Term
| Common Objections to the Form of the Question |
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Definition
i. Leading
ii. Calls for a Narrative
iii. Asked and Answered
iv. Assumes Facts not in Evidence
v. Misstates facts in evidence
vi. Argumentative
vii. Compound Question
viii. Lack of Personal Knowledge
ix. Unresponsive
x. Vague and Ambiguous |
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Term
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Definition
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Term
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Definition
| Evidence must be relevant to be admissible |
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Term
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Definition
| All relevant evidence is admissible (except as otherwise provided by statute) |
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Term
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Definition
Definition of Relevance:
1. Any tendency in reason (rational but broad)
2. To prove or disprove (probative value)
3. Any disputed fact of consequence (materiality) |
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Term
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Definition
An offer to admit to a fact or set of facts that can be rejected by the opposing party and are as binding as admissions.
Housekeeping = keeps orderly progress of trial
Substantive = deals w/substance of what we are proving |
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Term
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Definition
Credibility
Materiality = also encompasses evidence relevant to the credibility of witnesses or hearsay
Limitation = Hernandez v. Paicius – cannot give evidence showing that someone might be predisposed to lie on the stand |
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Term
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Definition
Conditional Admissibility
- Usually must produce evidence of preliminary facts (connecting evidence) before can offer a specific item of evidence but sometimes judge will allow other evidence first as long as connecting evidence will be shown |
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Term
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Definition
Policy Exclusion
Evidence may be excluded if its probative value is outweighed by the possibility that it might take up too much of the court's time or create undue prejudice, confuse the issues, or mislead the jury |
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Term
Relevance
CEC 352
Measuring Probative Value |
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Definition
| Does this evidence make it more or less likely: issues in the case, elements to prove the claim, elements of defense. A lot more, or slightly more likely? |
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Term
Relevance
CEC 352
Measuring the Prejudicial Effect "TUPCM" |
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Definition
Undue consumption of time?
Undue prejudice?
Confuse the issues?
Mislead the jury? |
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Term
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Definition
| the use of evidence of a person’s character traits to prove that on a given occasion that person acted in conformity with his or her character |
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Term
| Kinds of Character Evidence (3) |
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Definition
1. Specific Instances
2. Opinion
3. Reputation |
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Term
Character Evidence
CEC 1000
CEC 1101(a) |
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Definition
1000 = anything to support someone's character is admissible evidence
1101(a) = ban on character evidence to prove a person's conduct on a specific occasion unless statute allows |
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Term
Character Evidence
Exceptions to CEC 1101(a) when CEC 1000 may be used (9) |
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Definition
- Defamation actions where reputation is already so harmed
- Wrongful death action to show predisp. to provide benefits
- Negligent entrustment actions
- Wrongful discharge actions
- Child custody proceedings
- Juvenile court dependency proceedings
- Malicious prosecution
- Some penal statutes (ex. engagement in past crime for death penalty)
- if trait is an element of the COA) |
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Term
Character Evidence
CEC 1102 |
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Definition
Mercy Rule Exception to CEC 1101(a)
CA criminal Defendant can give OPINION or REPUTATION evidence to show they are not the type of person to commit the offense
BUT prosecution can present character evidence to the contrary |
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Term
Character Evidence
CEC 1103(a) |
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Definition
Character evidence of the victim is admissible (all 3 types) if:
1. Offered by D to prove conduct of the victim in conformity with the character or trait of character
or
2. offered by P to rebut the evidence offered by the D |
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Term
Character Evidence
1103(b) |
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Definition
| If Defendant brings up victim's character propensity for VIOLENCE then Plaintiff can show D's character for violence |
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Term
Character Evidence
1103(c) |
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Definition
SEXUAL MISCONDUCT in a criminal case
D cannot offer CE of complaining witness to prove consent
Cant off SI of P's sex w/ others
Cant offer evidence of dress
Can offer SI of sex with D |
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Term
Character Evidence
FRE 404(2)(b) |
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Definition
| if D brings up evidence of victim’s character for ANY character trait then P gets to show the character of the D for being that character trait w/ reputation or opinion testimony |
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Term
Character Evidence
FRE 404(a)(2)(c) |
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Definition
| Prosecution in a HOMICIDE case can offer evidence of the victim’s trait for peacefulness to rebut even non-character evidence that the victim was the first aggressor |
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Term
Character Evidence
FRE 412 |
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Definition
Gen. prohibition against evidence of past sex. behavior/predisposition except:
1. to prove someone other than D was source of physical evidence (ex. semen)
2. To prove past sexual relations w/D to prove consent
3. To stop violation of D's con rights |
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Term
Character Evidence
CEC 1106 |
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Definition
Sexual harassment, sexual assault, or sexual battery cases (Civil)
D can give all 3 types of CE about P's sexual conduct
but only sexual conduct w/others if P opens that door |
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Term
Character Evidence
CEC 1108(a) |
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Definition
Evidence of another sexual offense by defendant
In a criminal action, if D accused of a sexual offense, specific instance evidence of the D's commission of another sexual offense is admissible under Section 1101, as long as it complies with Section 352.
Sexual offense defined broadly |
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Term
Character Evidence
CEC 1109 |
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Definition
Evidence of defendant’s other acts of domestic violence
In a criminal action where D accused of domestic violence, P can bring in evidence of D's commission of other domestic violence (w/in last 10 years)
No conviction of the other acts necessary but jurors must find by a preponderance of the evidence that the accused committed those acts |
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Term
Character evidence
Domestic, Elder, or child abuse |
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Definition
| Prosecutors can allow evidence of domestic violence, elder or dependent person abuse, or child abuse as proof of the accused’s propensity to commit such violence or abuse |
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Term
Character Evidence and Non-Character Purposes
1101(b) |
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Definition
Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact other than his or her disposition to commit such an act.
IPIMPOMACK |
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Term
Character Evidence for Non-character Purposes
IPIMPOMACK |
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Definition
Intent
Preparation
Identity
Motive
Plan
Opportunity
Mistake, absence of
Absence of Accident
Consent
Knowledge |
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Term
Character Evidence
IPIMPOMACK
Identity |
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Definition
Earmark or signature
Something that the perp has done over and over again |
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Term
Character Evidence
IPIMPOMACK
Plan |
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Definition
- Conspiracy or scheme
- Must be able to show connection to what’s happening in the current case
- Each crime should be an integral part of the over arching plan |
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Term
Character Evidence
IPIMPOMACK
Mistake, Absence of |
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Definition
To show similar acts or incidents, that the act in question was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge
Ex. claims she wouldnt recognize PCP if she saw it. Can bring in evidence of her using PCP in the past. |
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Term
Character Evidence
IPIMPOMACK
Absence of Accident |
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Definition
Can show past history of doing something to show its not an accident
Ex. Step on the brake on accident, third time you’ve done it, not an accident anymore |
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Term
Character Evidence
IPIMPOMACK
Consent |
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Definition
• Largely for the reason of sex crime cases
• Sometimes for battery cases (some ppl like to be hit) |
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Term
Character Evidence
Objecting to 1101(b) Evidence |
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Definition
| If lose motion to exclude under 352 ask judge to give limiting instructions to the jury - find by a preponderance of the evidence that the misdeed was done |
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Term
Character Evidence
Hostile Work Environment Sexual Harassment |
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Definition
| To prove a hostile work environment a P may offer evidence of sexual harassment of other coworkers as long as P was aware of that harassment – offered to show that P’s knowledge of the harassing conduct contributed to the hostile work environment |
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Term
Character Evidence
Termination on the basis of age not allowed |
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Definition
| Employer can offer reasons for terminating an employee in order to prove that it was not for their age |
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Term
Character Evidence
If character is at issue in the case |
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Definition
• Character evidence allowed
• Ex. Wrongful termination based on someone’s character |
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Term
Character Evidence
CEC 1104 |
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Definition
Character for Care or Skill Inadmissible unless allowed under CEC 1102 Mercy Rule or under CEC 1103 Character of the Alleged Crime Victim where care and skill or carelessness and lack of skill of victim can be offered
*cant be offered under sex crime or intimate abuse exceptions |
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Term
Character Evidence for Non-Character Purposes
Habit / Custom |
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Definition
Factors to establish habit or custom:
Regularity
Specificity
Automatic
Test = sufficiency standard. |
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Term
Character Evidence for Non-Character Purposes
Habit |
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Definition
For an individual
A regular response to a repeated specific situation
Provable by specific instance, opinion, or reputation evidence |
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Term
Character Evidence for Non-Character Purposes
Custom |
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Definition
For a company
organization conformed its operations to the custom |
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Term
Character Evidence for Non-Character Purposes
Similar Occurrences |
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Definition
No rule, just argue relevance and probative value based on similarity
Evidence of similar circumstances must be:
1. offered for a noncharacter reason and
2. be substantially similar |
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Term
Character Evidence for Non-Character Purposes
Similar Occurrences
Manufacturing/Design Defects |
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Definition
Requirement that the circumstances be similar is RELAXED in manufacturing and design defects cases
Ex. P allowed to give evidence that jeep gearbox failed in other circumstances that weren't that similar b/c ct. looking at the defect not the circumstances themselves |
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Term
Character Evidence for Non-Character Purposes
Similar Occurrences
Lawsuits |
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Definition
