Evidence (FRE + CEC) Flashcards

1
Q

[EVIDENCE] • 5 • 6th Amendment • Confrontation Clause •

A

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.

NOTE:

  • Testimonial = Where the primary purpose of interrogation is to establish or prove past events potentially relevant to a later criminal investigation.
    • Examples: Affidavits, certificates, _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.
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2
Q

[EVIDENCE] • 14 • Relevance • •

A

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.

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3
Q

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

A

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

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4
Q

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

A

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.

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5
Q

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

A

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.

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6
Q

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

A

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.

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7
Q

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

A

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.

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8
Q

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

A

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.

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9
Q

[EVIDENCE] • 4 • CA Prop 8 • •

A

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 privilege, hearsay, section 352, or character evidence. It DOES**, however, affect **witness impeachment rules and perhaps some rules pertaining to opinion evidence and writings.

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10
Q

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

A

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.

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11
Q

[EVIDENCE] • 6 • Authentication of Evidence • •

A

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.

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12
Q

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

A

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

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13
Q

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

A

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.

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14
Q

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

A

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 writing; OR (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.

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15
Q

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

A

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.

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16
Q

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

A

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.

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17
Q

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

A

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

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18
Q

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

A

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

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19
Q

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

A

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.

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20
Q

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

A

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

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21
Q

[EVIDENCE] • 1 • Trial Objections • Speculation •

A

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

22
Q

[EVIDENCE] • 1 • Trial Objections • Vagueness •

A

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

23
Q

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

A

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

24
Q

[EVIDENCE] • 2 • Judicial Notice • •

A

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.

25
Q

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

A

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

26
Q

[EVIDENCE] • 3 • Character Evidence • •

A

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.

27
Q

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

A

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.

28
Q

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

A

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.

29
Q

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

A

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.

30
Q

[EVIDENCE] • 15 • Hearsay • General Rule •

A

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.

31
Q

[EVIDENCE] • 3 • Hearsay • Double Hearsay •

A

When evidence contains hearsay within hearsay, each level of hearsay must fall within an exception to be admissible.

32
Q

[EVIDENCE] • 4 • Hearsay • Non Hearsay • Out of Court Statement Offered for Non-Hearsay Purpose

A

An out-of-court statement may be legally significant for a purpose other than to prove the truth of the matter asserted. In such a case, the statements are NOT hearsay. For example, out-of-court statements may be offered to prove that a contract was formed, to show the effect the statement had on the listener, or to show a speakers state of mind.

33
Q

[EVIDENCE] • 14 • Hearsay • Non Hearsay • Admission by Party Opponent

A

Statement made by a party and offered by an opponent. It need not be against the speaker’s interest.

34
Q

[EVIDENCE] • 1 • Hearsay • Non Hearsay • Adoptive Admission

A

A persons silence may constitute an adopted admission IF the person heard the statement AND a reasonable person would have denied the statement.

35
Q

[EVIDENCE] • 5 • Hearsay • Non Hearsay • Vicarious Admissions

A

Vicarious admissions are those made by: (a) an authorized spokesperson ; (b) a principal or agent made during/within the scope of the agency relationship ; OR (c) co-conspirators. In CA, there is no principal agent situation, but in respondeat superior civil cases, statements made by an employee are admissible if the employees negligent conduct is the basis for the employers liability.

36
Q

[EVIDENCE] • 6 • Hearsay • Exception • Declarant Unavailable Requirement

A

A declarant is considered unavailable as a witness IF the declarant (1) is exempted from testifying due to a privilege ; (2) refuses to testify about the subject matter despite a court order to do so; (3) testifies to not remembering the subject matter; OR (4) cannot be present to testify because of death or illness. The unavailability of the declarant must not have been caused by either party.

37
Q

[EVIDENCE] • 2 • Hearsay • Exception • Dying Declaration

A

A statement made by a person who is dying is admissible in civil and homicide cases IF the statement was made while the declarant believed death was imminent AND the statement regarded the circumstances or causes of death based on personal knowledge, not mere speculation. In CA, this exception only applies when the declarant is dead. Under the FRE, this exception applies only if the witness is unavailable.

38
Q

[EVIDENCE] • 6 • Hearsay • Exception • Statement Against Interest

A

A statement made against ones own penal or pecuniary interest is admissible. In CA, statements against ones societal interests are also admissible. This exception applies only if the declarant is unavailable.

39
Q

[EVIDENCE] • 1 • Hearsay • Exception • Prior Statements Made Under Oath

A

Prior statements made under oath are admissible IF (1) the statements are offered against a party who was present in the previous trial (in a civil case, a party who was in privity with a party in the previous case is sufficient); (2) the same issues are involved; AND (3) the party who it is offered against had the same motive to cross examine the witness in the previous trial and an opportunity to cross examine the witness. In CA, the party who the statements are offered against does NOT have to be in privity with a party in the previous case; that the parties share similar interests is sufficient. This exception applies only if the declarant is unavailable.

40
Q

[EVIDENCE] • 7 • Hearsay • Exception • Excited Utterance

A

An excited utterance is a statement made after an exciting event while the declarant is still under the stress of the event. There may be a delay between the event and the statement. In CA, this exception is referred to as a spontaneous statement.

