One Issue: Is the evidence admissible? (RECIP(e) H)
- FORMALITIES – The procedure used to introduce evidence properly.
- RELEVANCE (Logical, Legal, Reliable, Judicial Notice) – Makes material fact more or less likely to be true and is not unduly prejudicial and is reliable.
- EXTRINSIC POLICIES (Liability Insurance, Subsequent Remedial Measures, Settlement offers, Medical expense payment offers, Offers to plea bargain) – Inadmissible for proof of issue at hand.
- CHARACTER EVIDENCE – Cannot be used to prove conduct unless exception applies.
- IMPEACHMENT (Felony conviction, Untruthful acts, Reputation, Bias, Inconsistency, Incompetent, Contradictions) – Unreliable witness
- PRIVILEGES – Barred from being forced to testify
- HEARSAY – Not admissible unless an exception applies
Type of Questions
- Leading: Only on Cross examination or for Preliminary, Introductory and Non-Crucial Matters – Only when Witness is having a memory problem, examining an adverse/hostile W
- Other improper: Misleading, Compound, Argumentative, Conclusory, Cumulative, Unduly harassing/embarrassing, Assuming facts not in evidence/
- Any writing
- W can’t read from, but may examine silently and then return before speaking
- Adverse party can cross-examine and introduce
Past Recollection Recorded
- Personal knowledge
- Timely made by W when fresh in mind
- If reliable
- and necessary
- Logical Relevance – Tends to prove or disprove a material fact in dispute
- Legal Relevance – Probative value outweighs undue prejudice, confusion of issues, misleading nature, waste of time.
Reliability of evidence:
- Personal knowledge
- Under oath/affirmation (sworn in)
- Capacity (know difference between truth and falsehood)
Lay witness – personal knowledge/understanding
- Adequate opportunity to perceive
- Opinion required to communicate witness’s perception
- Matter is within common experience (drunk, odors (smelled like pot), appearance, condition)
- Qualified as expert by court
Proper basis of opinion:
- Personal observation, OR
- Use of skills to review of documents of third party, IF
- Opinion based upon established, reliable treatises or established standards in the field.
- Dead Man Acts
- Unavailable witness
Items must be authenticated
- Writings – Author personal knowledge, public records, ancient writings, self-authenticating docs.
- Voices – Hearer’s personal knowledge, distinctive characteristics, telephone transactions
- Physical Objects – Observer’s personal knowledge, distinctive characteristics, chain of custody (tampering)
Judicial Notice – Indisputable fact that is common knowledge, easily verifiable of unquestionable accuracy. Evidence substitute. [Civil = conclusive; Criminal = persuasive, not conclusive (Judge cannot tell jury *how* to interpret evidence)]
BEST EVIDENCE RULE=
- To prove contents of writing
- The original writing itself (or duplicate original)
- Must be produced
- Or shown unavailable
- By proponent
- Unless writing refers to a collateral issue (BER not applicable to non-controlling issue)
EXTRINSIC EVIDENCE – For matters of justice and the functioning of society, admission of this evidence is against public policy.
- Liability Insurance – Admitting this would discourage people from carrying insurance.
Subsequent Remedial Measures – Admitting this would discourage improvements or repairs. Inadmissible for purposes of showing negligence or culpability. May be used to prove:
- Ownership or control
- Feasibility of precautionary measures
- Supporting evidence in Strict Liability actions.
Offers to Settle/Compromise – Admission discourages out of court settlements. Inadmissible unless used to:
- Show bias of witness
- Explain a delay in undue delay hearings
- Show obstruction of justice.
Offer to Pay Medical Expenses – Admissibility discourages humanitarian charity. Inadmissible to show liability.
- Federal – “I’m sorry, let me pay the doctor bill” = “I’m Sorry” admissible admission of liability; “Let me pay..” inadmissible offer to pay medical bills.
- California – “I’m sorry, let me pay the doctor bill” = whole statement inadmissible.
Offers of Plea Agreement – Admitting evidence would discourage plea bargaining.
- Inadmissible in either criminal or civil cases, UNLESS
- May be used to prove perjury or to impeach a witness
CHARACTER EVIDENCE – Evidence of a person’s character or disposition is inadmissible proof of the conduct of that person, unless an exception applies. EXCEPTIONS:
- Not used to prove conduct (trying to establish knowledge or character, not prove an act)
Defendant offers to show own character
- FED = no specific acts; prosecution may rebut
- CA = Allows specific acts; prosecution may rebut
Defendant offers on character of victim
- FED & CA = D offers; Prosecution may rebut
RAPE – evidence of victim character only if:
- To show D is not source of semen
- To show consent
- Must first be made by written motion and offer of proof before the judge in camera.
Circumstantial Evidence – to show one of the following:
- Intent/Knowledge absence of mistake
- Modus operandi, preparation, common plan
- Identity (distinct characteristics)
IMPEACHMENT (CARBIC C)
- Prior Felony Conviction within 10 years
- CA also allows moral turpitude misdemeanor convictions
- Acts – Prior bad acts that show propensity of lack of truthfulness
- Reputation or Opinion – FED ONLY – established by cross exam or extrinsic evidence.
- Bias – NEVER collateral issue since it goes to core credibility. CA – must give W opportunity to explain or deny evidence of bias. Either extrinsic or by cross exam.
- Inconsistency – Cross exam or extrinsic evidence of prior inconsistent statement (does not have to be contradiction, just inconsistent)
- Competency – Attack on capacity or reliability.
