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Flashcards in Evidence Deck (55)
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• To be admissible, evidence must be relevant. Evidence must be both logically AND legally relevant.


California Proposition 8

• Under Proposition 8 of the California Constitution, all relevant evidence is ADMISSIBLE in a criminal trial.
• However, such evidence is still subject to CEC 352 balancing (whether the probative value is substantially outweighed by the risk of unfair prejudice, confusion of issues, misleading to the jury, or being needlessly cumulative).


Subsequent Remedial Measures

• Evidence of subsequent remedial measures is NOT admissible to show culpability or negligence. Under the FRE, evidence of subsequent remedial measures is also NOT admissible in strict products liability cases (to prove a defect in a product/design or a need for a warning/instruction).
• However, the court may admit such evidence for other purposes, such as: (i) impeachment; or (ii) to prove a disputed issue as to ownership, control, or feasibility/impossibility of precautionary measures


Evidence of Liability Insurance

• Evidence of liability insurance is NOT admissible to prove culpability (that a person acted negligently or wrongfully). However, the court may admit such evidence for another purpose, such as proving bias/prejudice of a witness, or proving agency, ownership, or control


Offers to Pay Medical Bills

• Evidence of paying or promising/offering to pay medical expenses or bills is NOT admissible to prove liability (even if there is no disputed claim). Under the FRE, any related statements or factual admissions (other than the offer to pay) ARE ADMISSIBLE. In CA, related factual statements are NOT admissible


Offers to Settle

• Offers to compromise, and statements made during settlement negotiations are NOT admissible to: (a) prove the validity or amount of a disputed claim (the claim must be filed or threatened); OR (b) to impeach by a prior inconsistent statement or contradiction. However, the court may admit such evidence for another purpose, such as proving bias/prejudice of a witness, negating a contention of undue delay, or proving obstruction in a criminal matter.
• CA also excludes written/oral statements made during mediation proceedings


Statements of Sympathy

• In CA, statements of sympathy made to a person or their family are NOT admissible in a civil case as evidence of an admission of liability. Any accompanying statements of fault are admissible.
• Under the FRE, no such exclusion exists


Authentication of Evidence: General Rule

• All evidence MUST be authenticated before being admitted into evidence. A party must prove that the item it seeks to admit is actually what the party purports it to be, UNLESS the parties stipulate otherwise


Physical Evidence

• Physical evidence may be authenticated through: (a) witness testimony; OR (b) by evidence that shows it has been held in a substantially unbroken chain of custody


Voice Recordings

• Voice recordings may be authenticated by anyone who has (1) heard the person speak (either first hand or electronically); AND (2) identified the recorded person as the speaker


Best Evidence Rule

• Under the Best Evidence Rule, a party must provide the original document (or a reliable duplicate) when a witness (a) testifies to the contents of a writing; OR (b) testifies to knowledge gained solely from a writing.
• Under the FRE, handwritten duplicates are NOT admissible. In CA, handwritten duplicates ARE admissible


Character Evidence

• Generally, evidence of a person’s character is NOT admissible to show propensity (that on a particular occasion the person acted in conformity with the character trait). HOWEVER, character evidence is generally admissible for any non-propensity purpose, such as when character is an ultimate issue in a case (i.e. defamation) or to impeach.
• Notwithstanding the above, character evidence may be offered as circumstantial evidence to prove propensity in certain limited circumstances: o Defendant’s Character: In criminal cases, a defendant may always introduce evidence of his own character. The prosecution is NOT allowed to present evidence of the defendant’s character to prove propensity UNLESS the defendant first presents evidence of his own character (the defendant “opens the door”). ▪ In CA, the prosecution can initiate a showing of defendant’s acts of domestic violence or elder abuse. o Victim’s Character: Except in cases involving rape, a defendant may offer evidence of the victim’s character to prove the defendant’s innocence. If the defendant presents such evidence, the prosecution may present evidence of the: (a) victim’s good character for the same trait; or (b) defendant’s same bad character trait (in CA it is limited only to violent character trait). o Under the FRE, in a Homicide Case the prosecution may offer evidence of the victim’s character for peacefulness ONLY IF the defendant claims the victim was the aggressor (self-defense). In CA, no such rule exists. o For Sex-Offense Cases involving alleged sexual misconduct, evidence offered to prove a victim’s sexual behavior or predisposition is generally NOT admissible. However, certain exceptions to this rule exist. ▪ In a criminal case, the court may admit: (a) evidence of specific instances of a victim’s sexual behavior if offered to prove that the defendant was not involved in the sex crime; (b) evidence of sexual relations between the defendant and victim if offered (i) by the defendant to prove consent, or (ii) by the prosecutor for any reason; and (c) evidence whose exclusion would violate the defendant’s constitutional rights. o Civil Cases: Character evidence CANNOT be introduced in a civil case to prove propensity, unless the exception for sex-offense cases applies (see above). In CA, there is no exception for sex-offense cases. • Methods of Proving Character: o Under the FRE, when character evidence is admissible, it may be proven in the following ways: (1) on direct examination by opinion testimony or testimony of reputation in the community; OR (2) on cross examination of the character witness by opinion, reputation, or specific acts. o In CA, the defendant’s character may only be proven by opinion or reputation; and a victim’s character may be proven by opinion, reputation, or specific acts


