Cal Evidence

  1. Relevant evidence: that which has the tendency in reason to prove or disprove any disputedfact that is of consequence to the determination of the action
  2. Only relevant evidence is admissible
  3. Except as provided, all relevant evidence is admissible
  4. The court may exercise its discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will a) necessitate undue consumption of time or b) create substantial dangr of undue prejudice, of confusing the issues, or of misleading the jury
  5. does 352 allow evidence in?
     no, it only keeps it out
  6. may a judge exclude evidence under 352 for credibility reasons
  7. general ban on character evidence to prove propensity
  8. no propensity evidence may be offered to prove negligence or the absence of
  9. the one bright line rule in evidence
    no polygraphs
  10. other acts evidence used to impeach or support
  11. non-propensity evidence
  12. other acts may be introduced to prove motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident,... (not exclusive list)
  13. non-exclusive list of reasons why evidence of other acts may be introdued
    motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident (KIPPOMIA)
  14. who may introduce evidence of other acts under 1101(b)?
    any party
  15. 1101(b) is an _______,  not an _______ to the character evidence ban
    elaboration, exception
  16. 1101(b) applies to both _____ and _____ acts
    prior, subsequent
  17. 1101(b) does not allow the defense to introduce evidence of _____ acts.
  18. _____ applies to 1101(b)
  19. civil rape sheild law
  20. 1106 employs a ______ definition of sexual conduct.
  21. T/F: Rules 403/405 deal with the credibility of witnesses.
  22. May a 402 hearing be held in the presence of the jury?
    Yes, at the judge's discretion, unless it is regarding the admissibility of a confession and any party requests that it be out of the hearing of the jury
  23. When making decisions regarding the admissibility of evidence, CA state court judges may/may not consider inadmissible evidence.
    May not
  24. Preliminary fact is:
    • * defined by EC 400
    • * is the foundational fact for the admission of another fact
  25. When a judge has to decide whether to admit a piece of evidence whose admissibility depends on whether the preliminary fact exists the standard applied is the
    the sufficiency standard; rule 403
  26. Rule 403 applies to questions of _____.
  27. May the court admit evidence conditionally subect to a later sufficient showing of the existence of the preliminary fact?
    Yes, rule 403
  28. What are four situations which might implicate rule 403?
    • 1) relevance of the proffered evidence depends on the existence of the preliminary fact
    • 2) The preliminary fact is the personal knowledge of the witness
    • 3) The preliminary fact is the authenticity of a writing
    • 4) the proffered evidence is the conduct or statement of a person and the preliminary fact is whether that person made the statement or engaged in the conduct
  29. A judge's decision pursuant to 403 _____ final.
    is not
  30. Code _____ concerns questions of _______.
    405, law
  31. A judge's decision under 405 ______ final.
  32. All questions of ____ are to be decided by the jury.
    Fact; EC 312
  33. All questions of _____ are to be decided by the judge.
    law; EC 310
  34. Under _____ the jury decides issues of the _____ and ______________ of evidence.
    EC 406; weight, credibility
  35. EC 405 is implicated when the admissibility of a piece of evidence depends on the _____.
  36. Under 405 inquiries, the ______ assigns the burden of proof to whichever party has ______ under the ___________ ______.
    judge; burden; applicable law
  37. If a judge has to make a factual determination regarding a preliminary fact when making a decision under EC 405, the jury ________.
    is not informed of the judge's decision (EC 405)
  38. General ban on character evidence
    EC 1101(a): propensity evidence generally may  not be used to prove a person's action in conformity with their character
  39. General evidence of a person's characer with respect to care or skill is...
    inadmissible to prove the quality of his conduct on a specified occasion (EC 1104)
  40. Character evidence is not ______ evidence used to impeach
    other act; EC 1101(c)
  41. character evidence is not non__________ evidence.
    propensity; EC 1101(b)
  42. the general ban on character evidence does not affect the admissibility of evidence offered to attack or support the _________ of a ____________.
