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Flashcards in Evidence Deck (76):

Judicial notice

JN appropriate when fact is 1) w/in common knowledge (no reference needed) OR
2) easily verifiable in established sources

Crim - jury MAY accept fact as conclusive
Civ - jury MUST accept as conclusive

Mandatory - (JN w/o request)
federal public law (e.g., the US Constitution, federal treaties), state public law (e.g., public state statutes), and official regs.

Permissive -
courts MAY, upon being supplied with sufficient information, take JN of municipal ordinances, private acts or resolutions of Congress & of local state legislature, or the laws of foreign countries.


Federal Rule 201(g) provides that a judicially noticed fact is conclusive in a

civil case
but NOT in a criminal case.


The burden of producing evidence is

Shifting burden of introducing sufficient evidence to to create a fact question of the issue and avoid judgment as a matter of law against the party bearing the burden.


The burden of persuasion comes into play

NON-shifting burden to persuade the jury to decide in your favor;
after the evidence has been introduced. If, after all the proof is in, the issue is equally balanced in the minds of the jury, then the party with the burden of persuasion must lose.


Burden of Proof =

burden of producing evidence and persuasion, both


parol evidence is admissible to establish or disprove a contract attacked on grounds of:

(i) Fraud, duress, or undue influence inducing consent;
(ii) Lack of consideration;
(iii) Illegality of subject matter;
(iv) Material alteration;
(v) Nondelivery, if the agreement required delivery for the instrument to be effective; or
(vi) Execution or delivery upon a condition precedent, as long as the parol condition does not contradict the writing.


Original evidence

refers to real evidence that has some connection with the transaction that is in question at the trial. An alleged murder weapon is an example of original evidence.


Circumstantial evidence

is evidence proved as a basis for an inference that other facts are true. For example, in a paternity case, the trier of fact may be shown the child for the purpose of showing that she is of the same race as the alleged father.


Dead Man Acts generally provide

that a party or person interested in the event, or her predecessor in interest, is incompetent to testify to a personal transaction or communication with a deceased, when such testimony is offered against the representative or successors in interest of the deceased. A person who stands to gain or lose by the operation of the judgment is a person “interested in the event” and is incompetent to testify; thus, a person with a pecuniary interest in the outcome of the case is incompetent to testify. This is so regardless of whether she is a party to the litigation.


Statement Against Interest exception to HS Elements

To qualify as an exception to the hearsay rule, a statement against interest must meet the following requirements:
(i) The statement must have been against pecuniary, proprietary, or penal interest when made. (CA - and social)
(ii) Declarant must have had personal knowledge of the facts.
(iii) Declarant must have been aware that the statement is against her interest and she must have had no motive to misrepresent when she made the statement.
(iv) Declarant must be unavailable as a witness.

The statement against interest exception does not require that the declarant be a party.

CA - also includes statements against SOCIAL interest (hatred, ridicule, disgrace in cmmty) and
does NOT require corroboration of D's statement


HS exceptions that Require Unavailability

San Fran Fire Fantastic Dept
(i) statements against interest,
(ii) former testimony,
(iii) forfeiture by wrongdoing; statements offered against party who procured dec's unavailability.
(iv) Family history
(v) dying declarations,


Marital Communication Privilege

the privilege for confidential marital communications in Civil and Criminal cases
o 1. applies to (pillow talk) Confidential Communications betw H/W DURING marriage only! (Not before)
o 2. Survives Divorce, but not death
o 3. Applies in ALL cases, civil or crim
o 4. Both Spouses hold, so 1 can prevent other from testifying
rationale is to encourage open communication


Spousal Immunity

FED ct -
in a CRIMINAL case—
(i) the privilege not to testify against a spouse
-applies to ALL communications, conversations, impressions, observations, etc
o Regardless of confidentiality
o BOTH during and before marriage
o Does NOT survive divorce
-Witness Spouse holds privilege, spouse can testify w/o your permission

CA - civil or criminal


Logical Relevance

any Tendency to make the existence of any fact of consequence to the claim, more or less probable

CA - must be DISPUTED fact


403 Prejudice

relevant evidence may be excluded if the court decides its probative value is substantially outweighed by the danger of unfair prejudice


past felony conviction of Defendant in Crim IN if

Impeach character 4 truthfulness bc did crime:
probative value outweighs prejudicial effect (reverse 403 w/o subtlly), or if conviction required element of dishonesty (no 403)

Reverse 403 for convictions over 10 yrs old:
INadmissible unless probative value substlly outweighs unfair prejudice

CA - Must involve MORAL TURPITUDE (includes extreme recklessness)


past conviction of NON D, mere witness

In unless 403 (PV substantially outweighed by unfair prejudice)


