CA Bar Prep - Evidence
|Non-hearsay statements - exemptions under the federal rules. What are they?|| 1. Prior statements by witness|
2. All types of admissions by party-opponent
|Hearsay exceptions that require unavailability - what are they?|| 1. Former testimony|
2. Statements against interest
3. Dying declaration
4. Statements of personal or family history
|Hearsay exceptions that do NOT require unavailability - what are they?|| 1. Then-existing state of mind|
2. Excited utterance
3. Present Sense Impression
4. Declaration of physical condition
5. Business record
6. Public record
7. Past recollection recorded
|Prior Statement by Witness||Certain statements made by a witness who testifies at a trial and is subject to cross-examination about the statements ARE NOT HEARSAY.|
1. Prior inconsistent statements - these can come in for their truth if it was made under oath at a prior proceeding.
2. Prior consistent statements - not hearsay if offered to rebut an express or implied charge that the witness is lying. Statement must have happened before the "alleged motive to lie" came into being.
3. a prior identification made after perceiving the person is not hearsay. Photo IDs are cool, and this is not limited to witness rehab.
|Admissions by Party Opponent||A statement by a party that amounts to a prior acknowledgment of by one of the parties to one of the relevant facts IS NOT HEARSAY. If you did something inconsistent with your trial contentions, that's too bad... it's coming in against you.|
An adoptive admission is one where a reasonable person would have spoken up.
Authorized admissions include principal-agents, partners in a partnership, co-conspirators (while the declarant was participating in the conspiracy.)
|Unavailability defined - what is it?|| i. exempted from testifying because of privilege.|
ii. refuses to testify despite a court order.
iii. lack of memory on the subject matter of the statement
iv. dead or physically too ill to testify
v. absent and the proponent of the statement has used reasonable efforts to secure the proponent
|Former Testimony||The testimony of an unavailable witness given under oath at another trial or hearing or deposition is admissible as long as there is sufficient similarity of parties and issues so that the opportunity to cross-examine was meaningful.|
In a criminal case, that means the accused must have had a chance to cross-examine at a prior hearing.
|Statements against interest||A statement of any person not NOW available as a witness against that person's pecuniary, proprietary, or penal interest when made, as well as COLLATERAL facts contained in that statement, are admissible as exceptions to the hearsay rule.|
The statement must be against interest WHEN MADE.
If a criminal defendant proves his own innocence by introducing a statement that implicates someone else, it must be corroborated.
|Dying Declaration||In a prosecution for homicide or a civil action, a statement made by an UNAVAILABLE declarant while believing his death was imminent that concerns the cause or circumstance of what he thought was his impending death.|
|Then-existing state of mind||A statement of a declarant's then-existing state of mind, emotion, sensation, or physical condition is admissible. It's okay to show subsequent acts of declarant - statement of then-existing intent.|
|Excited Utterance||A declaration made by a declarant during or soon after a startling event is admissible. It must be made under the stress of excitement produced by the startling event. The statement must relate to the immediate facts of the surrounding occurrence.|
|PSI||Present sense impressions - if a person comments on what they are perceiving at the time they perceive it or immediately thereafter.|
|Statement of physical condition||Declaration of present pain can come in, and statements of PAST bodily condition can come in if they are made to medical personnel to assist in diagnosing or treating the condition - this can include statements of cause insofar as reasonably pertinent to diagnosis or treatment. This includes to doctors who are employed to testify.|
|Business records||i. Entry must be made in the regular course of business, |
ii. and it must be customary to make that sort of record,
iii. the maker of the report must have some duty to make the record,
iv. and the record must consist of matters which the person making the record has personal knowledge of or the person telling the record maker the information must have knowledge.
v. made at or near the time of event
|Past recollection recorded||If a witness testifies that they cannot remember soemthing, you can introduce a memorandum made by the witness at the time the event was fresh in their memory.|
|Public record|| i. made by someone with a duty to record|
ii. at or near the time of event
iii. must appear trustworthy
|What are the four major objections to "form of the question/answer?"|| 1. Leading question|
2. calls for narrative
3. compound question
|What is the major california difference in "prejudice outweighs probative value" analysis?||In California, the fact of consequence to the action must actually be in dispute.|
|What does it mean to say a witness has personal knowledge?||A witness must have been able to perceive whatever he is testifying to.|
|When can you offer character evidence?||1. when a character trait is an essential element of a claim or defense|
2. a criminal defendant may call witness to testify as to his good character (reputation and opinion only)
3. prosecution may rebut with evidence of defendant's bad character
4. prosecution may cross-examine defendant's witnesses as to his bad character (using specific acts!)
5. in sexual misconduct cases
6. a criminal defendant may introduce character of victim
7. prosecution may rehabilitate victim
8. prosecution may attack defendant's character for SAME trait he attacked the victim for having (in CA: limited to violence)
9. prosecution may introduce character evidence in its case in chief when defendant pleads self-defense
|When can you offer "specific acts" evidence?||1. On cross examination to impeach a character witness|
2. any time the character trait is relevant to an essential element of a claim or defense.
3. in a federal case involving sexual misconduct
4. in a california CRIMINAL case involving sexual assault, elder abuse, domestic violence, or child abuse.
5. a california criminal defendant can specific acts of the victim to show the victim's character.
6. the prosecution, in a california criminal case, can offer specific acts to prove the defendant's violent character if the defendant has offered specific acts of the victim's violent character.
7. any non-character purpose
|What are the "non-character" purposes of specific acts?|| Knowledge|
Absence of Mistake
State of Mind
|What is habit or custom?||Regular practice of responding to a specific situation with a specific type of conduct (custom is like the habit of a business)|
|When can you impeach a witness through his prior inconsistent statements?|| All the time!|
In California, they come in for their truth too.
In Federal Court, they are only in for their truth if they were given under oath.
|When can you impeach a witness through the fact that he was convicted of a crime?||In federal rules, impeachment may be by any felonies that are less than 10 years old (from later of conviction or release)|
- any misdemeanor involving dishonesty (same 10 year rule)
- prior bad acts involving untruth (but no extrinsic evidence)
In California, in a civil case it can be by ANY kind of felony (no ten year rule), and nothing else.
in criminal, any moral turp felony and any dishonesty-involving misdemeanors or bad acts (no extrinsic evidence)
|What are the policy based exclusions?||- offers to compromise - requires a dispute, but takes out all statements made in connection with an offer to settle.|
- medical expenses - offers to pay expenses can come out, but admissions made in the course of those offers are in. California extends the rules to expressions of benevolence, sympathy, etc.
- subsequent remedial measures - cool to show control, ownership, or alternative design. that's it... no using them for liability. (in California, they can come in in "strict liability" actions)
- liability insurance - inadmissible for fault, admissible for control
- plea bargaining - totally inadmissible except for California impeachment.
|Writings - what are the three things to look for every time we see a writing?|| 1. authentication|
2. best evidence
|What is authentication?||There must be enough evidnece to conclude that the item is what it purports to be- basically anything will work.|
|What is best evidence?||Must have the original or duplicate, some document that is intended to have the same effect as the original, unless it is lost or destroyed through no fault of the proponent.|
|Opinion evidence||Can come in if it is rationally based on the perception of the witness and helpful to a clear understanding of his testimony. |
Emotions, character traits, appearances, estimates of quantity, value, speed, etc.
Experts do not have to have personal knowledge, as long as they have some special knowledge that would assist the trier of fact in making a determination.
|What is TEEKS?||**** if i know. ask meininger.|