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Flashcards in Evidence (FRE + CEC) Deck (52)
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[EVIDENCE] • 5 • 6th Amendment • Confrontation Clause •

Under the Sixth Amendments Confrontation Clause, a hearsay statement will NOT be admitted when (1) the statement is offered against the accused in a criminal case(2) the declarant is unavailable; (3) the statement was testimonial in nature, and (4) the accused had no opportunity to cross-examine the declarant's testimonial statement prior to trial.


  • Testimonial = Where the primary purpose of interrogation is to establish or prove past events potentially relevant to a later criminal investigation.
    • Examples: Affidavitscertificates, and other written reports summarizing findings of forensic evidence.
  • IF statements are given during an ONGOING EMERGENCY, then NON-Testimonial.
    • Example: Witness gives police officer information about crime.
      • If crime = still occurring (or criminal not yet captured), then non-testimonial
        • Otherwise, it is testimonial.


[EVIDENCE] • 14 • Relevance • •

Only relevant evidence is admissible. An item of evidence is relevant if it makes a material issue more or less likely than it would be without the evidence.

NOTE: In CA, issue is only material if it is in dispute.


[EVIDENCE] • 2 • Evidence Excluded on Policy Grounds • Evidence of Liability Insurance •

Evidence of liability insurance is NOT admissible to prove culpability , but is admissible to show ownership and control.


[EVIDENCE] • 2 • Evidence Excluded on Policy Grounds • Offers to Pay Medical Bills •

Offers to pay medical bills are NOT admissible to prove negligence . Under the Federal Rules of Evidence (FRE), any related statements or factual admissions are admissible. In CA, related statements are NOT admissible.


[EVIDENCE] • 2 • Evidence Excluded on Policy Grounds • Offers to Settle •

Offers to settle claims are NOT admissible to prove culpability UNLESS no claim is filed/threatened OR there is no dispute as to liability. CA also excludes statements made during mediation proceedings.


[EVIDENCE] • 1 • Evidence Excluded on Policy Grounds • Statements of Sympathy •

In CA ONLY, a defendants statements of sympathy made to the person or the persons family are NOT admissible as evidence of an admission of liability . Any accompanying statements of fault are admissible. This rule only applies to civil cases.


[EVIDENCE] • 1 • Evidence Excluded on Policy Grounds • Subsequent Remedial Measures •

Evidence of subsequent remedial measures is NOT admissible to show liability or negligence . However, such evidence is admissible to rebut a defense of impossibility. Under the FRE subsequent remedial measures are also NOT admissible in strict liability cases.


[EVIDENCE] • 2 • Evidence Excluded Due to Unfair Prejudice • Unfairly Prejudicial Evidence (403 and 352) •

Under the FRE Rule 403 and CA Evidence Code 352, relevant evidence should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, waste of time, it is confusing/misleading the jury, or it is cumulative evidence.


[EVIDENCE] • 4 • CA Prop 8 • •

Pursuant to Proposition 8, relevant evidence shall not be excluded in any criminal proceeding. Case law has held, however, that Proposition 8 does not affect existing statutory rules relating to privilegehearsaysection 352, or character evidence. It DOES, however, affect witness impeachment rules and perhaps some rules pertaining to opinion evidence and writings.


[EVIDENCE] • 1 • Burden of Proof • Criminal Trials •

In criminal trials, the burden of proof lies with the prosecution, who must prove that the defendant committed each element of the crime beyond a reasonable doubt .


[EVIDENCE] • 6 • Authentication of Evidence • •

All evidence must be authenticated before being admitted. That is, the party must prove that the item it seeks to admit is actually what the party purports it to be.


[EVIDENCE] • 5 • Authentication of Evidence • Physical Evidence •

Physical evidence may be authenticated through witness testimony OR evidence that the object has been held in a substantially unbroken chain of custody .


[EVIDENCE] • 2 • Authentication of Evidence • Voice Recordings •

Voice recordings may be authenticated by anyone who has heard the person speak at any time, either first hand or electronically, and who has identified the person as the speaker.


[EVIDENCE] • 7 • Best Evidence Rule & Secondary Evidence Rule • •

Under the FRE's Best Evidence Rule, a party must provide the original document, or a reliable duplicate, when a witness: (1) testifies to the contents of a writingOR (2) testifies to knowledge gained solely from a writing. Handwritten duplicates are NOT admissible.


However, under CA's Secondary Evidence Rule, use of copies is preferred. Duplicates and other evidence of contents, including handwritten notes, are admissible.


[EVIDENCE] • 7 • Witness Testimony • Lay Witness •

A witnesss testimony is admissible if he is competent to testify . Competency is determined by the witnesss perception, memory, and communication AND the witness taking an oath to tell the truth. Additionally, a witness may only testify to matters of which he has personal knowledge . A lay witness may offer an opinion IF the opinion is rationally based on the witnesss perception AND it is helpful to the jury (legal conclusions are not helpful). Under the FRE, all witnesses are competent to testify except for judges and jurors. In CA, in addition to the above competency factors, the witness must also understand the legal duty to tell the truth. Witnesses are disqualified if they were hypnotized before trial to help refresh recollection in a criminal case UNLESS specific procedures are followed to ensure reliability. Also, judges and jurors may testify if there is no objection.


[EVIDENCE] • 3 • Witness Testimony • Expert Witness •

Expert testimony is permitted when (1) the witness is qualified as an expert; (2) the opinion is helpful to the jury (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 a proper factual basis (i.e. admitted evidence, personal knowledge, inadmissible evidence that is reasonably relied on, etc.); AND (5) the opinion is based on reliable principles that were reliably applied .

