Evidence - FRE & CEC Flashcards Preview

Bar Prep > Evidence - FRE & CEC > Flashcards

Flashcards in Evidence - FRE & CEC Deck (72)
Loading flashcards...
1
Q

Relevance

A

Evidence is relevant if it has any tendency to make the existence of any fact that’s of consequence to the determination of the action more or less probable than it would be without the evidence

2
Q

Proposition 8 (CEC)

A

Relevant evidence shall not be excluded in a criminal proceeding, but doesn’t apply to privilege, hearsay, CE, or 352

3
Q

FRE 403/CEC 352

A

Evidence whose probative value is substantially outweighed by undue prejudice, confusion, or delay is excluded

4
Q

Form of the Question - Leading Question

A

Suggests the answer the examiner wants

Not permitted on direct examination, except for preliminary matters & hostile or adverse Ws

Permitted on cross

5
Q

Form of the Question - Calls for Narrative

A

Leads W to tell a story rather than answer a specific question

Permitted where W can’t testify in the traditional Q&A format

Asking about a specific conversation is allowed

6
Q

Form of the Question - Compound Question

A

Asks more than one question in a single question

7
Q

Form of the Answer - Nonresponsive Answer

A

W doesn’t answer the question or answers beyond yes/no

8
Q

Character Evidence - General

A

The use of evidence to infer a character trait and then use of that trait to prove conduct in current case is generally inadmissible

9
Q

Character Evidence - Exceptions

A

FRE: in civ and crim sexual assault/child molestation cases, D’s prior acts of sexual assault/child molestation are admissible to prove conduct in current case

CEC: such evidence isn’t allowed in civ cases

CEC: permits evidence of D’s commission of domestic violence and elder/dependent/child abuse in similar crim cases

10
Q

Character Evidence - If character is in issue

A

All 3 kinds of CE are admissible

11
Q

Character Evidence - Mercy Rule

A

In crim cases, D may first offer O/R evidence of D’s relevant good character trait

Then P may 1) rebut with O/R evidence of same bad trait of D; and 2) inquire into specific instances of conduct that are inconsistent with W’s good character testimony

12
Q

Character Evidence - FRE Victim Character Evidence

A

In crim cases, D may first offer O/R evidence of V’s relevant bad character trait

P can then rebut with O/R evidence of V’s relevant good character trait and D’s same relevant bad character trait

In homicide cases, if D claims self-defense & produces evidence that V attacked first, P can introduce O/R evidence of V’s peacefulness before D offers CE

13
Q

Character Evidence - CEC Victim Character Evidence

A

In crim cases, D can introduce all 3 types of CE of V’s bad character

P can then rebut with all 3 types of V’s good character, & if V’s character trait introduced by D is for violence, P can also introduce all 3 types of CE of D for violence

14
Q

Character Evidence - Rape Shield Laws

A

Prohibits use of O/R evidence and evidence of V’s prior sexual conduct to prove V’s consent, in rape and other criminal sexual crimes, and in civil cases of sexual harassment, sexual assault, or sexual battery

Can use prior sexual conduct with that D to prove consent, loss of consortium, and identity

15
Q

Specific Acts Admissible for a Non-Character Purpose

A

1) Context
2) Common plan or scheme
3) Identity of perpetrator (strikingly similar circumstances)
4) Motive
5) Opportunity
6) State of mind
7) Act not performed innocently or negligently

16
Q

Habit

A

Person’s regular practice of responding to a particular situation with specific conduct

Admissible to show that the party likely acted in conformity with the habit

17
Q

Custom

A

Business’s regular practice of responding to a particular situation with specific conduct

Admissible to show that the business likely acted in conformity with the custom

18
Q

Policy Exclusion - FRE Subsequent Remedial Measures

A

Prohibits the admission of SRMs taken after an incident to prove negligence, fault, design flaws, or damages

Permits SRMs when offered for another purpose, such as proving ownership, control, impeachment, or feasibility of precautionary measures or design (if controverted)

19
Q

Policy Exclusion - CEC Subsequent Remedial Measures

A

SRMs or precautions are also admissible to prove product defects

20
Q

Policy Exclusion - Offers of Compromise

A

Requires dispute as to liability or damages, & “if, then” condition

Compromise offers and admissions made in connection are inadmissible

Compromise offers may be admitted in crim cases where the negotiations are with a gov’t body

21
Q

Policy Exclusion - Offers to Pay Medical Expenses

A

The offer itself is inadmissible

FRE, but not CEC, allows admissions made in connection

CEC also excludes humanitarian offers and admissions

22
Q

Policy Exclusion - Benevolent Gestures CEC

A

“I’m sorry for your loss. It’s my fault.”

