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Flashcards in Evidence Deck (50):

Logical Relevance

Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would be without the evidence.


Legal Relevance

Evidence is legally relevant if the evidence prejudicial value is outweighed by probative value and does not violate public policy


Objections to Form of Questions (NU CALF)

1. Narrative
2. Unresponsive
3. Compound
4. Argumentative
5. Leading
6. Facts: Assumes Facts not in evidence


Policy Exclusions under Legal Relevance

1. Liability Insurance
2. Subsequent Remedial Conduct
3. Settlement Offers
4. Payment or offer to pay medical expenses
5. Guilty Please


Character Evidence

may be offered as substantive, rather than impeachment, evidence to (1) prove character when it is the ultimate issue in the case or (2) serve as circumstantial evidence of how a person probably acted.


Issues for which prior acts of misconduct are admissible (MIMIC)



Specific Acts of Misconduct

Evidence of a person's specific acts of misconduct is inadmissible if offered solely to establish a criminal disposition or bad character.


Judicial Notice

Courts take judicial notice of indisputable facts that are either matters of common knowledge in the community or capable of verification by resort to easily accessible sources of unquestionable accuracy.


Ways to Impeach a Witness

1. Character Evidence
2. Bias, Motive
3. Defects in memory, perception or knowledge
4. Inconsistent Statements


Ways to Authenticate a Document

1. Testimony of a witness that she recognizes the object as what the proponent claims it to be or
2. Evidence that the object has been held in a substantially unbroken chain in possession.



The object must be identified as what the proponent claims it to be.


Ancient Documents

A document may be authenticated by evidence that it:
1. is at least 20 years old (30 in CA)
2. is in such condition as to be free from suspicion as to the authenticity; and
3. was found in a place where such a writing would likely be kept.


Best Evidence Rule

To prove the terms of the writing, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable.


Kelly Frye Standard for Expert Opinion

The Kelly/Frye standard requires that:
i. The proponent must prove that the underlying scientific theory and the instruments it uses,
ii. It has been generally accepted as valid and reliable in the relevant scientific field.
iii. Exception: The standard does not apply to medical and nonscientific testimony.


Daubert Standard for Expert Opinion

The Daubert/Kumho standard requires:
i. Peer reviewed and published in scientific journals,
ii. Tested and subject to retesting
iii. Low error rate, and
iv. Reasonable level of acceptance.


Attorney Client Privilege

communications between an attorney and client, made during professional consultation, are privileged from disclosure. Disclosures are made before the attorney accepts or declines the case are covered by privilege.


Physician Patient Privilege

Confidential communications between a patient and his physician are privileged, provided that:
1. a professional relationship exists;
2. the information is acquired while attending the patient in the course of treatment; and
3. the information is necessary for treatment.


Spousal Immunity

When the spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. Privilege lasts only during the marriage.


Privilege for Confidential Marital Communications

In any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged. For this privilege to apply the marital relationship must exist when the communication was made.


Hearsay Exemptions

1. Prior Statements
2. Admissions
are exemptions therefore not Hearsay


Prior Inconsistent Statement

The prior statement is inconsistent with the declarant's in court testimony and was given under oath at a prior proceeding


Hearsay Exceptions

1. Unavailability
2. Former Testimony
3. Statements against interest
4. Dying Declarations
5. Statements of Personal and Family History
6. Statements offered against Party procuring Declarant's unavailability
7. Present State of Mind
8. Excited Utterances
9. Present Sense Impressions
10. Statements of Past or Present Mental or Physical Condition for Medical Treatment
11. Business Record Exception
12. Past Recorded Recollection


Prior Consistent Statement

The prior statement is consistent with the declarant's in court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive or the prior statement is one of identification of a person made after perceiving him.


Present State of Mind

Hearsay Exception -
A statement of a declarant's then-existing state of mind, emotion, sensation or physical condition is admissible.


Excited Utterances

Hearsay Exception-
An out of court statement relating to a startling event, made while under the stress of the excitement from the event is admissible.


Present Sense Impressions

Hearsay Exception-
Comments made concurrently with the sense of impression of an event that is not necessarily exciting may be admissible.