    credibility; witness; EC 1101(c)
    other acts evidence may be used to prove knowledge, intent, preparation, plan, opportunity, motive, identity, absence of mistake or accident; EC 1101(b)
  44. other acts evidence need not be _____ and may be ______ or _______.
    bad acts; subsequent; prior 
  45. May the defendant introduce good acts under 1101(b)?
  46. 1101(b) applies to ________ cases
    civil and criminal
  47. Is KIPPOMIA an exclusive list?
  48. the rape shield law
    EC 1106; a plaintiff's prior sexual conduct with others is not admissible to prove consent in the current case
  49. Exception to the rape shield law
    Evidence of the victim's prior sexual conduct with the defendant may be used to prove consent in the current case (EC 1106)
  50. How can other acts be used to prove identity in criminal cases?
    the crime and the uncharged act must be similar enough to set them apart from other crimes of the same general variety
  51. How much similarity is required to admit other acts to prove intent? But____
    the least degree; but only when intent is disputed
  52. What level of similarity is required when other acts are offered to prove a common plan or scheme?
    sufficient similarity (medium similarity)
  53. list what reasons for admitting other acts evidence in the order of similarity required, from the highest degree of similarity, to the least.
    • Identity
    • Common plan or scheme
    • Intent
  54. Is any similarity required to admit other acts evidence on the issue of motive?
  55. What are the hearsay exceptions in relation to statments?
    • Admission of a party opponent (EC 1220)
    • Adoptive admission (EC 1221)
    • Authorized admission (EC 1222)
    • Statement of Co-conspirator (EC 1223)
    • Declarations against interest (EC 1230)
    • Prior consistent statements (EC 1236)
    • Prior inconsistent statements (EC 1235)
    • Past recollection recorded (EC 1237)
    • Prior identification (EC 1238)
    • Spontaneous statements (EC 1240)
    • Contemporaenous statements (EC 1241)
    • Dying Declaration (EC 1242)
  56. What are some non-hearsay purposes to use a statement?
    State of mind (EC 1250)
  57. What are the hearsay exceptions in regard to documents?
    • Business record (EC 1271)
    • Official records (EC 1280)
    • Former Testimony (EC 1290) - document or statements???
  58. Under 1220, must a party's statement be detrimental to be admissible under the hearsay exception?
  59. In a case with co-defendants, could a statement admissible under 1220 still be excluded on other grounds?
    Yes, confrontation clause
  60. What is an adoptive admission?
    A statement that the party, with knowledge or content thereof, has by words or conduct manifested his adoption or belief in its truth (EC 1221)
  61. What are the two elements of an adoptive admission?
    • 1) person making the statments was authorized to make it on behalf of the party
    • 2) There is sufficient evidence to support a finding of such authority
    • (EC 1222)
  62. What are the elements of a statement of a co-conspirator?
    • 1) prima fascie evidence the conspiracy existed
    • 2) statement at issue was made while conspiracy was happening
    • 3) statement made prior to or during the time the party was part of the conspiracy
    • 4) statement was in the furtherance of the conspiracy
    • (EC 1223)
  63. Can a statement in futherance of a conspiracy be used to prove the existence of a conspiracy for 1223 purposes?
  64. What is a declaration against interest?
    • 1) made by unavailable declarant
    • 2) based on personal knowledge
    • 3) contrary to pecuniary, proprietary, or penal interest; or could subject him to civil or criminal liability, preclude a later civil claim, or make him an object of hatred, ridicule, or social discrace
    • 4) that no one in his position would say it unless it were true
    • (EC 1230)
  65. Will statements be parsed under 1230?
  66. Is extrinisc evidence of a prior inconsistent statement allowed?
    • Yes, but only if:
    • 1) the witness was examined while testifying and was given an opportunity to explain the inconsistency
    • OR
    • 2) the witness is subject to recall
    • (EC 1235 and 770)
