law school outline: evidence

GoalsTruth: Inquisitorial system; Advocacy: Adversarial system; Fairness
ScopeDoes not apply to grand jury proceedings
Evidence is limited to its proper scope. Evidence admitted for legitimate purpose is not admissible for illigitimate purpose.
StipulationsVoluntary agreement entered into between counsel, identical to admission in a pleading. Admissible at trial without further foundation, authentication or proof.
A required to accept stipulation offered by B which concedes what A would be entitled to show by making full proof, except for expert witness qualifications.
BurdensQuestions of law by the judge
Questions of fact by the jury, including weight and credibility of evidence
Exculpatory StatementsAdmissible only if substantial tending to directly connect 3rd party with actual commission of offense. Does not have to prove D innocent, but must show reasonable doubt of D guilt. Showing motive or opportunity alone is insufficient. Evidence must be relevant and material.
DiscretionCourt has discretion to exclude evidence if probative value is substantially outweighed by undue prejudice, misleading jury, confusion of issues, undue delay or needless cumulative evidence. Rulings reviewable only if objection for abuse of discretion, affirmed if any reasonable basis exists.
FoundationProponent of evidence must show relevance.
RelevanceSolomon: Two mothers claim one child, Solomon decides to split the kid in half. M1 offers to give to M2, M2 says �divide it.� Solomon gives to M1, saying she must be the real mother. Was she the real mother, or the best mother? Evidence goes to who was the best mother, not real mother.
Materiality: Relation between evidence and a proposition sought to be proved or disproved that is of consequence to the determination of the action.
Probative: Sufficient relationship between the evidence and the fact sought to be proved such that there is any tendency in reason to prove or disprove any disputed fact.
Judicial noticeLaws, rules, definitions, universal facts, official records. Compulsory upon request and proof.
DirectDirect evidence by one witness is sufficient for proof of any fact.
Questions should be balanced and neutral. No leading, unless adverse/hostile, incompetent or expert witness. Questions should not be loaded ("when did you stop beating your wife").
Statements must be explicit and precise.
Opinion:   Lay witness cannot state an opinion, conclusion, or speculate.  Testimony must be on firsthand perception of witness.  Exception if on perception of witness, and helpful to clear understanding of testimony.
Expert witness can assist trier of fact to understand scientific, technical or other specialized knowledge.   Limited to field of expertise, which is beyond common experience. Expert can rely on observed or assumed facts (hypos no longer needed) and specialized knowledge.  May testify in the form of opinion.
Expert cannot testify as to sanity of criminal D (Hinkley) or other legal conclusions.
CrossBased on 6th Amendment right to confront witnesses. Purpose is to weaken direct, discredit, use for your own advantage, or question veracity by revealing misrepresentation of facts because of bias. But it is risky, because you can have accidental disclosure of bad facts, impeachment of your own witness, jury sympathy, strengthen other side�s direct, etc.
Scope limited to subject matter of direct examination and testing witness credibility.
Leading questions ok, but can't use loaded or argumentative questioning.
Witness must be responsive (answer what is asked). Either side can object to unresponsive witness.Only cross-examiner can object to unresponsive statement.
Party can be cross-examined by any adverse party
Competency of WitnessTest: (1) Understand nature of the oath and perjury; (2) be able to make an intelligent statement of what he saw took place.
No age limits. Judge and juror ok as witness unless objection, then mistrial.Judge and juror may not testify at trial.
Expert witnesses must possess special knowledge, skill, experience, training or education on the subject he testifies about.  Subject to o/c voir dier.
TangibleDuring direct or re-direct. Must establish foundation first.
Circumstantial ok (rust in a metal container indicates moisture at some point)
Demonstrative ok if exhibit is a �true and fair representation� of what it purports to show.
Best Evidence: Only the original writing or recording can be admitted to prove the contents. Second best evidence rule: "Copy" ok if original destroyed without fraudulent intent, or beyond subpoena power of court, so long as no genuine question as to authenticity of original. If no copy, then memory is allowed. Computer printout presumed to be accurate reflection of digital data.Extranious evidenc admissible if originals lost or destroyed (not in bad faith), not obtainable, collateral matters, public records or summaries of voluminous materials.
Authentication: Document or writing must be authenticated prior to admission when authorship is of legal significance. Authentication by author, witness, listener, adverse party admission, chain of custody, handwriting evidence even by lay witness, ancient (>30 yrs) document, reply. Can of tuna (label) authenticated by purchaser. Sanctions if attorney has to prove OP's documents are authentic, if they refuse and they are later authentic. Certified (notarized) documents are self-authenticating.Self-authenticating: Documents from public authority under certification, seal or signature, newspapers, periodicals, signs or tags which indicate ownership or origin, commercial papers.
