You are on page 1of 4

I) Proposition 8 The California Constitution includes Proposition 8.

Prop 8 provides that all relevant evidence is admissible in


CA criminal cases..unless the evidence falls within one of several exemptions. SO if something is exempt for Prop 8, then it may not be admitted into evidence. Examples include legal relevance, hearsay and privileges.

II) Personal Knowledge requires that a witness may only testify to matters that they have personal knowledge of.
III) Relevance A) Logical Relevance requires evidence is admissible that tends to prove or disprove facts in issue in the case. CA fact must be in dispute. B) Legal Relevance requires that evidence is admissible if its probative value substantially outweighs the risk of unfair prejudice, confusion of the issues or misleads the jury.

1) Previous similar occurrences may be relevant if they are probative of a material issue and the probativeness
outweighs the risk of confusion or unfair prejudice. 2) Exclusion for public policy requires that certain relevant evidence is excluded because of public policy. a) Liability insurance requires that evidence of liability insurance is not admissible to sow negligence or ability to pay, but may be admissible to show ownership or control, impeach, or part of an admission. b) Subsequent remedial measures require safety measures or repairs after an accident are not admissible except to show ownership or control, or to rebut a claim the precaution was not feasible. i) CA admissible in products liability - Fed no P/L c) Settlement offers, withdrawn guilty pleas and accompanying admissions of fact are not admissible to prove liability. *Must be a COA pending of threatened i) CA mediation proceedings inadmissible d) Offers to pay medical expenses are inadmissible, but accompanying admissions of fact are admissible. i) CA admissions of fact are inadmissible ii) CA Civil expressions of sympathy are inadmissible, but other statements are admissible 3) Habit describes specific conduct and makes no moral judgment. IV) Judicial Notice requires recognition of a fact that is a matter of common knowledge in the community or capable of verification as true without formal presentation of evidence.

V) Character evidence requires evidence of the Ds character may be used to1) prove character when it is the ultimate issue in
the case, 2) D opened the door, or 3) show how a person probably acted (MIMIC). A) Character evidence of the defendant in civil cases is inadmissible unless character is directly in issue. 1) FED allows Ds prior acts of sexual assault or molestation when the claim is based upon similar acts. B) Character evidence of the defendant in criminal cases is inadmissible unless the defendant first opens the door. 1) Exceptions a) FED and CA Ds prior acts of sexual assault or child molestation are admissible in similar cases. b) FED Ds prior bad acts are admissible when the court has admitted evidence of the Vs character. c) CA in a prosecution for 273.5, Ds prior acts of 273.5 are admissible or elder abuse d) CA Ds violent character is admissible when the court allows D to introduce Vs character for violence. 2) D may open the door by calling a witness to testify about the Ds good reputation for the trait in question and give their personal opinion about that trait of the D. a) Any misconduct, including Ds prior arrests, may be asked about. b) The witness may not be impeached by asking about the witnesss prior arrests. 3) Once the D opens the door, the prosecution may rebut by a) Cross-examining the character witness, including if they know or heard of specific instances of the defendants bad character. i) FD the prosecution may inquire into specific instances of misconduct B/C the D opened the door. (I) If the witness denies knowledge of these specific instances, the prosecution may not prove them by extrinsic evidence. ii) CA the prosecutor may not inquire into specific instances of the misconduct. iii) P8 specific instances are admissible subject to 352 balancing. b) Calling qualified witnesses to testify to the Ds bad reputation or give their opinion of the Ds character for the particular trait involved. C) Specific acts is inadmissible if offered solely to show Ds bad character, unless it is offered to prove motive, intent, absence of mistake, identity, or common plan or scheme. (MIMIC) 1) CA allows the D to admit the Vs prior sexual conduct to show the D reasonably believed the V consented. 2) Evidence of a Ds prior acts of sexual assault or child molestation is admissible when the D is accused of committing the same crimes. a) CA allows specific acts for arson, gang, and hate crimes. D) The D may introduce reputation or opinion evidence of the victims bad character to show the defendants innocence. 1) Exceptions a) FED no specific instances of Vs character or acts unless on cross examination b) FED in a homicide case, if the D offers evidence the V attacked the D first, the prosecution may offer evidence the V had a peaceful character. c) P8 Vs character may be relevant subject to 352 balancing. 2) Once the D opens the door, the prosecution my counter with reputation or opinion evidence of the victims good character, or the defendants bad character for the same trait.