Under the FRE Daubert/Kumho standard , reliability is based on a methodologys (1) publication/peer review; (2) error rate; (3) testability; AND (4) whether it is generally accepted in the field.

Under CAs Kelley/Frye standard , reliability is based on whether a methodology is generally accepted in the field.


[EVIDENCE] • 2 • Trial Objections • Assumes Facts Not in Evidence •

A question that assumes facts not in evidence or incorporates facts that have not yet been entered into evidence.


[EVIDENCE] • 1 • Trial Objections • Calls for Narrative •

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


[EVIDENCE] • 3 • Trial Objections • Leading Question •

A leading question is one that suggests an answer to the witness. Leading questions are permitted on cross-examination, but NOT on direct UNLESS (1) the witness is hostile , an adverse party , or identified with the adverse party ; (2) it is clarifying background information ; OR (3) the witness has difficulty remembering . In CA, leading questions are only permitted on direct in the interests of justice .


[EVIDENCE] • 1 • Trial Objections • Non-Responsive Answer •

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


[EVIDENCE] • 1 • Trial Objections • Speculation •

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


[EVIDENCE] • 1 • Trial Objections • Vagueness •

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


[EVIDENCE] • 1 • Trial Objections • Scope of Cross-Examination •

The scope of cross-examination is limited to the subject matter of the direct examination AND matters affecting the witnesss credibility.


[EVIDENCE] • 2 • Judicial Notice • •

A court may take judicial notice of indisputable facts that are either commonly known in the community OR readily capable of verification . In a criminal case, judicial notice relieves the prosecution of its burden to prove the fact, but the jury can still consider the fact. In a civil case, judicial notice is dispositive of the fact.


[EVIDENCE] • 1 • Juror Conduct • Prohibition Against Jury Investigations •

Juries are prohibited from conducting independent investigations of the case, and such conduct may result in a mistrial for the defendant.


[EVIDENCE] • 3 • Character Evidence • •

Character evidence is the use of a trait to suggest the trait makes it more likely that a party engaged in the particular conduct at issue in the case. It is generally not admissible.

Evidence of character can be established through reputation, opinion, or specific acts . Character evidence is admissible (a) to prove character when character is an issue in the case; OR (b) to impeach a witness or declarants credibility on the stand.

Under the FRE, if character evidence is admissible, it may be proven on direct by opinion or reputation OR on cross by opinion, reputation, or specific acts.

In CA, if character evidence is admissible, the defendants character may be proven ONLY by opinion or reputation, while a victims character may be proven by opinion, reputation, or specific acts.


[EVIDENCE] • 2 • Character Evidence • In Criminal Cases •

Under the FRE, character evidence is admissible if: (a) the case involves crimes of sexual assault or molestation ; (b) the government uses it to prove motive, intent, lack of mistake, identity, or a common plan or scheme; OR (c) the defendant opens the door by presenting character evidence. If the defendant presents evidence of his own character, the government can counter. If the defendant presents evidence of the victims character, the government can present evidence that the defendant possess the same character trait. In a homicide case , if the defendant claims the victim was the aggressor , the government can show the victims character for peacefulness .

In CA, character evidence is admissible if: (a) the case involves crimes of domestic violence, sexual assault, molestation, or elder abuse ; (b) the government uses it to prove motive, intent, lack of mistake, identity, or a common plan or scheme; OR (c) the defendant opens the door . If the defendant presents evidence of his own character, the government may counter. If the defendant presents evidence of the victims character for violence, the government MAY ONLY present evidence of the defendants character for violence .


[EVIDENCE] • 1 • Character Evidence • Prior Convictions for Impeachment •

Under the FRE, evidence of prior felony or misdemeanor convictions involving dishonesty are ALWAYS admissible to impeach (the judge has no discretion to exclude it) UNLESS the conviction was expunged. Felonies that do not involve lying are admissible subject to a Rule 403 balance. Felonies over 10 years old are subject to a reverse balance, wherein the felony is inadmissible UNLESS its probative value outweighs unfair prejudice. Other misdemeanors are NOT admissible to impeach.

In CA, felonies involving moral turpitude are ALWAYS admissible to impeach (the judge has no discretion to exclude it) UNLESS the conviction was expunged. Felonies that do not involve moral turpitude are NOT admissible (this is not affected by Proposition 8 because if a conviction does not involve moral turpitude, it is not relevant for impeachment). All misdemeanors are NOT admissible. However, in a criminal case, misdemeanors involving moral turpitude are admissible under Proposition 8, but are still subject to 352 balance.


[EVIDENCE] • 1 • Character Evidence • Prior Bad Acts •

Under the FRE, a witness may be impeached with evidence of prior bad acts ONLY IF those acts involved lying; the prior acts may be collateral to the issues in the case. However, extrinsic evidence of the act CANNOT be used to impeach the witness.

In CA, prior bad acts are generally not admissible . However, Prior bad acts are admissible under Proposition 8 only if the act(s) involve moral turpitude . Additionally, the use of extrinsic evidence is permitted on cross-examination.


[EVIDENCE] • 15 • Hearsay • General Rule •

Hearsay is an out-of-court statement (words or conduct) that is offered to prove the truth of the matter asserted. Hearsay is ONLY admissible if it falls under an exception. A nonverbal act can be a statement for the purposes of the hearsay rule IF it is intended as an assertion.