Term
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Definition
| Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. |
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Term
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Definition
| Court has direction to exclude relevant evidence IF probative value is substantially outweighed by unfair prejudice, confusion or waste of time. |
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Term
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Definition
| Evidence of liability insurance is inadmissible to prove culpable conduct (i.e., negligence or defendant’s ability to pay a judgment). However, it is admissible to prove anything else. |
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Term
| Subsequent remedial measures or repairs |
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Definition
| Evidence of safety measures or repairs after an accident is inadmissible to prove culpable conduct and, in a products liability action, is inadmissible to prove defective product design. However, remedial measures evidence is admissible to prove anything else (i.e., to prove ownership or to rebut defense of no feasible precaution/D alleges that there was nothing he could have done to avoid accident) |
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Term
| Settlements, offers to settle, & pleas |
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Definition
In a civil case, evidence of settlements, offers to settle, and related statements are inadmissible to prove liability or fault. In a criminal case, pleas later withdrawn, offers to plea and related statements are inadmissible to prove guilty. (includes nolo)
Exceptions: No claim filed or threatened and no dispute as to liability or damages. There is nothing to settle! |
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Term
| Payment or offers to pay medical expenses |
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Definition
| Evidence of payments or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question. Related statements are still admissible. |
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Term
| Similar occurrences are admissible to prove: |
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Definition
| Existence of a dangerous condition, that the defendant had knowledge of the dangerous condition, and that the dangerous condition was the cause of the present injury. (i.e., person eating at same restaurant, same food, at same time) |
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Term
| Prior accidents or claims of plaintiff |
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Definition
Without any similarities or anything connecting it to the accident in question, prior accidents/claims are irrelevant.
However, there are exceptions:
• If plaintiff has a pattern of bringing fraudulent claims – if plaintiff’s prior suits were dismissed b/c it was faked, then it is relevant.
• If plaintiff has a preexisting condition – I.e., if plaintiff had prior fall and broke his keester, the same injury plaintiffs seems to have suffered here, then it is relevant. |
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Term
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Definition
| Habit of a person to act in a certain way is relevant and admissible to show the person acted in accordance with the habit on the occasion in question. (Frequently repeated conduct, describes specific conduct) |
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Term
| Routine practice evidence |
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Definition
| Routine business practice is relevant to show that conduct of the entity was in conformity with that practice on the occasion in question. |
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Term
| Industrial custom evidence |
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Definition
| Relevant to prove standard of care in negligence case |
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Term
| Character evidence in civil cases |
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Definition
Character evidence is generally inadmissible to prove conduct in civil cases except for claims:
-Based on sexual assault or child molestation
-Where character is directly at issue (i.e., defamation, child custody, negligent entrustment, self-defense)
-If D testifies, then they automatically place their character for truthfulness at issue |
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Term
| In a criminal case, can prosecution introduce character evidence of defendant? |
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Definition
No, exceptions:
-If it is a case of sexual assault or child molestation, prosecution can offer evidence that defendant committed other acts of sexual assault or child molestation.
-When the DEFENDANT offers evidence of the VICTIM'S character, then prosecution can be first to offer evidence that defendant has the SAME character trait |
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Term
| In a criminal case, can defendant offer evidence of his good character? |
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Definition
| Yes, defendant can try to establish that he acted in conformity with that good character (this opens the door). BUT it is limited to reputation & opinion evidence only, not specific instances of conduct. |
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Term
| What does "open the door" mean? |
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Definition
Defendant has offered evidence of good character and opens the door to the prosecution. Prosecution can now rebut with evidence of the defendant's bad character
Direct examination = reputation & opinion
Cross examination = reputation, opinion, and specific instances
NOTE: No extrinsic evidence allowed |
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Term
| In a criminal case, can prosecution admit evidence of prior crimes or prior bad acts? |
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Definition
Prosecution cannot admit it to show that defendant probably acted unlawfully again. BUT they ca be admitted for other purposes such as mimic:
M = Motive
I = Intent
M = Mistake
I = Identity
C = Common plan/scheme |
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Term
| When is evidence of victim's character admissible? |
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Definition
Prosecution CANNOT be the first to offer character evidence of victim. Defendant must open the door by offering evidence of victim's character and then prosecution can rebut.
