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Evidence Bar Mini Outline

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1. *CA Proposition 8 - makes all relevant evidence admissible in a criminal case except: (1) Hearsay (2) Privileges (3) Rape shield (4) Character evidence (5) Secondary evidence (6) CEC 352 RELEVANCE

2. Logical Relevance - Evidence is relevant if it tends to make the existence of any fact of consequence to the determination of the action more or less probable than without the evidence. (*CA - Dispute) a. Similar Occurrences: (1) Habit (2) Routine Business Practice

2. Legal Relevance - Court has the discretion to exclude relevant evidence if probative value is substantially outweighed by the danger of Unfair prejudice, Confusion of the issues, Misleading the jury, Undue delay or Waste of time.

3. Public Policy a. Liability Insurance - Inadmissible to prove culpable conduct or defendants ability to pay i. May be admissible to prove ownership, control or impeachment. ii. Lack of liability insurance cannot be used. (*CA doesn't address this situation) b. Subsequent Remedial Measures - Inadmissible to prove Negligence, Culpable Conduct, or Defect in a Product or Design. i. May be Admissible to prove Ownership or Control, or Feasibility of a Precautionary Measure (*CA does NOT apply to Strict Liability cases) c. Settlement Offers - In a Civil case, evidence of settlements, offers to settle, and related statements are inadmissible to prove liability, validity or amount of a disputed claim. i. Exceptions (1) Claim not yet asserted (2) No dispute as to liability or amount. ii. *CA discussions during mediation proceedings are also inadmissible d. Guilty Pleas - In a criminal case, Pleas (including nolo contendere), offers to plead guilty, and related statements are inadmissible. (*CA - Prop 8 makes admissible but won't challenge) e. Offers to pay Medical Expenses - Inadmissible to prove liability for the injuries in question. i. FRE - Related statements of fault are admissible (*CA - Inadmissible) f. Statements of Sympathy (ONLY *CA) - Statements of sympathy are inadmissible ("I'm sorry") Statements of fault with a statement of sympathy are admissible. CHARACTER EVIDENCE - Inadmissible to prove action in conformity therewith.

1. Civil - Character at issue in the case - Defamation, Negligent entrustment, Child custody, Fraud, Deceit, Negligent Misrepresentation, Perjury (character for honesty)

2. Criminal - Prosecution can initiate evidence for (1) Sexual assault and child molestation cases (2) Homicide cases for victims character for peacefulness (3) Impeach Defendant (4) *CA - Domestic Violence and Elder abuse a. Mercy Rule - D may introduce evidence of his good character in the form of reputation and opinion evidence. Prosecution may rebut by (1) calling additional witnesses who can testify in the form of reputation or opinion evidence to the defendant's bad character or (2) Cross examining the defendant's witnesses with specific instances of conduct. i. *CA - Only allows reputation and opinion on direct and cross but Prop 8 may allow specific instances of conduct subject to 352. b. First Aggressor Rule - D may introduce reputation and opinion evidence of a bad character trait of the victim. Prosecution may rebut by (1) Calling additional witnesses who can testify in the form of reputation or opinion evidence to the: (a) Defendant's same bad character or (b) The victim's same good character OR (2) Cross examine with specific instances of conduct.

1. *CA - allows reputation and opinion, and specific instances of conduct on direct and cross and only allows evidence of the victims character for violence 1

c. Other Crimes, Wrongs or Acts - not admissible to prove character unless offered to show: Identity, Motive, Opportunity, Plan, Knowledge, Intent, Absence of Mistake.

3. Rape Victims Character Inadmissible (i.e. manner of dress and past sexual behavior) a. Civil Cases - If P initiates, D may cross examine and rebut subject to 403. b. Criminal Cases - V's behavior is admissible to prove (1) source of semen (2) past sexual behavior with D (3) P initiates, D may cross examine and rebut. TESTIMONIAL EVIDENCE

1. Competency - Competency is presumed if W has (1) personal knowledge (2) takes oath to tell truth a. *CA - disqualifies a hypnotized W, except in criminal cases using police procedures

2. Dead Man Acts - Interested party cannot testify to a transaction or communication with a deceased.

3. Objections - Leading, Calls for narrative, Unresponsive (Motion to strike), Assumes facts not in evidence, Misleading, Calls for Speculation, Argumentative, Compound.

4. Use of Documents while testifying a. Refreshing Recollection - (1) Anything (2) W must testify based on her own recollection i. i.e. Cannot read from the transcript or testify as to what it says. b. Past Recollection Recorded - Hearsay exception. (1) W once had personal knowledge (2) Made or adopted by W (3) When it was fresh in her mind (4) Accurate when made (5) Now has insufficient recollection to testify. i. Inspection and Use on Cross - The opponent may inspect, cross examine and offer into evidence anything used to refresh a witnesses memory.

5. Opinion Testimony a. LAY opinion - (1) Rationally based on the perception of the witness (2) Helpful to a clear understanding of the witnesses testimony and (3) Not based on scientific, technological, or other specialized knowledge. b. EXPERT opinion - (1) Helpful to jury (2) Qualified as expert (3) Holds his opinion to a reasonable degree of certainty (4) Opinion is based upon sufficient facts or data (5) Opinion based on reliable principles, and methods i. Daubert - (1) Publication / Peer review, (2) Low error rate, (3) Tested & subject to retesting (4) Reasonable level of acceptance. (*CA - Kelley/Frye - generally Accepted)

6. Cross Examination - Limited to (1) the scope of direct examination, including all reasonable inferences that may be drawn from it, AND (2) testing the credibility of witnesses.

7. Impeachment - Any party may impeach including the party calling the witness a. Impeachment by Prior Inconsistent Statement (PIS) - PIS of witness is NOT hearsay if given under oath at trial, deposition or hearing. (Not affidavits) Extrinsic evidence is admissible only if the witness is given the opportunity to explain or deny before introduction. (*CA - Applies to all statements whether or not under oath) b. Impeachment with Evidence of Bias, Interest, or Motive c. Impeachment for Conviction of a Crime Involving Felonies (Extrinsic Evidence ok) i. All convictions (felonies and misdemeanors) for crimes of False Statements (e.g. perjury, forgery, fraud, theft) are admissible. (Subject to 403 if over 10 years old) ii. Felonies that do NOT involve false statement are admissible subject to 403 and 10 yr. iii. *CA - All Felonies involving moral turpitude are admissible subject to 352. Felonies NOT involving moral turpitude are irrelevant and thus inadmissible d. Impeachment with Conviction of Crime Involving Misdemeanors (Extrinsic Evidence ok) i. Misdemeanors that DO NOT involve false statement are inadmissible ii. *CA - CEC makes misdemeanor convictions inadmissible to impeach; however Prop 8 allows misdemeanor convictions to be admitted involving moral turpitude. e. Impeachment with Non-Conviction Misconduct Bearing on Truthfulness - Admissible in both criminal and civil cases subject to 403. (Extrinsic Evidence NOT admissible) 2

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