evidence

Question 1

CA Prop 8

Answer 1

If civil, raise and dismiss prop 8. Under prop 8, all relevant evidence is admissible in CA criminal cases even if it is objectionable under the CEC. However, Prop 8 is inapplicable to the confrontation clause, hearsay, privileges, best evidence rule. Prop 8 preserves judicial discretion to exclude evidence that would otherwise be admissible. This “truth in evidence” emendment is part of CA constitution

Question 2

Leading

Answer 2

A question that suggests to the witness the fact that the xaminer expects and wants to have confirmed. Improper, UNLESS: 1. it is on cross, 2. to elicit preliminary/introductory info, 3. when the witness cannot remember or is a child/disbaled, 4. when the witness is hostile

Question 3

Non responsive witness

Answer 3

when a question calls for a yes/no answer and that answer is not given by withess. FRE: Motion to strike can only be brought by examining counsel. CEC Motion to strike can be brought by either counsel

Question 4

Calls for narrative by examiner

Answer 4

allows W to answer by recounting relevant facts, rather than series of specific questions requiring specific answers

Question 5

Calls for speculation

Answer 5

Where the question invites/causes W to answer on the basis of conjecture

Question 6

Argumentative

Answer 6

question is intended to make an argument and not elicit facts.

Question 7

Compound

Answer 7

Questions that contain more than one question

Question 8

Assumes facts not in evidence

Answer 8

occurs when the evidenc has not been admitted to the jury yet and facts have not been established by other evidence

Question 9

asked and answered

Answer 9

“did you see X” “No” “Are you sure?”

Question 10

Misleading

Answer 10

assumes (as true) a fact thats neither in evidence nor in dispute

Question 11

harassing/embarrassing

Answer 11

Judge has discretion to disallow a cross-examination that is unduly harassing

Question 12

cross examination

Answer 12

can only cover the scope of direct (including all reasonable inferences) 1. Can test credibility of witness, 2. CAN cross on unimportant/collateral matters, but if the witness lies, counsel cannot introduce extrinsic evidence to show that he is lying. HOWEVER, collateral matters can be developed into material matters if judge decides sufficiently important

Question 13

Logical relevance in general [CEC distinction]

Answer 13

In order to be logically relevant, the evidence must tend to prove or disprove a fact in evidence. It must relate to the time, event, or person involved in the present litigation, otherwise, the evidence is irrelevant. In Ca, CEC requires the fact of consequence to also be in dispute

Question 14

List of Exceptions to Logical relevance

Answer 14

1. Similar occurrences, 2. Absence of Similar Accidents, 3. Evidence to rebut claim of impossibility, 4. Sales of similar property to establish value, 5. Habit evidence, 6. Industrial or business routine

Question 15

Similar occurrences exception to logical relevance

Answer 15

When there are certain similarities to evidence and the people/events in issue, then the evidence is relevant, IF their probative value outweighs prejudice

Question 16

Absence of Similar Accidents

Answer 16

Not usually admissible to show lack of negligence or defect

Question 17

Evidence to rebut claim of impossibility

Answer 17

proof that prior occurrences of the act show it is not impossible

Question 18

Sales to rebut claim of impossibility

Answer 18

OK if sales were on similar items at or around the same time and location [NOTE: prices contained in mete offers not admissible]

Question 19

Habit evidence

Answer 19

proving person acted in conformity with habit: 1. Must describe a person’s regular response, 2. to a specific set of circumstances, NOTE cannot be too general otherwise its character evidence

Question 20

industrial or business routine

Answer 20

evidence that a particular business followed an established procedure in doing this, in order to show that it acted in conformity with its routine.

Question 21

Legal relevance in general

Answer 21

The court has discretion to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the misleading to the jury, undue delay or waste of time.