Grand Jury Testimony admissible?

no Opp to Cross, so former GJ testimony not admiss in place of actual witness


Clergy Penitent Privilege

person has privilege to refuse to disclose, and to prevent others from disclosing, confidential communication by that person to a member of the clergy, in his capacity as spiritual advisor
applies in both crim and civil cases


Hearsay Defn

An 1) out of court
2) statement
3) offered in evidence to prove the truth of the matter asserted
4) by a PERSON (not animal or machine)

Statement = verbal or written expression of a person; OR conduct by person intended to communicate (assertive conduct)

exceptions NOT FOR TRUTH -
KNIB-L (knowledge/said, notice/effect on listener, intent, belief,
!! Legally Operative Conduct)
effect on listener,
state of mind


best evidence rule

When witness gathers his information from a document, or in proving the terms of a writing where the terms are material, the original writing must be produced.

Writing = Any tangible collection of Data (docs, videos, photos, xrays, recordings, etc)

ORIGINAL = computer printout, certified copies
DUPLICATES Ok too= (includes copy made by machine or by same impression that made original) admissible. But, NO HANDWRITTEN copies.

*Duplicate NOT ok when genuine question as to Original's authenticity

*Voluminous Docs may be summarized if origs available

*Lost Doc - If ORIG lost of destroyed, testimony w/o doc is OK, unless B/F by proponent...

CA - Called "SECONDARY Evidence Rule"
Duplicates and other evidence of contents, including handwritten notes are admissible.


leading question

suggests to the witness the fact that the examiner expects and wants to have confirmed.


Co Conspirator admission must be

1. Made in furtherance of the conspiracy
2. by a participant


dying declaration

Fed - Homicide Case or civil only;
Statement admissible IF:
C – concerned CAUSE/circs of imminent death
U – UNAVAILABLE Declarant (not nec dead)
B – BELIEF death imminent
A – ANY civil case or CRIM homicide

CA - same except statement
1. admissible in ANY CRIM OR CIVIL CASE
2. Declarant must be DEAD
3. Statement must concern what KILLED him


HS exceptions Requiring UNAVAILABILITY:

1. Former Testimony (w/ opp to X)
2. Dying Declaration
3. Statement Against Interest
4. Forfeiture of objection by wrongdoing (killed witness)
5. Statement of Personal or Family History
Issue: Confrontation Clause!


Bar to Plea Evidence

withdrawn guilty please, pleas of nolo contendere, offers to plead guilty, and evidence of statements made in negotiating such pleas are inadmissible against the defendant who made the plea or was a participant in the plea discussion;
Once the plea is accepted it is admissible.


Former Testimony requirement

allows prior statement of declarant to be admitted into evidence if made:
1. under oath at prior depo or proceeding AND
2. Sufficient Similarity in PARTIES & ISSUES - such that Party or his Predecessor in interest had adequate opportunity & motive to cross witness prior
3. Unavailable

CA - same, but NO requirement that Party's Predecessor in interest was a Party earlier. Sufficient that party had INTEREST similar to that of Party against whom former testimony is now offered. (motive and Opp)


business record

writing or record made as memo or record of any act, transaction, occurrence or event is admissible as proof it it was made in:
1. course of regularly conducted business activity
2. customary to make type of entry (duty to make)
3. matters w/in personal knowledge of entrant or overseer
4. made at or near the time of the transaction


Exclusions to HS (NOT HS)
Can be offered for truth

1. Admission of Party Opponent
2. Admission against interest (agent or conspirator)
3. Statement of ID
4. Prior Consistent Statement
5. Prior Inconsistent Statement (under OATH)
6. Offered to show STATE OF MIND (effect on listener, notice, Knowledge)



1) is exempted on the ground of privilege; or
(2) refuses to testify despite court order; or
(3) testifies to a lack of memory of the subject matter
(4) died or is ill
(5) absent and the proponent is unable to procure the witness' attendance by process or other reasonable means.


Excited utterance

1. made during/soon after objectively STARTLING Event
2. made while still UNDER STRESS of excitement (before time to reflect)
3. relates to the startling event

not just related, but MUST actually narrate, describe, or explain the event!


Past Recollection Recorded

Writing may be READ into evidence, but docs CANNOT be entered into evidence except by adverse party.
1. witness had personal knowledge
2. Doc made by witness or under her direction
3. writing was timely made when matter was fresh in the mind
4. writing was accurate vouched for by witness
5. witness cannot remember to testify fully/accurately


403 factors

unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, cumulative evidence. (no unfair suprise in FED)


Confrontation Clause Violation

(1) CRIM case;
(2) admissible hearsay under exception;
(3) declarant unavailable;
(4) testimonial;
(5) no prior opportunity to cross declarant about statement

TESTIMONIAL = unclear, but includes
-Stmts made in Ct or
-made to further police investigation aimed at producing evidence for prosecution.