Can show that party made previous similar claims if the evidence shows the previous claims were fraudulent
Can show that a witness made similar, false accusations about others to prove the witness’s present accusations are false |
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Term
Character Evidence for Non-Character Purposes
Similar Occurrences
Contracts |
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Definition
Evidence of other transactions b/w the same parties allowed to determine the meaning of disputed terms of a contract
Evidence that in the past the parties have given special meaning to a term means its more likely they mean that for this contract |
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Term
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Definition
Subsequent Precautions : Can't show subsequent remedial measures which would have made the event less likely to prove negligence or culpable conduct (Does not apply to strict liability cases)
Policy = not irrelevant but its use would discourage Ds from making repairs after an accident
Allowed to offer as evidence of ownership, control, or feasibility of precautionary measures or impeachment |
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Term
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Definition
| Not allowed to use subsequent repair doctrine for defect in design or product |
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Term
Pleas and Offers to Plead
CEC 1153 |
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Definition
Offer To Plead Guilty Or Withdrawn Plea Of Guilty By Criminal Defendant
Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or to any other crime in a criminal action is inadmissible
Policy = dont want to discourage plea bargains |
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Term
Pleas and Offers to Plead
CEC 1153
What is NOT protected |
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Definition
- Nolo pleas (I will not contest)
- Unsolicited offers to plead guilty or admissions of guilt • - - Comments made to friends about what the accused would accept (only those made in bona fide plea negotiations)
SPLIT: CA cts. divided on whether police officers qualify as plea bargain participants |
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Term
Pleas and Offers to Plead
CEC 1153
Admissions made during plea negotiations |
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Definition
| can’t be used as admissions but can be used to impeach |
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Term
Pleas and Offers to Plead
FRE 410 |
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Definition
- Only please of guilt made to US attorney protected
- Speaking with police officers not protected
- Can’t use statements made during plea negotiations to impeach credibility |
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Term
Compromise Offers
CEC 1152 |
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Definition
- can't use Good Faith offers to settle ($, acts, service) to prove validity of a claim in a CIVIL case
- Can use them to prove anything else
- Prohibits the use of statements made and conduct undertaken in humanitarian efforts
- Apologies not considered admissions |
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Term
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Definition
• Allows use of statements or conduct made during compromise negotiations for criminal cases
• Prohibits using those statements to impeach (CA case law agrees) |
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Term
Offers to Compromise
CEC 1554 |
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Definition
| Used to ban use of settlement conference statements and conduct to prove the invalidity of a claim (as opposed to 1552 validity) |
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Term
Compromise Offers
CEC 1553.5 |
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Definition
| criminal cases – cannot use offer to settle in civil court from crime against property as evidence if offer was made with the prosecutor’s assistance |
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Term
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Definition
- anything disclosed in mediation is inadmissible in any non-criminal proceeding
- including communications, negotiations and settlement discussions
- UNLESS allll the parties agree to it |
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Term
Liability Insurance
CEC 1155 |
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Definition
• Evidence that a person WAS insured at the time they were harmed is inadmissible to prove negligence or other wrongdoing
• Fact that you were not insured can come in as evidence
• Policy = Insurance does not make someone more or less likely to be careful
• Purpose other than to prove negligence or wrongdoing, then admissible but it must be relevant |
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Term
Liability Insurance
FRE 411 |
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Definition
| • Unlike the CEC, cant submit evidence that someone does NOT have liability insurance |
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Term
Expressions of Sympathy and Benevolence
CEC 1160 |
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Definition
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Term
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Definition
Hearsay Defined
1) Evidence of a statement that was made;
(2) Other than by a witness while testifying at that hearing;
(3) And that is offered to prove the TOMA
(b) Hearsay is inadmissible as evidence |
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Term
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Definition
Reliability factors:
o Perception
o Memory
o Narration
o Sincerity
• Confrontation and cross-examination |
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Term
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Definition
Statement Defined
1. Oral or written verbal expression
2. Nonverbal conduct of a person intended by him as a substitute for verbal or written expression
Ex. head nod in agreement |
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Term
Hearsay
Statement
Nonverbal Conduct |
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Definition
Is it assertive (clearly intended to substitute for words) or non-assertive (w/ a primary purpose that is not communicative) conduct?
Consider: intent, voluntariness, independent significance
Sometimes silence can count as nonverbal conduct (rarely) |
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Term
Hearsay
Statement
Was it made out of court? |
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Definition
Can't repeat a comment first made out of court
Testimony = made in court (look for the word)
Is the statement being made now or repeated from before? |
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Term
Hearsay
What is the statement being offered to prove? |
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Definition
Can't be used to prove a direct or indirect assertion
Can only be used for some non-truth purpose (ex. victim said she was scared he would harm her. Can't use to prove to harm her but can use to show she was scared) |
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Term
Hearsay
Machine/Animal Evidence |
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Definition
Animals dont make hearsay statements
Machines don't make hearsay statements
Info merely stored in a machine is NOT exempt |
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Term
Hearsay
Non-Truth Purposes |
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Definition
MYKIWANIS
1. Material
2. Why
3. Knowledge
4. Investigation
5. Warning
6. Alive
7. Nature
8. Impeach
9. State of mind |
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Term
Hearsay
Non-Truth Purposes
M |
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Definition
MATERIAL verbal acts: Where what someone said was logically equivalent to an act taken by the person
- Contracts cases – an agreement has the legal significance of creating a K
- Conspiracy, bribe, solicitation – a verbal assent is a material part of the crime
- Gift was proffered (or accepted) |
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Term
Hearsay
Non-Truth Purposes
Y |
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Definition
To explain WHY a particular course of action was take
- Provides circumstantial evidence about a person’s actions
- Common with police officers
- Followed the car b/c got a call from someone claiming weaving red car and possible drunk driver |
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Term
Hearsay
Non-Truth Purposes
K |
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Definition
To prove possession of relevant KNOWLEDGE
- IPIMPOMACK
- not that knowledge was accurate |
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Term
Hearsay
Non-Truth Purposes
I |
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Definition
To prove that info requiring further INVESTIGATION was available
- show you were put on notice
- Common with employment litigation, employment termination, negligence cases |
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Term
Hearsay
Non-Truth purposes
W |
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Definition
To prove that a WARNING was given
- to prove that the listener was on notice regarding a dangerous condition |
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Term
Hearsay
Non-truth Purposes
A |
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Definition
| To prove the declarant was conscious or ALIVE |
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Term
Hearsay
Non-Truth Purposes
N |
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Definition
To prove the NATURE of a place of business
• Ex. Fact that they took my drug order means they are a drug dealer
• Ex. Fact that they took my gambling bet means they are a gambling facility |
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Term
Hearsay
Non-Truth Purposes
I |
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Definition
To IMPEACH a witness by disproving assertions testified to by them
- NOT trying to prove that the prior statement or this current statement is true but that they are INCONSISTENT |
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Term
Hearsay
Non-Truth Purposes
S |
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Definition
To prove the declarant's STATE OF MIND
- Where state of mind is shown indirectly or circumstantially, this is not hearsay
- Use if what the person thinks is a material issue
- Ex. crying |
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Term
Hearsay Exceptions
CEC 240(a) |
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Definition
A declarant is UNAVAILABLE if:
(1) Exempt or precluded from testifying on grounds of privilege
(2) Disqualified from testifying
(3) Dead or unable to testify because of mental or physical health
(4) Absent and beyond the court’s process
(5) Absent despite reasonable diligence
(6) Persists in refusing to testify despite contempt |
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Term
Hearsay Exceptions
CEC 240(b) |
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Definition
| Not unavailable if the reason in 240(a) was brought about by the procurement or wrongdoing of the party seeking to admit the statement |
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Term
Hearsay Exceptions
Unavailability
CEC 240(c) |
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Definition
| Expert Testimony can establish unavailability |
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Term
Hearsay Exceptions
Unavailability
Burden of Proof |
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Definition
| Proponent has the burden of proving the witness is unavailable |
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Term
Hearsay Exceptions
Unavailability
FRE 804 differences |
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Definition
- No exclusion of evidence where declarant is unavailable due to the wrongdoing of the opponent
- Unavailable if testify to not remembering |
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Term
Hearsay Exceptions
Implicating the Confrontation Clause |
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Definition
i. out of court statement
ii. offered for the TOMA
iii. by the prosecution
iv. against a criminal defendant
v. that is a testimonial statement
vi. VIOLATES the right to confrontation unless: (Crawford v. Washington)
- the declarant is available and produced for cross-exam OR
- declarant is unavailable AND the accused had a prior opportunity to cross-examine them about that statement |
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Term
Hearsay Exceptions
Confrontation Clause
Testimonial Statements |
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Definition
Statements made under circumstances that would lead a rx. person to believe that the statement would be used at trial
- Made under circumstances of solemnity (Presumed where law officials present in a non-emergency situation)
- Made primarily to establish a past fact for possible use at trial
- DNA evidence to use to track down un-arrested offender |
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Term
Hearsay Exceptions
Confrontation Clause
Non-Testimonial Statements |
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Definition
- Statements made during an ongoing emergency are not testimonial
- Co-conspirator statements
- Business records
- D’s admissions to a friend |
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Term
Hearsay Exceptions
Confrontation Clause
Confrontation of Multiple Defendants |
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Definition
• One of the statements co-defendant1 said outside of court may be used against another co-defendant (but 1 has asserted his 5-A privilege)
o 1’s previous statements likely not going to fit as testimonial and will not be barred from use |
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Term
Sufficiency Test
CEC 403(a) |
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Definition
could a rx. fact finder find this fact to be true?
