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CA Bar Essay Slapdowns: Evidence
Terms in this set (45)
For evidence to be admissible, it must be logically and legally relevant. Under the California Evidence Code (CEC), evidence is logically relevant if it has any tendency to prove or disprove a disputed fact of consequence. The burden of proof concerning preliminary facts that must be shown to make evidence admissible is on the party offering evidence. But when the admissibility issue goes to relevance, that burden is low. The party offering the evidence need only introduce evidence sufficient to sustain a finding of the existence of the preliminary fact.
Personal Knowledge to Testify
A witness must have personal knowledge of the matter about which he is to testify. Similarly, a hearsay declarant must have personally knowledge of the facts described in her out of court statement.
Under Proposition 8 of California Constitution (Prop 8) any evidence that is relevant may be admitted in a criminal case. However Prop 8 makes an exception for balancing under CEC 352 which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion or issues or misleading the jury. This is known as legal relevance
Under the California Evidence Code (CEC) the spouse of a party to any kind of proceeding may not be called as a witness by the adverse party and may not be compelled to testify against her spouse in that proceeding. The privilege belongs to the witness-spouse only, and can be claimed only during the marriage.
Marital Communications Privilege
The marital communications privilege belongs to both spouses and survives the marriage. Under this privilege, communications made during a marriage are privileged and inadmissible if they were made during the marriage. Either spouse may invoke the privilege, but cannot use the privilege to prevent a spouse from being called to testify
To be admitted into evidence, a writing first must be authenticated by proof that the writing is what the proponent claims it is. Only enough evidence to support a jury finding of genuineness is required.
Authentication of a Phone Call
Oral statements must be authenticated in cases where the identity of the speaker must be shown to make the statement relevant. Statements made during a telephone call may be authenticated by testimony as to one of the following: (i) the listener recognizes (ii) the speaker has knowledge of certain facts that only a particular person would have or (iii) the speaker has identified himself
Best Evidence Rule
The FRE requires that, when seeking to prove the terms of a writing in a case where the terms are material, the original must be produced. However, the FRE will permit the use of an exact copy of an original (called a "duplicate") , such as a photocopy, to the same extent as an original, so long as no genuine question of authenticity is raised ad such use would not be unfair
Hearsay within Hearsay
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. IN situations where there is "hearsay within hearsay" there are two out of court statements, and the statement offered will only be admissible if both the outer and inner layers fall within a hearsay exception or are classified as non-hearsay.
HS Exception: Present State of Mind
The present state of mind exemption applies to statements by a declarant that describe the declarant's state of mind at the time. The exception can be used to admit statements of the declarant's intent in order to prove that the declarant carried out that intent.
HS Exception: Statement Describing Threat of Physical Injury
The CEC recognizes an exception to the rule against hearsay in the case of a statement in which an unavailable declarant describes or explains the infliction of threat or physical injury upon the declarant. For the exception to apply, the statement must be (i) made at or near the time of the infliction or threat (ii) made under circumstances that indicate its trustworthiness and (iii) in writing or made to law enforcement or medical personnel
HS Exception: Present-Sense Impression
Under the FRE, where a person perceives an event and is moved to comment on what she perceived at the time of the perception or immediately thereafter, that statement is considered reliable for evidentiary purposes. Such a statement, of a present sense impression is an exception to the rule excluding hearsay, and the statement may be admitted into evidence.
HS Exception: Contemporaneous Statement
The CEC recognizes a hearsay exception for contemporaneous statements that are made at the time of an occurrence; however, the exception applies only to a statement the declarant makes to explain, qualify or make understandable his own conduct and the statement must be made while the declarant is engaged in t that conduct
HS Exception: Spontaneous Statement (CA) or Excited Utterance (FRE)
To meet this exception, the declarant must have made a statement while under the stress of excitement caused by a startling event and the statement must concern the immediate facts of the startling event.
HS Exception: Dying Declaration
A statement made by a declarant who is now unavailable, while believing her death was imminent that concerns the circumstances of what she believed to be her impending death is admissible under the FRE.
HS Exception: Offer to Pay Medical Expenses
Under the FRE, evidence that a party offered to pay the injured party's medical expenses is not admissible to prove liability for the injury. The public policy behind this rule is to avoid discouraging humanitarian acts. Admissions of fact accompanying such offers however are admissible
HS Exception: Present Bodily Condition
Under the CEC, a declarant 's statement has to her present bodily condition is admissible as a hearsay exception.
HS Exception: Recorded Recollection
If a witness has insufficient recollection of an event to be able to testify full and accurately, even after referring to memorandum that has been given to her on the stand, the writing itself may be read into evidence once a proper foundation is laid for its admissibility. This is known as the past recollection recorded exception to the hearsay rule.