NOTE: ALWAYS DISCUSS WHEN TALKING ABOUT CHARACTER EVIDENCE

Question 22

Extrinsic Evidence exclusions Public Policy list (discuss under legal relevance)

Answer 22

1. Liability insurance, 2. Subsequent remedial repair, 3. offers to pay medical bills, 4. Settlement negotiations, 5. Pleas, offers, plea bargaining, or evidence of withdrawing guily plea,

Question 23

Liability insurance

Answer 23

Inadmissible to show fauly, ability to pay, or negligence UNLESS it is used to:

1. Show ownership or control, 2. impeach a witness, or 3. as part of an admission

Question 24

subsequent remedial repair (CEC distinction)

Answer 24

Inadmissible to show fault in negligence cases or defect in strict liability cases

[CEC–> only excluded in negligence cases but allowed in strict products liability]

Can be used 1. to show ownership or control, 2. to rebut a claim that the precaution was not feasible, or 3. to prove that the opposing party has destroyed evidence

Question 25

Offers to pay medical bills [CEC distinciton]

Answer 25

Inadmissible to prove guilt/ liability

if an admisison of fact is also included, that part of the statement is admissible and the court servers it from the offer to pay

CEC: STATEMENTS OF FACT made in conjunction with offers to pay medical expenses are ALSO inadmissible//STATEMENTS OF SYMPATHY IN CIVIL CASES (relating to V’s suffering or death) are ALSO inadmisisble

Question 26

Settlement negotiations

Answer 26

inadmisisble to introduce settlement offers, offers to settle, and all other related statements to prove liability/fault in civil cases, if there is some indication (or threat) a party will make a claim.

Not even direct admissions of guilt during settlement talks are admisisble

NOTE: can still raise and dismiss admisisons under hearsay

CEC: discussions during mediation proceedings are also inadmisisble

Question 27

pleas/offers/plea bargaining or evidence of

Answer 27

inadmisisble to prove guilt in a criminal trial but can be used to impeach

Question 28

Witness reliability

Answer 28

A witness can only testify if he (1) is competent and (2) has personal knowledge

Question 29

Competency

Answer 29

generally, every person is competent to be a witness and there are no specific qualifications for mental competency

Children– depends on his ability to understand the duty to tell the truth and understand the questions as determined by the judge

Question 30

Personal knowledge

Answer 30

W must possess personal knowledge (perceied with his senses) and he must declare to testify truthfully

Witness cant read her testimony from a piece of paper but we DO allow: 1. present recollection refreshed and 2. Past recollection recorded

Question 31

Present recollection refreshed

Answer 31

ANYTHING can be used to refresh witness’ recollection

Must be made available to opposing party

Otherside may ask for it to be introduced into evidence

Question 32

Past Recollection recorded

Answer 32

Where W just cannot remember, a writing can be READ INTO EVIDENCE if:

1. W had personal knowledge of facts when he wrote them
2. writing was made by W under his direction or adopted by him
3. Was made while the matter was fresh in W’s mind
4. Writing is accurate

Question 33

Document reliability steps (list of potential issues/topics)

Answer 33

1. Authentication for types of evidence, 2. Self authenticating evidence, 3. Best evidence rule, 4. parol evidence rule

Question 34

List of different types of authentication

Answer 34

1. Physical evidence, 2. writings, 3. handwriting/signature, 4. Photographs, 5. unattended cameras, 6. x-rays, 7. voice recordings, 8. phone conversation, 9. ancient documents, 10. reply letter doctrine

Question 35

Authentication of physical evidence

Answer 35

requies authentication by: 1. testimony of a witness who has personal knowledge that evidence is what he is claiming it is OR 2. evidence that the object has been held in a substantially unbroken chain of custody

Question 36

Authentication of writings

Answer 36

Authenticated by 1. pleadings or stipulation, 2. admission by the other party that it is authentic, OR 3. testimony of W who saw it executed or heard it acknowledged

Question 37

Handwriting/signature

Answer 37

authenticated by

1. non-expert with personal knowledge of the author’s writing

NOTE: this must be more than becoming familiar with handwriting for purposes of trial or testifying, as that is NOT allowed