  67. T/F:  a statement brought in under 1235 may be considered for its truth
  68. When can a prior consistent statement be offered for the truth?
    • 1) when a prior inconsistent statement has been offered and the consistent statement was made before the consistent statement
    • OR
    • 2) an express or implied charge of recent fabrication or influence by bias has arisen and the consistent statment was made before that bias or motive arose
    • (EC 1236/791)
  69. What are the rules of admissibility of past recollection recorded?
    • 1) it would have been admissible if the witness said it while testifying
    • 2) the witness has insufficient present recollection to testify to it
    • 3) The writing:
    •     a)was made while the facts were fresh in the witness'   memory
    •      b) it was made by the witness, at the witness' direction, or made by some other person for the purpose of recording the witness' statement when it was made
    •      c) the witness testifies that he/she made the statement
    •      d) it is authenticated as an accurate record of the statement
    • (EC 1237)
  70. When can a past recollection recorded be received into evidence?
    when offered by an adverse party (EC 1237)
  71. When are prior identifications admissible?
    • 1) if the witness could have made the statement while testifying
    • 2) the ID is of a party or another participant in the crime
    • 3) The ID was made when the incident was fresh in the witness' memory
    • 4) the witness testifies that she/he made the identification
    • (EC 1238)
  72. How is identification defined (as used in EC 1238)?
  73. Spontaneous statement:
    • 1) narrates, describes, or explains and act, condition, or event  percieved
    • AND
    • 2) was made spontaneously while the declarant was under the stress of excitement caused by such perception
    • (EC 1240)
  74. Must a declarant be competent to testify in order for his statement to be admitted under 1240?
  75. Contemporaneous statement
    Made while the declarant is engaging in some conduct and explains, qualifies, or makes understandable the conduct of the declarant. (EC 1241)
  76. Must a person actually die for their statement to be admitted as a dying declaration?
    Yes (EC 1242)
  77. Dying declaration
    • 1) made by a dying person
    • 2) concerns cause and circumstances of the person's death
    • 3) made on the individual's personal knowledge
    • 4) made under sense of immediately pending death (although the declarant need not die immediately)
    • (EC 1242)
  78. state of mind
    • not a hearsay exception
    • non-hearsay
    • offered to prove a declarant's then-existing state of mind, emotion, or physical sensation
    • (EC 1250)
  79. Medical diagnosis exceptions in CA fall under the______ exception.
    State of mind (EC 1250)
  80. A state of mind statement may only be offered if it is __________.
    reliable (EC 1252)
  81. A statement may be offered to prove a declarant's state of mind only if___________.
    The declarant's state of mind is at issue (EC 1250)
  82. Business records are admissible if
    • 1) record an act, condition, or event
    • 2) made in the regular course of business
    • 3) made at or near time of A/C/E
    • 4) custodian or other qualified witness testifies to the writing's identity and mode of preparation
    • 5) the sources of informaiton and method and time of preparation indicate trustworthiness
    • (EC 1270)
  83. What are the differences between the business records exception and the official records exception?
    • official records don't require the custodian or other qualified employee
    • the writing must be made by and within the scope of the duties of a public employee
    • (EC 1280)
    • Official records must be certified (EC 1530/1531)
  84. When is former testimony admissible?
    • 1) declarant unavailable
    • 2) the one offered against was a party to the former action
    • 3) the one offered against had right and opportunity to cross-examine
  85. Hearsay
    a statement made by someone other than a witness who is testifying in court and is offered to prove the truth of the matter asserted (EC 1200)
  86. declarant:
    a person  who makes a statement (EC 135)
  87. Person:
    natural person, firm, association, organization, partnership, business trust, corporation, limited liability company,or public entity (not an animal or machine) (EC 175)
  88. Statement:
    oral or written verbal expression; or nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression (EC 225)
  89. Does the hearsay rule apply if the witness was the declarant?
  90. Are statements made during the proceeding or hearing hearsay?
  91. When is non-verbal conduct considered a statement?
    When the declarant intends for it to be (EC 225)
  92. What are some examples of non-assertive, but relevant conduct?
    lack of emotional response, nervous reaction, emotional display during interview, play with anatomicaly correct dolls, unusual sexualized behavior, absence of a claim of property loss, questions, requests, and words of direction or authorization