• Relevancy (CEC 350)
• Party admission (CEC 1221-27)
• Witness’s prior statements (CEC 1235-36)
• Identity of hearsay declarant
• Personal knowledge (CEC 702)
• Conviction to attack credibility (CEC 788)
• Authentication of evidence |
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Term
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Definition
- more than 50% likely
- When a fact is disputed, the court must find that its more likely than not that it is true
- Higher threshold with court acting as gatekeeper |
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Term
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Definition
• Admissions during compromise negotiations
• Dying declarations & Spontaneous statements (person really believe they were dying when they said it?)
• Items other than identity of hearsay declarant
• Witness’s mental capacity (CEC 701) and competency to testify
• Pardon or rehabilitation granted for conviction
• Qualifications of experts (CEC 720)
• Opinion as to sanity (CEC 780)
• Handwriting matching (CEC 1416-19)
• Whether secondary evidence admissible
• Existence of privileges & exceptions |
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Term
Evaluation Standards for Federal Court
FRE 104(a) |
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Definition
• Federal court is not bound by the rules of evidence when deciding whether or not the preponderance threshold is met
• This means they can consider hearsay etc.
• In Fed Court relevance is sufficiency and pretty much everything else is preponderance but easier to meet b/c you can use anything to prove preponderance |
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Term
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Definition
Admission of a Party
1. Is the statement by a party?
2. Is the statement being offered against that party?
If so, can be brought in as evidence |
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Term
Party Admissions
FRE 801(d)(2) |
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Definition
- admissions by a party opponent are not considered hearsay so no exception is necessary
- This includes adopted, authorized, agency, and co-conspirator admissions |
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Term
Party admissions
CEC 1221 Adoptive Admissions |
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Definition
| When the party does not make the statement herself but uses words or deeds to suggest agreement with a statement that someone else made |
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Term
Party admissions
CEC 1221 Adoptive Admissions
Analysis |
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Definition
1. Is the declarant the party that the statement is being offered against?
2. Does the party have knowledge of (understand) the content of the statement?
3. Has the party adopted the statement?
Sufficient evidence from which a rx. could find that the party adopted the statement? |
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Term
Party admissions
CEC 1221 Adoptive Admissions
Was it the party's intention to adopt the statement? |
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Definition
1. Did the party hear the statement?
2. Did the party understand the statement?
3. Did the party know what the declarant was talking about?
4. Is this the type of accusation or assertion that most people would respond to under these circumstances if it were untrue?
• Can be adopted expressly through words, impliedly through gestures or conduct in reliance, or through silence
• Goes hand in hand with party admission to explain the party admission |
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Term
Party Admissions
CEC 1222 Authorized Admissions |
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Definition
Statement made, by a person authorized by the party to make the statement for him, concerning the subject matter of the statement offered against the party
Statements made by an authorized person TO the party himself are not covered by the hearsay exception must be FOR the party to someone else |
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Term
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Definition
- Requires a preponderance of the evidence to determine the authorization
- Does not contain the “for him” language and statements made by an authorized person TO the party are admissible |
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Term
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Definition
common liability (rare, torts only)
predecessor/ successor in interest
civil acts
right, title or interest in property or claim of property |
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Term
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Definition
Admission of a Co-Conspirator: Can offer a statement against a party if made by the declarant while participating in conspiracy
1. Statement made by declarant while participating in the conspiracy
2. Made before or during party's participation in conspiracy
3. In furtherance of the conspiracy (plan/execute conspiracy)
4. Offered after sufficient evidence to find participation in the conspiracy |
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Term
Party Admissions
Co-Conspirator Declarations
Foundational facts that must be found to prove sufficiency |
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Definition
1. Existence of a conspiracy
2. Declarant was a member of the conspiracy
3. Party was a member of the same conspiracy during or after the time the statement was made
- Judge cannot use statement itself to find sufficiency |
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Term
Party Admissions
Co-Conspirator Declarations
FRE differences |
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Definition
- Preponderance of proof required
- Co-conspirator statements not hearsay
- Co-conspirator statements are also not testimonial so don’t implicate the confrontation clause
- Judge can use statement itself to find preponderance |
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Term
Forfeiture Exceptions
CEC 1350 |
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Definition
Forfeiture by Homicide or Kidnapping:
Clear and convincing evidence that declarant’s unavailability was “knowingly caused by, aided by, or solicited by the party against whom the statement is offered" for the purpose of preventing the arrest or prosecution of that party.
- Unavailability due to death or kidnapping of declarant |
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Term
Forfeiture Exceptions
CEC 1350
Statement must be... |
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Definition
- Statement memorialized on tape or paper and made by a law enforcement official, signed and notarized
- Statement made under circumstances indicating trustworthiness
- Corroborated by other evidence.
- 10 days notice |
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Term
Forfeiture Exceptions
CEC 390 |
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Definition
Forfeiture by other wrongdoing
Hearsay statement admissible if offered against a party whose wrongdoing was intended to, and did, make the declarant unavailable to witness |
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Term
Prior Statements of Witnesses
CEC 1235
Prior Inconsistent Statements in General |
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Definition
a. declarant who testifies at the time of trial
b. in a way that is inconsistent with prior statements of that witness
c. made before trial |
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Term
Prior Statements of Witnesses
CEC 1235 Prior Inconsistent Statements
"Inconsistent" |
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Definition
o does not have to be diametrically opposite, can be inconsistency in effect
o e.g., change in answer, evasive, different level of detail, silence
o “forgot” not inconsistent when in good faith |
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Term
Prior Statements By Witnesses
CEC 1235 Prior Inconsistent Statements
Admissible Where: |
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Definition
1. The witness was given the opportunity to explain or deny; OR
2. The witness has not yet been excused from testifying;
OR
3. The interests of justice require admission |
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Term
Prior Statements by Witnesses
FRE Differences |
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Definition
• Excluded from the definition of hearsay, not an exception
• Prior statement must have been given under oath, subject to penalty of perjury
• Witness must be subject to cross-examination while under oath regarding the prior inconsistent statement |
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Term
Prior Statements By Witnesses
CEC 1236 |
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Definition
Prior Consistent Statements can only be made where:
i. witness has been impeached OR
ii. witness has been accused of bias or improper motive or fabrication
iii. prior consistent statement was made before impeachment or before the bias arose
(if 1st and 3rd statements are consistent and 2nd statement is inconsistent/used to impeach - can bring in 1st statement) |
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Term
Prior Statements by Witnesses
Prior Consistent Statements
FRE Differences |
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Definition
• Exclusion not exception
• Improper influence is another option |
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Term
Prior Statements by Witnesses
Statements of Identification
CEC 1238 |
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Definition
1. Statement would have been admissible if said while testifying
2. Statement is identification of a party or participant in crime or other occurrence
3. Made at a time when fresh in witness’s memory
4. Evidence of the statement offered after the witness testifies
a. That she made the identification and
b. That it was a true reflection of her opinion at the time |
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Term
Prior Statements by Witnesses
Statements of Identification
FRE 801(d)(1)(c) Differences |
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Definition
- only requires that the statement of ID was made after perceiving that person (doesnt have to be "fresh in memory"
- Exclusion not exception |
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Term
Prior Statements of Witnesses
CEC 771 |
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Definition
Present Recollection Refreshed
• Not hearsay b/c the witness is testifying in the present
o witness must view it silently
o testimony must occur after the item removed
o anything you give to the witness may be viewed by opposing counsel |
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Term
Prior Statements of Witnesses
CEC 771 |
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Definition
Present Recollection Refreshed
• Not hearsay b/c the witness is testifying in the present
o witness must view it silently
