Evidence Definitions Flashcards Preview

Flemings-Evidence > Evidence Definitions > Flashcards

Flashcards in Evidence Definitions Deck (51):

Logical Relevance (FRE and CA)

FRE: Evidence is relevant if it has any tendency to make a fact more or less probable (probative value) than it would be without the evidence and the fact is of consequence in determining the action.

CA: Similar enough to use the same definition


Legal Relevance (FRE and CA)

FRE: The trial court may exclude evidence if it probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues or misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. There is a balancing act between its probative value and unfair prejudice.

CA: Substantially similar


Unfair Prejudice

An undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.


Doctrine of Limited Admissibility

Where the evidence is admissible for one purpose but not for another, the trial judge has the discretion, as an alternative, to exclude the evidence entirely or to admit the evidence only for the proper purpose.


Character Evidence

General Rule: Evidence may not be used to prove that a person acted in conformity with his propensity on the occasion in question.


Approach to Character Evidenc

1. Analyze the purpose for which the evidence is being offered.
2. If the evidence is being offered to prove character in a way that is permissible, then ask whether the proper type of evidence is being offered.


Types of Character Evidence

Both FRE and CA.

1. Specific Instances of Conduct
2. Opinion (based on personal observation of a witness)
3. Reputation (in the community)


Three Purposes for which Character Evidence is Offered

1. Character directly in issue (admissible)
2. To show probable past conduct (not admissible)
3. To impeach (depends on rules of impeachment)


Defendant's Exception to Character Evidence

In a criminal case only, defendant may introduce evidence of a pertinent character trait of the defendant to prove that he did not commit the crime he is charged with committing. By doing so, he opens the door to rebuttal character evidence.


Types of Evidence that Defendant may use under the Defendant's Exception (Majority/Common Law and Minority)

Majority/Common Law: Reputation only

Minority inc CA: Reputation and Opinion


Victim's Exception to Character Evidence

In a criminal case only, defendant may introduce evidence of a pertinent character trait of the victim to show that the victim acted in conformity with that character trait.


Types of Evidence that Defendant may offer under the Victim's Exception (Majority/Common Law and Minority)

Majority/Common Law: Reputation only

Minority inc CA: Reputation, Opinion and Specific Instance


Rape Shield Statute

Excludes evidence offered to prove the victim's past sexual behavior or sexual disposition subject to exceptions. In civil cases, evidence offered to prove the sexual behavior or predisposition of the victim is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.


Three Exceptions to the Rape Shield Statute (FRE and CA)

1. Evidence of victim's past sexual conduct with others is admissible to show that a person other than the accused was the source of the semen, injury or other physical evidence.
2. Evidence of specific instances of victim's past sexual behavior with respect to the person accused of the sexual misconduct if offered by defendant to show victim's consent (excluded in criminal cases).
3. Where evidence whose exclusion would violate the defendant's constitutional rights (i.e. rights of confrontation)

CA: Similar to Federal except that, in a civil case, evidence of the victim's sexual conduct with others is never admissible if it involves sexual harassment, sexual battery or sexual assault to prove consent unless the injury claimed includes loss of consortium.


Other Criminal Acts

Cannot be used to establish criminal propensity but may be admissible for other purposes (i.e. as circumstantial evidence to establish a specific consequential proposition i.e. particular element of a crime).


Habit Evidence

Evidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice.


Subsequent Remedial Measures Exclusion FRE and CA.

FRE: When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove
1) negligence;
2) culpable conduct;
3) a defect in a product or its design; or
4) a need for a warning or instruction.

CA: SRM not applicable to actions based on strict liability. SRM rule is admissible to prove liability in a products liability case.


Six Public Policy Exclusions (incl one unique to CA) to Admissibility of Evidence

1. Subsequent Remedial Measures
2. Offers to compromise disputed claims
3. Payment of medical, hospital or other similar expenses (Good Samaritan Rule)
4. Withdrawn guilty pleas/nolo contendere pleas
5. Liability insurance
6. CA Only: Expressions of sympathy or benevolence is inadmissible to prove liability.


Ten Objections During Examination

1. Argumentative
2. Compound
3. Non-Responsive
4. Assuming facts not in evidence
5. Vague/Ambiguous
6. Asked and answered
7. Calls for narrative
8. Calls for speculation
9. Leading questions (subject to exceptions)
10. Harassing a Witness


Objection: Argumentative

Purpose of question is to persuade trier of fact rather than eliciting information. Asks the witness to agree to the conclusions drawn by the questioner.


Objection: Compound

A question that contains two or more questions.


Objection: Non-Responsive

An answer that goes beyond the scope of the question and includes subject matter not called for by the question. Any voluntary statements by a witness.


Six Permissible Leading Questions

1. To refresh recollection
2. Hostile witness
3. Handicapped witness (i.e. young witness)
4. Preliminary foundational matters
5. Examination of adverse party or a witness identified with an adverse party
6. Expert Witness


Revival of Recollection

When a witness' memory is incomplete, an examiner may refresh the witness' memory on direct examination.


Cross ExaminationFederal/CA law)

Fed/CA are the same: Restricts cross ex to matters within scope of matters reasonably inferred from the direct ex.



Introducing evidence (intrinsic or extrinsic) for the purpose of discrediting the testimony of a witness. Common law prohibited impeaching your own witness and Federal rules are contra.