ObjectionsWaived if not made ASAP.
Must be specific.
O/C entitled to lay foundation.
Probability and odds are objectional because it is based on estimates, and inadequate proof of statistical independence of factors used in product rule.  Possible jury prejudice because equation can't prove beyond reasonable doubt that guilty person possessed same characteristics described by witness, and that only one such person can be found.
Offer of Proof: Upon objection, offering counsel has right to show relevancy and admissibility. Court can then make informed ruling.
AppealTimely objection must be made on a specific ground of objection or motion.
Error overturned only if unfairly prejudices D, causing a miscarriage of justice, or no grounds for the ruling.
Appeals court will not reverse decision that was within lower court's discretion, even if it was the wrong decision.
ScientificPolygraphs are not admissible in criminal cases.
Scientific evidence must have gained general acceptance in its field.Scientific, technical or specialized knowledge must:  (1) be able to be tested; (2) subjected to peer review and publication; (3) error rate not lower than 95%; (4) generally accepted within the community.
DNA:   Can only exclude suspects, cannot pinpoint source. 
Random Match Probability tells us the probability that a random person would match the evidence as well as the suspect (OJ: 1 in 240,000).   Source Probability converts RMP into probability that suspect is the source of the recovered evidence.  240,000,000 people in US, therefore probability OJ was killer is 1:1000.  Add to that nongenetic evidence such as access, and you get the Guilt Probability.
DNA shows how many people, out of the total population, would have the same DNA.   Example:  You wear white t-shirt.  1/5 people wear white t-shirt.   Criminal wore white t-shirt.
Paternity is presumed if paternity index is 100:1 or more.  Shows probability that coss between F and M would produce C, versus random match.
Prove probable conduct of DCivil: Not permitted, except when character is an issue (defamation) or to prove non-character issue.  Then all types (reputation, opinion, specific acts) admissible.
Criminal: Inadmissible to show propensity or disposition to commit crime, or conformity of act to character.  All types admissible if relevant to issue other than character or disposition.
D can use opinion and general reputation evidence to show his good character to show he didn't commit the crime.  P can rebut with opinion and reputation regarding the same trait.  Cross examination of D's character witness can include "have you heard" Q's of prior inconsistent specific acts.  No extrinsic evidence allowed.
Character evidence is admissible for:
     * Prior sexual assault in related cases, with notice
     * Child molestation in related cases, with notice
     * Domestic violence in related cases, with notice (only in CA)
     * ID, scheme, state of mind, lack of mistake, motive, intent, etc.
     * If it is an element of the crime
     * Rebuttal, of the same type
Prop 8: Relevent evidence shall not be excluded in any criminal proceeding, except rape shield law and prejudicial evidence. Any prior felonies can subsequently be used without limitation for impeachment or enhancement of a sentence in any criminal proceeding.
Show character of victimGeneral reputation and opinion admissible to show conformity with conduct.  P can rebutt.
Homicide:   Liklihood V was agressor, rebuttable by P.  P may introduce good character of V first, to show V not agressor.
Rape:   Reputation, opinion and specific acts are inadmissible to show consent.
     * To show impeachment
     * Pattern of conduct where that is a part of D
     * In a civil case, so long as probatory > prejudice
     * If V raises issue
     * For D to rebutt P if P raises issue, or to attack credibility
     * Prior sex with D to show consent
     * Sex with others to show other source of semen (notice and hearing required)
     * Show victim lives with man to show motive to claim rape (notice and hearing required)
Show character of witnessTruthfulness of a witness can be shown by any matter that has any reasonable tendency to prove or disprove truthfulness of testimony, motive, opportunity, intent, preparation, plan, knowledge, identity or absense of mistake, but not to show conduct or conformity on specific occasion.
Supportive evidence allowed in rebuttal only.
Only general reputation and opinion evidence is admissible - not specific instances of conduct, except cross examination or with court approval.  Even then, no extrinsic evidence admissible.
Religion or group affiliation is not admissible unless D/W subscribes to those tenants. Can be used to show bias.
ImpeachmentAny party can impeach a witness, so long as you don't impeach your own witness just to get inadmissible testimony before the jury.
Shown by prior inconsistent statements (witness must have opportunity to explain), bias, credibility.
Hearsay declarant can be impeached even if not at trial.
Rehab allowed once attacked, using explanation, reputation, prior consistent statements.
Conviction of felonies or recent misdemeanors (10 yrs, or court discretion) regarding dishonesty or false statement must be allowed as admissible for impeachment of a witness.
Impeachment on collateral matter prohibited.