  93. Are implied assertions excludable on  hearsay grounds?
    No, unless the declarant intends to assert something
  94. What are good examples of implied assertions which aren't excluded as hearsay?
    circumstantial evidence of drug dealing (Nealy's doves)
  95. Can a defendant's false exculpatory statements be admitted?
    Yes, to show consciousness of guilt
  96. What is an operative act?
    Where words themselves have legal significance (i.e. a prostitute's offer of sex for money, an offer of a bribe, or words forming an agreement)
  97. Is using a statement to prove knowledge a violation of the hearsay rule?
  98. True/False: using a statement to prove that a declarant remembered something is not hearsay
  99. Are statements indicating consciousness of guilt hearsay?
  100. Is multiple hearsay allowed?
    Yes, as long as there is an exception for each layer (EC 1201)
  101. What are the 5 bases for unavailability?
    • 1)exercise of privilege
    • 2) disqualification
    • 3) death or inability to testify because of illness
    • 4) absent from hearing and unable to compel by process (usually only applicable to those who are overseas)
    • 5) absent from hearing and proponent has exercised reasonable diligence but has been unable to procure attendance by process
    • (EC 240)
  102. What does EC 240 mean by "due diligence"?
    The proponent of the testimony must have shown that the proponent used reasonable efforts to procure the witness' attendance
  103. What are considered reasonable efforts to procure a witness' attendance at trial?
    • - personal service of a subpoena
    • - service by mail
    • - NOT required that periodic tabs be kept on the witnesses
  104. What is the burden of proof in proving a witness' unavailability?
    preponderance of the evidence
  105. When are some times when the Confrontation Clause does not apply?
    • Preliminary hearings
    • Probation violation hearings
    • Forfeiture by wrongdoing
    • Dying declarations
    • Statements of co-conspirators
    • Statements under 356
    • Chain of custody issues
    • SVP for civil committment
    • Juvenile dependency
  106. Judge Steiner's Crawford rule:
    • 1) statement offered for its truth
    • 2) testimonial statment
    • 3) unavailable witness
    • 4) no prior opportunity to cross
    • (Absent a showing of unavailability and a prior opportunity to cross examine, testimonial statements offered for their truth are excluded.)
  107. Confrontation clause objections must be made as such in order to _____________________.
    preserve the issue for appeal
  108. What was the non-testimonial statement in Davis v. Washington?
    a 911 call in which the caller spoke about the events as they were happening (otherwise known as the ongoing emerency exception)
  109. The case in which a shooting victim's statements were admitted over Confrontation Clause objections was:
    • Michigan v. Bryant
    • (applying the primary purpose test)
  110. Under the Michigan v. Bryant primary purpose test, the situation is considered from a __________ perspective.
  111. What is California's Crawford rule taken from People v. Cage?
    • 1) CC applies only to hearsay statements
    • 2) A testimonial statement is
    •        a) primary purpose is for use in a criminal trial (objectively determined) NOT when it is to deal with a contemporaneous emergency
    •        b) has some formality and solemnity (this is satisfied when someone answers questions from the police in a non-emergency situation)
  112. Can volunteered statements still be testimonial?
  113. If statements of co-conspirators aren't testimonial, are statements of "false friends" (i.e. undercover officers or CI's) testimonial?
    No, they are treated the same as the statements of genuine co-conspirators.
  114. Can statements to civilians still be excluded on confrontation clause grounds?
  115. See People v. Griffin
  116. Affidavits of state laboratory analysts stating that material seized by police was a certain substance _______ testimonial.
    was; Melendez-Diaz
  117. Are BAC readings from a machine testimonial?
  118. Is a sworn affidavit from a non-testifying analyst regarding the BAC of an individual testimonial?
    Yes; Bullcoming v. New Mexico
  119. What test People v. Lopez set forth?
    • That two components must be met for a statement to be testimonial:
    • 1) it must be made with some degree of formality or solemnity
    • 2) an out of court statment is testimonial only if it pertains in some fashion to a criminal prosecution
  120. What is the result of People v. Lopez?
    not every analyst/tech involved in testing has to be called, because the notes that the analysts make are not sufficiently formal to be testimonial
  121. Must a defendant himself be the one to directly cause a witness to be unable to testify for the forfeiture by wrongdoing exception to apply?