In a HOMICIDE case, if defendant offers evidence that the victim attacked first, prosecution may offer evidence of victim’s character for peacefulness. |
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Term
| Character evidence in a criminal rape case |
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Definition
Reputation and opinion evidence INadmissible.
Specific instances of alleged victim’s conduct admissible only to prove:
-3rd party is source of semen or injury; or
-Prior acts of consensual intercourse between defendant and alleged victim |
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Term
| Character evidence in a civil rape case |
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Definition
| Reputation, opinion and specific instances evidence IS admissible if probative value substantially outweighs unfair prejudice and, in the case of reputation evidence, plaintiff put her reputation in issue. |
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Term
| A person can testify if they are competent. Competency requires: |
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Definition
1) Personal knowledge - witness perceived the facts with one or more of her senses
2) Present recollection - witness must testify from present recollection
3) Communication - witness must be able to relate perception either directly or through interpreter
4) Sincerity - witness must take oath or make affirmation to tell truth |
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Term
| Objections (must be timely & specific) |
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Definition
1) Calls for narrative – such a general question like “what happened” that the witness can go on about anything. No specific direction is given by the question.
2) Unresponsive – answer was nonresponsive; ask for motion to strike
3) Usually no leading questions on direct (leading questions = suggests answer)
4) Leading questions are ok on cross (must be on the same subject as direct)
5) Leading questions are ok on direct if adverse witness, hostile witness, witness needing help
6) Assumes facts not in evidence
7) Argumentative
8) Compound question |
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Term
| What can be used to refresh recollection during testimony? |
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Definition
| Anything can be used to refresh recollection (it does not need to be admissible but the opposing counsel may inspect and offer into evidence) |
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Term
| Past recollection recorded |
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Definition
| Where a witness has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted in a writing given to her on the stand, the writing itself may be READ into evidence if a proper foundation is laid. |
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Term
| What foundation is needed for a past recollection recorded? |
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Definition
-Witness once had personal knowledge
-Document was made by the witness or under the witness’ direction or was adopted by the witness.
Adoption = another person made the record and witness did or said something to indicate she agreed with contents.
-The documented was written or adopted at a time when the facts were fresh in the witness’ memory.
-The document was accurate when made.
-The witness now has insufficient recollection to testify as to the matters contained in the document. |
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Term
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Definition
| Admissible if rationally based on the witness’ perceptions and helpful to the trier of fact. |
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Term
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Definition
Admissible if:
1) Helpful to the jury
2) Witness must be qualified (can be qualified on any basis that shows you have specialized knowledge)
3) Witness must believe in opinion to reasonable degree of certainty
4) Opinion must be supported by a proper factual basis (i.e., admitted evidence, personal knowledge or inadmissible evidence reasonable relied upon) and
5) Opinion must be based on reliable principles that were reliably applied |
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Term
| How do you know scientific principles are reliable? (Daubert) |
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Definition
-Science been peer reviewed and published in scientific journals
-Science has been tested and is subject to retesting
-Science has a low error rate
-Science has a reasonable level of acceptance. |
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Term
| Learned treatise exception to hearsay |
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Definition
| Learned treatise is admissible to prove anything stated therein if it is an accepted authority if the field. |
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Term