The admission is admissible

23
Q

Policy Exclusion - Liability Insurance

A

Inadmissible to prove liability or fault, but admissible to prove ownership or control

Absence of insurance also excluded

24
Q

Policy Exclusion - Plea Bargains

A

Inadmissible in all cases

FRE - plea offer if made to prosecutor

CEC - plea offer if made to prosecutor or police

25
Q

Hearsay - General

A

An out of court statement used to prove the truth of the matter asserted

26
Q

Conduct as a Statement

A

FRE: burden on opponent of evidence to show that the actor intended conduct as a statement

CEC: burden on proponent of evidence to show that the conduct wasn’t intended as a statement

27
Q

Use of Statements for Nonhearsay Purpose

A

1) Proof declarant is alive/conscious
2) Proof of why a course of action is taken
3) Effect on hearer/reader
4) Proof of notice to a party
5) Verbal acts of legal significance
6) Proof of declarant’s state of mind

28
Q

How Exceptions are Treated

A

FRE: excluded as not hearsay

CEC: hearsay, but excepted

29
Q

Party-Opponent Admissions (CA)/ Opposing Party Statements (FRE)

A

An assertion by the party opponent that, if true, proves a part of the opposing party’s case

30
Q

Vicarious Admissions - FRE

A

Admissions by employee can be used against employer if made while employee still employed & statement concerns a matter within employee’s scope of employment

31
Q

Vicarious Admissions - CEC

A

Employee’s admissions are admissions against employer when the liability of employer is based in whole or in part on the liability of employee

32
Q

Adoptive Admissions

A

Admissible if party would be expected to object if not true, unless provoking statement is made by law enforcement

33
Q

Authorized Admissions

A

Apply agency law

34
Q

Co-conspirator Admissions

A

Admissible if made in course of & in furtherance of the conspiracy. CA requires extrinsic evidence of conspiracy

35
Q

Confrontation Clause

A

When prosecution offers testimonial statements against D for a HS purpose, the out of court declarant must be produced for cross under oath, or prosecution must show unavailability & that accused had prior opportunity to cross

36
Q

Testimonial Statement

A

Procured by gov’t with an eye toward use at trial

37
Q

Prior Inconsistent Statements - FRE

A

Statement made prior to the trial that’s inconsistent with W’s testimony

May always be used to impeach

May be used for its truth if PIS was made under oath or at a prior proceeding

38
Q

Prior Inconsistent Statements - CEC

A

Admissible for both purposes so long as either W is given opportunity, while testifying, to explain/deny the statement, or W isn’t excused

39
Q

Statements of Identification

A

Declarant testifies and is subject to cross, and the statement is one of identification of a person made after perceiving the person

CEC: limited to crim trials

40
Q

Present Sense Impression (FRE)

A

Statement explaining or describing an event while the event occurs or immediately thereafter

41
Q

Contemporaneous Statements (CEC)

A

Statement is offered to explain, qualify, or make understandable declarant’s conduct, and was made while declarant was engaged in such conduct

42
Q

Statement of Diagnosis/Treatment (FRE)

A

Statements made describing pain, cause of pain, medical history, and past and present symptoms, if pertinent to diagnosis or treatment

43
Q

Then-Existing State of Mind (CEC)

A

Allows statements of the declarant’s then-existing physical sensation

44
Q

When Declarant is Unavailable

A

1) Exempt from testifying because of privilege
2) Dead or physically/mentally ill
3) Absent and beyond ct’s reach of subpoena
4) Absent despite proponent’s reasonable efforts to compel
5) Contumacious declarant

Not unavailable if unavailability was procured by proponent of the statement to prevent declarant from testifying

45
Q

Unavailability Exception - Former Testimony FRE

A

Testimony made under oath, and the party against whom it’s offered (or their predecessor in interest in a civil case) had an opportunity and similar motive to cross-examine W

46
Q

Unavailability Exception - Former Testimony CEC

A

May also be offered against non-party if similar motive to cross-examine in civil case

47
Q

Unavailability Exception - Dying Declaration FRE

A

Declarant is “dying;” declarant believes their death is imminent; and statement concerns cause of their death

Only available in civil and homicide cases

48
Q

Unavailability Exception - Dying Declaration CEC

A

Declarant is “dying;” declarant believes their death is imminent; and statement concerns cause of their death