3) Rape shield prevents introducing evidence of the Vs sexual misconduct except to show that someone other than the
D is the source of the semen, injury, other physical evidence, or the D and V engaged in consensual sexual activity. a) CA allows D to admit specific acts of the V. b) In civil cases, the Vs sexual behavior is admissible if it is not excluded by any other rule, and its probative value

Evidence 2012

substantially outweighs the danger of harm to the V and of unfair prejudice to any party. VI) Objections A) Asked and Answered requires the question has already been asked and answered. B) Assuming facts not in evidence requires a question that assumes a disputed fact is true when it has not been established in the case. C) Argumentative requires a question that is leading and reflects the examiners interpretation of the facts. D) Calls for a narrative require the witness to answer by recounting relevant facts rather than a series of specific questions requiring specific answers. E) Compound requires a single answer to more than one question. F) Conclusionary require the question calls for an opinion or conclusion that the witness is not qualified or permitted to make. G) Harassing or embarrassing requires a question is unduly harassing or embarrassing. H) Lacks foundation requires the witness has insufficient personal knowledge to answer the question. I) Leading requires the question suggests the answer. J) Misleading requires a question that cannot be answered without making an unintended admission. K) Nonresponsive requires the witness must address only the specific question asked by the examining attorney. L) Speculation requires the witness to theorize as to a fact because the testimony is not based upon the witness personal knowledge. VII)Evidence A) Real Evidence requires evidence that is directly addressed to the trier of fact. 1) Authentication requires the objet must be identified as what the proponent claims it to be by testimony or a substantially unbroken chain of possession. Re: dope evid bag. B) Documentary Evidence requires that it must be authenticated to sufficiently support a jury finding of genuineness. 1) Handwriting may be verified by a non-expert (before trial) with personal knowledge of the writers handwriting, or comparison by an expert or trier of fact (Jury), eye witness, party admission. Voice can be by non-expert, expert or Jury. 2) Ancient documents are verified by age, condition (not manipulated), and location kept (expected to be found). a) 20 yoa federally, and 30 yoa in California. C) Best evidence rule requires that to prove the terms of a writing, the original must be produced if the terms of the original are material. Writing includes: photo, Video, X-ray, recordings, or any tangible data. 1) CA - Secondary evidence of the writing is admissible only if the original is unavailable. (or voluminous) D) Self-authenticating documents include trade labels, certified documents, newspapers, etc. (business records) VIII) Testimonial Evidence discrediting the witnesss testimony.

A) Impeachment may be accomplished by cross-examination or through other witnesses who will introduce facts 1) Prior inconsistent statements requires a party may show, by cross examination or extrinsic evidence, the witness has, 2) 3) Conviction of a crime requires that a witness may be impeached by any felony or misdemeanor crime involving
on another occasion, made statements inconsistent with their present testimony.- Not Hearsay unless prove TMA a) FED if given under oath at trial to prove truth of facts Bias or interest requires the witness has an interest in the outcome of a suit. dishonesty, and the court has no discretion to bar it. May use extrinsic evidence to prove. a) The witness may also be impeached with any felony conviction not involving dishonestly, but the court has discretion to bar it. i) It is not admissible if 10 years old from date of conviction or release. ii) A conviction that has been pardoned may not be used if the pardon is based upon innocence or there are no subsequent felonies. b) CA & P8 felonies involving moral turpitude only subject to 352 balancing. (lying, violence, theft, Sex) c) CA no misdemeanors d) P8 misdemeanors involving moral turpitude subject to 352 balancing. Not Civil Trl

4) Specific instances of misconduct may be admissible if it is probative for truthfulness. a) Extrinsic evidence of bad acts to prove misconduct is not admissible. i) A specific act of misconduct, offered to attack the witnesss character for truthfulness, can be elicited only
on cross-examination of the witness.

5) A witness may be impeached by showing they have a poor reputation for truthfulness. 6) When a witness makes a statement not directly relevant to the issue, impeachment on a collateral matter bars the
opponent from proving the statement untrue either by extrinsic contradictory facts, or by a prior inconsistent statement. Ps W testifies; I saw the accident on the way home from church. - If it is conceded that the W saw the accident, it would be a collateral matter for the D to show the W was on his way home from a pool hall rather than church. - It would not be collateral to show that the W was on his way home from dinner at the Ps house B/C that suggests bias, which is a separate basis for impeachment.