o testimony must occur after the item removed
o anything you give to the witness may be viewed by opposing counsel |
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Term
Prior Statements by Witnesses
CEC 1237 |
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Definition
Past Recollection Recorded:
1. Witness had personal knowledge
2. Witness no longer has sufficient recollection to testify
3. The witness made (or directed to be made)
4. A statement in writing (or recorded)
5. While the matter was fresh in the witness’ memory
6. The record was intended as a true and accurate record
- Witness must testify and ALSO testify to a loss of memory
- Can be read into evidence but the writing itself cannot be received in evidence unless offered by an adverse party |
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Term
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Definition
1. the declarant is unavailable (6 categories)
2. The testimony was given under oath
3. The former testimony is offered against a person (or their successor in interest) who offered it on his own behalf before
OR
4. Offered against the party and the party had the same opportunity, right, motive and interest to cross-examine the declarant |
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Term
Former Testimony
"Given under oath" |
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Definition
o same action (different hearing/trial)
o different action
o deposition in another action
o (Fed: deposition at this hearing)
o preliminary hearing
o arbitration
NOT: Testimony from motion to suppress, probation revocation, depos taken in same action |
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Term
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Definition
Using Former Testimony against someone who was not a party to case 1, but is in case 2
1. Declarant unavailable as witness
2. Former testimony offered in civil action
3. Issue is such that the party in the former action had the right and opportunity to cross-examine the declarant
4. W/ interest/motive similar to that which the party against whom the testimony is offered currently has at the hearing
- not subject to objections as to competency or privilege |
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Term
Declarations Against Interest
CEC 1230 |
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Definition
Unavailable and whether the statement when made:
1. Was so far contrary to declarant’s pecuniary or proprietary interest
2. Subjected him to risk of civil or criminal liability
3. Tended to render invalid a claim by him against another
4. Created such a risk of making him an object of hatred, scorn, ridicule, or social disgrace (based on relevant community standards) that a rx. person wouldn’t have made the statement unless they believed it to be true |
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Term
Declarations Against Interest
FRE 804(b)(3) Differences |
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Definition
- narrower (subjecting to hatred, ridicule, social disgrace not sufficient)
- criminal cases: for exculpatory statements there must be corroborating evidence that supports their trustworthiness |
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Term
Dying Declarations
CEC 1242 |
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Definition
Needs unavailability
1. Made by a dying person
2. About the cause or circumstances of impending death
3. Made upon personal knowledge
4. And under a sense of immediately impending death (must actually believe I’m dying) |
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Term
Dying Declarations
FRE 804(b)(2) Differences |
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Definition
1. Declarant must be unavailable
2. Statement can be admitted in all civil cases but only in homicidal criminal cases (admitted in any case under the CEC) |
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Term
Spontaneous Statements
CEC 1240 |
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Definition
1. Must purport to narrate, describe, or explain
2. An act, condition, or event
3. Perceived by the declarant (w/1 of 5 senses)
4. The statement was made spontaneously
5. Other fact suggest reliability under the circumstances
6. Statement made under the stress of excitement
7. Caused that perception |
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Term
Excited Utterances
FRE 803(2) Compared |
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Definition
1. Content of statement can be more broad – must merely relate to the startling event (doesn’t have to narrate, describe or explain)
2. Judge can consider inadmissible evidence when using the preponderance standard (CEC doesn’t allow this) |
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Term
Contemporaneous Statements
CEC 1241 |
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Definition
1. Offered to explain, qualify or make understandable
2. The conduct of the declarant, AND
3. Was made while the declarant was engaged in such conduct
- Can only use to explain declarant’s conduct NOT someone else’s |
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Term
Contemporaneous Statements
FRE Present Sense Impression |
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Definition
- E xception includes statement describing any event or ANOTHER’s conduct
- Where the declarant made the statement shortly after personal perception |
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Term
State of Mind
Declarations of State of Mind not hearsay when... |
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Definition
| A statement of one’s state of mind for non-truth purposes can be offered as circumstantial evidence |
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Term
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Definition
Previously Existing State of Mind admissible if Unavailable and offered to prove:
a. declarant’s prior state of mind, emotion, or physical sensation or
b. declarant's own conduct or acts (only YOUR acts not someone else's)
Courts will consider if trustworthy or not. |
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Term
State of Mind
Previously Existing State of Mind
Memory or belief |
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Definition
Statement containing a memory or belief is not admissible to prove the fact remembered or believed
Ex. “I have been in so much pain since the car accident” – only part admissible is her current pain. Not the memory of her past pain or her belief that the car accident caused it |
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Term
State of Mind
FRE 803(3) Compared |
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Definition
1. Exception to memories or beliefs about wills
2. Does not contain the language about “conduct of the declarant” so instead called the Hillmon doctrine to exclude statements used to prove the conduct of someone else |
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Term
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Definition
Exception for Statements about medical conditions for diagnosis or treatment
o For the purposes of medical diagnosis or treatment
o Describing medical history, past or present symptoms, pain or sensations
o Or the inception or general character of the cause or source
o Insofar as reasonably pertinent to diagnosis or treatment.
o Availability is immaterial |
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Term
Declarations by Crime Victims
CEC 1370 The Nicole Simpson Rule |
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Definition
• Victim unavailable b/c of defendant’s act
• Statements narrate, describe or explain the infliction or threat of physical injury upon that victim,
• Made at or near the time of the infliction or threat
• Made in writing, recorded OR made to medical or law enforcement officials
• Trustworthy
• The proponent gives advance notice of that statement to the other side, and
• The statement is less than FIVE years old. |
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Term
Business and Official Records
CEC 1271 |
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Definition
1. Made in the regular course of business
2. Writing was made at or near the time of the act, condition, or event recorded
3. Custodian or other qualified witness testifies to its identity and the mode of its preparation (Or use the subpoena affidavit exception aka no witness but affidavit)
4. Success of information and method/time of preparation must indicate trustworthiness |
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Term
Business and Official Records
FRE 803(6) Compared |
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Definition
• More specific and explicit about the personal knowledge req for the person transmitting the info
• Info must not only be made but KEPT in the ordinary course of business
• CEC must prove trustworthiness vs. FRE assumed trustworthy unless opponent provides info to prove its not |
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Term
Business and Official Records
CEC Absence of An Entry |
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Definition
| If a business REGULARLY makes a particular type of entry into its records then the absence of that type of entry = the act or event didn’t occur and admissible |
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Term
Business and Official Records
CEC 1280 Records by a Public Employee |
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Definition
1. Made by and within the scope of duty
2. Of a public employee
3. At or near the time of the act, condition, or event, and
4. Trustworthy |
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Term
Business and Official Records
Public Employee Records in a Criminal Case |
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Definition
o Business and public records gen. not testimonial and dont' invoke confrontation clause against criminal defendant
o But, if record is from a law enforcement agency the confrontation clause MIGHT be implicated
• Ex. When prepped by crime scene laboratory technicians |
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Term
Public and Official Records
CEC 1248 Absence of entry in public employee records |
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Definition
| Permits the admission of a written statement, from the custodian of the public record, attesting to a “diligent search and failure to find record” to prove the absence of a record in that office |
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Term
Public and Official Records
FRE 803(8) Compared |
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Definition
| Greater limit on the use of such records against criminal defendants |
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Term
Learned Treatises
CEC 1341 |
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Definition
- Historical works, books of science or art, and published maps or charts, made by persons indifferent b/w the parties, admissible when offered to prove facts of general notoriety and interest.
