Evid

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Author:
willchoi
ID:
203075
Filename:
Evid
Updated:
2013-02-24 17:59:16
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Evid
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Evid
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  1. Evid Outline
    • 1. Form
    • 2. Purpose
    • 3. Presentation
    • 4. Hearsay
    • 5. Testimonial Privileges
    • 6. Prop 8
  2. 1. Form
    • Objections:
    • - leading
    • - nonresponsive
    • - calls for narrative
    • - assumes facts not in evidence
    • - compound
    • - speculation
  3. 2. Purpose
    • a. Logical Relevance
    • b. Legal Relevance
    • c. Character Evidence
    • d. Impeachment
  4. 2a. Logical Relevance
    • Has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence - CEC, fact under dispute
    • Must relate to time, event, or person in present litigation, except:
    • - prior false claims
    • - similar accidents caused by same condition to prove: existence, knowledge, and cause
    • - rebutting claim of impossibility
    • - habit evidence
    • - custom
  5. 2b. Legal Relevance
    • Probative value is not substantially outweighed by prejudicial impact
    • Public policy exclusions:
    • - liability insurance
    • - subsequent remedial repairs, CEC ok to show defective design in products liability
    • - offers to settle
    • - offers to pay medical expenses: FRE admissions of fact ok, CEC admissions of fact not admissible
    • - expressions of sympathy: CEC only, but statements of fault admissible
  6. 2c. Character Evidence
    • Civil: not admissible unless character at issue
    • Crim:
    • - D's character: only D can initiate, except: sexual assault, D offered evid of V's character, CEC domestic violence, CEC D offered V's violence
    • - V's character: only D can initiate or D saying V attacked first in homicide
    • - P rebuts by Rep, Opinion, or SA to cross D's witness; Rep and Opinion on direct of Ps witness
  7. 2d. Impeachment
    • Prior inconsistent statement
    • Evidence of bias, interest, or motive
    • Convictions: all moral turpitude ok, FRE all felonies ok but C must balance, CEC only moral turp felonies ok.
    • Prior bad acts re truthfulness: no CEC
    • Reputation and opinion regarding truthfulness
    • Rehabilitation: impeached witness may explain on redirect or good rep for truth
  8. 3. Presentation
    • Testimonial Evidence
    • - Competency: personal knowledge, testify truthfully
    • - Lay Opinion: witness perception, helpful to trier, and not based on specialized knowledge
    • - Expert Opinion: assist trier, qualified witness, reasonable degree of certainty, proper factual basis, and based on reliable principles
    • -- FRE reliability based on publication, error rate, testing of results, reas level of acceptance
    • -- CEC principles generally accepted by experts in the field
    • Document
    • - Best evidence rule: secondary evidence admissible only in absence of original
    • - Authentication: must be identified by witness
  9. 4. Hearsay
    • Not hearsay: indep legal sig, effect on listener (notice), state of mind
    • Exemptions
    • - Party admission
    • - Prior statement by witness
    • Unavailability Exceptions
    • - Former testimony
    • - Dying declaration
    • - Statement against interest: pecuniary, proprietary, penal, CEC social
    • - Statement of personal or family history
    • Reliability Exceptions
    • - Excited utterance
    • - Present sense impression/CEC contemporaneous statement
    • - Present state of mind
    • - Past or present bodily condition (medical diagnosis), CEC only child describing abuse or neglect
    • - Federal catch-all: guarantees of trustworthiness, strictly necessary, notice to adversary
    • Documentary Exceptions, PABLO
    • - Past recollection recorded
    • - Ancient documents
    • - Business records
    • - Learned treatise
    • - Official records
  10. 5. Testimonial Privileges
    • SPPA
    • Spousal privilege: W can refuse to testify against spouse, and D can refuse communications made in reliance of intimacy of marriage during marriage
    • Physician-Patient
    • Psychotherapist-Client
    • Attorney-Client
  11. 6. Prop 8
    • Truth in evidence amendment to CA const.
    • All relevant evidence admissible in Crim
    • CHP BE Riding Dirty: does not apply to
    • - Confrontation clause
    • - Hearsay
    • - Privileges
    • - Best evidence rule
    • - Rape shield law
    • - D's character before open door

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