2. A handwriting expert
3. the trier of fact comparing the samples

Question 38

Photographs

Answer 38

can be authenticated by:
1. Testimony that photo is a faithful reproduction of object/scene BY either the photographer OR a person familiar with scene who testifies that it is a fair and accurate portrayal of what the photo depicts

Question 39

Unattended cameras

Answer 39

Authenticated by proof that 1. camera was operating properly AND 2. the film was obtained from that camera

Question 40

X rays

Answer 40

Since no one can verify their accuracy, offering party must show:

1. process used was accurate,
2. machine was in working order,
3. the operator was qualified to operate it, AND
4. the custodial chain was unbroken

Question 41

Voice recordings

Answer 41

authenticated by anyone familiar with the speaker’s voice at any time (even if only became familiar in order to testify)

Question 42

Phone conversation

Answer 42

authenticated by one party to the call that

1. he recognized the other party’s voice, 2. the speaker had knowledge of crtain facts that only a particular person would have, 3. he called the person’s residence and that person answered OR 4. he called a business and talked with the person about matters relevant to the business

Question 43

Ancient documents

Answer 43

DO NOT need authentication if they:

1. are at least 20 years old [CEC 30 years old]
2. Are in such condition, as to be free from suspicion as to authenticity; AND
3. Were found in a place where such writing would be normally kept

Question 44

Reply letter doctrine

Answer 44

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

Question 45

Self Authenticating evidence

Answer 45

Do not need to be authenticated by pleading, stipulation, admission, or testimony:

1. Certified copies of public records, 2. official publications, 3. newspapers and periodicals, 4. trade inscriptions, 5. acknowledged documents, 6. commercial paper, 7. certified business records, 7. Family portraits, bibles, birth certificate

Question 46

Best evidence Rule [CEC: Secondary evidence rule]

Answer 46

To prove the terms of a writing, the original writing must be produced if the terms of the writing are material. A writing is considered to be any documentary evidence.

Question 47

Unless unavailable

Answer 47

Seconday evidence of the writing is allowed ONLY IF the original is unavailable. UNAVAILABILITY is defined as:

1. Lost or destroyed,
2. Possessed by a third-party outside the jurisdiction
3. in the possession of adverse party who fails to produce it
   NOTE: Oral testimony is only permitted after it is proven that

Question 48

Exceptions to BER

Answer 48

1. Voluminous Documents: where it would be ridiculous to bring them all into court, contents may be summarized
2. Public records: OK if certified as correct or testified to as correct
3. Photocopies: any “duplicate” which is an exact copyis admissible as original UNLESS there is some reason to question its accuracy

Question 49

Where BER does not apply

Answer 49

1. Where facts exist independently of writing (e.g. birth date)
2. To prove that writing exists, was executed, or was delivered, OR
3. The writing is of minor importance to the litigated issue

Question 50

Parole Evidence Rule

Answer 50

When an agreement is reduced to writing, no evidence of a prior or contemporaneous oral agreement can be introduced to contradict it. This rule does NOT apply to evidence about:

1. Subsequent modifications
2. Mistake as to whats in the contract
3. The fact that the contract itself is void or voidable
4. Explanations as to mising or ambiguous terms

Question 51

Lay Opinion Requirements

Answer 51

1. Not based on scientific, technical, specialized knowledge
2. Rationally based on W’s perceptions; AND
3. Helpful to the jury

Question 52

Acceptable lay opinion examples

Answer 52

1. General appearance
2. a person’s apparent emotion
3. Matters involving sense recognition
4. Voice or handwriting identification
5. the speed of a moving object
6. the value of one’s own services
7. the rational or irrational nature of someone’s conduct
8. Whether someone seemed drunk
9. The value of one’s real property

Question 53

Expert opinion admissibility requirements

Answer 53

1. Based on scientific, technical, specialized knowledge
2. W qualified as an expert by the judge as a person who possesses special knowledge, skill, experience, training, or education
3. The opinion is supported by a proper factual basis

Question 54

What can experts rely on

Answer 54

1. Personal observation
2. Facts learned at trial
3. Anything that is reasonably relied upon by experts in the field (even if not admitted as evidence)
4. Hypothetical Q’s

Question 55

Daubert (FRE)

Answer 55

This is the standard used by a trial judge to assess whether an expert witness’s scientific testimony is based on scientifically valid reasoning that which can properly be applied to the facts at issue.