Business Record Exception

Any writing or record made as a memorandum of any act or transaction is admissible if:
1. Entry was made in regular course of business;
2. Personal Knowledge
3. Entry was made at or near the time of transaction
4. Authenticated


Public Records and Other Official Writings

Records setting forth the activities of the office or agency are admissible. The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.


Past Recollection Recorded

Hearsay Exception:
if the witness's memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event. (Writing must be read to the jury)


Exceptions to Parol Evidence Rule

Parol evidence is admissible when offered:
1. To Complete an Incomplete or Ambiguous Contract.
2. Reformation of Contract
3. Challenge to Validity of Contract


Admissibility for Impeachment

1. Prior Inconsistent Statement
2. Bias, Motive, Interest
3. Crime Involving False Statement
4. Felony Crimes
5. Prior Bad Act
6. Reputation & Opinion for Truthfulness


Dying Declaration

A declaration made by the now unavailable declarant, while believing that her death was imminent, is admissible IF it concerns the cause or circumstances of what she believes to be her impeding death. Declarant must have first hand knowledge that the defendant was responsible for death.


Admissibility of a Polygraph

Note Legally Relevant:
the probative value of a polygraph test depends on its scientific reliability, and its reliability generally is deemed to be slight because of its significant rate of error. On the other side of the balancing test, the tendency of jurors to give too much weight to a polygraph test makes, the danger of unfair prejudice high.


Statement Against Interest Exception

Requires the Declarant to be unavailable as a witness.



Regular response to specific set of circumstances.


Competency Requirements

1. Personal knowledge
2. Actually perceived fact
3. Must be testifying from present recollection
4. Must take oath or affirmation


Refreshing Recollection with Document

Anything can be used to refresh recollection but cannot be read aloud or shown to the jury; the opponent has the right to inspect it and offer it into evidence.


Lay opinion

Admissible if rationally based on the W perceptions and helpful to the trier of fact; cannot be based on science or special knowledge



Out of court statement being used to prove the truth of the matter asserted


Declarations against Interest

Statement that would subject D to financial or criminal liability


Former Testimony Exception

Testimony given in earlier proceeding of deposition by a witness now unavailable is admissible in the current proceeding if:
1. party against who it is offered was also party in the first proceeding and had opportunity to cross examine
2. or in civil case the party in the first case was in privy relationship and had opportunity to cross examine


Confrontation Clause

Excludes out of court statement if declarant does not testify at trial, is now unavailable, the statement is testimonial and the D had no chance to cross examine about the statement made.


California Prop 8

In a criminal case all relevant evidence is admissible even if objectionable under the California Evidence Code


Admissions of Sympathy

CA makes inadmissible in civil actions expressions of sympathy relating to suffering or death of accident victim


Exemptions to Proposition 8
(DR Mammal Counts SHEEP)

1. Defendant Still must open the door to bring in character evidence
2. Rape Shield Laws
3. Member of the Media still can't be held in contempt for refusing to reveal confidential source
4. Court still has power to exclude evidence if probative value is outweighed by prejudice
5. Secondary evidence rule still applies
6. Hearsay
7. Exclusionary rules based on US constitution still apply
8. Exclusionary rules adopted by the CA legislature still apply
9. Privileges that already existed in 1982 apply


Leading Question

One that is framed to suggest the desired answer


Expert Opinion Requirements

1. Specialized Knowledge
2. Qualified by knowledge, skill, experience, training or education;
3. testimony must be based on sufficient facts or data;
4. The testimony must be the produce to reliable principles and methods; and
5. the witness must have applied the principles reliably to the facts of the case.


Non Hearsay Statements

1. Verbal acts or legally operative facts
2. Statements offered to show their effect on the hearer or reader
3. Statements offered as circumstantial evidence of the declarant's state of mind


Requirements for Silence to be an Admission

1. The party heard and understood the statement
2. the party was physically and mentally capable of denying the statement; and
3. a reasonable person would have denied the accusation


Hearsay Exceptions - Unavailability Required

1. Former Testimony
2. Statement Against Interest
3. Dying Declaration
4. Statements offered Against Party Procuring Declarant's Unavailability