| Can evidence be submitted to support a witness's credibility? |
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Definition
| No, unless credibility is attacked first |
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Term
| What are the different ways to impeach? |
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Definition
1) By contradiction
2) By prior inconsistent statement
3) With evidence of bias, interest, motive
4) With conviction for crime involving false statement
5) With conviction for a crime not involving false statement
6) With non-conviction misconduct bearing on truthfulness
7) With bad reputation & opinion regarding truthfulness
8) Sensory deficiencies |
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Term
| Impeachment by contradiction |
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Definition
| Extrinsic evidence is INadmissible to contradict on collateral matter (a fact not material to the issues in the case that says nothing about witness’ credibility other than to contradict to witness.) If it's not a collateral matter, then it's okay. |
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Term
| Impeachment by prior inconsistent statement |
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Definition
| Prior inconsistent statements are usually hearsay and can ONLY be used to impeach. However, it can come in as substantive evidence (for its truth) IF it was made under oath at a legal proceeding. |
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Term
| Can you introduce extrinsic evidence for impeachment by prior inconsistent statement? |
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Definition
| Yes, you can introduce extrinsic evidence unless it is for a collateral matter. The extrinsic evidence is admissible ONLY if the witness is given an opportunity to explain or deny. |
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Term
| Impeachment with evidence of bias, interest, or motive. Extrinsic evidence admissible? |
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Definition
| Admissible only if witness given an opportunity to explain or deny. |
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Term
| Impeachment with conviction for crime involving false statement |
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Definition
| All convictions (felonies and misdemeanors) for crimes of false statement (e.g., perjury, forgery, fraud) are admissible. No balancing of unfair prejudice against probative value except for convictions more than 10 yrs old. |
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Term
| Can court exclude convictions for crimes involving false statements? |
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Definition
| No, court does NOT have discretion to exclude this type of evidence for impeachment. NO power to balance probative value over prejudice. If it does not involve false statement, it can be balanced. |
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Term
| Impeachment with convictions for a crime NOT involving false statement |
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Definition
Serious felonies (punishable by more than 1 year) that do not involve false statement (e.g, murder, robbery, rape) may be admissible to impeach but court may exclude for unfair prejudice.
Misdemeanors that do not involve false statement are inadmissible to impeach. |
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Term
| Can convictions be proved with extrinsic evidence? |
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Definition
| Yes, however, if conviction is otherwise admissible but is more than 10 years since date of conviction or release from prison (whichever is later), it is inadmissible unless probative value outweighs unfair prejudice. |
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Term
| Impeachment with non-conviction misconduct evidence bearing truthfulness |
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Definition
Acts of misconduct that did not result in a conviction are admissible to impeach in both civil and criminal cases if the act involved lying.
Extrinsic evidence is inadmissible if person denies the act. Impeacher may only cross-examine witness about her misconduct. |
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Term
| To impeach with evidence of bad reputation & opinion regarding truthfulness, is extrinsic evidence admissible? |
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Definition
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Term
| Impeachment by sensory deficiencies - is extrinsic evidence allowed? |
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Definition
| Yes, a witness may be impeached by showing, either on cross-examination or by extrinsic evidence that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. |
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Term
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Definition
Out of court statement offered to prove the truth of the matter asserted in that statement.