    No; he need only acquiesce in the wrongdoing (ex. If it is part of a conspiracy to keep the witness from testifying); neither does the witness need to die  or be subjected to physical violence  or criminal conduct for the exception to apply
  122. EC _____ addresses forfeiture by wrongdonig.
  123. The standard of proof for forfeiture is _______________.
    prepondrance of the evidence
  124. The "prior opportunity to cross" prong of Crawford is _______ construed.
  125. How is it determined whether the prior opportunity to cross was sufficient for Crawford purposes?
    was the defendant's interest and motive sufficiently similar?
  126. Does pleading guilty in a case constitute a prior opportunity to cross?
    yes; the opportunity to cross, not the actual cross is what's important
  127. An _________ is someone with special knowledge, skill, experience, training, or education sufficent to qualify him as an _____ on the subject to which his testimony relates.
    EC 720
  128. A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, includinghis own testimony.
    EC 720
  129. An expert's testimony is limited to:
    1) that which is beyond_______ and would _________.
    2) based on matter ______ or ________ the witness or made known to him at or before the hearing, __________ admissible, that is _____________ in forming an opinion
    EC 801; common experience, assist trier of fact; perceived, personally known by, whether or not, of the type that is reasonably relied on by experts
  130. Can an expert qualify only through education?
  131. What are some approprate areas for expert testimony?
    • Eyewitness ID
    • Gang stuff
    • Narc stuff
    • Anything else where the testimony is beyond the experience of most jurors.
  132. The information that an expert opines from is subject to the _________ test.
    reasonable reliance (EC 801)
  133. An expert may not opine upon an _________ basis.
    improper (declared by law) (EC 801)
  134. May the court limit the form of questioning to an expert in order to limit the jury's hearing of incompetent hearsay?
  135. May an expert testify as to the details of hearsay used to opine?
    only if they are otherwise admissible
  136. What must be satisfied in order for an expert to opine on a hypothetical?
    The assumptions on which the hypo is based must be supported by the evidence in the record.
  137. What are some things that an expert may not testify regarding?
    • matters within common experience
    • veracity of witnesses
    • legal conclusions
    • a defendant's state of mind
  138. What may an expert be cross-examined on?
    • qualifications, subject to which the expert testimony relates, matter on which his opinion is based, reasons for opinion (EC 721)
    • Compensation (EC 722)
    • How often he testifies for which side.
  139. When can an expert be questioned about the tenor or content of any expert writing unless:
    • 1) the witness referred to it or relied on it
    • 2) it has been admitted into evidence
    • 3)it has been established as reliable authority by admission of the witness or by other expert testimony or by judicial notice
    • (EC 721)
  140. What are the limitations on lay opinion?
    • 1) must be based on personal knowledge
    • 2) must be helpful to a clear understanding of his testimony
    • (EC 800)
  141. May lay witnesses testify as to the veracity of a witness?
    No - it is the sole province of the jury
  142. What three forms can character evidence take?
    • Reputation
    • Opinion
    • Specific Act
    • (EC 1100)
  143. Reputation:
    the community's (not the witness') view of the defendant; should not be the product of the witness' personal observation
  144. Which evidence code allows reputation testimony?
    EC 1324: at a relevant time in the community that he reisded in
  145. What must opinion evidence be based on?
    • Personal knowledge (lay witness)
    • Expertise (Expert witness)
  146. May opinion testimony be based on specific instances of conduct of the defendant?
     Yes, but they need not be prior to the crime nor must they be bad acts; they need only be other acts
  147. What are some code sections which allow the use of propensity evidence?
    EC 1102/1103; EC 1108/1109
  148. Did Prop 8 lift the ban on character evidence?
  149. A defendant may offer evidence of his character in the form of opinon or reputation to prove his conduct in conformity with such a character trait on a specified occasion, and a prosecutor may offer the same such evidence to rebut the defendant's evidence if he does so.