- Contradiction (Collateral Mater Rule): Extrinsic evidence not obtained on cross exam is inadmissible to impeach unless it goes to a material matter and W given opportunity to explain or deny evidence.
PRIVILEGES – Limits on forced testimony/ Ability to testify
- Holder: Client
- Applies to: All communication made in lawyer-client relationship
- Limitations: Only communications made in reasonable confidence
Waiver: Only by act of client. Exceptions:
- Atty v. Client suits
- Crime or fraud
- Will disputes
Spousal Witness – ONLY IN CRIMINAL CASES
- FED/MAJORITY: Defendant
- MINORITY: Spouse of Defendant
- Applies to: Spouse of defendant
- Limitations: Current valid marriage; ends when marriage ends
- Exceptions: Inter-spousal torts, crimes, bigamy, adultery
- Holder: Both spouses
- Applies to: All marital communications between date of marriage and date of separation/divorce.
- Limitations: Only communications made in reasonable confidence; Verbal communication only
- Exceptions: Crime/fraud; D introduces evidence
- Holder: Patient
- Applies to: All communications made in course of treatment (consultation, tests, results)
- Limitations: Licensed Health Care Providers only
- Doctor v. patient suit
- Doctor appointed by court
- Reports by social workers or public agencies
- Holder: Both clergy and penitent
- Applies to: All penitent communications
- Limitations: Clergy must be authorized to hear penitent confessions; Religion must be one where confession to clergy is a core part of religious practices. (Catholic: Yes, Baptist: No)
- Exceptions: None
- Holder: Accused
- Applies to: Option not to take stand
- Limitation: Only to avoid criminal prosecution
- Exceptions: Not applicable to Grand Jury, legislative or administrative hearings
- Holder: Witness
- Applies to: Disclosure of matters that tend to incriminate witness
Limitation: Only to avoid criminal prosecution
- FED = May testify
- CA = Priv holder may stop eavesdropper testimony
Known Third party presence to communication:
- Third party = agent/employee of privileged party = OK as long as presence advances purposes of privileged relationship.
- Third Party = non agent/employee = NO Privilege UNLESS 3rd party qualifies for another priv (Spouse)
- COURT may assert on behalf of holder of privilege to further justice
HEARSAY (DAD SEE ME BOPP PICI)
GENERAL RULE: – An assertion made by an out of court declarant offered to the truth of the matter stated is inadmissible hearsay.
- Assertion (verbal or non verbal communication)
- Out of court
- Offered to prove the truth of the assertions in the statement itself
- Barred unless an exception applies
- May be barred by 6th Amendment right to confront is reasonably expected to be used in criminal prosecution.
Exceptions (DAD SEE ME BOPP PICI)
Declaration Against Interest
- Unavailable witness
- Against financial or penal interest
- Against interest at time stated
- Reasonable person would not say it unless it was true
Admissions (FED= Non hearsay)
- Offered against party
Party admitted culpability/liability
- Silence ONLY when reasonable person would have objected/denied
- FRE – Employee/Agent Statement allowed
- Co-Conspirator statement allowed is independent evidence of conspiracy exists.
- Unavailable .. CA – MUST BE DEAD (FED – must only believe was dying)
- Statement when knew/believed death was imminent
- Relating to circumstances of death
- CA = Any kind of case; CL – homicide cases only.
Sense Impression (FED ONLY – NOT CA)
CA = CONTEMPORANEOUS STATEMENTS
- Explain, Qualify or Understand
- What declarant was doing at time of statement
- Statement relating to a startling event/condition
- Said while still under stress of event
- During Expert cross examination
- Writings established as reliable
- May be read into evidence (not admissible as exhibits)
- To prove mental state if at issue (“I’m going to kill you”)
- Only admissible to prove declarant’s will.
- Trustworthy equivalent to other exceptions
- Relates to material facts
- More probative than other available evidence
- Other party properly noticed of the evidence to be offered
- Interest of justice.
Business Record Exception
- Written statement
- Made in regular course of business (not in prep of case/trial – bias)
- Near time of receipt of info
- Declarant had personal knowledge
- Unless circumstances show untrustworthy/unreliable. (doctored books)
Official Written Statement
- Written statement
- By public official
- Recording legal duties or activities of office
- Unless untrustworthy
Past Recollection Recorded
- Written statement or record
- Personal knowledge and reliable source
- Made when facts were fresh
- No present recollection
- Declarant testifies writing represents accurate reflection
- May be read into evidence
- Opposing party may offer entire document into evidence.
CA = ANY prior inconsistent statement may be offered as substantive evidence of its truth.
- Statement under oath
- Formal hearing/ deposition
- Similar/Same issues and parties
- CA & FED – CAN be used to impeach
Past bodily condition
- FED – Only statements for purposes of diagnosis or treatment
- CA – any statement of past bodily condition said to anyone.
Present (time of statement) physical state
- May prove existence of condition
- Prior statement by W
- IDing a person
- With personal perception of person (sight, hear, smell, etc)
- CA – while event was fresh in W’s memory
- CA – W must testify and confirm authenticity of prior opinion
- Prior statement of W
- Consistent with testimony
- TO REBUT a charge of untruthfulness, unreliability or bias.
- Prior Statement of W
- Inconsistent with testimony
- Given under penalty of perjury
- At a deposition, trial or other formal hearing.