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Evid Outline
- 1. Form
- 2. Purpose
- 3. Presentation
- 4. Hearsay
- 5. Testimonial Privileges
- 6. Prop 8
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1. Form
- Objections:
- - leading
- - nonresponsive
- - calls for narrative
- - assumes facts not in evidence
- - compound
- - speculation
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2. Purpose
- a. Logical Relevance
- b. Legal Relevance
- c. Character Evidence
- d. Impeachment
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2a. Logical Relevance
- Has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence - CEC, fact under dispute
- Must relate to time, event, or person in present litigation, except:
- - prior false claims
- - similar accidents caused by same condition to prove: existence, knowledge, and cause
- - rebutting claim of impossibility
- - habit evidence
- - custom
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2b. Legal Relevance
- Probative value is not substantially outweighed by prejudicial impact
- Public policy exclusions:
- - liability insurance
- - subsequent remedial repairs, CEC ok to show defective design in products liability
- - offers to settle
- - offers to pay medical expenses: FRE admissions of fact ok, CEC admissions of fact not admissible
- - expressions of sympathy: CEC only, but statements of fault admissible
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2c. Character Evidence
- Civil: not admissible unless character at issue
- Crim:
- - D's character: only D can initiate, except: sexual assault, D offered evid of V's character, CEC domestic violence, CEC D offered V's violence
- - V's character: only D can initiate or D saying V attacked first in homicide
- - P rebuts by Rep, Opinion, or SA to cross D's witness; Rep and Opinion on direct of Ps witness
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2d. Impeachment
- Prior inconsistent statement
- Evidence of bias, interest, or motive
- Convictions: all moral turpitude ok, FRE all felonies ok but C must balance, CEC only moral turp felonies ok.
- Prior bad acts re truthfulness: no CEC
- Reputation and opinion regarding truthfulness
- Rehabilitation: impeached witness may explain on redirect or good rep for truth
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3. Presentation
- Testimonial Evidence
- - Competency: personal knowledge, testify truthfully
- - Lay Opinion: witness perception, helpful to trier, and not based on specialized knowledge
- - Expert Opinion: assist trier, qualified witness, reasonable degree of certainty, proper factual basis, and based on reliable principles
- -- FRE reliability based on publication, error rate, testing of results, reas level of acceptance
- -- CEC principles generally accepted by experts in the field
- Document
- - Best evidence rule: secondary evidence admissible only in absence of original
- - Authentication: must be identified by witness
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4. Hearsay
- Not hearsay: indep legal sig, effect on listener (notice), state of mind
- Exemptions
- - Party admission
- - Prior statement by witness
- Unavailability Exceptions
- - Former testimony
- - Dying declaration
- - Statement against interest: pecuniary, proprietary, penal, CEC social
- - Statement of personal or family history
- Reliability Exceptions
- - Excited utterance
- - Present sense impression/CEC contemporaneous statement
- - Present state of mind
- - Past or present bodily condition (medical diagnosis), CEC only child describing abuse or neglect
- - Federal catch-all: guarantees of trustworthiness, strictly necessary, notice to adversary
- Documentary Exceptions, PABLO
- - Past recollection recorded
- - Ancient documents
- - Business records
- - Learned treatise
- - Official records
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5. Testimonial Privileges
- SPPA
- Spousal privilege: W can refuse to testify against spouse, and D can refuse communications made in reliance of intimacy of marriage during marriage
- Physician-Patient
- Psychotherapist-Client
- Attorney-Client
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6. Prop 8
- Truth in evidence amendment to CA const.
- All relevant evidence admissible in Crim
- CHP BE Riding Dirty: does not apply to
- - Confrontation clause
- - Hearsay
- - Privileges
- - Best evidence rule
- - Rape shield law
- - D's character before open door
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