Habit or CustomCan be used in civil or criminal case to show conduct on particular occasion in conformity with that habit or custom.
Must be specific regular response - not general trait or characteristic.
Occasional conduct not sufficient � must be repetitive pattern that establishes predictable conduct.
PrivilegeBased on public policy: Society encourages certain relationships and certain types of disclosure with some degree of certinty whether the particular discussion will be protected. The confidentiality encourages disclosure of information that might not otherwise be revealed so that the professional can help the client.No statutory privileges - only common law.
New privileges can be created by courts if promotes public policy trust and confidences which outweigh the need for probative evidence.
Holder has privilege, but professional is required to claim in absence of client
For confidential communications (necessary third parties and unknown eavesdroppers ok so long as no negligence; presumption that communications were confidential), for the purpose of securing professional services from someone known or reasonably believed to be a professional.
Covers person client reasonably believes to be professional (except clergyman)
Exception for commission of crime, fraud, great bodily harm or death, estate, property or malpractice cases
WaiverDisclosure to third parties by privilege holder of significant part of communication, or by consent to that disclosure, in a non-privileged setting.
No waiver if accidental, coercion, wrongful disclosure, joint-holder, unknown eavesdropper when no reasonable basis to believe communication would be overheard
No waiver by professional disclosing communication to accomplish the purpose of the communication.
Waiver if failure to object.
Can be expressly waived.
Privilege does not apply when suit is between joint holders of privilege.
In camera examinations: Judge cannot examine communication in camera to determine if privilege exists. Exception for trade secrets and identity of informer. O/C must show non-privileged factual basis and good faith belief that review may reveal crime-fraud exception.In camera examinations allowed to determine if privilege exists.
AttorneySurvives until estate wound up.Survives death.
�No privilege� means that attorney must still maintain secrecies of client (B&P 6068e) ... but if attorney is asked in court, he must disclose.
Physical evidence must be turned over if attorney possesses it, touches it, or alters it. Court can determine if evidence is privileged once turned over. Observations of evidence are protected.
If client plans to commit purjury (a material lie under oath), attorney must not assist. Narrative approach is best. State bar requires withdraw (ethical conflict), but judge may not allow.
When an attorney is trying to protect the privilege and the attorney or communication is being examined, the attorney may want to be represented independently so that he doesn�t have to do the negotiations himself.
Attorney work product: Documents and tangible things prepared in anticipation of litigation by an attorney or agent, discoverable by opposing party only upon showing of substantial need.  Preexisting documents do not become privileged merely because they were turned over. Mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation is always protected.
Corporate client: Control Group is always covered. Any official or employee is covered if authorized or directed to make such communications to an attorney authorized by management to inquire into subject for the purpose of giving legal advice. Communication between lower employee and attorney should remain confidential; not published even to Control Group, because that waives privilege. Mark all documents �Confidential: Attorney-Client Privilege.�
PhysicianExceptions: Criminal case, competency, guardianship, when patient tenders issue, when doctor required to report, or upon showing of great need by D.Does not exist.
ClergyMust be authorized by church.
Privilege belongs to both clergy and pentinent.
TherapistExceptions: Competency, court ordered exam, guardianship, patient tenders issue, therapist required to report, showing of great need by D, dangerous patient when warning reasonably necessary to prevent perceived danger, or when child < 16 victim.
SpousalMarried person has privilege not to testify against spouse, except when spouse vs. spouse.
Privilege during and after marriage for confidential communication during marriage. Exception for enabling crime, fraud, proceeding between spouses, crime against spouse or child.
ReporterNo 1st Amendment right. State shield law: No contempt for refusing to disclose information, including sources. Does not apply to grand jury, crimes he saw committed, or when criminal defendant shows strong necessity.
PresumptionNo presumption from exercise of privileges
Misc. PrivilegesOf D not to testify at trial (not grand jury).
Against self-incrimination in criminal case (refuse to answer incriminating questions), unless at grand jury or immunity granted. Waived if partial disclosure.
Voting records, trade secrets, audit accountant, state secrets, identity of police informant (unless material witness)
No child-parent privilege.
HearsayOut of court statement is inadmissible to prove truth of matter asserted.
Based on lack of ability to cross examine.
Statement: Oral or written verbal expression or conduct intended as a substitute for oral or written verbal expression. Does not include nonassertive conduct, nor statements of animals or machines.
Factors: Sincerity, ambiguity, memory, perception
Multiple hearsay: �X told me that he heard Y say...� is excluded, because of the X-Y hearsay link.
ExceptionsBased on necessity + trustworthiness.

