Bar Exam Rule Statements

Question 1

Relevance

Answer 1

For evidence to be relevant, it must be probative, in that it has any tendency to make any fact of consequence more or less probable than it would be without such evidence.

Question 2

Personal Knowledge

Answer 2

A witness may only testify as to those matters to which they have personal knowledge, in that they must have perceived the matter in some manner, such as by hearing or observing it.

Question 3

Authentication

Answer 3

All evidence must be authenticated, in that it must be proven to be what it purports to be. In this case…

Question 4

How do you authenticate a phone call?

Answer 4

The person hearing it must be shown to have some familiarity with the speaker’s voice, which can be gained either from prior interactions before the trial or subsequent to the trial.

Question 5

Hearsay (+Double Hearsay)

Answer 5

Hearsay is a statement made out of court and offered to prove the truth of the matter asserted. In this case… (STATEMENT HERE) is being offered to prove the truth of the matter asserted, in that (EXPLANATION HERE)

In general, hearsay is in admissible. However, the CEC contains numerous exceptions that may allow these statements in. In a situation where a statement contains two levels of hearsay, such as here, both levels of hearsay must fall within an exception in order to be admissible.

Question 6

Admission of a Party Opponent

Answer 6

Under the CEC, and unlike the Federal Rules of Evidence, admissions by a party are defined as exceptions to the hearsay rule. An admission is an assertion that, if true, proves an aspect of the opposing party’s case.

Question 7

Statement Against Interest

Answer 7

A statement which was at the time of its making so far contrary to the declarant’s pecuniary (financial) or proprietary (ownership) interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true, is admissible. The declarant must be unavailable.

Question 8

Then-existing State of Mind

Answer 8

A statement may be admissible to show the party’s then-existing state of mind at the time the statement was made. In this case…

Question 9

Contemporaneous Statement

Answer 9

A hearsay statement is admissible if it is made describing or explaining certain conduct of the declarant while the declarant is engaged in such conduct.

Question 10

Character Evidence

Answer 10

Character Evidence is any evidence offered to show that a person acted in conformity with character on a particular occasion, and is generally inadmissible. Here…

Question 11

Impeachment

Answer 11

Any party is permitted to impeach a witness in order to diminish his or her credibility for speaking the truth. In addition, a declarant, or out-of-court speaker, may be impeached in the same manner that a testifying witness may be impeached. Here…

Question 12

Admitting certified evidence of Perjury via Cross-Examination

Answer 12

Under CA law, the court has the discretion to allow in evidence of prior felony convictions for purposes of impeaching if such convictions are for crimes of moral turpitude. In this case, the conviction is for perjury, which is a crime of moral turpitude, and thus the court would have the discretion to admit it for purposes of impeachment. In addition, prior convictions can be admitted in the evidence through cross-examination or extrinsic evidence. Here, the conviction was introduced during CROSS-EXAMINATION, but by means of extrinsic evidence — namely the certified copy of the conviction, and therefore is a permissible means of impeachment.

Question 13

Impeachment via Misdemeanor

Answer 13

Under CA law, a witness can only be impeached with a misdemeanor conviction if it is one of moral turpitude — otherwise, it is inadmissible. In this case…

Question 14

When D wants to show V was initial aggressor

Answer 14

∆’s introduction of V’s [PUT FACTS HERE] is character evidence, as it is being used to show that Vic had a character for violence and acted in conformity with such character during [FACTS]. However, under the CEC, a criminal defendant can bring in evidence of the V’s character for violence if he claims self-defense and wishes to show that the victim was the initial aggressor.

Question 15

Character Evidence allowed against Victim

Answer 15

Character evidence can take the form of either reputation evidence, opinion evidence, or specific acts. Under the CEC, a defendant is permitted to use any of these methods in bringing in evidence of the victim’s bad character for violence during the direct examination. Here, ∆’s testimony would constitute (WHAT KIND OF ACT?). Therefore, the method of character evidence used is permissible.

Question 16

Authentication of Certified documents

Answer 16

The copy of [DOCUMENT] must be authenticated. However, under the CEC, certified copies of public records are self-authenticating, meaning that the document itself provides sufficient evidence for a finding that it is genuine, and no additional foundational evidence is necessary.

Question 17

Hearsay — Public Records Exception

Answer 17

Factual records made by public officials in the regular course of their duties are excepted from the hearsay prohibition.

Question 18

Lay Opinion

Answer 18

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Question 19

Business Record

Answer 19

Business records are only within an exception to the hearsay rule to the extent that their entry reflects that they are prepared by someone with a duty to enter the record accurately. The writing must be made in the regular practice of business, and be made at or near the time of the act, condition, or event recorded, the custodian must testify to the record’s identity and its mode of preparation, and the sources of information and method and time of preparation were such as to indicate its trustworthiness.

Question 20

Recorded Recollection

Answer 20

A writing that was prepared by one with personal knowledge of the events contained in the writing, or at the instruction of the person with personal knowledge and adopted by them, and made soon after the event occurred and that it was a true and accurate depiction of the events that transpired, is admissible as a recorded recollection

Question 21

Refreshing Recollection

Answer 21

If a witness did before have personal knowledge about something, and is simply unable to recall the specifics while on the stand, anything may be shown to the witness for the purposes of refreshing their recollection. Once the witness’ memory is refreshed, the item is taken away and the witness must then testify from their refreshed memory. The item shown must also be provided to opposing counsel at their request.

Question 22

Effect on Hearer

Answer 22

One non-hearsay use for out-of-court statements is to show the effect on the hearer — the statements are thus not admitted for the truth of the matter asserted.

