evidence 1

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  1. evidence is relevant if
    it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence
  2. discretion to exclude relevant evidence
    even if evidence is relevant, court has discretion to exclude if probative value is substantially outwrighted by unfair prejudice, confusion, or waste of time.
  3. exclusion of relevant evidence for policy reasons
    • liability insurance - inadmissible to prove culpable conduct.
    • subsequent remedial measures or repairs - imadmissible prove culpable conduct and, in a products liability action, is inadmissible to prove defective product design.
    • settlements, offers to settle and pleas - (civil) inadmissible to prove liability or fault. (criminal) imadmissible to probe guilt.
  4. similar occurrences
    • evidence about other people relevant when there are similarities between that evidence and the people & events at issue.
    • similar evidence sometimes admissible to prove causation.
    • * previous similar acts to prove intent.
    • * to rebut a defense of impossibility.
  5. prior accidents or claims of plaintiff usually irrelevant
    • exceptions -
    • * pattern of fradulent claims.
    • * preexisting condition.
  6. habit evidence admissible
    • to show the person acted in accordance with the habit on the occasion in question.
    • (compare) character evidence says something general about person and conveys a moral judgment.
    • Habit describes specific conduct and makes no moral judgment.
  7. character evidence in civil case
    inadmissible to prove conduct except where civil claim is based on sexual assault or child molestation.
  8. character evidence in criminal cases
    • admissible to prove conduct of defendant or victim?
    • both doors closed when prosecution begins its case. usually only the defendant can open these doors. usually they are opened separately.
    • exception - cases of sexual assult or child molestation, prosecution can be first to offer evidence of prior acts; where court has admitted evidence of victim's character offered by defendant, prosecution can be 1st to offer evidence that defendant has same character trait.
    • Once door open - reputation and opinion evidence are admissible on direct examination by any party, but not specific instances evidence.
    • On cross examination - reputation, opinion, and specific instances are all admissible.
  9. admissibility of evidence of victim's character
    prosecution cannot be 1st to offer to prove conduct. 2 ways defendant can open the door: (1) if D offers evidence of victim;s character, prosecution may rebut, (ii) in a homicide case, if D offers evidence victim attacked first, prosecution may offer evidence of victim's character for peacefulness.
  10. rape shield statute
    • reputation and opinion evidence inadmissible.
    • specific instances of alleged victim's conduct admissible only to prove (i) 3rd party is source of demen or injury, or (ii) prior acts of consensual intercourse between D and victim. Civil rules - admissible if probative value substantially outweights unfair prejudice and, in the case of reputation evidence, plaintif put her reputation in issue.
  11. specific instances of defendant's bad conduct may be admitted to prove anything other than character
    • MIMIC
    • Motive
    • Intent
    • Identity - M.O. (similarity and uniqueness required to prove identity)
    • Common plan or scheme
    • * discretion to exclude MIMIC evidence for unair prejudice.
  12. evidence to support credibility
    inadmissible unless credibility attacked first
  13. impeachment
    3 step approach to admissibility of impeachment evidence: (1) is souce of impeachment extrinsic evidence or testimony at this proceeding of witness being impeached? (2) if extrinsic, is it admissible given impeachment technique? (3) any other foundation requirements?
  14. impeachment by contradiction
    • imadmissible to contradict on collateral matter.
    • collateral matter = fact not material to the issue in the case that says nothing about witness' credibility other than to contradict the witness.
  15. Prior Inconsistent Statement
    • OK to impeach.
    • PIS of witness who testifies at trial = not hearsay if given uder oath at trial or deposition. Otherwise = hearsay and inadmissible if offered to prove truth.
  16. extrinsic evidence of prior inconsistent statement
    • inadmissible to impeach on collateral matter.
    • foundation requirement = extrinsic evidence admissible only if witness given opportunity to explain or deny.
  17. Impeachment with evidence of bias, interest, motive
    • admissible
    • foundation - extrinsic evidence admissible if witness given opportunity to explain or deny.
  18. impeachment with convictions for crime involving false statement
    all such convictions for crimes of false statement are admissible. No balance of unfair prejudice against probative value except for convictions more than 10 years old.
  19. impeachment with convictions for a crime not involving false statement
    such felonies may be admissible to impeach but court may exclude for unfair prejudice. Misdemeanors that do not involve false statements are imadmissible to impeach.