The foundation for admissibility of the contents of the writing requires that (i) the witness at one time had personal knowledge of the facts stated in writing (ii) the writing was made or adopted by the witness (iii) the writing was made while the matter was fresh in the witness's mind (iv) the writing is accurate; and (v) the witness has insufficient recollection to testify full y and accurately. The writing may be read into evidence and heard by the jury, but is not itself admitted as an exhibit unless introduced by the adverse party.
HS Exception: Business Record
A writing that is made as a memorandum or record of an act is admissible in evidence as proof of the act if it was made in the regular course of business and if it was the regular course of such business to make it at the time of the act or within a reasonable time thereafter. This is an exception to the rule against hearsay.
To fall within this exception, statements within the business record must consist of matters within the personal knowledge of either the recorder or of someone with a business duty to transmit the matters to the recorder. Thus the record's contents do not have to be within the personal knowledge of the recorder if both the recorder and the transmitter of the records contents are employees of the same business. If this personal knowledge requirement is met, both the record itself and the recorded statements therein are enveloped within the business records exception. Otherwise, the recorded statements within the business record must fall within a separate hearsay exception to be admissible.
Additionally, the authenticity of the record must be established for this exception to apply. The usual method of authentication is to have the custodian or other qualified witness testify to the identity of the record and the mode of its preparation.
Note: The CEC does not authorize admission of records containing opinions.
HS Exception: Official Records
A record of a public office may be admissible as an exception to hearsay if it includes (i) the activities of the office or agency (ii) matters observed pursuant to a duty imposed by law or (iii) in civil actions and proceedings and against the government in criminal cases, factual findings (including opinions and conclusions) resulting from an investigation made pursuant to authority granted by law as long as the record is trustworthy.
HS Exception: Statement Against Interest
The FRE (and CEC) provide that a statement of a person who is now unavailable as a witness is admissible if it was against that person's pecuniary, proprietary or penal interest when made
HS Exemption: Admission by a Party-Opponent
A statement made by a party and offered against that party is not hearsay under FRE.
(SAME UNDER CEC AS A EXCEPTION)
HS Exemption: Co-Conspirator Admission
An admission by party opponent is a hearsay exception under CEC, and certain vicarious admissions fall within this rule An admission by one conspirator made to a third party in furtherance of a conspiracy to commit a crime while the declarant was a participant in the conspiracy, may be admitted against the co-conspirator
HS Exemption: Prior Inconsistent Statement
A witness's prior inconsistent statement is not hearsay if it was made under oath at a prior trial or proceeding or in a deposition.
Offered to Show Effect on Listener
A statement that is inadmissible hearsay to prove the truth of the statement may nevertheless be admitted as nonhearsay to show the statement's effect on the hearer.
If evidence is admissible for one purpose , it is not excluded merely because of the danger that the jury may also consider it for another incompetent purpose. If the court determines that even with a limiting instruction the probative value of the evidence with respect to its legitimate purpose would be substantially outweighed by danger of unfair prejudice with respect to its incompetent purpose, the evidence may still be excluded
Method of Character Evidence: Victim's Character
Character evidence can take the form of reputation evidence, opinion evidence, or specific acts. Under the CEC, a defendant is permitted to use any of these methods in bringing in evidence of victim's bad character.
Character Evidence: Victim's Character
A criminal defendant may introduce evidence of a victim's character to prove that the victim acted in conformity with that character on the occasion in question. California law permits reputation, opinion and specific acts evidence of the victim's character on direct examination or cross-examination. Moreover Proposition 8 allows for the admissibility of the victim's character in a criminal trial where relevant subject to balancing
Character Evidence: Defendant's Character
Character evidence is any evidence offered to show that a person acted in conformity with his character on a particular occasion. In a criminal case, such evidence cannot be offered by the prosecution unless the defendant "opens the door"; in other words, the defendant must put his character at issue first and only then may be the first to offer evidence of the victim's character for violence offered by the accused, to show that the accused also has a violent character. Note that Proposition 8 is not applicable, as it contains an exception for the rules limiting character evidence.
Impeachment of Witnesses
CEC allows litigants in both civil and criminal cases to impeach a witness with any felony conviction (whether or not it involves dishonesty or false statement), subject to three qualifications (i) the conviction had not been expunged, nor the witness pardoned (ii) the felony must involve moral turpitude and (iii) the conviction's impeachment value is not substantially outweighed by its dangers
Impeachment: Specific Instances of Conduct
Under the FRE, a witness may be interrogated upon cross-examination regarding any specific instance of conduct involving lying because such evidence is probative of truthfulness. But the cross-examiner must make the inquiry in good faith having some reasonable basis for believing that the witness may have committed the particular misconduct at issue
Impeachment: Contradictory Facts
Extrinsic evidence of facts that contradict witness's testimony may sometimes be admitted to suggest that a witness's mistake or lie on one point indicates erroneous or false testimony as to the whole.