Seven Reasons to Impeach (inc CA)

1. Prior bad act
2. Conviction of crime
3. Poor reputation for truthfulness
4. Bias
5. Prior inconsistent statements
6. Contradiction
7. Impaired to perceive or remember
8. Character for honesty and veracity

CA: Religious Beliefs: Includes ability to attack or support the witness' credibility.


Prior Bad Acts plus Four Limitations of use (three limitations for FRE and CA limitations in civil and criminal cases).

Refers to misconduct which falls short of criminal conviction subject to the following limitations:

1. Within the court's discretion
2. Limited to cross ex only
3. Limited to the character trait of truthfulness or untruthfulness (not just any bad moral character trait)

4. CA:
-In Civil cases: Evidence of specific instances of a witness's conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.

-In Criminal cases under Prop 8: Such evidence is admissible on both cross ex of the witness and through extrinsic evidence, but subject to legal relevance balancing.


Crimen Falsi

Convictions for felonies or misdemeanors involving "a dishonest act or false statement" are absolutely admissible for impeachment purposes.


Rehabilitation (FRE and CA)

Refers to the introduction of evidence for the purpose of restoring the witness credibility after it has been attacked.

CA (but not Fed): Prior consistent statements may be used to rehabilitate a witness who has been impeached on PIS grounds if the consistent statement is offered after the witness has been impeached by a prior inconsistent statement and the consistent statement was made before the prior inconsistent statement.


Burden of Production

The burden of going forward with sufficient evidence to enable the trier of fact to rationally find in favor of the party with the burden of production. Generally, the burden is on the plaintiff


Burden of Persuasion

The degree of belief which must be attained by the trier of fact in order to find in favor of the party with the burden of persuasion


Three burden of persuasions

1. Civil: Preponderance of the evidence (51%)
2. Civil Fraud: Clear and convincing evidence (75%)
3. Criminal: Beyond a reasonable doubt (95%)


Three elements to Lay Opinion

1. Rationally based on witness's perception.
2. Helpful to a clear understanding of witness's testimony.
3. Not based on scientific, technical or other specialized knowledge.

Note: Cannot testify to legal conclusions.
Note: Sever each statement and analyze separately.


Expert Opinion

An expert is someone possessing special or peculiar knowledge above that of an ordinary person.


Six Ways to Impeach an Expert

1. Lack of Expert Qualifications
2. Prior Inconsistent Statements
3. Financial Compensation (bias)
4. Conflicting opinions of other experts.
5. Use of journals or treatises not relied on by the witness.
6. Use of journals or treatises not relied on by the witness.


Expert Opinion based on Learned Treatise

When an expert has relied on a learned treatise during direct or it has been brought to his attention during cross, the statement can be read into evidence and is admissible for the truth of the statement (hearsay exception)


Four Types of Evidence

1. Real Evidence
2. Scientific Evidence
3. Demonstrative Evidence
4. Documentary Evidence


Three prong analysis for Documents

1. Logical/Legal Relevance
2. Authentication
3. Best Evidence Rule


Document Authentication

Foundation must be laid to show that the writing is genuine by offering proof sufficient to support a finding by the jury that the writing is what it purports to be.


Six Types of Documents that are Self-Authenticating

1. Public documents under seal if it has government seal and signature.
2. Public document not under seal if it bears the signature of an officer or employee and another public officer within that same entity certifies that the signer has the official capacity and that the signature is genuine.
3. Certified copies of public records
4. Notarized documents.
5. Official publications
6. Trade inscriptions (i.e. Campbell's soup label)


Best Evidence Rule (FRE)

An original writing, recording or photograph is required in order to prove its content, unless the original is shown to be unavailable through no fault of the proponent.


What is a Writing Under the Best Evidence Rule

A writing or recording consists of letters, words, numbers or their equivalent set down in any form.

Note: Majority/Common Law/CA. If copy of a writing is available, it must be produced over oral testimony.


What are Inscribed Chattels?

Chattels bearing inscriptions (i.e. police badges, billboards, license plates)


Seven Excuses for not being able to Produce an Original Document

1. Lost or destroyed
2. Cannot be obtained by judicial process
3. In possession of opponent
4. Collateral Matter Exception: Where the writing, recording or photograph is not closely related to a controlling issue, secondary evidence of the writing is admissible.
5. Public records
6. Summaries of voluminous writings
7. Admission of party.


What is CA version of the Best Evidence Rule

Secondary evidence is admissible as the original unless 1) a genuine dispute exists concerning material terms of the writing and just requires its exclusion; or 2) admission of the secondary evidence would be unfair.


Judicial Notice

Allows the court to accept certain facts as true without the necessity of formal proof. Judicial notice is a substitute for evidence.



A rule of law that protects from compelled disclosure confidential communications between parties to a protected relationship.


Seven Specific Privileges

1. Attorney/Client
2. Marital
3. Psychotherapist/Patient privilege
4. Priest/Penitent
5. Journalist/Source Immunity from Citation
6. Identity of informer
7. Privilege against self incrimination


Four CA Only Specific Privileges

1. Trade Secret: The owner of a trade secret has a privilege to refuse to disclose the secret and to prevent another from disclosing it.
2. Sexual Assault Counselor/Victim
3. Domestic Violence Counselor/Victim
4. Human Trafficking Caseworker/Victim


Other Crimes Evidence


1. Knowledge
2. Identity (modus operandi)
3. Scheme
4. Motive
5. Opportunity
6. Mistake/Accident (absence thereof)
7. Preparation
8. Intent
9. Plan