FRE Flashcards
(29 cards)
Prop 8 (CA)
- Crim ONLY: ALL relevant evidence is admissible even if objectionable
Exceptions to Prop8: US Const (Confrontation Clause), Hearsay, Privilege, Limits on character evid, BER
- Ct still balances unfair prejudice vs probative
Analysis:
1) Apply objections under CEC
2) Mention Prop8 makes this admissible
3) Exceptions to Prop8 make it inadmissible
4) If no exception Ct balances
Prior occurrences: Habit vs Character (FRE)
Admissible:
- Habit: Repetitive conduct in response to a particular set of circumstances (recurring+frequency of conduct+particularity of conduct) and conveys NO moral judgment
- Character: general propensity and conveys moral judgment
Prior occurrences (FRE)
- Prior occurrence w/same person and conditions NOT admissible (shows general propensity)
UNLESS similarities in conditions (weather, lighting, etc) - Prior occurrence w/other people ONLY to show causation
- Prior accidents NOT relevant
Exception:
Patter of fraudulent claims
Preexisting condition - Previous acts relevant to prove intent
- Prior sales to establish value
- Industrial customs to prove std of care in Neg case admissible
Relevant vs Probative value
Relevant yes or no
Probative: varies in degree
Evidence analysis
1) Type of Case: Crim or Civ
2) Part of the case: Direct or Cross
3) Purpose of Evidence: CIS (SIC)
Character vs Habit (Character evidence allowed depending on Crim or Civ)
Impeachment
Substantive evidence (hearsay)
Relevance
ALL irrelevant evid is inadmissible
Relevant evid MIGHT be admissible
- Relevant if it has ANY tendency to make a fact of consequence more or less probable than it would be without the evidence
- “Of consequence”: determined by substantive law (e.g. intent irrelevant in K law vs intent in crim law)
- CA: fact of consequence MUST be in dispute
Privilege (FRE)
Fed Q cases: FRE privilege applies
Diversity: apply State’s substantive law
Apply: Relations Can Create Happiness With Exceptions
- Atty-Client
- Psychotherapist-Patient
CA: psychotherapist has reasonable cause to believe patient is a danger to himself or others
- Social Worker-Client
- Priest-Penitent
- NO MD-patient privilege
- CA: Civ ONLY MD-patient privilege is recognized ONLY pertinent to diagnosis/treatment (apply in diversity case)
- CA: Counselor-Victim of sex assault/domV
- CA: immunity from contempt of court for reporters who refuse to disclose sources
Hearsay exceptions + Unavailable
ALWAYS look for more than one exception/exemption + balancing + Confrontation Clause if unavailable
MUST be unavailable: PRISM: privilege asserted, Refusal to testify, Incapacity, Subpoena (failure to comply), Memory (lack of)
Offered for the truth (substantive) BUT admitted as Testimony Against Dying
- Former Testimony: under oath and party against whom it is offered had opportunity to x-exam at prior proceeding AND motive to x-exam was similar
Civ: if not previously present to x-exam, at least had close privity-type relationship w/some party to earlier case who had opportunity AND same motive
MUST be unavailable - Statement Against interest: AT THE TIME statement was made was against declarant’s proprietary, pecuniary, penal interest (crim liab)
CA: also against social interest (subjects declarant to: ridicule, social disgrace)
MUST be unavailable - Dying dec: under belief of imminent death + statement describes cause or circumstances leading to impeding death
Allowed in Civ and ONLY in homicide
CA: all civ and crim and declarant MUST be dead
MUST be unavailable - Forfeiture by wrongdoing: OOC statement against D who made declarant unavailable (BOP POE)
MUST be unavailable
– Statement of Party Opponent vs Dec Against Interest
Statement of fact: No (only opinion) vs Yes=fact
Personal knowledge: No=agency vs Yes
Availability: Yes and no vs unavailable
Party to litigation: Yes vs No need to be party to action
Judicial Notice