In California, a witness can be impeached with a misdemeanor conviction only if it is one of moral turpitude. In this case, the conviction was for simple assault which is not a crime of moral turpitude.
Evidence of Liability Insurance
As for legal relevance, certain evidence that is otherwise relevant may be excluded for public policy reasons. Under the CEC, evidence that a person had liability insurance is inadmissible to show whether the person acted negligently; however, it may be admitted for another purpose, such as (i) to prove ownership or control (ii) for the purpose of impeachment or (iii) as part of an admission.
Expert Opinion Testimony
An expert may state an opinion if (i) the subject matter is one where scientific, technical or other specialized knowledge would help the trier of fact determine a fact in issue—that is, if the opinion is relevant and the methodology used to arrive at the opinion is reliable (ii) the witness has special knowledge, skill, experience training or education sufficient to qualify him as an expert on the subject to which his testimony relates (iii) the witness has reasonable certainty regarding this opinion and (iv) the opinion is supported by a proper factual basis.
Expert Opinion Testimony - Subject Matter of Expert Testimony
The test of assistance to trier of fact subdivides into two requirements (i) the opinion must be relevant and (ii) the methodology underlying the opinion must be reliable.
Expert Opinion Testimony - Basis of Expert's Opinion
To be admissible , the expert's opinion must be based upon (i) facts that the witness knows from his own observation (ii) facts presented in evidence at trial and submitted to the expert (iii) facts no tin evidence that were supplied to the expert out of court and which are of a type reasonably relied upon by experts in the particular field in forming opinions on the subject.
Lay Opinion Testimony
An opinion by a lay witness generally is inadmissible except when it is (i) rationally based on the perception of the witness and (ii) helpful to a clear understanding of his testimony or to the determination of a material fact.
A question is leading and therefore objectionable on direct examination, when it suggests the answer to the witness. There are several instances in which a court may allow a leading question on examination: (i) questions used to elicit preliminary or introductory matter (ii) cases in which a witness had a loss of memory of or another circumstance in which he needs assistance in responding or (iii) cases in which a witness is hostile or an adverse party
A witness's response may be stricken as nonresponsive if it goes beyond the scope of the specific question that has been asked. When a question calls for a "yes" or "no" answer, any additional testimony is subject to being excluded as nonresponsive. Under CEC, a motion to strike a nonresponsive answer can be made by counsel for any party
In order to facilitate an efficient determination of the facts, a court may reasonably control the manner and form of examination of witnesses. An examining attorney may not ask a witness to speculate or hypothesize as to the existence of meaning of a fact. Testimony must be based upon the witness's persona knowledge rather than on conjecture.
Under the Confrontation Clause, even if a hearsay statement comes under an exception it will not be admitted in a case where: (i) the statement is offered against the accused in a criminal case (ii) the declarant is unavailable (iii) the statement was testimonial in nature and (iv) the accused had no opportunity to cross-examine the declarant's statement before trial. A statement made during police interrogation when the main purpose of the interrogation is to establish facts that may be relevant to a later criminal prosecution, is considered testimonial in nature
Judicial Notice: Matters Subject to Judicial Notice
Judicial notice is the recognition of a fact as true by the court without formal presentation of evidence. A fact that is not subject to reasonable dispute may be judicially noticed Matters of common knowledge in the community, facts capable of certain verification and certain scientific principles all are appropriate matters for judicial notice In a criminal case, the FRE provide that the jury should be instructed that it may, but is not required to, accept a judicially noticed fact as conclusive. Under the CEC, the court may, and upon request must, instruct the jury to accept a judicially noticed fact as conclusive.
Scope of Cross-Examination
Cross-examination is limited to (i) matters brought out on direct examination and the inferences naturally drawn from those matters and (ii) matters affecting the credibility of the witness
Duty and Conduct of the Jury
A jury may not conduct an independent investigation. This is because such activities would not be subject to the evidentiary safeguards that are in place by having the court rule on the appropriateness of evidence and because the party to the case that would be disadvantaged by the results of such an investigation does not have the opportunity to cross-examine the results of the investigation. The role of the jury is to weigh the evidence that is duly presented in court and reach a conclusion based on that evidence and on the burden of proof that is attached to the particular case. While the jury may review all properly admitted evidence it is not meant to consult and use outside evidence to reach a decision.
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