Statement = verbal or written expression of a person or conduct by a person intended to communicate (“assertive conduct”) |
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Term
| What are some examples of not hearsay |
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Definition
-A statement that has independent legal significance
-A statement offered to show the effect on the listener
-A statement offered to show speaker's knowledge of the facts stated (and not the truth of the statement)
-A statement offered to prove state of mind |
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Term
| Exemptions to hearsay rule (and thus, NOT hearsay) |
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Definition
1) Admissions of a party opponent
2) Prior inconsistent statement given under oath
3) Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive
4) Prior identification of a person made after perceiving the person |
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Term
| Does admission have to be against interest? |
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Definition
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Term
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Definition
| Statement can be by an authorized spokesperson of a party or an employee of party concerning matter within scope of employment and made during employment relationship |
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Term
| Can silence be treated as an admission? |
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Definition
| Yes, if the party heard and understood the statement, was capable of denying the statement, and a reasonable person would have denied the accusation. |
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Term
| For prior identification of a person made after perceiving the person, must the declarant be available? |
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Definition
| Yes, they must testify at trial and be subject to cross-examination |
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Term
| Unavailability exceptions to hearsay |
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Definition
1) Statement against interest
2) Dying declaration
3) Former testimony
4) Personal & family history |
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Term
| Statement against interest |
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Definition
| Hearsay statement is admissible if at the time it was made, it was against the financial, proprietary, or penal interest of declarant. |
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Term
| If the statement against interest is offered to exculpate accused (i.e., by showing someone else confessed to the crime), there must be: |
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Definition
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Term
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Definition
| A hearsay statement by a person who believes his death is imminent and the statement concerns the cause or circumstances leading to impending death is admissible in civil action and in homicide prosecution. Declarant need not die but must be unavailable. |
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Term
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Definition
Testimony given by a person in earlier proceeding or deposition is admissible if:
-The party against whom the testimony is now offered had, during the earlier proceeding, an opportunity to examine that person and the motive to conduct that exam was similar to the motive the party has now, OR
-In a civil case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity type relationship with someone who was a party to that earlier proceeding and who had an opportunity and a similar motive to examine the witness in that earlier proceeding. |
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Term
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Definition
| Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition. |
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Term
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Definition
| Hearsay statement is admissible if describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. |
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Term
| Statement of then existing physical or mental condition (state of mind) |
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Definition
| Hearsay statement of declarant’s then existing physical or mental condition or state of mind is admissible to show the condition or state of mind. Can be a statement describing intention or plan. |
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Term
| Statement of past or present mental or physical condition made for medical diagnosis or treatment |
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Definition
Hearsay by one person concerning the past or present mental or physical condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis or treatment. No need to show declarant unavailable.
Note: only part of statement that relates to diagnosis is admissible. |
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Term
| Past recollection recorded |
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Definition
| If the witness’s memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event. Must be read to jury. |
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Term
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Definition
Hearsay is admissible if it is a record of events, conditions, opinions or diagnoses kept in the course of regularly conducted business activity made at or near time of matters, described by a person with duty or knowledge of the facts in that record, and it was regular practice of business to make such record.
Court may exclude if untrustworthy. |
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Term
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Definition
Hearsay record of a public office is admissible if within one of the following categories:
-Record describes activities and policies of the office
-Record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases) or
-Record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy. In criminal case, prosecution cannot use. |
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Term
| Judgment of previous conviction |
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Definition
| Hearsay statement describing felony conviction (e.g., copy of the judgment of conviction) is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible. |
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Term
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Definition
| The confrontation clause excludes an out of court statement if declarant does not testify at the trial, is now unavailable, the statement is “testimonial” and defendant had no chance to cross-examine declarant about the statement when it was made. |
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Term
| What is testimonial? What is not? |
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Definition
Unclear but applies to in-court statements and statements made to further police investigation aimed at producing evidence for a prosecution.
