Evidence 1-20

Question 1

When is evidence Relevant?

(logically and legally)

Answer 1

Logically Relevant:

When it has any tendency to make a fact more or less probable than it would be without the evidence, AND

The fact is of consequence in determining the action (in CA, the fact of consequence must be in dispute).

Legally Relevant:

If it’s not excluded on policy grounds; AND

If it’s not excluded under FRE 403/CEC 352

Priority: HIGH

Question 2

FRE Rule 403/CEC 352 Exclusions

A court may exclude evidence if its probative

value is outweighed by a danger of what?

Answer 2

Unfair prejudice;

Confusing the issues;

Misleading the jury;

Undue delay;

Wasting time; OR

Being needlessly cumulative.

Priority: HIGH

Question 3

What is admissible under California Proposition 8, and what does it NOT affect?

Answer 3

ALL relevant evidence in a criminal trial.

It does not affect the following:

Exclusionary rules based on U.S. Constitution;

Secondary/Best evidence rule;

Hearsay or privilege exclusions;

Evidence barred under rape-shield statutes; and

Limits on prosecution from offering specific character evidence.

Priority: HIGH

Question 4

When is evidence Unfairly Prejudicial?

Answer 4

When the evidence is:

Unnecessary;
AND

Might cause the jury to improperly sympathize or dislike a party.

Priority: HIGH

Question 5

When is evidence of Subsequent Remedial Measures NOT admissible?

Answer 5

To prove:

Negligence;

Culpable conduct;

Additionally, under the FRE:

A defect in product or design; OR

A need for a warning or instruction.

*But, it may be admissible to impeach or prove a disputed issue of ownership, control, or feasibility of precautionary measures.

Priority: Medium

Question 6

When are Settlement Offers and statements made during Settlement Negotiations NOTadmissible?

Answer 6

To prove the validity or amount of a disputed claim (claim must be filed or threatened); OR

To impeach by a prior inconsistent statement or contradiction.

CA: Excludes written/oral statements made during mediation proceedings.

*It may be admitted to: prove bias/prejudice of a witness, negate a contention of undue delay, or prove obstruction in a criminal matter.

Priority: Medium

Question 7

What Pleas and Plea Negotiations are NOTadmissible in a subsequent civil or criminal case?

Answer 7

Statements made during plea discussions.

A nolo contendere plea.

A defendant’s guilty plea that was later withdrawn.

Priority: N/A

Question 8

Evidence of paying (or promising/offering to pay for) medical expenses is NOT admissible to prove what?

Answer 8

Liability

(even if there is no disputed claim)

FRE: Any related statements or factual admissions ARE admissible.

CA: Related factual statements are NOT admissible.

Priority: Medium

Question 9

Evidence of Liability Insurance is NOT admissible to prove what?

Answer 9

Culpability

(that a person acted negligently of wrongfully)

*However, a court may admit it for another purpose (i.e. proving bias/prejudice of witness, proving agency/ownership/control).

Priority: Medium

Question 10

All physical evidence MUST be authenticated before being admitted into evidence.

How may physical evidence be Authenticated?

Answer 10

By:

Witness testimony; OR

By evidence that shows it has been held in a substantially unbroken chain of custody.

*A party must prove that the item it seeks to admit is actually what the party purports it to be, unless stipulated otherwise.

Priority: HIGH

Question 11

Voice recordings may be Authenticated by whom?

Answer 11

By anyone who:

Has heard the person speak (either firsthand or electronically);
AND

Identified the recorded person as the speaker.

Priority: Medium

Question 12

What is the Best EvidenceRule?

Answer 12

A party must provide the original document (or a reliable duplicate) when a witness:

Testifies to the contents of a writing; OR

Testifies to knowledge gained solely from a writing.

FRE: Handwritten duplicates are NOT admissible.

CA: Handwritten duplicates ARE admissible.

*In CA, this rule is called the Secondary Evidence Rule.

Priority: HIGH

Question 13

Character Evidence

Character evidence may only be offered as circumstantial evidence to prove propensityin what limited circumstances?

Answer 13

Criminal cases – by defendant OR by prosecution if the defendant “opens the door” (unless in CA only: elder abuse or domestic violence);

Victim’s character(except in rape cases) – to prove defendant’s innocence. (In CA, ONLY violent traits);

Homicide cases – if defendant claims victim was the aggressor, the prosecution may offer evidence of the victim’s character for peacefulness. (NOT IN CA);

Sex offense cases – not admissible, unless exceptions apply.

Civil cases – only if sex offense cases exception applies.

In CA, NO exception for sex offense cases.

Priority: HIGH

Question 14

Character Evidence

Under the FRE, what are the exceptions in Sex Offense Cases that allow character evidence (to prove a victim’s sexual behavior or predisposition) to be admissible?

Answer 14

Civil cases: If its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted only if the victim placed it in controversy).

Criminal cases: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate the defendant’s Constitutional rights.

Priority: HIGH

Question 15

Character Evidence

How may character evidence be proven under FRE and CA rules?

Answer 15

FRE:

On direct examination, by opinion testimony or testimony of the reputation in the community.

On cross examination of the character witness, by opinion, reputation, or specific acts.

CA:

Defendant’s character may only be proven by opinion/reputation, and victim’s character by opinion, reputation, or specific acts.

Priority: HIGH

Question 16

Prior Bad Acts may be admissible for NON-PROPENSITY purposes, such as?

Answer 16

Proving:

Motive;

Identity;

Absence of mistake or accident;

Intent;

A common plan or scheme;

Opportunity; OR

Preparation.

Priority: HIGH

Question 17

What must a proponent show in order to offer Prior Bad Acts as evidence?

Answer 17

That the prior act was committed by a preponderance of the evidence (vague references are insufficient).
AND

That’s its probative value substantially outweighs the danger of unfair prejudice.

Question 18

When is evidence of a person’s Habit or an organization’s Routine Practice admissible?

Answer 18

To prove that on a particular occasion the party acted in accordance with the habit or routine practice.

*This may be admitted regardless of corroboration or eyewitnesses.

Priority: Low

Question 19

Extrinsic Evidence of Prior Inconsistent Statements are only admissible to impeach if it’s what?

Answer 19

Relevant to a material issue at trial (other than the witness’s credibility); AND

A proper foundation is shown (witness is given a chance to explain/deny, and the adverse party is given a chance to examine the witness about it).

*BUT, the above limitation is NOT applicable to statements by a party opponent.

*CA = Prior inconsistent statement is admissible as non-hearsay when offered only to impeach a witness. It is also an exception to the hearsay rule.

Priority: Medium

Question 20

Under the FRE, when is evidence of Prior Convictionsadmissible to attack a witness’s character for truthfulness?

Answer 20

Prior felony or misdemeanor convictions involving dishonesty – a dishonest act or false statement.

In Felonies that DO NOT involve dishonesty, when:

The witness is not a defendant (criminal/civil);

In a criminal case where the witness IS a defendant, BUT the probative value outweighs the prejudicial effect.

*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.

Priority: Medium