Does NOT include stmts to police to assist ongoing emergency

EXEMPTIONS - NO CC issue - Dying Declaration, Forfeiture by Wrongdoing


General Doctor-Patient privilege (no Fed right)

physician cannot be compelled to disclose information obtained form a patient while treating him in a professional capacity if that info is related the treatment (medical matter)


Prior Statement under OATH

can come in for truth AND impeachment, admissible NON hearsay


HS Exception for Records of Felony Convictions

Felony convictions are admissible in CRIM and CIV actions to prove any fact essential to the judgment (but NOT to prove character) (pled guilty in crim trial and this case is civ for damages)


Cross Exam is limited to

1. matters addressed on Direct and inferences drawn from them
and 2. matters affecting credibility of witness
Court has discretion to cut short if 403 factors and had adequate opp for meaningful cross


Direct Evidence

offered to prove a fact about the evidence as an end it itself


Lay Opinion admissible if:

1. rationally based on perception of witness (colors, weights, distance)
2. helpful to trier of fact to understand testimony or fact at issue
3. not based on scientific, technical or specialized knowledge

V - value of own land
E - emotional state of others (depressed, drunk)
M - measurements (speed, height, weight)
P - physical state of others (fat, intoxicated)
S - sensory descriptions
S - sanity of a testator in a will contest only


Circumstantial Ev

fact about evidence is being proved as a basis for an inference that another fact is true


Agent admission

1. concerning matter w/in scope of his agency
2. made during course of employment relationship


test for collateral issue

whether the evidence would be relevant absent the contrary assertion by the witness


Learned Treatise

admissible for BOTH impeachment AND substantive evidence if:
1. Expert on stand & it is called to attn of treatise
2. treatise established as reliable authority (by witness or generally

(READ into evidence)

CA - narrower, applies to facts of general notoriety and interest found in published maps, charts, books of history, science or art. Art is little beyond exact science.


reliability of publication shown by:

1. direct or X testimony of expert
2. Judicial Notice


Impeachment ev need not positively controvert prior testimony...

need only tend to discredit the credibility of the witness


statements of personal or family history

statements of fact re: personal or family history contained in Bible, genealogy, chart, engraving on a ring, inscription on a portrait, or engraving on an urn or burial marker.etc. are admissible (regardless of declarant availability


vicarious admission

statement made by agent concerning any matter w/in scope of his agency, made during the existence of the employment relationship are NOT HS and are admissible (not suff that D1 admitted to use against D2 unless D1 is agent.)


Refresh Recollection

ANYTHING can be used to refresh, and W's Testimony is then Permissible! (document itself may NOT be admissible though;

BUT, you MUST now make Doc available to Opponent



repeated regular response to particular set of circumstances


Prior Identification NON Hearsay requires..

Witness must be PRESENT at trial avail for cross!!


Prior inconsistent statement made under oath can be used for:

both impeachment and substantive



need evidence sufficient to support a (jury) finding that item is what the proponent claims -
Burden LOW

Remember Self Authenticating Docs - CONTAC
C - certified docs
O - official publications (gov Pamphlets)
N - newspapers/periodicals
T - trade inscriptions (brand) (NOT CA)
A - acknowledged docs (notarized)
C - commercial papers (NOT CA)

Ancient Docs
1. Fed 20 yrs, CA 30
2. no irregs on face
3. found in place of natural custody

Photographs - Anyone can do...
Fairly & Accurately Depict Scene @ time of event? (personal knowledge of scene is suff)

Chain of Custody BOP (Authentication)
evidence is of type that is likely to be confused or can be easily tampered with;
must show object has been held in substantially unbroken chain of possession. (little break ok, just some system of ID and custody)


Prior Inconsistent Statement that falls under HS exception can be used for

both for impeachment and substantive


Expert Opinion - FED

Opinion may be based on any source that is reasonably relied upon by experts in the field, doesn't matter if evidence itself is inadmissible

-Opinion w/in scope of his expertise
-Qualified SKEET?


Hillman Doctrine

Present State of Mind/of statement of future intent is a HS exception. yes HS and offered for truth, but admissible!


Public Records Exception to HS

(avoids public EEs leaving job to testify to acts one in official capacity)
1. CIVIL Action (so no CC issue!!)
2. Factual findings (including opinions/conclusions) resulting from investigation made pursuant to authority granted by law.
UNLESS source of info or other circumstances indicate a lack of trustworthiness.