Under the Daubert standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4)the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community.

Question 56

Kelley-frye CEC

Answer 56

California courts currently apply the Kelly-Frye test, requiring
“general acceptance” in the relevant scientific community of a novel scientific technique upon which expert evidence would be
based.

In applying this test, a trial judge’s role is to simply tally
up the number of members of the relevant scientific community
who accept the validity of a novel technique and weigh that directly
against the number of members who reject it

Question 57

Criminal trials and experts

Answer 57

Expert may not give an opinion as to whether D had the mental state required to commit the crime

Question 58

Abuse of discretion and experts

Answer 58

Standard allows scientific testimony into evidence in order to be authenticated

Question 59

Learned Treatises

Answer 59

Can be read into evidence once established as authoritative (as long as the expert is on the stand)

Cannot ask to have portions of treatise entered into evidence with no W

Treatise itself is not entered into evidence

Question 60

Character evidence in general

Answer 60

Character evidence is inadmisisble tp prove that the person acted in conformity therewith on a particular occasion

The rules governing admissibility of character evidence depend upon the purpose for which the evidence is being used

3 forms of character evidence: reputation, opinion, specific acts

Question 61

If character is the ultimate issue in a civil case

Answer 61

If character is directly in issue, then all 3 forms are admissibel as substantive evidence in civil cases

Question 62

Cases where character is directly at issue

Answer 62

1. defamation
2. Negligent entrustment
3. Fraud
4. Child custody
5. Evidence of prior secual assault or molestation (when offered in a civil case arising out of such acts)

CEC: NO EXCEPTION FOR CHILD MOLESTATION/SEXUAL ASSAULT EVIDENCE

Criminal cases of entrapment
Habit evidence: look for “always”

Question 63

Defendant’s good character in a criminal case

Answer 63

1. Defendant must open door with A. opinion or B. reputation evidence of his own good character
2. Then Prosecutor may rebut with A. opinion or reputation evidence of D’s bad character via own W or B. specific Bad Act on cross examination of D’s witness

CEC: No Specific bad acts on rebuttal

NOTE: the prosecutor must have a good faith belief that D did the act and the bad act must be relevant to the specific good trait testified to by D’s witness

NOTE: If W denies knowledge of the bad act, the prosecutor must accept the answer (extrinsic evidence is NOT allowed)

Question 64

Victim’s bad character tp prove D’s innocence

Answer 64

1. Defendant must first “open door” with opinion or reputation evidence of V’s bad character when relevant to his defense
2. Then prosecutor rebuts with opinion or reputation evidence of D’s bad character via:
   Opinion or reputation evidence of D’s bad character via own W OR
   Specific bad Act on cross of D’s W (no extrinsic evience)

CEC: Prosecutor can use opinion, reputation, AND specific bad act evidence on BOTH direct and cross

Question 65

Prior Sexual offenses

Answer 65

Prosector can bring in: Opinion, reputation AND specific bad act evidence of D’s past sexual assault/child molestation, in order to prove anything relevant

Defendant CANNOT bring in evidence of V’s past sexual behavior EXCEPT in rape cases to show 1. other source of DNA, or 2. Past consensual sexual relations with D

CEC: NO exception for sexual assault/child molestation but exception for elder abuse and domestic violcnce cases

Prosecution may offer evidence that D committed other acts of domestic violence or elder abuse to show that he committed the crime in the current case

Question 66

Alternative uses of Characrr evidence MIMIC

Answer 66

Prior bad acts admissible if not used to prove conformity but used to show:

1. Motice
2. Identity
3. absence of MISTAKE
4. Intent
5. Common Plan

NOTE: the probative value must outweigh the prejudicial effect

Question 67

Impeachment in general

Answer 67

Impeachment is the casting of an adverse reflection on the veracity (i.e. truthfulness of a witness. A W may be impeached on cross OR by extrinsic evidence (put another W on the stand who will introduce facts discrediting the prior testimony)

Foundation must be laid during cross before extrinsic evidence introduced

A party cannot “bolster” his own W with prior consistent statements or evidence of good character until W has been impeached

No impeaching on collateral matters

Hearsay declarants (if their statements are entered into evidence) can be impeached just like other witnesses

Question 68

Opinion/reputation evidence of bad character/dishonesty

Answer 68

Can ask a third party about his opinion as to W’s honesty or about the W’s community reputation

Question 69

Specific bad acts

Answer 69

probative of truthfulness on cross-examination

Questions must be asked in good faith

Cannot ask about arrests

Extrinsic evidence cannot be used

CEC: Specific bad acts involving moral turpitude are admissible only in criminal cases, but court can balance (extrinsic evidence permitted)

Question 70

Prior convictions

Answer 70

Proof of prior convictions can be used to impeach (mist be conviction, not just arrest/indictment)

Crimes must be EITHER Crime of Dishonesty Or Any felony unless it has been 10 years since date of conviction or date of release [felonies subject to balancing/dishonesty not]

CEC: both are subject to balancing. All felonies and or misdemeanors are admissible for crimes involving moral turpitude

Cannot use prior conviction of D was acquitted

Question 71

Defects in memory or knowledge

Answer 71

W can be impeached on cross or via extrinsic evidence by showing that he has an impaired ability to perceive things

Question 72

Bias/motive to lie

Answer 72

Used to show that W has a reason to lie (e.g. W is related to D, W made plea deal, or D have money to the W, etc.)

Can use extrinsic evidence to show bias IF

1. W is asked about the facts suggesting bias first (lay foundation)
2. If that foundation is laid, even evidence that would otherwise be inadmissible can be used for impeachment

Question 73

Prior Inconsistent Statement (PIS)

Answer 73

A party may show (on cross or via extrinsic evidence) that W has, on another occasion, made statements that are inconsistent with his present testimony

Question 74

Extrinsic evidence admissible for PIS

Answer 74

Only if 1. W given chance to explain AND 2. foundation is laid

Exception: inconsistent statements by hearsay declarants can be used to impeach DESPITE a lack of foundation

Question 75

PIS Can be substantive evidence if

Answer 75

1. PIS by P or D considered an admission and comes in as both impeachment and substantive evidence
2. PIS under oath at earlier deposition where the declarant was subject to cross, it comes in as both impachment and substantive
3. PIS admitted as a hearsay exception comes in as both

In none of th eabove, PIS only comes in as impeachment

Question 76

Rehabilitation

Answer 76

An impeached W can explain or clarify facts brought out on cross via a re-direct

Evidence of bias can be rebutted with evidence of prior consistent statementmade before the bias aroes

Evidence of bad character can be rebutted with evidence of good character

Question 77

Privileges in general

Answer 77

CA state law of privileges wwill aply when state substantive law is being applied (i.e. diversity)

Question 78

Attorney-client privileges

Answer 78

All communications between an attorney and client before and after legal representation is intended to be confidential if made to facilitate legal services

Client holds privilege but attorney MAY assert it. CEC: attorney MUST

Survives termination of A/C relationship and death of client

Question 79

Exceptions to A/C privilege

Answer 79

1. where attorney’s services were sought to help plan or commit something that client knew was a crime or fraud
2. To a communication relevant to an issue between parties claiming through the same deceased client
3. When the client is suing the attorney
4. Where the duties of the attorney or client are at issue