Establish fact by Judicial notice w/o evidence because the fact is indisputable OR it can be verified w/scientific principals
- NOT Judge’s PK
- Source of unquestionable accuracy: e.g. judicial notice of old date from calendar
The Court:
- Party requests, or Ct has discretion to take judicial notice on its own
CA: Ct MUST take notice of Generally known facts
The Jury
- Civ: Jury MUST accept facts as conclusive
- Crim: jury MAY accept facts+ Prosec NOT required to present additional evidence to prove that fact
CA: Jury MUST accept facts in Crim and Civ
Immunities
- Transaction immunity: Anything and everything said in ALL the activities
- Derivative immunity: testimony used and anything that derives from the testimony
- Use immunity: only a certain testimony used
- Use Derivative: if Gov has autho, immunity is coextensive w/personal privilege against self-incrimination under the 5thAmd, the W is required to answer or be held in contempt
Note: Independent source of evidence can overcome immunity
Hearsay exceptions + Optional Unavailable
ALWAYS look for more than one exception/exemption + balancing + Confrontation Clause if unavailable
Offered for the truth BUT admitted as Reliable Documents
- - Reliability --
- Excited Utterances (Spontaneous): statement about startling event made under excitement/stress. Key: emotional state of speaker, not timing (also as Substantive evidence)
- Present Sense Impression (Contemporaneous): explain/describe event/condition while or immediately after it is perceived by declarant. Key: timing
(NO memory or belief statements)
CA: ONLY statements describing declarant’s conduct while engaged in conduct (e.g. I’m smiling, I’m waving) - Present state of PEM physical/emotional/mental state: direct/contemporaneous statement of PEM ONLY if declarant’s state of mind is directly in issue and material to the controversy OR as dec of intent to show subsequent future act of D
(NO memory or belief statements) - Past or present physical/mental condition FOR MD purpose (treatment or diagnosis): statement of conditions, symptoms or cause of past/present mental/physical condition
(NO statements describing liability or ID of tortfeasor unless ID of child abuser / NO MD’s statement allowed)
CA: Past or Present statement allowed ONLY if declarant is minor
-- Documentary --
- Past Recorded Recollection (Hearsay exception): ok leading Q, doc may be read (not seen) to jury if:
1) W had PK of facts
2) Doc made by W, or under W’s direction, or adopted by W (made by TP and W signs)
3) Doc ACCURATELY made AT THE TIME facts were fresh in W’s mind
4) W now CANNOT remember to testify on matter in the doc
(OPPOSING party may inspect item and offer into evidence) - Business Recs: SKRAP
(1) Statement records an act, event, condition, opinion, or diagnosis (PO Dept is a business)
(2) Kept in the regular course of business (germaine to the bus)
(3) Bus regularly keeps type of recs
(4) Recorded At or Near the time of event
(5) By employee w/PK (or from other employee w/PK) of facts in doc
Rec in anticipation of litigation NOT Bus recs (work product)
CA: NO opinions allowed - Public Records:
1) Rec by public office (NOT PO Reports) OR
2) Pursuant to duties imposed by law, even if it includes findings of fact, OR opinion OR conclusions (e.g. records of felony convictions)
Exception: PO report is for testimonial purposes thus not admitted in Crim (6thAmd violation: confrontation clause) - Ancient Docs: 20+ yrs (CA: 30yrs)
- Catch-all: statement has equivalent circumstantial guarantee of trustworthiness + probative of material fact + serves interest of justice (CA: no catch-all)
Hearsay Issues (FRE)
ALWAYS look for more than one exception/exemption + balancing + Confrontation Clause if unavailable
Crim (hearsay + unavailable declarant): “In all criminal prosecution, the accused shall enjoy the right to be confronted with the W against him” (CC)
- 6th Amd Confrontation Clause makes hearsay inadmissible if:
1) Declarant is unavailable: PRISM: privilege asserted, Refusal to testify, Incapacity, Subpoena (failure to comply), Memory (lack of)
2) Statement is testimonal in nature: statements to establishing or prove facts intended for litigation purposes
Exceptions:
Ongoing emergency: statements aid PD to resolve ongoing emergency that poses threat to public
Reports used to build profile w/o anyone specific at time of the crime (E.g. DNA)
3) D had no opportunity to x-exam or develop testimony
- Exception: co-D same trial + confession admitted ONLY if
a) portion referring to other-D is eliminated
b) Confessing D takes the stand and subject to x-exam
c) confession of nontestifying co-D used to rebut D’s claim that confession was coerced
Spousal Privilege
- Spousal Immunity (ONLY in Crim / CA: Crim+Civ): spouse cannot be compelled OR forbade from testifying against D (Wspouse holds immunity) re:matters BEFORE OR during marriage
CA: terminates on divorce (NOT cover ONLY anything AFTER divorce) - Spousal Confidential Comm DURING marriage (Civ or Crim): both spouses hold privilege. Waiver by one leaves other priv intact because both hold priv Exception: crime/fraud
FRE and CA: Remains even after divorce
Objections
- Calls for narrative: Q that allows W to ramble on
- Unresponsive: W answers completely diff than Q
- Leading on direct
Exception: lead adverse W, hostile W, W needs help: child - Assumes facts not in evid: if no evid yet offered W cannot testify
- Argumentative: trying to persuade jury
- Compound: more than one Q in one
Impeach and rehab methods (FRE)
ONLY rehab after W’s credibility is attacked and ONLY rehab w/RepO
Extrinsic evid: ANY evidence other than evidence procured from cross by W’s testimony at CURRENT trial
Intrinsic evid: ANYTHING W says at trial
—Impeach W by (NOT to show D’s character) I or E ONLY to show propensity for dishonesty by:
- Contradictory facts (E NOT on collateral facts: nonmaterial to issue)
Impeach during x-exam w/I, then E to prove contradictory MATERIAL facts
- Prior inconsistent statements (E NOT on collateral facts: nonmaterial to issue):
1) NOT under oath PIS: ONLY to impeach
2) Under oath (trial/depo/grand jury): to impeach AND as Substantive Evidence (Hearsay exemption)
W MUST be allowed to explain (rehab)
CA: no need for PIS under oath because W MUST be allowed to explain - Bias, Prejudice, Interest, Motive/Corruption (MUST use I first)
W MUST be allowed to explain (rehab) - Competence: Sensory deficiency (memory/recollection, communication, or perception (ie: see, hear, smell, touch, etc))
- Convictions and Bad Acts: ONLY to impeach, not for character
- Crim Falsi Prior conviction: ALL convictions felony OR misdemeanor of false statements (perjury, forgery, fraud) AUTOMATICALLY allowed (NO balancing)
CA: ONLY felony OR misdemeanor convictions of MORAL TURPITUDE (false statement, violence, sexual misconduct) but MUST balance - Old conviction: > 10yrs old conviction MUST balance probative vs unfair prej
CA: no limit on yrs but MUST balance) - NON-crime falsi Prior conviction:
ANY Felonies not of false statement MUST balance
NO misdemeanors, ONLY crime falsi misdemeanors allowed (rule above) - Prior Bad Acts/non-convictions bearing on truthfulness (NO E: ask on cross and live w/answer): admissible in civ and crim if act involves lying (reflects badly on truthfulness character of W)
E.g. lied on application: yes, steal office supplies: no allowed
CA: CEC makes it inadmissible but Prop8 makes ADMISSIBLE thus admissible [collateral issue: ask & live w/answer vs. non-collateral (must good faith basis for Qs): ask & prove) - Bad RepO bearing on truthfulness (character): E allowed but no specific acts
Bolstered credibility by RepO ONLY after W’s is attacked/put at issue
Rehab W’s character by:
- W explains
- Prior Consistent statements (hearsay exemption): ONLY to:
1) Rebut charge (at trial) of recent fabrication if statement made before motive for fabrication arose OR
2) Prior ID of D - Testimony of W’s good RepO for truthfulness ONLY if impeached by Bad rep for truth, Prior crimes, Prior bad act
Legal Relevance
ALL relevant may made inadmissible by privilege, hearsay
OR
At the Ct’s discretion relevant evid may be excluded because its PROBATIVE value is substantially outweighed by privileges, hearsay OR (6) unfair prejudice (emotional evid), confuse the issue to jury, mislead the jury, undue delay, waste of time unduly cumulative
Impeaching w/crim convictions: Witness’ vs D’s
If D is the witness impeached balance: unfair prejudice outweighs probative value
- Test tends to exclude
If W is the witness impeached balance: unfair prejudice SUBSTANTIALLY outweighs probative value
- Test tends to allow evidence
Character Evidence Crim (FRE)
Two Doors to admit character evidence. Both CLOSED at beginning of trial (except sex cases or evidence admitted by Ct) until D opens either door the prosec rebuts
1) Prosec cannot intro evidence of D’s bad character to show D acted in conformity w/bad character
2) D opens door: D is allowed to present RELEVANT good character evidence (NOT D’s testimony) to show D acted in conformity w/good character and did not commit crime (RepO ONLY)
- Once D opens door, Prosec can rebut w/character evidence of SAME trait (MUST be pertinent - RepO ONLY on direct and cross)
- Specific acts ONLY on cross and NOT to prove the acts, only to show CW doesn’t know D (impeach W: ask on cross and live w/answer)
CA: ONLY RepO on direct or cross, NO Specific Acts
3) D opens door of V’s character evidence:
Same RepO and specific acts rules
Once D opens, Porsec may rebut w/character evidence of SAME trait
FRE Homicide ONLY (V’s peacefulness): if D offers EVIDENCE that V is attacker, Prosec can show V’s peacefulness AND offer evidence on D’s character
CA: RepO or Specific Act on direct or cross
4) Prosec can FIRST use evidence of D’s prior acts as character evid:
- Ct admits evidence of V’s character OFFERED by D Prosec can be first to use D’s SAME character in CIC
CA: ONLY V’s character for violence for D’s character for violence
- Sex molestation and child molestation case: D’s priors sex crimes in CIC to show propensity
- CA: domestic violence/elder abuse case: other acts of domV or elder abuse in CIC
- Evidence of MIAMIKOPPLA (Civ+Crim) to prove something specific about current charge (find nexus) and prior relevant acts BUT NOT for character (character rules dont apply) + MUST balance: probative vs unfair prejudice
MIAMI KOPPLA: motive, intent, absence of mistake, ID (modus operandi: MUST be unique), knowledge, opportunity, preparation, plan, lack of accident
5) If D testifies, D’s character for truthfulness is automatically at issue
Policy based exclusion (FRE)
- Proof of liab to prove D was Neg/careful
Exceptions:
To prove: anything else (control, agency, ownership, etc) ONLY if disputed by D
To impeach W for bias, prejudice (MUST give jury instructions) - Subsequent remedial measures to prove culpable conduct AND product liab case based on strict liab theory to prov defective design
CA: only for Neg, otherwise admissible
Exceptions:
To prove: anything else (control, agency, ownership, etc) ONLY if disputed by D
To prove feasibility of safer conditions ONLY if disputed by D
To impeach W for bias, prejudice (MUST give jury instructions) - Settlement, offer to settle to prove liab or fault (covers all statements w/in discussion)
Exception:
If no claim filed or threatened all admissible
If no dispute as to liab or damages all admissible - Crim: withdrawn pleas, offers to plea, etc to prove guilt
Exception: inadmissible to show prior inconsistent statements - Offer to pay med expenses to prove liab
Exception:
Related/follow-up statements of fact ARE admissible (e.g. I’ll pay hosp bill, shouldnt have run red light)
CA: Covers accompanying statements of fact