    EC 1102
  150. Does 1102 allow specific instances of conduct?
  151. Can a witness testifying to 1102 opinion evidence be cross-examined as to specific instances of a defendant's conduct?
    Yes, to test the witness' knowledge of the defendant, but only if the witness should be expected to know the fact.
  152. Is 1102 evidence governed by 352?
  153. If an 1102 witness' knowledge of a defendant is tested, may the other acts be proved extrinsically?
    No - no trials within trials, and the prosecutor must have a good faith basis for believing that the specific instances of conduct actually occurred
  154. A defendant may offer evidence of the victim's character (R/O/SA) to prove the victim's action in conformity therewith, but if he does so, the proseuctor may rebut such evidence in the same manner. In addition, if the defendant claims the victim was violent, the proseuctor may rebut it with proof that the defendant is violent.
    EC 1103
  155. How is victim defined in 1103?
  156. When evidence of a victim's character trait are introduced where the defendant is trying to prove self-defense, is it always being introduced under 1103?
    No, it can be introduced under 1250 to prove the defendant's state of mind, and then 1103 won't be triggered
  157. Are prior false accusations of rape by victim admissible under 1103?
  158. May the victim's prior sexual behavior be introduced on the issue of consent?
    No, unless it pertains specifically to the victim's conduct with the defendant or the victim brings it up. (EC 1103)
  159. May the victim's manner of dress be introduced under 1103?
  160. Otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion.
    EC 1105
  161. Acts tending to prove a defendant's propensity to commit a sexual offense are admissible subject to 352.
    EC 1108
  162. Are there limitations to the offenses admissible under 1108?
    • Yes:
    • 352, similarity, remoteness
  163. What are the factors in the 352 analysis that a court applies to 1108 evidence?
    • Inflammatory nature of evidence
    • probability of confusion
    • remoteness of prior instances
    • consumption of court time
    • probative value
  164. The jury must believe that an 1108 act occurred by ________ before it can rely on it in considering the other evidence in the.
  165. May a defendant rebut 1108 evidence?
    Yes, via 1102 evidence, specific acts, or expert testimony
  166. Prior incidencts of DV/Elder/Child abuse are admissible under similar theories as sex crimes evidence.
    EC 1109
  167. Subsequent remedial measures are not admissible to prove negligence or culpability.
  168. Evidence of an offer to compromise is inadmissible to prove liability
    EC 1152
  169. Statements of sympathy are not admissible, but any accompanying statements of fault are.
    EC 1160
  170. Guilty pleas are inadmissible
    EC 1153
  171. A "writing" is handwriting, typewriting, printing, photostating, photographing, transmitting by e-mail or fax, and every other means of recording upon any tangible thing any form of communication, including letters, words, pictures, sounds, or symbols and any record thereby, regardless of the manner in which it is stored.
    EC 250
  172. What three steps must be followed when introducing a writing at trial?
    • Authentication
    • Compliance with the Secondary Ev. Rule
    • Compliance with the Hearsay Rule
  173. The content of a writing may be proved by otherwise admissible evidence of the content of the writing unless admission would be unfair
    EC 1521
  174. The original writing must be made available in a criminal action unless
    1) it is a duplicate per 260
    2) it is not closely related to the controlling issues in the action
    3) the original is in the custody of a public entity
    4) it is public record and a certified copy is being introduced 
    EC 1522
  175. Oral testimony about the content of a writing is not ordinarily allowed unless: the original is lost or has been destroyed without fraudulent intent; or the proponent can't reasonably get a copy of it or it is collateral; or the writing is so voluminous that it is in the interest of time to have oral testimony instead
