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Evidence Flashcards for Midterm


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What is rule number for definition of relevance?
FRE 401- Any tendency in logic to make a fact more or less provable.
What is the difference for relevance between the Federal and California rules?
In Ca, the fact has to be disputed. Federal rules merely require it to be a fact of consequence.
What is the Federal code section that says "all relevant evidence is generally admissible?"
FRE 402
What is an offer of proof?
A party makes a showing, generally out of the presence of the jury, as to what the prooffered evidence intends to prove in order to get the proffered evidence into the record for appellate review
What Federal code section is used in weighing the probative value versus the prejudicial effect of evidence?
FRE 403
What is california's version of FRE 403?
California Evidence Code 352:
Court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue comsumption of time, or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
May a defendant stipulate or admit his way out of the full evidentiary force of the case as Plaintiff chooses to present it?
No, P may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to fullfil the jury's expectations, to convince the jurors that a guilty verdict would be morally reasonable, as much as to point to the discrete elements of D's legal fault.
What are some options that the court can use for alternatives to probative value versus prejudicial effect?
Stipulation, Limiting Jury instruction, less-gory or less-emotionally charged photos or video, objective financial or other records.
Who weighs the credibility of Evidence?
The factfinder considers the credibility of evidence to decide whether to believe it. Court weighs probative value versus prejudicial effect as if the evidence were true, not considering credibility.
What is the first federal code section that discusses character evidence?
FRE 404 (a) Evidence of a persons character or trait of character is generally not admissible for the purpose of proving action in conformity therewith on a particular occasion.
When will relevant evidence be excluded?
When its probative value is substantially outweighed by the danger of:
Unfair prejudice
Confusion of the issues
Misleading the jury
Waste of time
***added by Federal Rule***
Needless presentation of cumulative evidence
May a defendant bring and offer evidence of a pertinent trait of his character?
Yes, pursuant to 404 (a)(1) he may do so, but once he opens the door, the prosecutor may rebut the evidence.
May a defendant offer evidence of a pertinent trait of the alleged victim's character?
Yes, Pursuant to FRE 404 (a)(2)but the prosecutor may offer evidence in rebuttal. Prosecutor may offer evidence of a character trait of peacefulness of the alleged victim in a homicide case to rebut evidence that the victim was the first agressor.
What type of character evidence is allowed to be brought in by a defendant?
FRE 405 (a) Accused evidence and prosecutors rebuttal evidence may only be in the form of reputation or opinion. On x-examination, though, inquiry is allowable into specific instances of conduct.
In cases in which character or a trait of character of a person is an essential element of a claim, may specific instances of that persons conduct be admitted?
Yes, pursuant to 405 (b)
May evidence of other crimes, wrongs, or acts not admissible to prove character in conformity therewith, be brought in for other purposes?
Yes, under FRE 404 (b) KIPPOMIA
Absence of mistake or accident
*** Elements******
1. Proper purpose
2. Sufficient proof of the other acts
3. Passes FRE 403 test
Who generally governs the admissiblity of evidence?
FRE 104 (a)Court shall determine preliminary questions (subject to FRE 104 (b) without being bound by the rules of evidence except those with respect to privilege
What is the Federal Code section that governs relevancy conditioned on fact?
FRE 104 (b) When the relevancy of evidence depends upon the fullfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
What Federal Code section governs habit evidence?
FRE 406 Habit, Routine Practice: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
What Federal code section applies to the rape shield laws?
FRE 412: These code sections have been enacted specifically to bar or limit the use or prior sexual conduct of an alleged victim of a sexual assault because it is highly prejudicial.
What federal Code section addresses Rape Shield laws?
FRE 412
What is the purpose of the rape shield statute?
It has been enacted specifically to bar or limit the use of prior sexual conduct of an alleged victim of a sexual assault because it is highly prejudicial.
Will evidence of reputation and sexual behavior be admissible for purposes of showing unchaste character to prove consent?
no FRE 412 (a)
What are two examples of admissible behavior under rape shield law FRE 412?
1. Complainants prior sexual behavior with defendant, as opposed to behavior with other persons FRE 412 (b)(1)
2. Complainant's sexual behavior with other persons, when offered for purposes of explaining the physicial consequences of an alleged rape (ie Injury, semen, pregnancy, sexually transmitted disease (FRE 412 (b) (1)
What is the procedural element in regards to admissibility of evidence under FRE 412 (Rape Shield Statute)?
FRE 412 (c)-Statutes generally also have a procedural element, providing for hearings in limine on the issue of admissibility, and in some cases providing for in camera hearings to protect the victim's privacy
May a defendant's prior acts of sexual conduct be admissible?
Yes, FRE 413- If D is accused of sexual assault, evidence of D's commision of another evence (need not be conviction) of sexual assault is admissible for any matter for which it is relevant: Requires-
1. Specified crime of sexual assault (FRE 413 (d))
2. Notice to defendant (FRE 413 (c))