Character Evidence Crim (Rape shield - FRE)
- Evidence limited to show consent ONLY
- Crim:
RepO of V’s character NOT admissible to prove consent
Specific Acts admissible ONLY to prove: TP prove of semen/injury, OR prior consensual acts w/D and V - Civ:
RepO and Specific Acts admissible if probative vs unfair prejudice
Atty-Client Privilege (FRE)
Fed Q cases: FRE privilege applies
Diversity: apply State’s substantive law
FRE: Privilege Survives D’s death
CA: ends once estate is distributed and executor is discharged
Relations Can Create Happiness With Exceptions
- Relationship: Corp employee if autho by corp to comm to lawyer on behalf of Corp. No privilege for just being employee
- Confidential Comm: Intended by D to be confidential
ONLY for professional legal advice (no bus advice)
Does NOT cover knowledge of underlying facts by D, physical evidence, or fruits of the crime - Holder: client or person seeking to be a client
- Waived: express or suing atty
- Exceptions: crime/fraud: D uses atty advice to further crime/fraud, Client puts legal advice at issue, Client sues atty, Comm in connection w/clients will, Multiple clients w/common interest and party offers comm against another party
CA crime/fraud: atty reasonably believes disclosure of comm is necessary to prevent crime likely to result in death or substantial bodily harm
Starting Sentence for Evidence
Evidence to be admissible, it must be logically relevant and legally relevant. Evidence is logically relevant if it has ANY tendency to make a fact of consequence more or less probable than it would be without the evidence.
For CA, the fact of consequence MUST be at issue.
Even if the evidence is relevant, the Ct may at its discretion exclude relevant evidence because it is not legally relevant.
Evidence is NOT legally relevant and made inadmissible by Const, hearsay, privilege OR made inadmissible because its PROBATIVE value is SUBSTANTIALLY outweighed by (6) unfair prejudice (emotional evid), confuse the issue to jury, mislead the jury, undue delay, waste of time unduly cumulative
Authentication
EVERY item of non-testimonial evidence MUST be authenticated
Authentication: MUST present add evidence sufficient to support a finding that the item is what the proponent claims it is
- Authenticate directly by:
Admissions, eyewitness testimony, lay opinion w/personal knowledge, comparison by EW, comparison by Jury
- Authenticate indirectly (w/circumstantial evidence) by:
Ancient Docs: 20+ yrs (CA: 30yrs) + regular on its face + found in place of natural custody)
- Self-Authenticating Commercial paper (eg: promisory note), Official Publications, Newpapers/periodicals, Trade inscriptions and labels, Acknowledged doc (notary), Cert copies of priv/pub docs on file in pub office
- Authentication of Generic items (non-unique): show unbroken chain of custody
- Best Evidence Rule: Must provide original OR copy w/acceptable excuse for its non-fault absence
Apply ONLY to prove contents of legally operative writings or facts learned from writing
Copy: not handwritten notes, ONLY mechanical duplication BUT NOT when doc is at issue
CA: handwritten notes
BER not applicable to voluminous docs: summary of docs ONLY if originals are available
Witness and docs (FRE)
Refresh recollection: ok to lead, may show ANYTHING to refresh (opponent may inspect item and offer into evidence)
Past Recorded Recollection (Hearsay exception): ok leading Q, AFTER REFRESH & RECOLLECT doc may be read (not seen) to jury if:
1) W had PK of facts
2) Doc made by W, or under W’s direction, or adopted by W (made by TP and W signs)
3) Doc ACCURATELY made AT THE TIME facts were fresh in W’s mind
4) W now CANNOT remember to testify on matter in the doc
(OPPOSING party may inspect item and offer into evidence)
- Purpose of Evidence: SIC
Substantive evidence (hearsay)
Impeachment
Character vs Habit (Character evidence allowed depending on Crim or Civ)