• General notoriety = restricted to facts that are not subject to dispute
• Doesn’t include medical treatises |
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Term
Learned Treatises
FRE 803(18) Compared |
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Definition
• More generous approach - Includes medical treatises
• May be admitted for the TOMA if:
1. Such statements are established as reliable authority by expert testimony or judicial notice and
2. Treatise was relied upon by an expert witness on direct exam or called to the expert’s attention on cross |
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Term
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Definition
• Final judgments adjudging a person guilty of a crime punishable as a felony when offered in a civil action to prove any fact essential to the judgment is admissible
• Does not exclude judgements based on guilty pleas
• Can be used as evidence of material issues |
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Term
Judgements
CEC 452.5(b) Misdemeanor Conviction Records |
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Definition
| Official record of conviction allowed to prove the commission, attempted commission, or solicitation of a criminal offense, prior conviction, service of a prison term, or other act, condition or event recorded by the record. |
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Term
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Definition
• FRE applies in both criminal and civil cases,
• But FRE applies only to felony convictions. |
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Term
Commercial Lists or Tabulations
CEC 1340 |
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Definition
CA = where relied upon in the course of business
Fed = broader, where relied upon by people in occupations |
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Term
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Definition
| Evidence of a final judgment okay if offered to prove indemnity |
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Term
3rd Party Liability
CEC 1302 |
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Definition
| When the liability, obligation, or duty of third person is in issue in a civil action, evidence of a final judgment against that person is not made inadmissible by the hearsay rule when offered to prove such liability, obligation, or duty |
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Term
| Family Records/Church Records |
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Definition
• Ex. Family bibles with records of people being born
• Need to establish residency, benefits, social security
• Birth records, death records, race and ancestry |
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Term
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Definition
| 30 years old to be ancient |
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Term
| Recitals and Titles against property |
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Definition
| granting easements etc. are not hearsay |
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Term
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Definition
• Introducing evidence sufficient to sustain a finding
• That the “writing” is what the proponent claims it is
• Sufficiency standard |
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Term
Authentication
CEC 1401 Authentication required |
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Definition
before introduction of any evidence
or introduction of secondary evidence of its content may be received |
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Term
Authentication
Methods of Authentication |
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Definition
• CEC 1413- by witness to execution of writing
• CEC 1414- by admission (If a party against whom a writing is being offered admits to its authenticity or acted as though it is authentic)
• CEC 1416 Signature Recognition (Have someone who was present when the doc was signed testify)
• CEC 1415 Handwriting Comparison (Hear from someone familiar with the handwriting) or
• CEC 1417 Permitting jury to compare a writing sample or
• CEC 1418 Expert analysis of the handwriting |
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Term
Authentication
Presumptions of Authenticity |
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Definition
• Official seals (Need signature and stamp or other identifying mark)
• Official signatures of foreign and domestic officials (must be accompanied by certification form consulate or embassy)
• Writings in official custody (Ct docs or files from jails or warden’s office)
• Acknowledged writings (Notary public) |
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Term
Authentication
Chain of Custody |
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Definition
Where, when, and to whom the evidence was transferred
Helps to ensure that it wasn't substituted, replaced, or tampered with |
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Term
Authentication
Videos/Photographs |
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Definition
• Videos and dvds treated as s series of photographs
• Frame by frame authentication not required by still need witness to testify that it is an accurate depiction |
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Term
Authentication
FRE 901 Compared |
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Definition
• Self-authenticating
• Ways to authenticate:
o Same as CEC and – distinctive characteristics, voice identification, telephone conversations, ancient docs or data compilation (30 years), process or system, other methods provided by statutes
• Additional docs covered: trade inscriptions, commercial paper, and presumptions under Acts of congress |
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Term
Authentication
Process for Authenticating Documents |
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Definition
• Mark “I have what I would like to mark as Plaintiff’s Exhibit 1 for identification”
• Identify “Do you recognize Exhibit 1 for identification?”
- “How do you rec?”
- “What is exhibit 1 for identification?”
• Authenticate: By asking questions – officially authenticated
• Lay Foundation: If any other potential objections
• Offer into evidence “I would like to offer pg. 349 of the evidence book into evidence”
• Read or Publish (if appropriate) |
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Term
Secondary Evidence Rule
CEC 1521 |
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Definition
CONTENT of a writing may be proved by secondary evidence
Writing = Public records, Writing by party, Recordings/copies, Business records |
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Term
Secondary Evidence Rule
CEC 250 Duplicate |
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Definition
Admits evidence of a duplicate to prove the contents of a writing unless:
o 1. A genuine dispute exists over material terms or
o 2. Admitting secondary evidence would be unfair |
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Term
Secondary Evidence Rule
Evaluating Unfairness |
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Definition
Factors the courts consider:
o 1. Writing used in an unanticipated manner?
o 2. Party suppressed the original in discovery
o 3. Original not produced in rx. diligent discovery
o 4. Original and secondary are dramatically different
o 5. Original is unavailable and if so why
o 6. Writing is central to the case |
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Term
Secondary Evidence Rule
CEC 1522 Additional Limitations in Criminal Cases |
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Definition
• If proponent has possession, custody, or control of the original, and didn’t produce or make it reasonably available before trial, can’t offer secondary evidence of it
• Any request to exclude secondary evidence must be made outside the presence of the jury |
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Term
Secondary Evidence Rule
CEC 1523 Oral Testimony as a Form of Secondary Evidence |
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Definition
• General rule = oral testimony not admissible to prove the contents of a writing
Exceptions:
A. When party doesnt have original copy
1. OG lost or destroyed w/out bad intent
2. Unable to rx. procure the OG or a copy using ct process or other means
3. Writing not closely related to controlling issues
B. When writings are voluminous (If the only evidence sought is the general result of the whole ) |
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Term
Secondary Evidence Rule
When it does NOT apply |
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Definition
| Proving the absence of content does not implicate the secondary evidence rule |
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Term
| CEC 356 Completeness Doctrine |
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Definition
• If someone brings in part of a story and it would be unfair for the jury to just hear that part
• The opposing party can bring in the rest – inquire or bring in documents to clarify |
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Term
Witness Competency
Truth Telling and Oaths
CEC 701 Person disqualified to be a witness if... (2) |
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Definition
1. Incapable of expressing themselves directly or through an interpreter
2. Can't understand duty of witness to tell the truth
Gen rule = competent unless proven by preponderance of the evidence not to be competent |
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Term
Witness Competency
CEC 710 Oath Requirement |
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Definition
Everyone makes an oath unless under age 10 or cognitive impairment
(may only be required to promise to tell the truth) |
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Term
Witness Competency
CEC 702 Personal Knowledge |
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Definition
Testimony is inadmissible unless based on personal knowledge
aka "perceived" by any of the 5 senses
personal knowledge can be shown by inadmissible evidence including own testimony |
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Term
Witness Competency
CEC 750 Interpreter |
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Definition
| interpreter or translator is subject to all rules relating to witnesses |
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Term
Witness Competency
CEC 703 Judges |
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Definition
Presiding judges may testify (you should always OBJECT)
If there is an objection, the judge must order a mistrial |
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Term
Witness Competency
Judges
Can't testify at subsequent proceedings unless as to a statement that could... |
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Definition
(a) give rise to civil or criminal contempt,
(b) constitute a crime,
(c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or
(d) give rise to disqualification proceedings under [judicial disqualification statutes |
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Term
Witness Competency
Judges
FRE 605 |
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Definition
The judge presiding at the trial may not testify in that trial as a witness.
No objection need be made in order to preserve the point. |
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Term
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Definition
Sitting jurors may testify; but upon objection there will be a mistrial
Post-verdict jurors may testify about improper influence in the juror room
e.g., presence of alcohol, presence of a gun, presence of outside information |
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Term
Witness Competency
Jurors
FRE 606(a) |
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Definition
Jurors cannot testify at trial
If the juror is called to testify the opposing party can object outside the presence of the jury |
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Term
Witness Competency
Lawyers |
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Definition
Lawyers may only testify relating to an uncontested matter, relating to the nature and value of the legal services; or w/ informed, written consent of the client
Prosecution discouraged from acting as a witness |
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Term
Witness Credibility
CEC 780
Ct. or jury can consider any relevant matter in determining CREDIBILITY including but not limited to: |
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Definition
1. Demeanor
2. Character of the testimony (credible? plausible?)
3. Capacity to perceive (glasses? bad hearing?)
4. Opportunity to perceive (need personal knowledge)
5. Character for honesty
6. Bias, interest, or motive
7. Consistency or inconsistency
8. Attitude toward the action
9. admission of untruthfulness
10. The existence or nonexistence of any fact testified by the witness |
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Term
Impeachment
Prior Inconsistent Statements |
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Definition
Can use to impeach
can use prior consistent statements to rehabilitate
Ex. if said A then said B but then are saying A at court can hearsay evidence of use A to rehabilitate. |
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Term
Impeachment
Impeaching witnesses in CIVIL court
CEC 786 Character Evidence Generally |
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Definition
Limited to honesty or veracity
other character traits inadmissible to attack credibility of witness unless fall under exceptions |
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Term
Impeachment
Impeaching witnesses in CIVIL court
CEC 790 Good Character of Witness |
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Definition
Cant bring in unless been attacked
Need bad character evidence before can rebut with good character evidence |
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Term
Impeachment
Impeaching witnesses in CIVIL court
CEC 787 Specific Instances of Conduct |
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Definition
SI not allowed unless inquiring about a felony conviction
Offer bad CE, counter with good reputation or opinion CE, then can INQUIRE into spec. instances on cross but can’t prove through questions or extrinsic evidence |
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Term
Impeachment
CEC 788 Conviction of a Witness for a crime |
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Definition
Can attack credibility of a witness with a past conviction of a felony (w/ good faith belief that it occurred)
Not admissible if pardoned, perjury conviction that was later dismissed, or felon earned a certificate of rehabilitation
Felony must involve moral turpitude or readiness to do evil: Perjury, child molestation, torture
NOT statutory rape, invol manslaughter, assault and battery |
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Term
Impeachment
CEC Factors to determine if conviction will create undue prejudice |
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Definition
Conviction has little to do with honesty
Long time ago
Lots of convictions for dishonesty (would be prejudicial to bring in another)
Might discourage witness from taking the stand if they know this felony could be brought up |
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Term
Impeachment
Prop 8
CA Criminal Cases |
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Definition
In CA Criminal cases the limitations of 786(character of witnesses generally), 787 (specific instances), and 790 do not apply
• Anything that has to do with credibility can be admitted
• Can put on good character evidence for honesty before the other side attacked
• Can use specific instances of conduct – not just criminal convictions but also IPIMPOMACK factors to the extent that they relate to credibility
• **Still need to adhere to privileges, hearsay rules, and 1103(c) and 1106, and 352 prejudicial balancing test |
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Term
Impeachment
Prop. 8 Section 28(d) Misdemeanor Convictions (Crim cases in CA) |
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Definition
| If the misdemeanor is relevant to the character for evidence then it will be admissible |
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Term
Impeachment
CEC 452.5 Misdemeanor conviction record offered for the TOMA |
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Definition
An official record of conviction is admissible to prove commission, attempted or solicited commission of a crime or prison term recorded in the record.
