EvidChecklist
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Created by:
sheikafatima on July 4, 2010
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64 terms
Terms | Definitions |
|---|---|
 Hearsay | Out of court statement to prove the truth of the matter asserted |
| Admissions | 1- party 2- vicarious 3- adoptive (tacit) 4- co-conspirator statement |
| Unavailability exceptions | 1- declarations against interest 2- dying declarations 3- former testimony |
| reliability exceptions | 1- excited utterance 2- present sense impression 3- bodily condition 4- present state of mind |
| other hearsay exceptions | 1- ancient docs 2- learned treatises 3- fed catch all |
| excited utterance | a statement relating to a startling event, made while under the stress of the event and before the declarant had time to reflect, is admissible. |
| logical relevance | evidence is logically relevant if it tends to prove or disprove a material fact |
| present sense impression | comments made concurrently with the sense impression of an event that is not necessarily exciting may be admissible. there is little time for a calculated misstatement, and the contemporaneous nature of the statement makes it reliable. |
| Privilege | Professional Marital |
| Marital Privilege | 1- Spousal testimonial privilege 2- Confidential marital communications |
| Legal relevance | 1- extrinsic policy exclusions 2- prejudicial impact |
| extrinsic policy exclusions | 1- liability insurance 2- subsequent remedial conduct 3- settlement offers 4- payment or offer to pay med expenses 5- guilty pleas |
| Character // civil cases | 1- character in issue by virtue of case 2- habit |
| Character // criminal cases | 1- Open Door rule 2- MIMIC |
| Competency | Age Mental |
| Personal Knowledge | Talk about this in essay, particularly when you have a lay opinion. |
| Impeachment | 1- character 2- bias, motive 3- defects in memory, perception, knowledge 4- inconsistent statements |
| prior consistent statement | available if made before bribe or inconsistent statement. otherwise, inadmissible for any purpose. |
| impeachment (3 steps) | i. source of impeachment - extrinsic evidence or testimony at this proceeding? ii. if extrinsic, admissible given impeachment technique? iii. any other foundation req'ts? |
| prior inconsistent statement | extrinsic evid of a prior inconsistent statement is inadmissible to impeach on collateral matter |
| foundation req't | extrinsic evidence admissible only if witness given an opportunity to explain or deny req'd for impeachment by PIS or evid of bias, interest or motive |
| crime involving false statement | all convictions for crimes of false statement are admissible. no balancing unless more than 10 years old. |
| PIS | not hearsay if given under oath at trial or depo. hearsay and inadmissible if offered to prove truth. |
| crime not involving false statement | felonies are admissible to impeach but ct may exclude for unfair prejudice |
| if conviction admissible | may be proved w/extrinsic evid |
| independent legal significance | not hearsay |
| effect on listener | not hearsay |
| show speaker's knowledge of facts stated | not hearsay |
| circumstantial evid of state of mind | not hearsay |
| hearsay exceptions | 1. admission of party opponent 2. PIS @ trial or depo (under oath), to rebut charge of recent lie/improper motive, statement of id of a person after perceiving 3. former testimony 4. declaration against interest 5. excited utterance 6. present sense impression 7. dying declaration 8. then existing phys or mental condition 9. past or present mental or phys condition made for med diagnosis or treatment 10. business records 11. public records 12. j't of previous conviction |
| Vicarious party admissions | stmt by (a) authorized spokesperson of party or (b) employee of party concerning matter w/in scope of employment + made during employment relationship authorization = express or implied + adoptive admission + co-conspirator statement |
| PIS | exemptions from hearsay 1. PIS given under oath @ trial or depo 2. prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive 3. stmt of identification of a person made after perceiving the person |
| former testimony | exception. DECLARANT MUST BE UNAVAILABLE. 1. party against whom testimony is now offered had an opportunity to examine person and motive to conduct that exam = similar to motive the party has now or 2. civil case = party against whom testimony is offered was not present at earlier proceeding but has a close privity-type relationship w/someone who was a party to that earlier proceeding and who had an opportunity/similar motive |
| declaration against interest | DECLARANT MUST BE UNAVAILABLE. Hearsay = admissible if @ time made, against the financial interest of declarant OR would have subjected declarant to criminal liability |
| business records exception | admissible if: 1. record of events, conditions, opinions or diagnoses 2. kept in course of regularly conducted business activity 3. made at or near time of matters described 4. by person w/knowledge of the facts in that record 5. regular practice of business to make such record |
| public records exception | admissible if w/in one of following categories: 1. record describes activities and policies of the office; 2. record describes matters observed pursuant to duty imposed by law; OR 3. record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy crim cases cannot use 2 or 3 |
| j't of previous conviction | admissible in both civil and crim cases to prove any fact ESSENTIAL to the j't but when offered by prosecution for purposes other than impeachment, j'ts against persons other than accused = inadmissible |
| atty-client privilege n/a | 1. professional services sought to further what client knew or should have known to be a crime or fraud 2. comm'n relates to alleged breach of duty b/t lawyer and client 3. 2+ parties consult an atty on a matter of common interest and the comm'n is offered by one of these parties against another |
| doctor-patient privilege n/a | not recognized in crim cases (CA) or 1. patient puts his phys cond @ issue 2. phy's services sought to aid in crime or fraud or to escape capture after crime 3. case alleging breach of duty/malpractice |