B) Privilege

1)
Attorney-client privilege requires the communications between an attorney, or a necessary third party (investigator, expert/Dr., secretary), and client, made during the professional relationship, cannot be disclosed. a) Client holds the privilege. Survives Death / Termination (CA: term after estate closes /Distributed) b) Corporation employee to corporation attorney i) FED privileged if the employee was authorized to talk with the attorney. ii) CA privileged if the person is the natural person to speak with the attorney.

Evidence 2012

c) No privilege if services were sought to further a crime or fraud or malpractice


CA no privilege if attorney reasonably believes disclosure is necessary to prevent death or serious bodily injury. 2) Doctor-patient privilege requires that communications made during a professional relationship, for the course and necessity of treatment cannot be disclosed. a) Patient holds the privilege. b) The privilege does not apply when the patient puts his condition in issue. (personal injury cases) c) CA no privilege if the doctor reasonably believes the patient is a danger to themselves or another. 3) Spousal immunity requires that one spouse cannot be called to testify in a criminal matter against the other spouse regarding any matter made before or during a valid marriage. a) The testifying spouse holds the privilege, and it only lasts during the marriage. b) FED criminal cases only No Civil c) CA both criminal and civil cases 4) Confidential martial communication requires that one spouse cannot be called to testify in a criminal or civil matter against the other spouse regarding any communications made during a valid marriage. a) Both spouses hold the privilege and it survives the marriage. 5) Privilege against self-incrimination requires that a person cannot be compelled to testify against themselves. 6) CA Counselor/Sex Assault, Clergy/Parishioner, News Reporter / Source C) Opinion 1) Lay witness opinion requires 1) it is rationally based on the witnesss perception, 2) it is helpful to clarify a fact in issue, and 3) it is not based on any scientific, technical, or specialized knowledge. Must have P/K 2) Expert witness opinion requires 1) assist the trier of fact, 2) witness is qualified, 3) reasonably believes in his opinion, 4) supported by a proper factual basis, and 5) based upon reliable principles applied to the facts. (does not need P/K, can be based on Hypo) a) Federal reliability requires peer review, error rate; results are capable of retest, and a reasonable level of acceptance in the field. (Daubert Test) b) California reliability requires the opinion must be based on principals generally accepted by experts in the field. (Kelly / Frye Test) IX) Hearsay requires an out of court statement offered to prove the truth of the matter asserted. i)

A) Non-hearsay statements (Fed) CA exceptions 1) Prior inconsistent statement by a witness requires a prior statement, inconsistent with their testimony given under
oath, at a hearing, trial or other. CA no oath req.

2) Prior consistent statement by a witness requires a prior statement that is consistent with the in-court statement and 3) 4)
offered to rebut a charge the witness is lying or exaggerating. Prior identification of a person made after seeing them, & the witness is subject to cross-examination. Admissions by a party-opponent require a statement by a party, or attributable to a party, regarding a relevant fact, offered by party opponent. a) Formal judicial admission requires admissions made during formal judicial proceedings are conclusive. b) Adoptive admission requires a party may expressly or impliedly adopt someone elses statement as his own c) Vicarious admission requires an admission by a principals agent or a person authorized by a party to speak on its behalf. CA speaker must talk about (his) act that caused injury. d) Silence requires a party fail to respond to an accusatory statement when a reasonable person would have spoken up. e) Co-Conspirator requires statement made during course / furtherance of conspiracy, only if opportunity to cross. CA membership of conspiracy must be proven.

5) Statement offered for the effect upon the listener how or why the statement effected listener 6) Statement not offered for its truth similar to effect on listener
X) Exceptions A) Declarant Unavailable (FADSS) Unavailable if privilege, refuses to testify, lack/loss of memory, death or illness, cannot procure by subpoena or reasonable means. cannot be responsible for making witness unavailable. CA does not recognize refusal or no memory. 1) Former testimony requires a statement made under oath, at a hearing or deposition, other party had motive and opportunity to develop testimony or cross. a) FED civil case allows for a privity relationship b) CA civil case, party against whom testimony is now offered was not a party earlier, but a party in the earlier proceeding had an opportunity to examine the witness and an interest to conduct that exam similar to the interests now affected. c) CA the former testimony is offered against the person who offered it in her own behalf in the earlier proceeding, or against a successor in interest. 2) Statement against interest requires a statement against pecuniary ($), property, or penal interest (Criminal) and a reasonable person would not have made the statement unless its true. a) CA allows statement against social interest.(hatred, ridicule, disgrace)