Then, you use Section 1280 exception for official records to satisfy the hearsay exception to admit the record. |
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Term
Impeachment
FRE 608 (a) and (b) |
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Definition
(a) Can use reputation or opinion for truthfulness or untruthfulness but cant bring in good CE unless attacked (analogous to CA civil CEC 790)
(b) Inquire into them on cross-exam (similar to CA civil 787) with good faith belief that this SI of conduct occurred |
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Term
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Definition
May be impeached with evidence of a conviction for a crime if it can be determined that the elements of the crime required an act of dishonesty or false statement by the witness
Either misdemeanor or felony Ex. Fraud, embezzlement
OR
Prove probative value outweighs prejudicial effect (UNLIKE CEC 403 that requires substantially outweighed) |
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Term
Impeachment
FRE 609
Another witness |
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Definition
Felony conviction and prove not unduly prejudicial (can be more prejudicial than probative as long as not a LOT more)
Less strict test than for criminal D
Can’t be more than 10 years old
Cant be used if there was a pardon, an annulment, a certificate of rehabilitation, or another equivalent procedure
Pending of an appeal doesn’t matter |
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Term
Impeachment
CEC 789 Religious Belief |
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Definition
Can't use evidence of religious belief to attack credibility
but can use to show bias |
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Term
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Definition
Evidence of a witness’s religious beliefs or opinions is not admissible to attack OR SUPPORT credibility
But can use as evidence of bias |
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Term
Impeachment
Witness in sexual offense prosecution |
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Definition
Use 1103(c) about prior sexual conduct with D (or with another if the prosecution or complaining witness opens the door)
Use CEC 782, for hearing to determine if proper to use complaining witness’ prior sexual conduct to attack her credibility at trial under CEC 780. |
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Term
Impeachment
CEC 1202 Credibility of the Hearsay Declarant |
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Definition
Statement or conduct of hearsay declarant which is inconsistent with what is in evidence is admissible to attack credibility of the hearsay declarant even tho they are not there to defend themselves
For purposes of this CEC section, a deponent in the action in which the deposition is taken is a hearsay declarant. |
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Term
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Definition
| Party has the BOP as to each fact that is essential to the claim for relief or defense asserted |
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Term
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Definition
Jurors feel an “abiding conviction of the truth of the charge”
Prosecution of criminal cases |
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Term
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Definition
• A high probability of the truth of the facts
• Lower standard
• Certain CA civil cases |
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Term
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Definition
• Evidence that has more convincing force than that opposed to it
• Even lower standard
• BOP in most civil cases and for some judicial rulings on evidentiary issues |
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Term
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Definition
• Lowest standard
• A rx. juror could find the existence of a fact to be true
• Used to determine a lot of evidentiary issues |
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Term
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Definition
• Whichever party has the burden of proof on an issue has the burden of production for that issue
• Burden can shift later |
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Term
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Definition
A presumption is an assumption of fact that the law REQUIRES to be made from another fact or group of facts found or otherwise established in the action. A presumption is not evidence
The basic facts, such as the correct address and postage, and putting in the mail slot
The presumed facts, that the letter was received by the intended recipient |
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Term
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Definition
That a person not heard from in 5 years in California, or 7 under Federal law, is dead.
That a letter properly mailed was received
That a date on a writing is accurate.
That a letter sent in reply to another letter, and received by mail, is authentic. |
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Term
BOP
CEC 604 Rebuttable Thayer Presumptions |
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Definition
Shift BOP of producing evidence to other party
o That $ delivered by one to another was due
o Something delivered presumed to belong to person delivered to
o Payment of earlier rent is presumed upon receipt for later rent
o Possessions of someone presumed to be owned by her
o A writing is presumed to have the correct date
o Interest in real property presumed authentic if 30 years old.
o Printed materials purporting to be a newspaper or periodical are presumed to be that newspaper or periodical
o D presumed neg. if P establishes facts for res ipsa loquitor |
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Term
BOP
Rebuttable Morgan Presumptions |
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Definition
Those that also shift the burden of persuasion to the other side to prove the nonexistence of the presumed fact.
NOT in criminal cases
o A marriage ceremony is presumed valid
o A person is presumed to intend the ordinary consequences of her voluntary act 13 always come in late to class
o D presumed neg. if P proves facts supporting neg. per se.
o Check payment presumed if a copy of the check and bank statement showing payment are provided.
o A non-citizen D is presumed not to have been informed that a guilty plea could result in deportation in the absence of a court record to the contrary. |
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Term
BOP
Conclusive Presumptions |
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Definition
If the basic facts are found, then the presumed facts must be found. Period.
NOT in criminal cases
1. Party can't contradict own statement if induced another to believe the statement is true and induced detrimental relianc
2. T can't deny the title of the LL at the time of entering in the LL-T relationship
3. Facts in a written instrument (settlement agreement) are considered conclusively true as b/w the parties to the doc. |
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Term
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Definition
| BOP on the defense b/c person presumed competent unless proven by a preponderance that she is not |
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Term
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Definition
When a judge takes judicial notice of a fact, the party who had the burden to prove that fact no longer has to introduce evidence to establish that fact.
It is another shortcut to proof |
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Term
Judicial Notice
Types of Facts |
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Definition
a. Adjudicative: the type of facts that matter to a particular adjudication
b. Legislative: laws and information required to understand the law
Ex. laws, legislative history, facts that relate to the meaning of the law |
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Term
Judicial Notice
Mandatory Judicial Notice |
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Definition
Judge has to notice it whether or not a party requests it
The laws of the area (Constitutional, decisional, public statutory law)
Regulations of state and federal agencies
Rules of the court
Universally known facts
The kind of thing that people with reasonable intelligence should know e.g., current events, history, geography |
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Term
Judicial Notice
Discretionary or Permissive |
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Definition
Locally known and easily verifiable facts
Ex. PCH goes east and west |
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Term
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Definition
i. Request by a party
ii. Categorize as mandatory or permissive
iii. Provide the court with the information
iv. Allow the other side to be heard
v. Court makes a decision and informs the parties |
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Term
Judicial Notice
FRE differences |
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Definition
FRE does not address legislative facts.
Different definitions for mandatory and discretionary notice.
Criminal court – no judicial notice, only permissive inferences |
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Term
Opinion Testimony
CEC 800 If NOT an expert witness |
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Definition
limited to opinion that is
1. Rationally based on perception of the witness and
2. Helpful to a clear understanding of his testimony
Ex. Distance, speed, time, emotions, whether someone seems sick, intoxicated, irrational, the value of their own property
FRE pretty much the same |
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Term
Opinion Testimony
3 Preliminary Questions for Layperson/Expert Opinion |
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Definition
1. Opinion involves special, technical, or scientific knowledge?
2. Based on a matter “rx. relied upon” in the relevant field
3. Does it help the trier of fact b/c its beyond common understanding?
Judge decides if qualified based on a preponderance standard |
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Term
Opinion Testimony
Expert Testimony
CEC 800 |
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Definition
If an expert is testifying to their opinion it must be:
A. Outside common knowledge and experience and
B. Based on specialized knowledge that can be rx. relied upon by experts in that field generally
Don't need person knowledge, can rely on evidence available to jury, hypotheticals, or inadmissible evidence (not improper) |
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Term
Opinion Testimony
CEC 802 Experts can rely on inadmissible evidence |
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Definition
but it cannot be IMPROPER
Ct. allowed to require disclosure of the matter on which the opinion is based so can determine if other experts rx. rely upon this matter |
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Term
Opinion Testimony
Expert Testimony
Cross-Examining an expert witness |
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Definition
The opponent may “voir dire” the expert to test qualifications
May test the basis of opinion, and its reasonableness or qualifications, bias
Full cross may exceed the scope of direct and credibility |
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Term
Opinion Testimony
Expert Testimony
Treatises |
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Definition
Can cross-exam about treatises when consulted by the expert and admitted into evidence and considered reliable
Medical treatises dont fit under CEC but do under FRE |
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Term
Opinion Testimony
Expert Testimony
Kelly Test |
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Definition
Novel scientific principle or technique:
1. Kelly test
2. Need general acceptance in the relevant field
3. Not sufficient that the method is one method of doing it
4. The relevant field may be very small
NOT common sense observation or criticism of expert's application of the technique |