    EC 1523
  176. Everyone, regardless of age, is presumed competent to testify
    EC 701, 700
  177. To be competent to testify, a witness must understand the oath and must be able to be understood
    EC 700, 701
  178. A witness must have personal knowledge
    EC 702
  179. Must a witness be sworn?
  180. Must a child witness be sworn?
    No, EC 710
  181. Defendants and witnesses who need an interpreter are entitled to one.
    EC 750 et seq
  182. Non-certified interpreters must be sworn
    EC 751
  183. Direct examination is governed by
    EC 760
  184. Cross examination is governed by
    EC 761
  185. Re-direct is governed by
    EC 762
  186. Re-cross is governed by
    EC 763
  187. The court controls the mode of interrogation to make it effective and to protect the witness from undue harassment or embarassment.
    EC 765
  188. The trier of fact may consider any matter that has any tendency in reason to prove or disprove the truthfuless of a witness' testimony
    EC 780
  189. What are some of the things that can be considered to determine a witness' credibility
    demeanor while testifying, character of his testimony, extent of his capacity to perceive, recollect, or communicate what he saw, his opportunity to perceive, character for honesty or veracity, extistence of motive, bias, interest; previous inconsistent or consistent statement, existence or nonexistence of any fact testified to by him, his own admission of untruthfulness
  190. Who may present opinion, reputation, or specific instances of a witness' character trait of honesty or dishonesty?
    Any party
  191. Who may attack the credibility of a witness
    EC 785
  192. What kind of cases do 786, 787, 790 apply to?
    civil cases only (character evidence is allowed in criminal cases thanks to Proposition 8)
  193. When can a witness' good character be supported?
    Only after it has been attacked (EC 790) - but this is only applicable to civil cases
  194. May prior crimes be used to impeach credibility?
    Yes, if it is a felony of moral turpitude - dishonesty or readiness to do evil (EC 788)
  195. How is it determined whether a prior conviction will be allowed in to impeach?
    • EC 352 - 4 factor test (applies mostly to D's who are testifying)
    • 1) does it relate to honesty or veracity?
    • 2) nearness or remoteness in time
    • 3) is the prior conviction similar to the present charge?
    • 4) what will the effect be if the defendant does not testify for fear of being impeached by priors?
  196. judicial notice
    EC 452.5 (allows impeachment with convictions while avoiding hearsay problem)
  197. Can a witness be impeached with a misdemeanor?
    Yes, if it bears on honesty or veracity
  198. Can a witness be impeached with any act that reflects on honesty or veracity?
    Yes, subject to 352
  199. What are some crimes that do not involve moral turpitude?
    simple assault, general battery, passive child endangerment, cultivation of marijuana, innvoluntary manslaughter, Misd. DUI, simple posesssion, failure to file income tax return
  200. headings aren't part of the code section
    EC 5
  201. conduct: active and passive verbal and nonverbal behavior
    EC 125
  202. person
    • pretty much anything besides and animal or a machine
    • EC 175
  203. Relevant evidence
    evidence that has any tendency in reason to prove or disprove a disputed fact that is of consequence to the action (EC 210)
  204. Statement is:
    • 1) oral or written verbal expression
    • 2)a nonverbal expression intended as an expression
    • (EC 225)
  205. Which section defines unavailability?
     EC 240
  206. only relevant evidence is admissible
    EC 350
  207. All relevant evidence is admissible
    EC 351
  208. When can a judge's admission of evidence be overturned
    when there is a miscarriage of justice (EC 353)
  209. when part of an act, declaration, conversation, or writing is given in evidence, the whole on the same subject may be inquired into by an advserse party, including any detached act, declaration, conversation, or writing
    EC 356 (completeness doctrine)
  210. EC 402
    Governs the procedure for determining the admissibility of foundational and other preliminary facts
  211. If a judge determines that a fact is admissible, it also means the court has found the foundational facts have been found to be true
    EC 402
  212. are communications between privileged parties presumed to be privileged?