Objections to the form of a question

-Calls for Narrative
-Assumes facts not in evidence


! Public Policy Exclusions

-Liability Insurance
-Subsequent Remedial Conduct
-Settlement Offers
-Payment or offer to pay Medical Expenses
-Guilty Pleas


Liability Insurance

Evidence of liability insurance or lack thereof is NOT admissible to prove that person is liable

BUT may admit to
-prove BIAS, agency, ownership, or control!

(encourage purchase of insurance)


Subsequent Remedial Conduct

Subsequent Remedial measures taken that would have made earlier injury or harm less likely to occur, are INadmissible to prove Negligence or fault.

BUT may admit to
-show ownership/Control
-impeach & show Feasibility if denied; not safest

(Promote safety)


Settlement Offers

Compromise offers and negotiations are NOT admissible either to prove or disprove the validity or amount of a DISPUTED claim
to impeach a prior inconsistent statement.
Collateral statements are also OUT
(except if Crim claim re: Public office)

BUT may admit to:
show BIAS, lack of undue delay, prove obstruction of crim investigation

-must be disputed as to validity/amount
-Part of negotiation to compromise
-must be prospect of a claim/litigation

(encourage settlement, low probative value)


Payment or offer to pay Medical Expenses

Evidence of furnishing, offering or promising to pay medical or similar expenses resulting from injury are NOT admissible to prove liability for injury.
Statements collateral to offer are ADMISSIBLE

(encourage humane acts, kindness)



In Civil or Crim case, evidence of following NOT admissible against DEFENDANT who was in plea:
1. guilty plea later withdrawn
2. nolo contendere plea
3. statement about 1/2 in proceeding under Fed Crim Pro 11 or similar
4. ANY statement made during plea w/ atty for prosecutor if plea fails or withdrawn
-admissible in FAIRNESS if part of plea comes in
-Crim proceeding for Perjury if D made statement under oath, on record, and in presence of counsel

-Cannot use to impeach D,
-Split over whether D can use against Gov

*NEED Reasonable and Subjective expectation negotiating a plea

(encourage pleas)


General Rule for Character Evidence

cannot use character evidence to show D acted in conformity with his character.

UNLESS - character at issue (Neg Entrustment, Custody, Defamation, Loss of Consortium); Sufficient Habit, Sex Assault/child abuse & sex c/a

CHECK 403 balance



Mistake or absence of mistake,
Identity (must be similar and Unique),
Common Scheme or Plan


4 ways to Impeach

1. Character
2. Bias/Motive
3. Defects in capacity
4. Inconsistent Statements


Present Sense impresssion

1. made During/immediately after perceiving event
2. describes/explains event

CA - called "CONTEMPORANEOUS STATEMENT" narrower covering ONLY a statement describing DECLARANT'S CONDUCT at the time


Special Relevance

1. Similar Occurrences to show CAUSATION: sometimes admissible if close in time & place (food poisoning)

2. PRIOR Accidents usually irrelevant, UNLESS:
-Pattern of Fraudulent Claims
-Pre-existing condition (goes to causation & Dmg)

3. Previous Similar acts relevant to prove INTENT (pattern of discrimination in hiring)

4. Evidence to rebut defense of impossibility (2 cokes tainted)

5. Comparable Sales price relevant to establish value (taking)

6. Habit (person acted in conformity w/ habit)
Frequently repeated conduct in same circs


Rape Shield

in crim and civil cases re: rape or sexual assault, some defense evidence allowed of Victim's character to show CONSENT:

Crim - Specific Instances ONLY. Allowed to prove 1. TP is source of semen or
2. prior consensual intercourse w/ Defendant

Civil - R/O or SI if Reverse 403, PV subtlly outweighs UP. IF Rep, Victim must 1st put her rep in issue.


Impeach Character witness re: D

impeach about act regarding the Trait W testified to...



FED - can hypnotize witness to help him recall what he saw

CA -
Civil - No hyp allowed
Crim Witness
1. can only testify to what you remembered Before
2. written record of W's pre hypnosis memory
3. hyp was videotaped and done by licensed prof

Crim Defendant - can testify after hypnosis w/o restriction


Extrinsic Evidence

any evidence other than testimony given at proceeding by witness being impeached (other witnesses, writings, prior statements of this W)

NO extrinsic Ev for Prior Bad Acts (non convictions)
NO EE for collateral matters



Always allowed, no judicial discretion.
Extrinsic evidence permitted
Admissible for Substance AND Impeachment!!

-W must be given opp to explain or deny


Opposing Party Statement (Party Opponent)

NON HS, Don't forget Vicarious Liability!


Prop 8 - Truth In Evidence Amendment

CA Const. Amendment makes all relevant evidence admissible in a CRIMINAL case, even if objectionable under CEC; Subject to 352 (403) balancing.