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Term
Opinion Testimony
Expert Testimony
Reasonably reliable |
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Definition
Non-novel techniques
1. Technique must be reasonably relied on by experts in the field
2. Does not have to be the best way of doing something
3. Lower barrier |
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Term
Opinion Testimony
Expert Testimony
FRE Daubert Factors |
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Definition
Doesn't compartmentalize new vs. old techniques
1. Has it been tested?
2. Subjected to peer review or publication?
3. Rate of error
4. Gen. accepted in relevant scientific community? |
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Term
Opinion Testimony
Expert Testimony
Ultimate Issues of Fact |
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Definition
Can testify to ultimate factual issues but not issues of law
Ex. Testify to car’s likely speed not to whether the defendant was negligent by going that fast
Criminal:
- Not permitted to give opinion re the mental state of the defendant
- NO profilers |
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Term
Opinion Testimony
Expert Testimony
Specific Expert Testimony |
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Definition
Battered woman syndrome:
- why a woman went back to an abuser
- syndrome creates a “greater sensitivity to danger”
Child sexual abuse:
- provide evidence regarding a child’s perceptions
Rape trauma syndrome:
- why there was a delay in reporting
- why a witness may change their story
Witness impeachment:
- why eyewitness accounts may be honest but mistaken |
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Term
Opinion Testimony
Expert Testimony
Polygraph evidence |
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Definition
Cal statute banning polygraph evidence unless stipulated by the parties:
• i. Whether they took the polygraph
• ii. The results of the polygraph
• iii. Any offer to take a polygraph or refusal to take one
May still introduce statements made during the polygraph test
d. Criminal D may introduce polygraph as long as they can clear Kelly hurdle |
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Term
Privileges
CEC 911 aka Statutory |
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Definition
Confidential comms made in the course of a professional rel.
Can exempt certain ppl from giving evidence
Can exempt a witness from providing certain info
No one can refuse to be a witness or provide info w/out statute allowing them to |
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Term
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Definition
Not statutory
Look to common law in the jurisdiction you are practicing in unless:
o US constitution
o A federal statute
o Rules prescribed by the Supreme Court
o In a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rules of decision |
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Term
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Definition
| The person opposing the privilege bears the BOP of proving that the communication is not privileged by a preponderance |
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Term
Privileges
Analysis for determining whether a communication is privileged |
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Definition
Prove privileges by a preponderance of the evidence:
o Parties covered by a privilege?
o Communication within scope of that privilege?
o Privilege waived?
o Exception to the privilege? |
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Term
Privileges
Waiver
CEC 912 Elements |
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Definition
| The holder (without coercion) discloses or consents to disclosure (or fails to claim it when they should have) a significant part of the communication |
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Term
Privileges
Waiver
Conscious Waiver |
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Definition
i. Awareness of the privilege + rejection
ii. Waiver of the right of privilege from self-incrimination |
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Term
Privileges
Waiver
Negligent Waiver |
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Definition
i. Failing to claim it where the claimant had legal standing and opportunity
ii. Standard – should have known about the privilege |
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Term
Privileges
Waiver
Waiver by voluntary communications to a 3rd party |
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Definition
The holder of the privilege discloses (w/out coercion) a significant part of the communication to a 3rd party
No requirement regarding the intent to waive
Can disclose to 3rd party if rx. necessary |
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Term
Privileges
Waiver
Waiver by Contract |
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Definition
i. Some privacy rights may be waived upon signing a contract
ii. E.g., doctor-patient privilege upon signing medical insurance forms |
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Term
Privileges
Waiver
Waiver by refreshing recollection |
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Definition
i. Any document used to refresh recollection
ii. May be requested by the opposing party regardless of privilege |
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Term
Privileges
Waiver
Multiple Privilege Holders |
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Definition
| Waiver by one is not a waiver by another |
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Term
Privileges
Waiver
Eavesdroppers |
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Definition
i. Where someone surreptitiously overhears the conversation, they may not disclose its contents
ii. Question: was there a reasonable expectation of confidentiality?
iii. Where the parties have taken reasonable precautions not to be overheard, an eavesdropper will not create waiver. |
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Term
Privilege
Process 4 questions |
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Definition
i. Are the parties to the communication or from whom the testimony is sought covered by the privilege?
ii. Is the communication or evidence within the scope of the privilege?
iii. Has the privilege been waived?
iv. Is there an exception that applies? |
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Term
Privileges
Marital Communications
Type of privilege
Elements |
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Definition
Communication Privilege
A person (whether or not a party) can refuse to disclose and prevent others from disclosing during the marriage and afterward comms b/w the spouses that were made in confidence about any subject matter (but not actions)
Letter sent but not received is not "b/w" spouses and not privileged. Not confidential if older children overhear. |
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Term
Privileges
Marital Communications
What counts as b/w a husband and wife? |
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Definition
Must be validly, legally married (no common law marriage in CA)
Not privilege between unmarried cohabitants
I.e., communication had to occur during a legal marriage
But can continue to assert the privilege after marriage has ended regarding communications during marriage. |
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Term
Privileges
Marital Communications
Holding the privilege |
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Definition
i. Both parties to the marriage hold the privilege
• still exists after the death of the other spouse
ii. Dual privilege:
• waiver by one spouse is not a waiver by the other (but can still prevent third party from disclosing information) |
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Term
Privileges
Marital Communications
Exceptions |
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Definition
Comms made to enable or aid a crime
Mental/physical committal hearing
Competency hearing
Litigation between the spouses
Custody issues
1 spouse = criminal D and is offering the comm in defense |
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Term
Privileges
CEC 971 Spousal Privileges - Party Spouse |
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Definition
Testimonial Privilege
When party spouse, nonparty spouse has a privilege preventing opposing party from calling them as witness in a civil case or prosecution in a crim case.
Nonparty spouse can claim privilege regardless of whether their testimony would be helpful or hurtful (holder) |
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Term
Privileges
CEC 971 Spousal Privileges - Party Spouse
Exceptions |
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Definition
Privilege only applies when adverse side calls non-party spouse. Not when party spouse does.
when opposing party in good faith didn’t know if the marriage
but presumed to know if spouses have same last name and address |
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Term
Privileges
CEC 970 Spousal Privileges - spouse is/is not a party |
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Definition
Unless provided by statute, spouse has privilege not to testify AGAINST their spouse
But not in favor, and may be compelled to do so
Testifying spouse is the holder of the privilege and can decline or not |
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Term
Privileges
CEC 970 Spousal Privileges - spouse is/is not a party
Waiver |
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Definition
Waiver regarding one matter is waiver re all matters at that litigation
if neither spouse a party, spouse can testify for him, then assert privilege not to testify against him
Waiver during preliminary hearing is waiver for trial
Filing lawsuit that will benefit both parties waives both testimonial privileges |
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Term
Privileges
Spousal Privileges
FRE |
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Definition
| The accused is the holder of the privilege in a fed. crim. case and can tell their spouse not to testify |
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Term
Privileges
CEC § 930 Privilege not to be called as a witness and not to testify (Criminal) |
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Definition
Criminal case = don’t have to testify and to not be called as a witness
Policy = provide substantial protection to the defendant |
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Term
Privileges
CEC § 940 Privilege against self-incrimination (Civil and Criminal) |
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Definition
A person has a privilege to refuse to disclose any matter that may tend to incriminate him or her
Doesn’t matter if crim or civil – available to every witness
Ex. Things that might subject you to criminal liability
waiver at preliminary hearing does not constitute waiver for trial |
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Term
Privileges
Attorney/Client
CEC 950 "The Lawyer" |
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Definition
a person authorized, or reasonably believed by the client to be authorized, to practice law in any state or nation
actual attorney plus their reps aka assistants, secretaries, clerks, and paralegals
Rx believe = may be someone a client rx. believed was authorized to practice law |
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Term
Privileges
Attorney/Client
CEC 951 "The Client" |
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Definition
| Someone seeking legal services or advice |
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Term
Privileges
Attorney/Client
CEC 951 "The Client"
Chadbourne Factors for Corporate Clients |
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Definition
Is an individual w/in a corp a client for AC privileg?
o Are they a co-defendant in the lit?
o Are they a natural person with whom to speak on the issue?
o Are they appearing solely as a witness (probably A-C privilege then)
o What is the dominant purpose of the comm to the attorney?
o What was the intent of the person who made the report?