    Yes (EC 917)
  213. Do privileged communications lose their privileged character because they are communicated by electronic means?
    no (EC 917)
  214. EC 970
    A married person has the right not to testify against their spouse in any proceeding, but it may be waived by the spouse who they are called against (EC 971)
  215. EC 980
    A person may refuse to tesify, or their spouse may refuse to allow them to testify, against a person to whom they are or were once married regarding communications made in confidence during the course of the marriage (EC 980)
  216. how may a hearsay declarant's credibility be attacked?
    By the same means any other witness' credibility may be attacked. (EC 1202)
  217. When may former testimony be used against a party who was not a party to the former proceeding?
    When the party in the other proceeding had a similar interest and motive (EC 1292)
  218. Authentication of a writing is proving that the writing is what it purports to be and can be done by circumstantial evidence.
    EC 1400
  219. Does the secondary evidence rule apply if the writing is in evidence?
  220. The content of a writing may be proved by an otherwise admissible original.
    EC 1520
  221. Secondary evidence is usually allowed to prove the content of a writing that is not available except:
    • 1) if there is a genuine dispute as to the material terms of the writing and justice requires exclusion
    • 2) admission of the secondary evidence would be unfair
    • (EC 1521)
  222. Is the secondaryevidence rule applicable at a prelim?
    No (PC 872.5)
  223. can secondary evidence be used in criminal cases?
    yes, unless the proponent has the original and hasn't made it available for inspection; or if it is a duplicate, it is not closely related to the key issues, or it is a public record
  224. victim had habit of putting cash in envelopes and defendant was found with an envelope after murder
    McPeters: EC 1105
  225. Statements about insurance conspiracy for murder
    Noguera: EC 1223
  226. Crazy man attacking women alone in offices prior acts admissible
    Foster: EC 1101
  227. Relevant evidence in a criminal case is that which tends to logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any matter sought to be proved by the defense; Plastic garbage bag helped connect the defendant with the shooting, even though the inference was weak
    Freeman; EC 210
  228. absent evidence that the cab hit the plaintiff's vehicle, the cab driver's statments were irrelevant
    LeGrand; EC 403
  229. Defendant offered evidence that the victim assaulted him with a knife before he shot him and was unsuccessful in keeping out evidence of his own violence
    Koontz; EC 1103
  230. victim expressed intent to confront her stepfather about molesting her prior to her murder
    Griffin; EC 1250
  231. defendant left candy wrappers and made himself at home at both scenes, both victims were similar; evidence of prior act was admissible
    Gray; EC 1101
  232. defendant's emotional response to being confronted with the murder were not hearsay
    Jurado; EC 1200
  233. Defendant got "bug eyed" when teased about murdering someone and this response was not excluded on hearsay grounds
    Rogers; EC 1200
  234. 405 Evidence must be proved by the preponderance (more likely than not) standard
  235. Prior instances of molestation of victim's sister were admissible because they showed a common design or plan
    Ewoldt; EC 1101/1108
  236. Loy
    Allowed 1108 evidence
  237. Evidence of defendant's membership in the Arayan brotherhood was admissible on the issue of motive and mens rea and was not excluded on First Amendment grounds.
    Bivert; EC 352, 210
  238. Murder defendant decided not to call good character witnesses after he found out that his prior acts of misconduct could come in.
    Hempstead; EC 1102
  239. Mao falsified the dead chickens  on the manifest and they were authenticated by the fact that she acted on them 
    Jayzeri v. Mao; EC 1400
  240. The informant's identity didn't need to be disclosed because he could only testify as to the fact that the defendant sold him cocaine, and the defendant couldn't use the CI's testimony to disprove posession, which is what he was charged with
    Alderrou; EC 1040, 1042
  241. "I want two doves" isn't hearsay, but is rather circumstantial evidence of drug sales
    Nealy; EC 1200
  242. Geier
    Said DNA wasn't testimonial
  243. How did Johnson define the emergency exception to confrontation?
    statements made during or immediately after and response to a violent incident
  244. Case that said the CA supremes still use Geier when experts testify about DNA testing results.
Card Set
Cal Evidence
Judge Steiner - Fall 2012