41
Q

[EVIDENCE] • 8 • Hearsay • Exception • Present Sense Impression

A

A present sense impression is a statement describing an event contemporaneously or immediately thereafter. In CA, this exception is referred to as a contemporaneous statement, and it only applies to statements in which the declarant described his own conduct while engaged in that conduct.

42
Q

[EVIDENCE] • 4 • Hearsay • Exception • Business Records

A

Under the FRE, a business record is admissible IF it is (1) a record of events, conditions, opinions or diagnoses ; (2) that is kept in the regular course of business ; (3) made at or near the time of the matter described; (4) made by a person with knowledge of the matter; (5) it was the regular practice of the business to make such a record; AND (6) the opponent party does not show that the record was made under circumstances indicating a lack of trustworthiness.

In CA, the business record exception does NOT include records of opinions or diagnosis, though courts usually admit simple opinions and diagnosis. Additionally, the party introducing the business record has the burden of showing that the record was made under circumstances indicating trustworthiness.

43
Q

[EVIDENCE] • 2 • Hearsay • Exception • Government and Public Records

A

Under the FRE, the following are admissible as government or public records UNLESS the opposing party shows that the record was made under circumstances indicating a lack of trustworthiness : (1) A record describing the policies and practices of a public office; (2) Observations made by someone in accordance with his duties by law (excludes officer reports in criminal cases); (3) Factual findings made during an investigation pursuant to authority granted by law (in civil cases and only against the government in criminal cases).

In CA, government or public records are admissible as long as the writing was (1) made by and within the scope of duty of a public employee; (2) made at or near the time of the act, condition, or event; AND (3) the record was made under circumstances indicating trustworthiness. This exception applies to civil and criminal cases, though there may be confrontation clause issues when such records are used against the defendant in a criminal case.

44
Q

[EVIDENCE] • 2 • Hearsay • Exception • Past Recollection Recorded

A

A past recollection recorded is admissible if (1) the witness had personal knowledge of the events at one time; (2) the witness wrote the writing , ordered it to be written, or adopted the writing; (3) the writing was made while the events were still fresh in the mind of the witness; (4) the writing is accurate ; AND (5) the witness can no longer remember the event.

45
Q

[EVIDENCE] • 2 • Hearsay • Exception • Present Recollection Refreshed

A

Anything may be used to help refresh a witnesss recollection if the witness once had personal knowledge of the matter, but is unable to recall it on the witness stand. The opposing party may offer into evidence the item used to refresh the witnesss recollection.

46
Q

[EVIDENCE] • 8 • Hearsay • Exception • State of Mind

A

A statement of the declarants then-existing state of mind (i.e. motive, intent, or plan) OR emotional or physical condition is admissible to prove the declarants state or the declarants conduct. However, statements of memory or belief offered to prove the fact remembered or believed is NOT admissible; though the FRE will permit such use IF it relates to the validity or terms of the declarants will.

47
Q

[EVIDENCE] • 1 • Hearsay • Exception • Statements During Medical Treatment

A

Under the FRE, statements made concerning a present or past physical state are admissible ONLY IF made for medical diagnosis or treatment.

In CA, statements concerning a persons past physical state are admissible ONLY IF made to medical personnel for the medical diagnosis or treatment of a child-abuse/neglect victim less than 12 years of age.

48
Q

[EVIDENCE] • 3 • Privilege • Attorney-Client •

A

The attorney-client privilege protects confidential communications between an attorney and her client from disclosure in discovery. Communications between a client and her attorney are privileged and protected from disclosure, even after the client dies, IF the client intended the communication to be confidential AND the communication was made to facilitate legal services. When the client is a corporation , only communications between the attorney and high-level employees are protected. The privilege does NOT apply when (a) legal services are sought to further a crime or fraud ; (b) there is litigation related to a breach of duty between the lawyer and client ; OR (c) joint clients who are later involved in civil litigation. The client holds the privilege and may waive it at any time (through disclosure to a third party).

In CA, the privilege does NOT survive the client. Also, in addition to the above exceptions, the privilege does not apply if the lawyer reasonably believes disclosure is necessary to prevent a crime that is likely to result in substantial bodily harm or death.

49
Q

[EVIDENCE] • 2 • Privilege • Attorney Work Product •

A

The work product privilege protects all materials prepared by either an attorney OR a client (or their agent) in anticipation of litigation. Such materials are protected from disclosure UNLESS the opposing party can show a substantial need for the evidence AND that it is otherwise unavailable. However, a writing that reflects an attorneys impressions, conclusions, opinions, legal research, or theories is NEVER discoverable.

50
Q

[EVIDENCE] • 2 • Privilege • Eavesdroppers and Privilege •

A

Unknown eavesdroppers DO NOT destroy privilege. However known or anticipated eavesdroppers WILL destroy privilege.

51
Q

[EVIDENCE] • 2 • Privilege • Spousal Privilege • Confidential Marital Communications

A

Communications between a husband and wife are privileged IF made during the course of a valid marriage AND intended to be confidential. The privilege is held by both spouses (either may assert it), and applies even after divorce.

52
Q

[EVIDENCE] • 2 • Privilege • Spousal Privilege • Spousal Immunity

A

Under the FRE, a witness in a valid marriage may refuse to testify against her spouse ONLY in a criminal case. The witness spouse alone holds the privilege, and the privilege ends after divorce. In CA, the spouse holding the privilege may refuse to testify in both civil and criminal cases.