Guiding rule: do not want to advantage corporations over individuals |
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Term
Privileges
AC
Scope of the Privilege |
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Definition
Dual privilege aka I don’t have to answer the question and can prevent someone else from answering the question
Must be a confidential communication to further legal representation
No an improper purpose such as crime or fraud |
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Term
Privileges
AC
CEC 954 Confidential Communication |
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Definition
Communication, actually transmitted, during the course of the AC relationship
Third parties don’t destroy the privilege if present to further goals of representation
Can tell 3rd party if rx. necessary
third party eavesdropping doesn’t destroy the privilege |
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Term
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Definition
Doesn't include tangible things or things perceived by the attorney (e.g., bloody hands, perception of mental state)
ID of client not gen. confidential (unless will subject to civil/criminal liability)
If hired, all legal advice (related or not) is privileged: Non-legal advice = not privileged ex. business advice
If legal and non-legal comm, the dominant purpose controls |
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Term
Privileges
AC
Holding the privilege |
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Definition
Client holds the privilege (or representative (if dead), or successor-in-interest)
Dual privilege: Client has the right to refuse to disclose the information AND may prevent someone else form disclosing the information (who overheard) |
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Term
Privileges
AC
Claiming the privilege |
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Definition
Holder
Attorney has a duty to claim the privilege (if the holder still exists)
Someone authorized by the holder to claim it
Where the client has died, someone settling the estate |
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Term
Privileges
AC
Exceptions (no privilege - doesn't matter who is disclosing) |
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Definition
i. consulting an attorney to perpetrate a crime (§ 956)
ii. Rx. belief to prevent bodily injury
ii. Parties claiming through a deceased client (§ 957)
iii. Intention of deceased concerning a writing affecting property (§ 960)
iv. Validity of a writing affecting property (§ 961)
v. Breach of duty claim re A-C relationship (§ 958)
vi. Lawyer attesting a signature (§ 959)
vii. Joint clients (§ 962) |
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Term
Privileges
AC
Conscious Waiver |
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Definition
o Waivers by voluntary disclosure to a third person
o Waiver by consent of the holder
o Waiver by contract |
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Term
Privileges
AC
Negligent Waiver |
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Definition
o Waiver by failure to claim
o Waiver by partial disclosure
o Waiver by using it to refresh recollection |
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Term
Privileges
Waiver by Forfeiture |
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Definition
| by calling expert to the stand who has privileged information |
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Term
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Definition
Waiver limited to info voluntarily disclosed in state or federal proceeding
Inadvertent disclosure does not operate as a waiver in fed or state proceedings if the holder took rx. steps to prevent it
Subject matter waiver applies where privileged info presented in a selective, misleading, or unfair manner
Disclosures in state court not waiver in fed ct
Privilege can exist after the death of a client |
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Term
Privileges
Attorney Work Product Privilege |
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Definition
An absolute privilege for “any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories shall not be discoverable under any circumstances.” Attorney = holder
Qualified protection for expert’s qualifications and opinions and conclusions on contested issues in the litigation.
if qualified protected unless would unfairly prejudice seeking party |
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Term
Privileges
Attorney Work Product Privilege
Scope |
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Definition
i. thoughts, mental impressions, strategies, diagrams, compilations, expert reports
ii. Not protected: actions, observations (did the client walk in bloody), info about potential witnesses, reports prepped by the client or at client's request |
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Term
Privileges
Attorney Work Product
Waiver |
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Definition
Designating the Expert as a Testifying Expert
Using the non-testifying expert’s report to prepare your testifying expert |
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Term
Privileges
Attorney Work Product
Exceptions |
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Definition
Client suing attorney
Crime or fraud
Disciplinary hearing against attorney |
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Term
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Definition
Attorney claiming work product has BOP to prove material is protected
Standard is preponderance
Court my order in camera review of the info to help reach a decision |
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Term
Privileges
Psychotherapist
Elements |
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Definition
| Patient has the privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication b/w a patient and psychotherapist in the course of the relationship for the purpose of securing diagnosis or treatment |
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Term
Privileges
Psychotherapist
Confidential Communication |
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Definition
By means which, as far as patient is aware, doesn't disclose to any 3rd party
Other than those who are present to further the consultation,
or to whom disclosure is reasonably necessary for transmission, or accomplishment of the purpose.
Including intimate family members + group therapy patients |
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Term
Privileges
Psychotherapist
Patient
Psychotherapist |
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Definition
Patient = consults a psychotherapist for the purpose of securing a diagnosis or preventative/curative treatment for a mental or emotional condition.
Look to dominant purpose (must be curative or diagnostic)
Psychotherapist = authorized to practice medicine (or reasonably believed to be) and devotes a reasonable amount of time to psychotherapy; OR others not licensed to practice medicine (counselors, therapists) |
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Term
Privileges
Psychotherapist
In the course of the relationship |
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Definition
| Information obtained from the examination of the patient |
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Term
Privileges
Psychotherapist
Holder of the privilege/Who can claim the privilege? |
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Definition
patient, guardian, conservator
The psychotherapist has both the right and the obligation to claim the privilege |
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Term
Privileges
Psychotherapist
Exceptions |
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Definition
• Crime or tort
• Parties claiming through deceased patient
• Breach of duty arising out of relationship
• Intention of deceased patient concerning the validity of a writing affecting property interest
• Proceeding to establish competence
• Required report
• Court-appointed psychotherapist
• Proceeding to determine sanity of criminal defendant; Patient dangerous to self/others – Tarasoff
• Child under 16 victim of crime |
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Term
Privileges
Psychotherapist
FRE proposed rule |
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Definition
No reasonable belief about who is a therapist
Limited to medical doctors who practice psychiatry (no CA laundry list including other people)
Many of the same exceptions but not all of them |
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Term
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Definition
Holder is the penitent: Has dual privilege (refuse to disclose, prevent others from disclosing)
Clergy also holds privilege and has a right not to disclose |
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Term
Privileges
Clergy
Clergy definition |
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Definition
The person is accustomed to receiving this type of information
The religion generally keeps these communications private |
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Term
Privileges
Clergy
Penitential Communication |
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Definition
made in confidence (need not be a per se confession or request for absolution)
without disclosure to any third person as far as the penitent knows
to a clergy member
who has a duty through religious practice to keep it secret |
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Term
Privileges
Clergy
Difference |
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Definition
There are NO reasonably necessary third persons
Clergy can still refuse to disclose even after waiver by penitent (because clergy has separate privilege) |
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Term
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Definition
Clergy cannot disclose penitential comm to another clergy w/out destroying confidentiality (Unlike an attorney to another att. working on the case)
Disclose sub. portion of the comm or comm in a not private area
Separate privileges - if one waives, other still has it
Clergy not required to claim the privilege |
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Term
Privileges
Clergy
Proposed FRE on clergy |
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Definition
| “A person has a privilege to refuse to disclose and to prevent another from disclosing, a confidential communication by the person to a clergyman in his professional character as spiritual adviser.” |
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Term
Privileges
Domestic Violence victim and counselor |
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Definition
- Holder: Victim;
- Who may Claim: Holder, Authorized, and Counselor;
- Counselor may also claim the privilege and must claim when disclosure is sought if the holder still is in existence
- Disclosure May be Compelled in: Domestic Violence case in which victim is complaining witness, or in child abuse case, if PV outweighs effect on victim and treatment.
• Not waived if conduit talks (aka wife texts friend and friend tells counselor that wife is stuck in the house with abusive husband) |
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Term
Privileges
Sexual Assault victim and counselor |
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Definition
Holder: Victim;
Who may Claim: Holder, Authorized, and Counselor;
Disclosure May be Compelled in: Sexual Assault case in which victim is complaining witness, or in child abuse case, if PV outweighs effect on victim and treatment. |
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Term
Privileges
Human Trafficking |
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Definition
Parties: Trafficking victim and Caseworker;
Holder: Victim;
Who may Claim: Holder, Authorized, and Caseworker;
Exceptions: Criminal proceedings, victim is dead, or victim is not a complaining witness in a criminal action.
• Dual privilege |
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Term
Privileges
Physician/Patient |
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Definition
Confidential communication b/w physician and patient in the court of their relationship (presumption of confidentiality)
Nurses, technicians, spouses may be present without removing confidentiality
Doctor = authorized or rx. believe to be
Patient = consulting for medical diagnosis or treatment (not sperm or organ donor) |
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Term
Privileges
Physician/Patient
Holder of the privilege/claiming the privilege |
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Definition
Patient, guardian or conservator, personal representative if the patient is dead
Ends when the estate has been distributed and the representative discharged
Dual privilege
Physician has the right and the obligation to claim the privilege |
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Term
Privileges
Physician/Patient
Exceptions |
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Definition
• Patient-Litigant
• Crime or Tort
• Criminal cases
• Patient Condition to recover damages
• Parties claiming through a deceased patient (claiming will or something)
• Breach of duty from physician patient relation (suing physician for incompetence or malpractice)
• Intention of deceased/Validity on writing affecting property,
• Commitment and Competency proceedings
• Required report
• Proceeding to terminate right, license or privilege |
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