  20. impeachment with non-conviction miscondut evidence bearing on truthfulness
    admissible to impeach in both civil and criminal cases if the acts involved lying. extrinsic evidence to prove the acts is inadmissible. Impeacher can only cross-examine witness about her misconduct.
  21. impeachment with reputation and opinion regarding truthfulness
    extrinsic evidence admissible.
  22. expert opinion
    requirement to scientific opinions
    • Federal standard - reliability of scientific opinion determined by four factors: publication/peer review, error rate, results are tested and there is ability to retest, and reasonable level of acceptance.
    • CA (Kelly/Frye) standard - reliability of scientific opinions determined by one factor: opinion must be based on principles generally accepted by experts in the field. Kelly/Frye inapplicable to non-scientific opinions and medical opinions, reliability of which is based on facts and circumstances of the case.
  23. impeachment by prior inconsistent statement of witness now testifying at trial (Fed and CA)
    • Both - not hearsay if offered only to impeach.
    • Fed - if given under oath at trial or deposition, also not hearsay to prove truth.
    • CA - admissible hearsay if offered to prove truth - extends to all inconsistent statements of witness, wether or not under oath.
  24. impeachment with prior felony conviction (fed v CA)
    • all felonies involving false statement are admissible - no balancing of unfair prejudice against probative value except for old convictions. Convictions for felonies not involving false statements may be admissible but court must balance.
    • CA - all felonies involving "moral turpitude" are admissible but court must balance; felonies not invoving more turpitude are inadmissible in CA. Prop 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment.
    • Moral turpitude - crimes of lying, violence, theft, extreme recklessness, and sexual misconduct, but not crimes for merely negligent or unintentional acts.
  25. imprachment with prior misdemeanor convictions (Fed v CA)
    • Fed - all misdemeanors involving false statement are admissible - no balancing of unfair prejudice against probative value except for old convictions. All other misdemeanor convictions are inadmissible to impeach.
    • CA - misdemeanor convictions are inadmissible to imprach. But Prop 8 admits misdemeanors into criminal case when it involved crime of moral turpitude, subject to balancing probatie value v unfair prejudice.
    • * Misdemeanors are inadmissible in CA to impeach in a civil case.
  26. conviction evidence (felony and misdemeanor)
    • if conviction admissible, extrinsic evidence can be used under Fed and CA law to prove the conviction.
    • - if conviction is otherwise admissible under the above rules, but it is more than 10 years since the conviction or release from prison, it is inadmissible under FRE unless probative outweights prejudice. NO such rule in CA.
  27. non-conviction misconduct bearing on truthfulness (Fed and CA)
    • Fed - admissible (civil and criminal), subject to balancing, must be act of lying, extrinsic evidence inadmissible but may ask witness about her misconduct on cross.
    • CA - imadmissible under CEC but Prop 8 makes it admissible in criminal cases if relevant. Misconduct must be act of moral turpitude; both cross-ex and extrinsic evidence allowed, subject to balancing.
  28. Vicarious party admissions (CA)
    statement by EE of party is party admission of ER only where negligent conduct of that EE is basis for ER's liability in the case under respondeat superior. (ER responsible for EE's words only if also responsible because of the ER's conduct)
  29. declaration against interest exception (CA)
    also included is statement against social interest (make declarant object of "hatred, ridicule, or social disgrace in the community.")
  30. dying declaration exception (CA)
    exception in all civil and criminal cases and declarant must be dead.
  31. present sense impression exception (CA)
    • Fed - made while declarant was perceiving the event or condition or immediately thereafter.
    • CA - a statement explaining conduct of the declarant made while the declarant was engaged in that conduct.
  32. exception for statement of past or present mental or physical condition made for diagnosis or treatment (F v CA)
    • (no need for unavailablility) Fed: admissible if pertinent to medical diagnosis or treatment.
    • CA: admissible if made for medical diagnosis or treatment, but only if the declarant is a minor describing an act of child abuse or neglect.
  33. Best Evidence Rule
    (CA) Secondary Evidence Rule
    exempt from Prop 8 in CA. so even in a criminal case, the Secondary Evidence Rule applies. rule applies only where evidence is offered to prove the contents of a writing.
Card Set
evidence 1
barbri evidence CA 2011
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