Question 23

Spousal Testimonial Privilege

Answer 23

This raises the issue of the spousal privilege. There are two spousal privileges. A married person has a privilege not to be called as a witness by the adverse party where the other spouse is a party. Furthermore, a married person has a privilege not to testify against a spouse in any proceeding whether or not the spouse is a party. However, the spouse must still be married, and in any event, the spouse called as a witness has the privilege, and thus the choice.

Question 24

Leading Question

Answer 24

Leading questions suggest the answer that the questioner wants in the body of the question. They are inappropriate on direct examination of one’s own witnesses, except for ordinary background or contextual information.

Question 25

Nonresponsive Answer

Answer 25

This is an objection made to an answer. It is appropriate when the witness gives an answer that doesn’t answer the question, or when the witness’ answer goes beyond the scope of the question.

Here, the question called for a yes or no answer, and…

(Motion to strike if it was improper)

Question 26

Marital Communications Privilege

Answer 26

The marital communications privilege provides that each spouse has the privilege to prevent the other spouse from testifying to confidential communications that occurred during the marriage. This privilege does not terminate, even if the marriage terminates.

Communications are presumed confidential and the burden is on proponent of the communication to produce evidence overcoming the presumption.

Question 27

Contemporaneous Statements

Answer 27

The CEC allows for “contemporaneous statements.” Evidence of a statement is not made inadmissible by the hearsay rule if the statement: (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and (b) Was made while the declarant was engaged in such conduct. Thus, the declarant’s words while doing something or experiencing something are admissible under this exception, if the declarant is describing that conduct at the time.

Question 28

Exception to the Marital Communications Privilege (commit crime)

Answer 28

There is no privilege if the communication was made to enable anyone to commit or plan to commit a crime or fraud.

Question 29

Admission by Co-Conspirator

Answer 29

A statement is admissible if the statement is offered against a party and is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy. A co-conspirator admissible is, under CA law, an exception to the hearsay rule. In Crawford, the Court created a new test: When the prosecution offers “testimonial statements” against the accused for a hearsay purpose, then either (1) the out of court declarant must be produced for cross-examination under oath; or (2) the prosecution must demonstrate unavailability AND that the accused had a “prior opportunity” to cross examine the declarant. A testimonial statement involves questioning of the declarant by government officers with an eye towards prosecution.

Question 30

Dying Declaration

Answer 30

There are 3 elements for a dying declaration to be admissible. The person must be “dying,” but he or she need not die — just be unavailable. The statement must concern the cause and circumstances of the impending death, of which the declarant must have personal knowledge, and the declarant must believe their death is immediately impending. The statement is admissible in all civil proceedings, but not in criminal cases other than homicide cases under the FRE, but in all criminal cases under the CEC.

Question 31

Policy Exclusion — Evidence of Insurance

Answer 31

Evidence of liability insurance is inadmissible to prove negligence or other wrongdoing.

Question 32

Policy Exclusion — Offer to Pay Medical Expenses

Answer 32

CEC prohibits the admissibility of humanitarian offers, such as the offer to pay hospital or medical bills, to prove liability or fault, and any admission of fault attached to the offer would be inadmissible as well.

Question 33

Hearsay — Statement of Physical Sensation

Answer 33

CEC allows statements of the declarant’s then-existing physical sensation, including a statement of pain, or bodily health.

Question 34

Authentication of a Writing

Answer 34

Whenever a party wants to have a writing considered as evidence, the party must offer enough evidence to permit a judge to find that the writing is what the party claims it is — that it is authentic.

Question 35

What if no evidence of authentication?

Answer 35

There is nothing to demonstrate how the report can be authenticated. Unless the parties stipulated to authentication, or a custodian of records authenticated it, it is not admissible.

Question 36

Secondary Evidence Rule

Answer 36

The Secondary Evidence Rule requires the content of a writing—what it says—to be proved by the original or a copy of the writing, and not by what someone recounts that it says.

Question 37

Official Record

Answer 37

In California, official records must be made, not within the regular course of business, but within the scope of duty of the public employee—it must be a record or report that the employee has a duty to make.

Question 38

Spontaneous Statement

Answer 38

The hearsay exception for “spontaneous statement” allows statements that (1) relate to a startling event or condition, and (2) were made spontaneously while the declarant was under the stress of excitement caused by such perception. While time lapse does not eliminate the possibility that the statement is a spontaneous statement, the key is whether or not a person’s reflective powers have returned.

Question 39

Lay Opinion in Business Record

Answer 39

If the writer of the business record states an opinion, it will be admissible if it would otherwise be admissible as an opinion.

Lay witnesses can give opinions on matters such as speed, heat, appearance, and similar matters if the opinion is rationally based on the witness’ perception and is helpful to understanding the witness’ testimony. An opinion normally admissible as a lay opinion is not made inadmissible just because it is contained within a business record.

Question 40

Expert Opinion in Business Record

Answer 40

An expert is qualified to testify if he or she has special knowledge, skill, experience, training, or education sufficient to qualify him or her as an expert on the subject to which his testimony relates. a non-expert cannot have their opinion on a matter requiring expertise admitted just by putting it into a business record.

Question 41

Lay Opinion

Answer 41

Lay witnesses can give opinions on matters such as speed, heat, appearance, and similar matters if the opinion is rationally based on the witness’ perception and is helpful to understanding the witness’ testimony.

Question 42

Eavesdropper Rule

Answer 42

The Evidence Code does not adopt the Eavesdropper Rule. Thus, either spouse has the privilege to prevent an eavesdropper from disclosing the privileged communication, so long as it was made under circumstances where the speaker would not reasonably believe it was being overheard.

Question 43

Assertion by Conduct

Answer 43

Conduct that is intended as a substitute for a verbal assertion is a statement for the purpose of hearsay.

Question 44

Competence of Witness

Answer 44

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