Prior Bad Acts

• Evidence of prior bad acts (crimes, wrongs, or acts) is NOT admissible to show propensity (that on a particular occasion the person acted in conformity with a character trait). • However, evidence of prior bad acts may be admissible for other relevant non-propensity purposes, such as proving Motive, Identity, Absence of Mistake or Accident, Intent, a Common Plan or Scheme, Opportunity, or Preparation


Habit and Routine Practice

• Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the party acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or if there was an eyewitness.
• A habit is a regular response to a repeated situation (i.e. going down a stairway two stairs at a time), and usually has four key elements: (1) specificity; (2) repetition; (3) duration; AND (4) is semi-automatic or reflexive. Usually, courts limit habit evidence to behaviors that are semiautomatic or reflexive


Prior Inconsistent Statements

• Prior inconsistent statements are admissible to impeach a witness’s trial testimony. A party DOES NOT need to show or disclose the contents of the prior statement when examining a witness on it, but must (on request) show it or disclose its contents to the adverse party’s attorney. o Extrinsic evidence is admissible only if: (1) relevant to a material issue at trial (one other than the witness’s credibility); AND (2) a proper foundation is shown – (i) the witness is first given an opportunity to explain or deny the statement, and (ii) the adverse party is given an opportunity to examine the witness about it. HOWEVER, the above limitation on extrinsic evidence is not applicable to statements by a party opponent.
• In CA, a prior inconsistent statement is admissible as nonhearsay when offered only to impeach a witness. A prior inconsistent statement will be deemed hearsay if offered to prove the truth of the statement (but may still be admissible if a hearsay exception applies)


Prior Convictions

• Under the FRE, evidence of prior convictions may be admitted to attack a witness’s character for truthfulness in certain instances. o Prior felony or misdemeanor convictions involving dishonesty (a dishonest act or false statement) are ALWAYS admissible to impeach a witness (the judge has no discretion to exclude it). All other misdemeanors are NOT admissible to impeach. o Felonies that DO NOT involve dishonesty are admissible in the following cases: (1) in a civil or criminal case where the witness is not a defendant (subject to the FRE 403 exclusions); and (2) in a criminal case where the witness is a defendant, but only if the probative value outweighs its prejudicial effect. o Notwithstanding the above, if 10-years have passed since the later of the witness’s conviction or release from confinement, evidence of the conviction is admissible only if: (1) its probative value substantially outweighs its prejudicial effect and; and (2) proper notice was given.
• In CA, prior felony convictions involving moral turpitude are ADMISSIBLE to impeach, subject to CEC 352 balancing. Felonies that do not involve moral turpitude are NOT ADMISSIBLE. In a criminal case, misdemeanors are ADMISSIBLE under Proposition 8 for crimes involving moral turpitude (subject to CEC 352 balancing). Otherwise, misdemeanor convictions are NOT ADMISSIBLE. o Moral Turpitude is a broad standard, and includes crimes involving lying, violence, sex crimes, and extreme recklessness


Specific Instances of Conduct (“Bad Acts”)

