EVIDENCE
----------------------------------------------------------------------------WHAT IS THE FORM?
----------------------------------------------------------------------------IS THE EVIDENCE RELEVANT? LOGICALLY (Evidence tends to make a fact in issue more or less probable than without the evidence) LEGALLY (1) Prejudicial vs. Probative value; (2) Extrinsic policy exclusions (liability ins., settlement offers, offers to pay medical, guilty pleas, subsequent remedial conduct)
DIRECT/CROSS/OBJECTIONS
----------------------------------------------------------------------------IS THE EVIDENCE INVOLVING CHARACTER? CRIMINAL CIVIL (1) Is character at issue? (defamation, etc.); (2) Character evidence cannot be used to show conduct unless sexual case; (3) Habit
(1) Defendant must open door; (2) MIMIC (motive, intent, mistake, identity, common plan/scheme)
----------------------------------------------------------------------------HOW IS THE EVIDENCE BEING PRESENTED? WITNESS
COMPETENCY PERSONAL KNOWLEDGE IMPEACHMENT OF WITNESS THROUGH: (1) Character evidence; (2) Bias/motive; (3) Defects in memory/perception/knowledge; and
(4) Inconsistent statements
DOCUMENTS
AUTHENTICATION BEST EVIDENCE RULE
LAY OPINION (Based on witness perception/rational/helpful to jury) EXPERT OPINION
(qualified/helpful/reas. Deg. Of certainty/supported by fact/satisfy Daubert/Kumho—peer reviewed and published/tested/low error rate/reasonable level of acceptance—CA requires general acceptance)
----------------------------------------------------------------------------ARE THERE ANY OUT OF COURT STATEMENTS BEING INTRODUCED? HEARSAY (Out of court statement to prove truth of matter asserted) EXCEPTIONS/EXEMPTIONS
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1
invest.- prosecution cannot use second or third)
Other exceptions (ancient docs/learned treatises/federal catch all)
WAS THERE ANY PRIVILEGE INVOLVED? CALIFORNIA DISTINCTIONS: PROPOSITION 8 (mention this on BAR but only applies in criminal cases and rarely affects discussion) Ancient Writings CA requires 30 years (FED: 20) Witness UNAVAILABLE when: FED: Do not remember or refuse to testify CA: These are NOT grounds for unavailability (considered available instead) Offers to Pay Medical Expenses FRE admission of fact (admissible) with offer to pay medical expenses (inadmissible) CA excludes both. Character of the Accused CA: Defendant may introduce specific acts to prove victim’s character. CA: can impeach W with any misdemeanor conviction involving moral turpitude in criminal cases. Doctor-Patient privilege CA (same as majority) privilege also to psychotherapist-patient. But privilege does not apply in CA if need to disclose to protect patient from danger to self / others or <16 and disclosure in their best interest. Eavesdroppers CA: privilege holder can stop eavesdropper from revealing confidential info DYING DECLARATION CA (and Common law): W/V must be dead SENSE IMPRESSION SENSE IMPRESSION (FRE, not CL or CA) CA admits contemporaneous statements made to explain, qualify or understand what the declarant is doing when spoke PRIOR TESTIMONY CA admit prior inconsistent statement as substantive evidence of its truth, FRE statement must have been made under oath at prior hearing/trial/depo to be admitted for substance. Both CA & FRE admit prior inconsistent statements for impeachment. PHYSICAL STATE CA admits statements of past bodily conditions made to anyone. IDENTIFICATION CA also requires 1) statement made while event was fresh in W’s memory; 2) W must testify as to prior identification and confirm that it was his opinion when made.