Applies in all cases

49
Q

Unavailability Exception - Statement against Interest FRE

A

Statement must be contrary to declarant’s pecuniary or proprietary interest, or tend to subject them to criminal/civil liability

Statement can only be disserving of declarant’s interest

50
Q

Unavailability Exception - Statement against Interest CEC

A

Statement must be contrary to declarant’s pecuniary, proprietary, or social interest, or tend to subject them to criminal/civil liability

Statement can only be disserving of declarant’s interest

51
Q

Unavailability Exception - Crime Victim CEC

A

Statement made by unavailable declarant at or near time of injury/threat describing infliction or threat, in writing or recorded or made to police/medical professional

52
Q

Excited Utterance (FRE)/Spontaneous Statement (CEC)

A

Made while under the stress of a startling event and describes the event

53
Q

Statement of Then-Existing Mental, Emotional, or Physical Condition

A

How the declarant was feeling, or what they were planing or intending to do

54
Q

Past Recollection Recorded

A

Writing made when fresh in W’s memory and accurately reflects their knowledge

W reads the writing into record

55
Q

Business Records

A

Must be made as part of a regularly conducted activity, at or near the time of the event, by a person with knowledge of the event, and the time and mode of preparation suggest trustworthiness

Custodian must testify to the above

56
Q

Official Records

A

Made by gov’t employees with a duty to make such records

57
Q

Learned Treatises - FRE

A

Admissible to the extent it’s called to expert W’s attention on cross, or relied upon by expert on direct

58
Q

Learned Treatises - CEC

A

Admissible to the extent it’s called to expert W’s attention on cross, or relied upon by expert on direct

Doesn’t include medical treatises unless expert admits to its authority

59
Q

Commercial Lists

A

Must be the kind generally relied upon as accurate by the public

CA doesn’t include market quotations

60
Q

Present Recollection Refreshed

A

W fails to recall something, but any writing can be used to refresh W’s memory

W can’t read from it; only used to refresh memory

Anything used to refresh memory must be shown to opposing party

61
Q

Witness Impeachment - FRE

A

Convictions: felonies committed within 10 years or dishonesty misdemeanors

May only be impeached with unconvicted bad acts that involve untruthfulness

Extrinsic evidence of prior bad acts inadmissible

Apply 403 if W is a party

62
Q

Witness Impeachment - CEC

A

In civil, impeachment can only be with felonies

In crim, Prop 8 allows impeachment of W with felonies, misdemeanors, and prior bad acts involving moral turpitude

Extrinsic evidence of prior bad acts admissible in crim cases

Apply 352 if W is a party

63
Q

Lay Opinion

A

Opinion is based on W’s reasonable perception and helps understand W’s testimony

64
Q

Expert Testimony

A

Expert must be qualified on the subject matter, have a proper factual basis for the testimony, testimony must be helpful to the fact-finder

Methodology must be generally accepted by the relevant scientific community

65
Q

Writings - Elements

A

1) Authentication
2) Best (FRE)/Secondary (CEC) Evidence Rule
3) Hearsay

66
Q

Authentication

A

Is the writing, thing, or voice what it purports to be?

Any writing or voice can be authenticated by any number of methods by someone who can prove the document is what it purports to be

67
Q

Best (FRE)/Secondary (CEC) Evidence Rule

A

If the content of the writing is in issue, proponent must produce the original or a copy

68
Q

Privileges - Presumption

A

If communication is made between the proper parties, there is a presumption of confidentiality that the opposing party must overcome

69
Q

Attorney-Client Privilege

A

Communication is:

1) Between an attorney and client;
2) Made in the course of the relationship; and
3) Transmitted in confidence

70
Q

Marital Communications Privilege

A

Communications between spouses made during a valid marriage

Privilege extends beyond marriage

Not privileged if communication is made to enable a spouse to commit a crime/fraud

Both spouses hold the privilege so either can prevent the other from testifying

71
Q

Spousal Privileges

A

1) Privilege not to be called as a W against a current spouse; and 2) privilege not to testify against a current spouse

Waiver of one privilege doesn’t waive the other

Only the testifying spouse can claim the privilege

Privilege ends with marriage

72
Q

Judicial Notice

A

Court can take judicial notice of a fact that isn’t subject to reasonable dispute in that the fact is 1) generally known within the court’s territorial jurisdiction or 2) capable of accurate and ready determination by resort to unquestioned accurate sources

Is a conclusive presumption in a civil case but only an inference in a crim case