Question 80

CEC a/c privilege notes

Answer 80

Attorney’s employees can be present without destroying privilege

Applies where a doctor is examining client at attorney’s request

Duration ed once estate of dead client is distributed and executor of the estate is discgarged

Question 81

Doctor Patient privilege

Answer 81

NO FRE
CEC: Privilege arises when 1. A professional relationship exists, 2. Information was acquired during the course of treatment, and 3. Information was necessary for treatment

Question 82

D/P exceptions

Answer 82

1. patient put condition at issue
2. Doctor sought to aide wrongdoing
3. Patient sues doctor
4. Patient agreed by contract to waive privilege

CEC: privilege does not apply in criminal cases OR to information that the doctor is required to report

Question 83

Psychotherapist/social worker-patient

Answer 83

For privilege to exist, the communication must be made during professional consultation AND must be confidential in nature

CEC: privilege is allowed in criminal cases
Exception– if psychotherapist has reasonable cause to believe that the patient is a danger to himself or other AND that disclosure is necessary to end the danger, privilege does not apply

Question 84

spousal testimonial privilege

Answer 84

Witness-spouse can refuse to testify against defendant-spouse in a criminal case

Testifying witness-spouse holds the privilege

Only applicable if married during trial but covers infromation before/during marriage

Witness-spouse may testify against defendant spouse with or without consent

CEC applies this to both criminal AND cicvil

Question 85

Confidential marital communications

Answer 85

Protects communications made during marriage and in reliance on intimacy of marital relationship

Either spouse may hold and refuse to dusclose/prevent other from disclosing a confidential communication made between them while they were husband and wife

Question 86

Notes on confidential marital communications

Answer 86

Lasts Forever even after divorce

Only covers communications made during marriage

EXCEPTIONS: 1. spouses suing each other, 2. Both husband and wife involved in crime, 3. Competency of the spouse is at issue, 4. Used to aid and commit crime or fraud, 5. The communication was revealed to a third party

Question 87

5A: right against self-incrimination

Answer 87

the 5A invokes the privilege against self-incrimination. It provides that a W cannot be compelled to testify against himself. The 5A is applicable to the states via 14A.

Individual asserts and it is not waived if D takes stand in his own defense

No 5A right in 1. lineups, 2. Fingerprints,, 3. Blood samples, 4. voice

No claim if not possibility of incrimination

Question 88

Waiver of privilege

Answer 88

Waiver is assumed if not claimed

Privilege not waived just because it turns out eavesdropper was present

Modern trend: absent negligence, even eavesdropper may not testify

Question 89

Immunity

Answer 89

W may be compelled to provide incriminating testimony, if the government grants him immunity from prosecution (immunity wil overcome a privilege)

Transactional immunity: protects witness against prosecution for the entire transaction about which the testimony was being compelled

Use immunity prohibits the compelled testimony from being used against the W

Question 90

Roles of Judge and jury

Answer 90

judge: determines preliminary Q’s such as 1. is this person qualified to be a witness, 2. does a privilege exist, 3. admissibility of evidence, 4. instructions of limited admissibility
jury: decides questions of fact such as 1. how much weight to give evidence, 2. credibility of witnesses, testimony, or evidence

Neither judge no jurors are permitted to conduct independent investigations of facts

Question 91

Hearsay in general

Answer 91

Hearsay is an out of court statement offer to prove the truth of the matter asserted. If the evidence is found to be hearsay, then it must be excluded, unless an exemption or exception exists. CEC: Hearsay is exempt from Prop 8

NOTE: Only humans can produce hearsay

Question 92

Hearsay exemptions list

Answer 92

1. Independent legal significance, 2. effect on the hearer, 3. Circumstantial proof of D’s state of mind, 4. Prior sworn inconsisten tstatement, 5. Prior consistent statement, 6. Prior identification, 7. Admissions [party opponent],

Question 93

Independent legal significance

Answer 93

If a statement is not offered to prove the truth of the matter asserted, but is actually a legally operative fact to establish a legal relationship, it is not hearsay and is admissible