  • Legally operative facts
  • Offered to show effect on recipient (notice, knowledge)
  • Offered to show D's state of mind
  • Identity of D
  • Inconsistent testimony, or consistent testimony to rebutt
  • Prior felony judgments offered in civil action
  • Nonhuman evidence
  • Record by public employee to prove event if made within the scope of duty, made at time of event, based on first-hand knowledge, and while under duty to make such record. But: police records can't be used against D in criminal case. Palmer, Yates.
  • Prior ID
  • Admission by party-opponent
Statement of declarant:
  • Whose right or title is an issue
  • For his wrongful death
  • Regarding his will or estate
  • In a diary, narrating physical injury  Which depends on the credibility of a witness and not a stranger
Declarant Unavailable

  • Former testimony if cross-examined with similar motive and similar issues or party.
  • Statement, including confession or admission, that is inconsistent with present position or against pecuniary or proprietary interest.  Includes silence in civil case, if heard and understood, and reasonable person would have denied.  Exculpatory statements require corroboration.
  • Dying declaration of victim regarding circumstances of own death, made on personal knowledge, under sense of immmediately impending death.
  • Personal/family history
  • Statements by coconspirator offered against party to conspiracy made during course and in furtherance of conspiracy. Statement can be used against declarant or TP only if similar motive and opportunity to cross examine. State:   Independent proof of conspiracy required.  Federal:  Statement can be used to indicate conspiracy.
Declarant Available

  • Declaration of then-existing mental or physical state, offered to prove state or conduct.
  • Spontaneious and contemporaneous declaration of excited utterance.
  • Declaration made concurrently with perception of event described (present sense impression)
  • Declaration made to medical personnel for diagnosis/treatment
  • Recorded recollection by someone who made writing when fresh, and now can't remember, and uses record to refresh memory.  Distinguished from Present Recollection Revivied, where a record acts as a stimulus to revive witness' recollection.
  • Business records or lack thereof made in regular course of business
  • Public records or lack thereof regularly made
  • Ancient (>20y) docs
  • Documents affecting property interest
  • Learned treatises
  • Reputation, character, general history
  • Family records
Catch-All Exceptionn/aMaterial fact + necessity + trustworthiness + notice to adverse party
Subsequent remedial measuresPre-accident measures are admissible
Post-accident measures are inadmissible to show negligence or liability, but admissible for impeachment and rebuttal.
Offers in compromiseOffering or accepting a compromise is not admissible to show liability, or amount of claim, or statements of fact. Includes offering ot pay medical expenses, liability insurance, and plea bargans. Exception for impeachment, bias, etc.  Guilty plea is admissible as admission.  Facts stated in the offer are not admissible if offers of compromise.
EthicsAttorney, especially a prosecutor, may not lead the jury to make false inferences.
Attorney may not deceive the court or any party (B&P �6068, �6128).
If the cross-examining attorney fails to ask the right question, false inferences are ok. �Did you fail to pay taxes in 1990?� �No.� (but he did fail to pay taxes in 1989). That is technically OK, but when the full truth comes out later, it makes the client look untrustworthy, and client should probably do a mea culpa.
TranslatorsOath required, must be disinterested party.
Levels of Persuasiona) Beyond reasonable doubt (maximum)
b) Clear & convincing
c) Preponderance (51%)
d) Raise a reasonable doubt (minimal)
Presumption shifts burden of production for rebuttala) Conclusive:  If A, then B. (civil cases only - criminal would be unconstitutional, so instead legislature can simply eliminate element of crime).  Includes estoppel.   Conclusive presumption that child of W cohabitating with H is child of marriage.  Exception if blood test (clear & convincing) shows otherwise.   Substitute for substantive law.
b) Rebuttable:  If A, then B, unless o/c shows C (bursting bubble theory).
   1) Shift burden of production to party with evidence or trying to deviate from the norm: Once A shows supportive evidence, B must contradict with his own evidence.   Requires trier of fact to assume existence of presumed fact unless and until evidence is introduced to support a finding of nonexistence, in which case the trier of fact makes the decision, without regard to presumptions, based only on evidence.   Includes money and things delivered, receipt, ownership of things possessed, letter received in ordinary course of mail.
   2) Burden of proof:  Risk of nonpersuasion does not shift.  Party has the burden of proof which is essential to the claim for relief or defense that he is asserting.  Includes ceremonial marriage, death of person not heard from in 5 years, failure to exercise due care if statute is violated with injury caused.  Copy of endorsed check with bank statement.
c) Permissive / Inference:  Rational connection between A and B.  May act to reduce burden of persuasion, but does not shift burden of production.   Legislature creates presumption, but on what basis?
Closed book.  One essay (45m), 100 multi-choice, 25 multi choice on hearsay (not exceptions).


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