Evidence FRE California Bar

RECIPe H

R-Relevance & Reliability
E-Extrinsic Policies
C-Character Evidence
I-Impeachment
P-Priveleges
e-silent e
H-Hearsay

A) Logical Relevance
1) What fact am I trying to prove?
2) Is that fact of consequence in the case?
3) Does the evidence help prove the fact?
4) Do any special rules apply?

B)Legal Relevance
1) Otherwise relevant evidence can be excluded if probative value is substantially outweighed by unfair prejudice, confusion of the issues, misleading the jury, waste of time.

C) Form of question objections
D) Reliability
E) Judicial Notice

LSOOP

1) Liability Insurance
2) Subsequent Remedial Measures
3) Offers to compromise / settle
4) Offer to pay medical expenses
5) Pleas and offers to plea

1) State rule: Evidence of a person's character or disposition is inadmissible proof of the conduct of that person except as otherwise provided by law.

2) Identify the type: Reputation, opinion, past acts

3) Apply exceptions (see specific cards)

CARBIC C

Conviction
Acts
Reputation
Bias
Inconsistent
Competency
Contradiction

1) Attorney client
2) Spousal witness
3) Marital communications
4) Physician-patient
5) Clergyman-penitent
6) Self-incrimination
7) General considerations

DAD SEE ME BOPP PICI

Declaration against interest
Admissions
Dying Declaration

Sense Impression (no CL)
Excited Utterance
Expert cross-examination

Mental state
Equivalency (FRE)

Business record
Official Record
Past recollection recorded
Prior testimony

Physical state
Identification
Consistent statement
Inconsistent statement

Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would without the evidence.

Generally, the evidence must relate to the time, event, or person in the PRESENT litigation. An important factor is proximity in time to the current events.

1) Causation
2) Prior false claims or same bodily injury
3) Similar accidents caused by the same event or condition
4) Previous similar acts admissible to prove intent
5) Rebutting claim of impossibility
6) Sales of similar property
7) Habit
8) Industrial or business routine
9) Industry custom as evidence of standard of care

Complicated issues of causation may be established by evidence concerning other times, events, or persons (e.g. damae to nearby homes caused by D's blasting is relevant to prove D's blasting damaged P's home)

Evidence that a person has filed previously similar tort claims or has been involved in prior accidents is generally inadmissible to show invalidity of the present claim.

However, evidence of similar false claims or claims involving the same bodily injury is usually relevant to prove that the present claim is likely to be false or that the plaintiff's condition is attributable to the prior injury.

Evidence of prior accidents or injuries caused by the same event or condition is admissible to prove 1) the existence of a dangerous condition, 2) that the defendant had knowledge of the condition, 3) the dangerous condition was the cause of the present injury.

Note - most courts don't allow evidence of an absence of previous accidents except in lack of notice situations.

Such acts may be introduced to prove motive or intent. (History of school segregation admissible to show motive for current exclusion of minorities).

The requirement that prior occurrences be similar may be relaxed to rebut a claim of impossibility. (This car cannot go 50 mph...)

Evidence of sales of similar property (real or personal) that are not too remote in time is admissible to prove value. Prices quoted in mere offers to purchase are not admissible, though evidence of unaccepted offers by a party to the action to buy or sell the property may be used against him as an admission.

Habit describes a person's regular response to a specific set of circumstances. Evidence of habit is relevant to prove conformity with the habit.

Evidence that a particular business had an established business routine is relevant as tending to show that a particular event occurred.

Industry custom may be offered to show adherance to or deviance from an industry-wide standard of care. However, industry custom is not conclusive on this point.

If its probabtive value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or waste of time.

Bonus: unfair surprise is not a valid ground upon which to exclude relevant evidence.

Not admissible to show negligence or ability to pay due to policy reasons. However, it may be avaliable to prove ownership or control, to impeach, or as part of an admission.

Not admissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction, for policy reasons. However, they may be admissible to prove ownership or control, rebut a claim that the precaution was not feasible, or prove that the opposing party has destroyed evidence.

Offers of compromise are not admissible to prove liability for, or invalidity of, a claim that is disputed as to validity or amount. Not even direct admissions of liability during compromise negotiations are admissible.

There must be some indication that a party is going to make a claim.

No, for policy reasons. However, admissions of fact made during the offer are allowed.

1) Substantively, and
2) for Impeachment.

1) To prove the ultimate issue in a case, or
2) As circumstantial evidence of how someone probably acted.

1) Specific Acts
2) Opinion testimony of a witness who knows the person
3) Testimony as to the person's general reputation in the community.