Question 94

Effect on the hearer

Answer 94

A statement is not hearsay if it is offered to prove that the statement had some effect on the hearer–not whether the statement itself is true (i.e. used to show hearer had notice, good fiat, or reason for action or inaction)

Question 95

Circumstantial proof of D’s state of mind

Answer 95

Statements offered to circumstantially prove declarant’s state of mind and that the declarant believed them to be true are always relevant and not hearsay (

Question 96

Prior sworn inconsistent statement

Answer 96

a prior statement is inconsistent with the declarant’s in-court testimony is admissible to impeach or as substantive evidence so long as prior statement was given under oath at a prior proceeding

Question 97

Prior consistent statement

Answer 97

Prior consistent statement offered to rebut charged of bias/improper motive is admissible to impeach or as substantive evidence so long as prior statement was given before alleged bias came up.

Question 98

Prior identification

Answer 98

Admissible as substantive evidence so long as identification 1. was made after perceiving the person to be the D AND, 2. Declarant is available to testify at trial and be subject to cross

Question 99

Party opponent admisisons

Answer 99

A party’s words or acts may be offered as evidence against him even though these would be inadmisisble hearsay if said by someone else

Question 100

Admisison v. declaration against interest

Answer 100

unlike a declaration against interest, an admisison need not be against declarant’s interest at the time made (thus, even a statement that seems neutral or self-serving at the time it is made may not be introduced against party who made it)

NOTE: If you discuss admisison, be sure to discuss declaration against interest under “exceptions”

Question 101

Party opponent

Answer 101

1. Party’s own statement, 2. that is offered as evidence against that party

A party may be deemed to have adopted another person’s statement (thus making the statement admissible as an admission by the former party. A party may adopt the declarant’s statement through: 1. conduct showing party knowingly agreed OR 2. Silence [IN CIVIL CASES ONLY] If A. party heard statement, B. was capable of denying it, and 3. A reasonable person would have denied the statement

Question 102

Vicarious admisison

Answer 102

A. authorized- even if a party did not make or even learn of another person’s admission, that admisison may be admisisble against th party because he authorized it in some way

B. Agents– even if an agent is not excplicitly authorized to make statements, a statement he makes arising from a transaction within his authority will be deeed to be an authorized admisison by the principal.

CEC: a statment made by an employee if a party is an admisison of the employer ONLY

Co-Conspirator– A statement by one co-conspirator is admissible against other members of the same conspiracy, so long as the statement is made: 1. during the course of the conspiracy AND 2. In furtherance of the conspiracy

NOTE: Admissions of co-conspirators are admissible against each other if party has opportunity to cross examine declarant. COMMON CROSS OVER WITH CRIM PRO

Question 103

Definition of unavailable witness

Answer 103

Unavailable means 1. there is a privilege that is applicable, 2. Declarant refuses to testify, 3. incapacity or incompetence of the declarant, 4. declarant has no memory, 5. declarant is dead, 6. declarant is out of jdx. CEC: Declarant is considered unavailable even if no memory or refusal to testify

Question 104

list of exceptions where declarant unavailable

Answer 104

1. statement against interest, 2. dying declaration, 3. former testimony, 4. Pedigree.family history,

Question 105

list of exceptions where availablity of declarant is immiterial

Answer 105

1. excited utterance, 2. present sense impression, 3. bodily conditions/medical diagnosis, 4.present state of mind, 5. past recollection recorded, 6 business records, 7. public records, 8 official records, 9. ancient documents, 10. learned treatieses, 11.. market reports

Question 106

Statement against interest

Answer 106

a statement whihc, at the time it was made, was so contrary to declarant’s pecuniary, proprietary, penal interest. Whena criminal D tries to inriduce statement that somebody else admitted doing the crime, corroborating evidence is necessary

NOTE: declarant need not be a party to the action

CEC: adds “statement against social interests” risks making the declarant an object of hatered ridicule, or social disgrace in community.