3) Dying declaration requires a statement made believing death is imminent, and concerning the cause. a) FED admissible in civil or homicide case (only). Declarant need not die b) CA admissible in either criminal or civil but declarant must be dead. 4) Statement of personal or family history requires a statement regarding a persons or family history made by a family 5)
member or a person intimately associated with the family. Statement offered against the party procuring the declarants unavailability requires a statement offered against the party who procured the declarants unavailability. (Forfeiture by wrongdoing) injury, under circumstances indicating trustworthiness.

6) OJ Rule CA statement in writing or made to Dr (med staff), LE at or near time of infliction or threat of physical Evidence 2012 3

7) Confrontation Clause see below. What for it in criminal cases.


B) Declarants Availability is Immaterial 1) Present state of mind requires a statement of then-existing state of mind, emotion, sensation or physical condition. (no prior belief or memory) re: Im meeting X, Im hot, I plan to go to X state

2) Excited utterance (CA Spontaneous Statement) requires a statement relating to a startling event while under the 3)
stress of the event. Present sense impression (CA Contemporaneous Statement) requires a statement made while perceiving the event or condition, or immediately thereafter. a) CA requires the declarant be engaged / perceive the conduct. b) CA allows for a statement describing the infliction or threat of physical abuse. Present physical condition requires a statement regarding a present bodily condition made to anyone. of diagnosis or treatment. For person or any other person (your child) a) Statements regarding the source of the condition are admissible if related to the diagnosis or treatment. b) CA only if the declarant is a minor describing an act of child abuse or neglect. Business records require 1) entry prepared in regular course of business, 2) by one with P/K, 3) under a duty to record, 4) at or near time of event, 5) authentication by custodian of records or other qualified. (cant be made in anticipation of COA) Absence of Entry admissible to prove the non-occurrence or non-existence of a matter. Past recollection recorded requires a witnesss memory cannot be refreshed and therefore the record may be read into evidence of opposing party may introduced into evidence. P/K by witness, facts were fresh at time of record, accurately reflects prior knowledge. Public records require reports of public agencies made pursuant a legal duty regarding their activities except police reports in criminal cases. a) CA allows police reports in Criminal or Civil cases. Records of vital statistics require records of vital statistic made to a public officer pursuant to a legal duty.

4) 5) Past physical condition requires a statement regarding a past physical condition made to a physician for the purpose

6) 7) 8)

9) 10) Judgments require certified copies of the judgment.

a) FED felony convictions are admissible in both criminal and civil cases. b) CA felony conventions only in civil cases. c) P8 allows felony or misdemeanor subject to 352 balancing 11) Ancient documents requires the document be 20 federally or 30 for California. 12) Learned treatises may be read into, but not admitted into, evidence. a) CA only admissible to show matters of general notoriety or interest. 13) Family records require statements of fact concerning personal family history in family Bibles, jewelry, genealogies, tombstones, etc.

14) Residual Exception Catch-All Federal only no CA equiv. A Judge may allow a statement not specifically covered
by the Hearsay rules if: evidence of trustworthiness, offered as evidence of a material fact, is more probative on the point than any other evidence which proponent can procure via reasonable efforts and is in the interest of justice to admit.

C) Confrontation Clause even if hearsay is admissible, the CC might make is inadmissible if offered by the prosecution
against defendant in a criminal case. Crawford v Washington CC excludes out of court statements if declarant does not testify, now unavailable, the statement is testimonial, and did not have a chance to cross-examine declarant. Testimonial is vague, but giving statements to police during an ongoing emergency is NON-Testimonial. When the questions / statements are more to further police investigation = testimonial. Approach Issue Spotting: 1) Form objections 2) Purpose Relevance 3) Presentation PK, Authenticate, Judicial Notice 4) Privileges Att/C, Spouse, Dr. 5) Hearsay - exceptions Essay writing: 1) P/K or Authentication of evidence or Judicial Notice 2) Logical Relevance 3) Legal Relevance a) Character evidence b) Habit c) Impeachment 4) Objections motions to strike or limiting instructions 5) Privileges 6) Opinion 7) Hearsay a) Exceptions

Evidence 2012