3. FRE still applies.
What is the general concept of admitting a defendants prior sexual assault?
In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendants commission of another offense of sexual assault may be admissible. The prior offense does not have to have led to a conviction. Defendant must be given notice of this evidence.
What is the difference between Federal and Ca Rules regarding admission of defendants prior sexual conduct?
* Federal rules allows child molestation.
* Federal has not time limit.
* The federal rule also applies in civil cases.
* Ca allows prior domestic violence and abuse of an eleder or dependent to be admissible. But those acts must have occurred in the past ten years, unless the court determines that the admission of this evidence is in the interest of justice.
Discuss situations when you can introduce the victims prior sexual conduct in both Federal and California.
Both federal and California:
1. As evidence of the victims motive to lie (she did not want b/f to know she had consensual sex with defendant)
2. Evidence of past sexual conduct between the victim and defendant.
1. (Criminal)Relations with others admissible to show defendant not source of semen or injury.
2. Civil- Evidence of sexual behavior of any alleged victim admissible if admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
1. (Civil) If the Plaintiff alleges a cause of action for loss of consortium.
2. You can not introduce evidence of the manner in which the victim was dressed at the time of the offense, unless the evidence is determine by the court to be relevant and admissible in the interests of justice.
How are acts of child molestation in criminal cases admissible?
FRE 414 Same as rule FRE 413 but predicated on prior commission of an offense of child molestation (related to children under age 14)
How are acts of sexual assault or child molestation admitted in Civil Cases?
FRE 415- In civil cases, evidence of D's prior sexual assaults or child molestation are admissible as under FRE 413-414.
What was the main holding in Johnson vs. Elk Lake School District?
Regarding Sexual Assault evidence:
If the prior act of sexual assault is demonstrated with specificity and is substantially similar to the act for which D is currently charged, the probative value of the prior act evidence is presumed to outweigh FRE 403's concerns (no presumption exists if the past act is not substantially similar and/or cannot be demonstrated with specificity)
What is the Ca code section regarding testimony regarding battered women's syndrome?
Ca Section 1107- Testimony offered by either party regarding the battered women's syndrome may be admissible, including the nature and effect of physicial, emotional, or mental abuse on the beliefs perceptions, or behavior of victims of domestic violence. However, it cannot be offered against a criminal defendant to prove the occurrence of the act or acts of abuse which formed the basis of the criminal charge.
Will evidence of similar happenings be admissible?
Yes, in Civil actions, evidence of other acts that occur is inadmissible to prove negligence or culpable conduct, but it may be admissible when offered for some other purpose such as:
1. The existence or absence of a dangerous condition.
2. Defendant had notice/knowledge of dangerous condition: or
3. Causation.
Note: The proponent must prove the events occurred under substantially similar conditions to be probative on a material issue.
(Simon v. Kennebunkport)
Will evidence of subsequent remedial measures be admissible?
FRE 407- when, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury less likely to occur.
Subseqnent remedial measures are not allowed into evidence when offered to show negligence or culpable conduct. (Federal adds defect in design or the need for a warning)
Will the court allow impeachment in regards to subsequent precautions/remedial measures
Courts will only allow impeachment if there is a clear nexus between the remedial measure and the contention or assertion being named at trial. The most common area where this arises is if the defendant is asserting a trial a superbly that this is the best possible system, the safest way of doing this. If so, then the fact that they took subsequent remedial measure could be admissible to impeach.
May evidence of compromise or offers of compromise be admitted?
FRE 408- The general rule is that fact a party has offered to settle a claim may not be admissible to prove the liability or amount. However, you may offer the evidence for another purpose such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
What is the Ca code regarding offers in compromise?
Section 1152- Evidence may come in if:
1. If it regards covenant of good faith and fair dealing
2. To show validity of claim partially satisfied.
3. Show a novation.
Are any discussion held during plea-barganing admissible?
no, not ever.FRE 410
Will evidence of payment of medical expenses be admitted?
No, FRE 409
What is the general rule regarding the inadmissbility of pleas and plea discussions?
FRE 410
Evidence of the following types of pleas in any civil or criminal proceeding is not admissible against the defendant who made the plea:
1. A plea of guilty which was later withdrawn
2. A plea of nolo contendere
3. Statements made during plea discussions
4. Statements made in court during plea proceedings

1. Guilty plea followed by conviction is res judicata as to question of guilt.
2. Ca Exception- Pleading guilty is not res judicata as to a vehicle code infraction violation.
Will evidence of liability insurance be admissible?
FRE 411- Evidence that a person was or not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. Evidence of insurance may be admitted, however, for another purpose, such as proof of agency, ownership, control, bias, or prejudice of a witness.
What is the hearsay two step process?
1. Is it hearsay?
2. If is is hearsay, is there an exception?