Question 107

Dying declaration

Answer 107

ONLY HOMICIDE AND CIVIL CASES

Admisibility requirements: 1. declarnt unavailable, 2. declarant had reasonable bleif of imminent death, and 3. the statement is regarding the cause of death

CEC: any case can admit there where relevant to cause of death AND declarant ACTUALLY DIED

Question 108

Former testimony

Answer 108

Admissibility requirements: 1. declarant is unavailable, 2. party that testimony against was a party or in privity with a party in the prior action, 3. prior action involved the same subject matter as the current action an 4. that party had a chance to cross X declarant at prior action

NEVER ALLOWED for GRAND JURY T B/C no opportunity to cross X

CEC: Civil cases–> party against whom the testimony is now offered was not a party in the earlier proceeding BUT, a party in that earlier proceeding had opportunity to cross’ OR the former testimony is offered against the person who offered it in evidence on his or her behalf, OR against successor in interest of such a aperson

Question 109

Pedigree/family history

Answer 109

Statements about family history admissible if declarant 1. is unavailable, 2. is a family member or closely associated with the family in question, AND 3. the statements were based on his personal knowledge

NOTE: ok even if W available but family history is the issue and statement is included in a family bible, tombstone engraving, etc.

Question 110

Excited utterance

Answer 110

bring up with PSI

statement relating to a startling event or condition made while under the stress of excitement caused by the event or condition

CEC: “spontaneous statement” statement that purports to narrate, describe, or explain an act, condition, or event perceived by the declarant’ AND was spontaneously made while the declarant was under the stress of excitement caused by the perception

Question 111

Present sense impression

Answer 111

cluster with excited utterance

Statement explaining or describing an event or condition made during or immediately after declarant perceived it

CEC: “contemporaneous statement” statement offered to explain, qualify, or make understandable conduct of the declarant AND was made while the declarant was engaged in such conduct

Question 112

Medical diagnosis/past condition

Answer 112

past: spontaneous statement of declarant’s condition

Admissible if: 1. made to medical personnel, and 2. Statement was made for the purposes of diagnosis

FRE: if statement was made to doctor employed to testify, but did not treat, ADMISSIBLE (Majority : Not admissible)

CEC: admissible only IF declarant is a minor and is unavailable

Question 113

Present state of mind

Answer 113

Statements made to anyone that are offered to show declarant’s 1. state of mind, 2. emotional state, 3. physical condition, or 4. physical sensation

Question 114

Past recollection recorded

Answer 114

Cluster with present recollection refreshed

If W cannot remember, a writingcan be READ into evidence if: 1. W had personal knowledge of the matter, 2. the statement was made by or adopted by W at his direction, 3. The matter was still fresh in his mind, AND 4. the writing is accurate

Question 115

business records

Answer 115

Admissible as BOTH impeachment AND substantive evidence of proof that the act/transction occurred if the recards: 1. are kept in the ordinary course of business, 2. It is a routine practice to make this kind of record, 3. were made at or near time of transaction, 4. authenticity has been established, AND 5. Were made by person with personal knowledge or from information supplied by third-party with a business duty to transmit the information

NOTE: police reports of what witnesses said usually WILL NOT be admissible here because witnesses are under no business duty to tell the truth/ look for drug dealer/s ledger

NOTE: Information that is missing from a business record can be proof that it did not happen IF it was the regular practice of that business to record all such matters

TIP: look out for Best Evidence Rule
CEC: A record made by an employee is admissible IF, making the record was within the scope of his duties and it was made at or near the time of the matters described

Question 116

Public records

Answer 116

Usually an agency’s own records of its own activities to show activities occurred

Matters observed by public official during line of duty who had a duty to report observations FRE: can NOTE be used against criminal D, CEC CAN be used against criminal D unless unreliable

Police records admissible unless double hearsay

Invastigative reports, factual findings resulting from investigation cant be used against a criminal D but criminal D can use against gov.

CECOK for AND against gove in criminal case