| spousal testimonial privilege | only in CRIM cases -permits witness to refuse to testify against spouse as to ANYTHING |
| spousal confidential comm'n privilege | -protects confidential spousal commn's during marriage |
| judicially noticed facts | 1. generally known facts or 2. facts established by sources of unquestionable accuracy |
| procedure for taking judicial notice | 1. party must request judicial notice to compel, or else ct has discretion. 2. civil case = ct instructs jury it must accept noticed fact as conclusive 3. crim case = ct instructs jury it may, but not req'd to accept judicially noticed fact. 4. can occur @ any time, even on appeal |
| misdemeanors impeachment | 1. FRE = all misd involving false statement = admissible. No balancing. 2. CA = CEC = misd are inadmissible to impeach. Prop 8 = can be admitted in a crim case if involving a crime of moral turpitude subject to balancing. misd inadmissible in a civil case. |
| nonconviction misconduct bearing on truthfulness | FRE = admissible in civil + crim cases, subj to balance. must be act of lying CA = inadmissible under CEC. Under prop 8, admissible in crim cases if relevant. to be relevant, must be act of moral turpitude; both x-examination + extrinsic evid permitted, subj to balancing |
| Prop 8 Hearsay | Hearsay law is exempt from coverage of Truth in Evidence Amdt to CA Constitution (prop 8). Even in a criminal case, usual rules apply. |
| Admission of party opponent | a stmt by party, or someone whose stmt is attributable to a party, offered by a party opponent FRE = exemption, not hearsay CA = exception to hearsay |
| Vicarious Party Admissions | Stmt of authorized spokesperson for party is treated as admission of that party. FRE = Stmt by employee of party is party admission of employer if stmt concerned matter w/in scope of employment and made during employment relationship CA = employer is responsible for employee's words only if also responsible b/c of that employee's conduct |
| PIS of witness | PIS not hearsay if offered just to impeach. FRE = If given under oath, PIS = exemption to hearsay + not hearsay. CA = Hearsay if offered for TOMA. Admissible under exception for all inconsistent statements of witness, whether or not under oath. |
| Declaration against interest | Stmt by unavailable declarant is admissible if @ time made, against financial or criminal interests of declarant. FRE = CRIM case, evid offered to exculpate D must offer "corroborating circumstances" showing it is trustworthy CA = + admissible stmt against social interest |
| Former testimony | Testimony given in earlier proceeding or depo by a witness now unavailable is admissible if: party against whom testimony is offered was a party in the earlier proceeding, had opportunity to examine the witness, and its motive to conduct that exam was similar to motive it has now OR FRE = CIVIL case, party against whom testimony is now offered was in privity w/party to earlier proceeding and had an opportunity and interest to conduct exam similar to the interests of the party against whom testimony is now offered |
| Former Testimony (cont'd) | CA = CIVIL = party against whom testimony is now offered was not a party in earlier proceeding but a party in that earlier proceeding had an opportunity to examine witness and interest to conduct exam similar to interests of party against whom offered OR former testimony is offered against the person who offered it in evidence in earlier proceeding or against successor in interests of such person |
| CA dying declaration | available in all civil and crim cases declarant must be dead |
| present sense impression CA | Must explain conduct OF THE DECLARANT made WHILE THE DECLARANT WAS ENGAGING in that conduct. |
| CA Business Records Exception | does not refer to opinions or diagnoses, but cts still will admit simple opinions and diagnoses |
| CA Public Record exception | record made by a public employee is admissible if making record was w/in scope of duties, record was made at or near the time of matters described, and circumstances indicate trustworthiness + crim prosecution can use public record for (2) matters observed pursuant to duty imposed by law or (3) record contains factual findings resulting from an investigation made pursuant to authority granted by law, unless untrustworthy. |
| Exception for j't of conviction (CA) | Specific exception for convictions applies only in civil cases. Prop 8 does not change hearsay law but permits the prosecution or D in a crim case to impeach a witness using a criminal conviction (felony or misdemeanor) if it involves moral turpitude |
| Secondary Evidence Rule (CA) | Admits duplicates and other written evidence of contents of original, such as handwritten notes. |
| Privilege CA | Most privilege law is exempt from Prop 8. Usual privilege rules apply. |
| Atty-Client Privilege | Applies to comm'ns from employee/agent if (i) is the natural person to speak to lawyer on behalf of corp; OR (ii) did something in for which corp could be held liable and corp instructed to tell lawyer what happened |
| Exception to Atty-Client privilege | i. services to further crime/fraud ii. subject of breach of duty b/t parties iii. 2+ parties consult atty on a matter of common interest iv. n/a where lawyer rsbly believes disclosure of comm'n necessary to prevent crime that is likely to result in death or substantial bodily injury |
| doctor/psycho-therapist exception | all same as fed and if psychotherapist has rsbl cause to believe that the patient is a danger to himself or others and disclosure is necessary to end danger or doc is req'd to report to a public office (gun shot wounds/communicable diseases) |
| spousal testimonial privilege (ca) | applies in civil and crim cases + spouse privileged to not be even called to witness stand |
| judicial notice (CA) | whether requested or not, ct must take judicial notice of matters generally known w/in jrx + ct instructs jury that it must accept judicially noticed fact in both civil and crim cases |
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