Note: Don't say that it is admissible. Say that it falls within this exception.
Who has the burden of proof regarding hearsay?
The person who wants to get in the statement has the burden of proof that the elements of the exception are met.
What is the barf for hearsay?
Out of court statement offered to prove the truth of the matter asserted.

Hearsay statements are inadmissible unless offered for a non-hearsay purpose or under a statutorily recognized exception to the hearsay rule.
How is a statement defined in the FRE?
FRE 801 (a)
1. an oral or written assertion or
2. non verbal conduct of a person, if it is intended by the person as an assertion.
How is a declarant defined in the FRE?
FRE 801 (c) a person who makes a statement.
Under FRE 802, what type of statements are not hearsay?
1. If the utterance itself is the ultimate issue in the case (defamation)
2. If it is offered to prove something other than the truth
3. If offered to prove that the statement was actually made, not necessarily true.
4. Words of operative legal significance.
5. If offered to show effect on the mind of the bearer.
6. Trace memory
7. Implied assertions
Can circumstantial (indirect) evidence of declarant's state of mind be considered hearsay?
Utterances that are considered not to be hearsay because they can be used to show the declarant's state of mind without accepting the truth of what is asserted in the utterance.
T/F A Witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has a personal knowledge of the matter?
True FRE 602
Discuss assertive conduct and how it pertains to Hearsay.
Intended as a substitute for an assertion is hersay. Look to the conduct objectively, would a reasonable person construe the conduct to mean the asserted conclusion?
If there is a conduct about whether conduct was intended as an assertion, who decides that?
FRE 104 (a)
Where there is a dispute about whether conduct is intended as an assertion, the trial judge decides the question of intent as a preliminary question of fact under FRE 104 (a)
What is the foundation for exceptions?
A. Proponent of the exception has the burden of laying the foundation.
b. Judge decides under FRE 104 (a) whether sufficient evidence of the elements exists (by perponderance of the evidence excluding only privileged evidence- hearsy may be considered)
1. If there is a tie as to whose evidence is more persuasive, the one arguing for an exception to the hearsay rule looses because he bears the burden.
What is the Federal rule for unavailability?
FRE 804 (A)"unavailability as a witness" includes situations such as:
1. Privileged from testifying concerning the matter to which his or her statement is relevant.
2. Dead or unable to attend or to testify at the hearing because of then existing physicial or mental issness or infirmity.
3. Absent from the hearing and the court is unable to compel his or her attendance by its process.
4. Federal allows lack of memory.
What is the federal rule for dying declarations?
FRE 804 (b) (2):
1. Declarant is unavailable as a witness;
2. In a prosecution for homicide or a civil action or proceeding
3. Statement made by the declarant while believing that the declarants death was iminent (about which he has personal knowledge)
4. Concerning the cause or circumstances of what the declarant believed to be impending death.
What is the California Code for Dying delarations?
CEC 1242: Requirements:
1. Statement of a dying person (who in fact dies)
2. In any case, civil or criminal; Not just homicide
3. Concerning cause or circumstances of death
4. Under sense of impending death
Note: In Ca you have to die as a result that the statement pertains to.
What is the federal rule regarding Spontaneous and Contemporaneous exclamations?
FRE 803(1)General Rule:
A statement purporting to narrate, describe, or explain an act, condition, or event perceived while the declarant was under the stress of excitement caused by the event or condition
What is the Ca code regarding contemporeaneous statement, and whats the difference between it and the federal rule?
CEC 1241 Contemporaneous statement- Evidence of a statement is not made inadmissible by he hearsay rule if the statement:
1. Is offered to explain, qualify, or make understandable conduct of the declarant and,
2. Was made while the declarant was engaged in such conduct.
Difference between the federal rule is more expansive than the California rule in that the statement need only related to a startling event.
What is the California rule for Spontaneous Statements?
CEC 1240 Evidence of a statement is not made inadmissible by the hearsay rule if the statement:
1. Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant and
2. Was made spontaneously while the declarant was under the stress of excitement caused by such perception.

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