• Under the FRE, a witness’s credibility may be attacked on cross-examination by questioning him with specific instances of conduct (i.e. prior bad acts) ONLY IF the conduct is probative of the witness’s character for truthfulness or untruthfulness. However, extrinsic evidence is NEVER admissible to attack or support such instances of a witness’s credibility. Even if a witness lies or denies a specific instance of conduct, he CANNOT be contradicted by extrinsic evidence, such as documentary evidence or by testimony of another witness to show that the witness is lying.
• In CA, prior bad acts (specific instances of conduct) are generally NOT ADMISSIBLE. However, prior bad acts are admissible under Proposition 8 only if the act(s) involve moral turpitude. In such instances, the use of extrinsic evidence is permitted on cross-examination


Lay Witness Testimony

• A lay witness is any person who gives testimony in a case that is NOT called as an expert. A lay witness’s testimony is admissible if he is competent to testify. To be competent, the witness must: (1) take an oath to tell the truth; AND (2) have the capacity to perceive, recall, and communicate. Additionally, a witness may only testify to matters of which he has personal knowledge. o Under the FRE, competency is presumed except for the presiding judge and jurors. o In CA, in addition to the above competency factors, the witness must also understand the legal duty to tell the truth. Also, the presiding judge and jurors may testify if there is no objection.
• A lay witness may only offer an opinion if it is: (1) rationally based on the witness’s perception; AND (2) helpful to clearly understand the witness’s testimony or to determine a fact in issue (legal conclusions are not helpful). Additionally, under the FRE, the opinion cannot based on scientific, technical, or other specialized knowledge


Expert Witness Testimony

• Expert testimony is permitted when: (1) the witness is qualified as an expert; (2) the opinion is helpful to the jury (if an average jury could not figure the issue out for themselves); (3) the witness believes in the opinion to a reasonable degree of certainty; (4) the opinion is supported by sufficient facts or data (i.e. documentary evidence, personal knowledge, examination); AND (5) the opinion is based on reliable principles and methods that were reliably applied.
• Under the FRE Daubert/Kumho standard, reliability is based on a methodology’s: (1) publication/peer review; (2) error rate; (3) testability; AND (4) whether it is generally accepted in the field. • Under CA’s Kelley/Frye standard, reliability is based on whether a methodology is generally accepted in the field.



• The scope of cross-examination is limited to: (1) the subject matter of the direct examination; AND (2) matters affecting the witness’s credibility


Refreshing Recollection

• Refreshing a witness’s recollection using a document is permitted when (1) the witness once had personal knowledge of the matter, (2) but is unable to recall the matter while testifying [in CA the refreshing may be done prior to or during trial]. When refreshing recollection, the witness will be able to read the document. However, only the opposing party may offer the document into evidence if it is otherwise inadmissible (but it may be admitted by the offering party if admissible under another ground, such as a recorded recollection). The opposing party is also entitled to have the document produced at the hearing/trial, to inspect it, and to cross-examine the witness about it


Judicial Notice

• A court may take judicial notice of indisputable facts that are either: (a) commonly known in the community; OR (b) readily capable of verification and cannot reasonably be questioned. The court may take judicial notice at any stage of the proceeding.
• Under the FRE: In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
• In CA: Judicially noticed facts are conclusive in BOTH civil and criminal cases


Assumes Facts Not in Evidence

• A question that assumes facts not in evidence OR incorporates facts that have not yet been entered into evidence


Calls for Narrative

• A question that calls for a narrative is open ended and requires more than a short response


Leading Question

• A leading question is one that suggests an answer to the witness. Leading questions are permitted on crossexamination, but NOT on direct examination UNLESS (a) the witness is hostile, an adverse party, or identified with the adverse party; (b) it clarifies background information; OR (c) the witness has difficulty remembering. In CA, leading questions are only permitted on direct in the interests of justice


Non-Responsive Answer

• A non-responsive answer provides more information than the question asked for.



• A witness may ONLY testify to personal knowledge and cannot speculate



• An attorney should not ask vague or open-ended questions


Prohibition Against Jury Investigations

• Juries are prohibited from conducting independent investigations of the case. Such conduct may result in a mistrial for the defendant


Hearsay Definition

• Hearsay is (1) an out-of-court statement, (2) that is offered to prove the truth of the matter asserted. Hearsay is ONLY admissible if it falls under an exception. A “statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. However, if the act DOES NOT assert or communicate anything (i.e. crying), it is not deemed a statement for hearsay purposes