. Reasonable level of acceptance
What is Kumho standard for reliable principle?
common-sense, did she consider other pertinent evidence or alternative explanations.
What is the Learned Treatise Hearsay Exception
Learned Treatise is admissible to prove anything stated therein if it is an accepted authority in field.
When can evidence be used to support credibility?
Inadmissible unless credibility is attacked first.
When is a prior consistent statement not hearsay and admissible for all purposes?
if made before bribe or rehabilitates witness credibility when attacked on another ground
if memory is failing, can allow statement if saying the same thing all along.
What is the three step approach to admissibility of impeachment evidence?
i. Is the source of impeachment EXTRINSIC EVIDENCE or testimony at this proceeding of witness being impeached?
ii. If extrinsic, is it admissible given impeachment TECHNIQUE.
iii. Any FOUNDATION requirements.
What is extrinsic evidence?
any evidence other than the testimony given at this proceeding by the witness being impeached.
Is Extrinsic Evidence admissible by using the Impeachment by Contradiction technique?
Extrinsic evidence is inadmissible to contradict on collateral matter.
what is collateral matter?
a fact not material to the issues.
Is Extrinsic Evidence of a prior inconsistent statement admissible to impeach?
Inadmissible to impeach on collateral matter.
Extrinsic Evidence only admissible if witness given opportunity to explain or deny.
Not hearsay if Prior Inconsistent Statement given under oath at trial or deposition.
Is extrinsic evidence of a Evidence of Bias admissible?
admissible if witness given opportunity to explain.
Is a conviction for crimes of false statement admissible for impeachment?
Yes unless more than 10 years old, then we do touchdown balance.
Is a conviction for a crime not involving a false statement admissible?
Felonies that do not not involve false statement may be admissible to impeach but court may exclude for unfair prejudice.
Misdemeanors that do not involve false statement are inadmissible to impeach.
Can prior acts of misconduct be used to impeach witness?
yes if the act involves lying. you cant use extrinsic evidence. have to cross examine witness about misconduct.
what are the four impeachment techniques?
1. Impeachment by contradiction
2. Impeachment by prior inconsistent statement
3. Impeachment by prior conviction.
4. Impeachment by bias.
Must every item of non-testimonial evidence (writings, photos, guns) be authenticated? what does authentication mean?
Yes. Is it what the proponent of that evidence claims it to be?
What is the burden of proof for authentication?
sufficient to sustain a finding. low standard.
how can a signature be authenticated?
admission, eyewitness, expert opinion, lay opinion, circumstantial evidence. Ancient Document Rule.
what is the ancient document rule
if document is 20 years old or more, no irregularities, was found in a place of natural custody.
what writings dont need to be authenticated?
official publications, newspapers, periodicals, business records, and trade inscriptions, public documents, acknowledged documents.
how to authenticate photo?
has to have sufficient personal knowledge
how do you authenticate a non-unique item?
proponent, must lay chain of custody demonstrating that this is the specific item.
what is the best evidence rule and when does it apply?
applies to evidence offered to prove the contents of a writing.
the rule requires the original, with many exceptions.
when is evidence being offered to prove contents of a writing?
1. case turns on contents of legal instrument.
2. knowledge obtained from writing.
do you have to provide the originals if 1000s of documents are involved?
No may summarize as long as originals are available for inspection.
what type of evidence is admissible to prove the contents "of a writing"?
Duplicates made by same impression or by a machine
what are the four privileges under FRE?
1. Attorney client privilege
2. Psychotherapist- Patient & Social Worker-Client Privileges
3. Doctor-Patient Privilege
4. Spousal Privilege
what are the elements of attorney client privilege?
1. client intended for communication to be confidential.
2. communication was made to facilitate legal services..
who does the attorney client privilege apply to?
all of clients and lawyers representatives.
Does the Psychotherapist/Patient have the same standard as ACP
when does California Doctor-Patient Privilege apply?
when federal court arising under diversity jurisdiction.
what is the CA Doctor-Patient Privilege?
1. when the patient conveyed the information for the purpose of obtaining diagnosis or treatment
2. the information was pertinent to diagnosis or treatment.
what is the spousal testimonial privilege
allows witness to refuse to testify against his/her spouse as to anything.
witness owns privilege.
what is the spousal communication privilege?
applies to communications made when married, both spouses own the privilege.
what is judicial notice?
establishing facts without presenting evidence.
when can courts take judicial notice?
when facts are not subject to reasonable dispute because they are
1. generally known within the jurisdiction, or
2. capable of accurate determination by sources whose accuracy cannot be questioned.
do courts have discretion to take judicial notice, when party has not requested?
In civil case, facts are conclusive.
Criminal, jury does not have accept facts.