Unless character is directly in issue, evidence of character offered by either party to prove the conduct of the person in the litigated event is not admissible.

No.

Yes, only through good reputation and good opinion evidence.

1) By cross regarding the witnesses basis for his testimony, including whether he knows of or has heard of specific instances of defendant's misconduct.

ANY misconduct prior arrests, etc can be inquired about while crossing a defendant's character witness. May not introduce extrinsic evidence of the misconduct.

2) Call qualified witnesses to testify about the defendant's bad reputation or opinions of character.

Yes, if it is relevant to show innocence, and only reputation or opinion evidence.

With evidence of the victims good character (opinion, reputation) or evidence of the same trait in defendant (opinion, reputation).

1) In any proceeding alleging sexual misconduct, evidence offered to prove the sexual behavior or disposition of the victim is inadmissible except:
2) In a criminal case, admissble to show source of semen, injury, or other physical evidence. Also, specific instances between victim and accused are admissible by the prosecution for any reason and for the defense to show consent
3) In a civil case, admissible if its probative value substantially outweighs the danger of harm to the victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversey by the victim.

They are admissible if these acts have independently relevant, though the prosecution must give reasonable notice of such evidence ahead of time. Such reasons include:

Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme.

1) There must be sufficient evidence to support a jury finding that the defendant committed the prior act, and 2) its probative value must not be substantially outweighed by the danger of unfair prejudice.

Admissible in a case where defendant is accused of committing an act of sexual assault or child molestation - this evidence must be disclosed 15 days before trial or later with good cause.

The recognition of a fact as true without formal presentation of evidence.

Courts may take judicial notice of indisputable facts that are either matters of common knowledge in the community or capable of verification by resort to easily accessible sources of unquestionable accuracy.

Courts have increasingly taken judicial notice of sceintific principles as a type of manifest fact.

Judicial notice of such facts can be taken at any time, whether or not requested.

1) A court may take judicial notice on its own accord, and

2) A party may formally request the court to take judicial notice.

In a civil case.

In criminal cases, the jury is instructed that it may, but is not required to, accept as conclusive any judicially noticed fact.

Legislative facts are those relating to legal reasoning and lawmaking, such as the rationale behind the spousal privelege.

Such facts need not be of common knowledge nor capable of indisputable verification to be judicially noticed.

Courts must take judicial notice of federal and state law and the official regulations of the forum state and the federal government.

Courts may take judicial notice of municipal ordinances and private acts of congress or of the local state legislature. Laws of foreign countries may also be judicially noticed.

Actual physical evidence addressed directly to the trier of fact. Real evidence may be direct, circumstantial, or demonstrative.

1) Logical relevance
2) Legal relevance
3) Authentication
4) Condition of object

Some auxillary policy or principle may outweigh the need to admit the real evidence. Such policies include physical inconvenience of bringing the object into the courtroom, indecency or impropriety, or undue prejudice.

The object must be identified as what the proponent claims it is by either:

1) Testimony of a witness that he reconizes the object as what the proponent claims it is, or

2) Evidence that the object has been held in a substantially unbroken chain of possession.

If the condition of the object is relevant, it must be shown to be in substantially the same condition at trial.

Usually, these items used for explanation only are allowed at trial for this purpose but not admissible as evidence.

1) Yes, if their value is not outweighed by the danger of unfair prejudice.

1) Yes, to show the child's race, but courts are split on showing him for resemblance.

1) Yes, but the court has discretion to exclude if unfair prejudice would result.

Yes, at the judge's discretion.

Yes, at judge's discretion, but demonstrations of injury may not be allowed if they would unduly dramatize the injury.

Yes, if they are relevant. Proper authentication is a component of relevance.

IF they are properly authenticated - the rule is that they must be sufficient to satisfy a jury finding in favor of genuineness.

Yes.

Yes, a document may be authenticated by evidence that the party against whom it is offered has either admitted its authenticity or acted upon it as authentic.

A writing may be authenticated by testimony of one who sees it executed or hears it acknowledged. The testimony need not be given by a subscribing witness.

Handwriting may be verified in three ways:

1) The opinion of a nonexpert with personal knowledge of the handwriting (that is, they've seen it before)

2) The opinion of an expert who has compared the writing to samples of the makers handwriring

3) The trier of fact may make such comparisons by comparing samples.

A document is admissible by evidence that it:

1) Is at least 20 years old
2) Is in such condition as to be free from suspicion as to authenticity, and
3) Was found in a place where such a writing would be likely to be kept.

A writing may be authenticated by evidence that it was written in response to a communication sent to the claimed author.