Statements to police to deal with an ongoing emergency are non-testimonial and their admission does not violate the confrontation clause. |
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Term
| Catch-all exception to hearsay |
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Definition
For a hearsay statement not covered by a specific exception to be admitted, the federal rules provide a catch all exception which requires:
-That the hearsay statement possess circumstantial guarantees of trustworthiness
-That the statement be strictly necessary; and
-That notice be given to the adversary as to the nature of the statement |
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Term
| Every writing must be authenticated. This means: |
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Definition
| Proving it is what the proponent of that evidence claims it to be. Burden of proof is low (“sufficient to sustain finding”). |
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Term
| What are ways to authenticate a writing? |
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Definition
-Admissions
-Eyewitness testimony
-Expert opinion
-Lay opinion
-Circumstantial evidence
-Genuine example
If plaintiff authenticates letter in one of ways described above, then evidence is admissible. Even in presence of conflicting evidence regarding authenticity, evidence will be admitted. Jury gets to decide whether it bears the signature of the D. |
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Term
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Definition
| Authenticity is established if document is 20 years old or more, does not on its face present an irregularities and was found in a place of natural custody (where you would expect such documents to be found). |
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Term
| Self authenticated writings |
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Definition
For certain writings, authentication is unnecessary:
-Certified copies of public documents (deeds)
-Acknowledge documents (i.e. documents where original signature is attested before a notary to be valid)
-Official publications (government pamphlets)
-Newspapers, periodicals, business records and trade inscriptions (tag or label that purports to have been attached in course of business and indicates ownership, control, or origin. |
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Term
| How to authenticate a photo? |
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Definition
| A person can authenticate a photo if he has personal knowledge. Look at form of question...”fair and accurate depiction” or the “actual photo” |
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Term
| How to authenticate non-unique items? |
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Definition
A person can authenticate if they lay chain of custody demonstrating that this is the specific item proponent claims it to be. (I.e., cocaine from custodian, to chemist, back to custodian and then brought to trial)
If small break in chain of custody, still admissible because burden of proof to authenticate is low.
If big break in chain of custody, then it is inadmissible. |
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Term
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Definition
Applies only where evidence is offered to prove the contents of a writing (documents, videos, photos, x-rays, audio recordings)
Must be original and in some cases, duplicates are admissible if carbon copy of original in same impression that produced the original. (However, duplicates are not admissible where there is genuine question as to authenticity of original)
Testimony regarding contents of writing may be admissible where original is lost or destroyed unless bad faith by proponent of testimony. |
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Term
| Attorney-client privilege |
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Definition
Communication between attorney and client or their representatives are privileged if:
-intended by client to be confidential -made to facilitate legal services
(Privilege applies to communications from employees/agents as well as to anyone hired by attorney)
-Survives even after termination of attorney-client relationship |
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Term
| When does the attorney-client privilege NOT apply? |
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Definition
-Professional services sought to further what client knew or should have known to be a crime or fraud, or
-Communication relates to alleged breach of duty between lawyer and client, or
-Two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another. |
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Term
| Pyschotherapist-Patient & Social Worker-Client Privilege |
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Definition
| A communication between psychotherapist and patient, or licensed social worker and client, intended by patient/client to be confidential and made to facilitate rendition of professional psychological services is privileged in all civil and criminal proceedings unless waived by the patient/client. |
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Term
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Definition
There is NO doctor-patient privilege under the FRE but most states including CA have adopted the privilege.
-When the privileges applies: A patient has a privilege to prevent disclosure of information confidentially conveyed to a physician where the patient conveyed the information for the purpose of obtaining diagnosis or treatment and the information was pertinent to diagnosis or treatment. Must be intended by patient to be confidential. |
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Term
| When does the doctor-patient privilege NOT apply? |
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Definition
-The patient puts his physical condition in issue as in a personal injury suit; or
-Physician’s services sought to aid in crime or fraud or to escape capture after a crime or tort; or
-In a case alleging breach of duty arising out of physician-patient relationship, as in a malpractice action. Some states including CA do not recognize the privilege in criminal cases. |
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Term
| Spousal testimonial privilege |
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Definition
| Spousal testimonial privilege permits witness to refuse to testify against his/her spouse as to anything. Applies only in criminal cases and to matters occurring before or during marriage. (Witness owns the privilege) |
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Term
| Spousal confidential communication privilege |
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Definition
| Protects confidential spousal communications during marriage. Applies in both criminal and civil cases. |
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Term
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Definition
| Courts can take judicial notice of facts not subject to reasonable dispute because they are either 1) generally known within the jurisdiction, or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. |
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Term
| Effect of judicial notice in a civil case vs. criminal case |
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Definition
In a civil case, if a judge takes judicial notice, the fact is conclusively established (binding)
In a criminal case, if a judge takes judicial notice, the prosecution’s burden of producing evidence on that point is satisfied. |
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