Evidence

Question 1

For preliminary factual decisions, the court is not bound by the FRE.

Answer 1

However, the court must not consider privileged material

Question 2

Preliminary hearings are conducted outside the presence of the jury in what 3 circumstance?

Answer 2

1) the admissibility of a confession in a criminal trial
2) when the D in a criminal case is a witness and makes the request
3) when the interests of justice otherwise require (i.e., there is an unfair prejudice to a party)

Question 3

Evidentiary rulings can be reversed on appeal ONLY IF:

Answer 3

1) a substantial right of a party has been affected (i.e., not harmless error); AND
2) the judge was notified (via objection or by offer of proof) of the mistake at trial and given a chance to correct it

*However, in exceptional cases, the AC may reverse due to plain error even if there was notification made at trial

Question 4

What does FRE 105 do?

Answer 4

Upon a timely request, the court will use a limiting instruction to ensure that evidence with multiple purposes is not used for an improper purpose.

Question 5

What is judicial notice?

Answer 5

The court’s acceptance of a fact as true without formal proof when the fact is generally known or cannot be reasonably questioned

(e.g., New York is north of Miami, May 24 was a Friday)

Ex: A judge takes judicial notice of the defendant’s past conviction of fraud in state court by calling the clerk of the state court, whom the judge knows personally. The conviction is not widely known and the clerk is not a well-established source

+judicial notice can occur at any stage, including on appel

Question 6

How is judicial notice treated in civil and criminal cases?

Answer 6

civil: the court will instruct the jury that it MUST accept the fact as proven
criminal: court will instruct the jury that it may (but need not) find that fact

In CA, the court instructs the jury that it MUST accept judicially noticed fact in both criminal and civil cases

Question 7

What is a leading question?

Answer 7

a question that suggests the answer

Question 8

Generally, leading questions are not permitted on direct examination (nor is it very effective). What are the exceptions to this general rule?

Answer 8

1) to elicit preliminary background information not in dispute;
2) the witness has trouble communicating due to age or infirmity; or
3) when you call a hostile witness or adverse party (*essentially this person is being cross-examined)

Question 9

What is present recollection refreshed?

Answer 9

a technique that allows any item (photo, document, etc.) to be used to refresh a witness’s memory when the witness’s memory is currently uncertain.

The item used does not become evidence and the witness cannot read from it. The other side is allowed to inspect the item and even show it to the jury.

Question 10

What is the objection “facts not in evidence?”

Answer 10

An objection used when the question assumes facts not in evidence
Ex: Do you still hate your mother?
Ex: When did you make your will (when there is no evidence the will was ever made)

Question 11

What is the objection “argumentative question?”

Answer 11

The question is not really a question, but instead is just intended to bother or harass the witness

Question 12

What is the standard used in civil cases?

Answer 12

a preponderance of the evidence

Question 13

What is the definition of relevance?

Answer 13

Evidence is relevant if it is probative of a material fact

Question 14

What does FRE 403 say?

Answer 14

Even if the evidence is relevant and there is no particular rule excluding it, the court has discretion to exclude relevant evidence if certain risks substantially outweigh its probative value [generally, this rule is only used in exceptional situations]

Question 15

What are some FRE 403 risks?

Answer 15

• confusion/misleading the jury
• unfair prejudice
• waste of time

Question 16

What is the general character evidence rule?

Answer 16

The evidence cannot come in under the theory that a person acted in conformity with a particular character trait

Question 17

What does a Dead Man’s statute do?

Answer 17

limits the ability of witnesses to testify about transactions with people who are deceased

Question 18

When will a court allow impeachment of a criminal defendant through the use of evidence of a prior felony conviction?

Answer 18

evidence of a prior felony conviction is admissible only if its probative value outweighs the prejudicial effect

Question 19

What are the three ways to rehabilitate a witness?

Answer 19

1) give the witness a chance to explain
2) prior consistent statement
3) bolster the witness’s character for truthfulness using either reputation or opinion evidence (after attacked as having a bad character for truthfulness)

Question 20

What is hearsay?

Answer 20

an out of court statement (made by a person) offered to prove the truth of the matter asserted

Question 21

What is the basic principle of Crawford?

Answer 21

out-of-court testimonial statements give rise to Confrontation Clause problems. Only if the declarant is available or the criminal D had a prior opportunity to cross-examine the witness can the statement come in.

+the confrontation clause does not apply to statements offered by the defendant
+But if the codefendant testifies, the D cannot raise the Confrontation Clause because he can confront the testifying do-defendant on cross-examination

Question 22

What is a testimonial statement?

Answer 22

a statement made with the primary purpose of ascertaining past criminal conduct

Question 23

When can testimonial statements against a criminal defendant be admitted?

Answer 23

The declarant is now unavailable; and the defendant had a prior opportunity to cross-examine that declarant

Question 24

What are common preliminary questions for the court to answer? Remember the court is not bound by the rules evidence

Answer 24

• Miranda rights give and voluntariness of confession
• foundational facts for hearsay exclusion/exception
• foundational facts for application of privilege
• chain of custody
• legality of search/seizure
• competency
• expert’s qualifications

Question 25

When does a criminal defendant open the door for the prosecution to introduce evidence of the defendant’s bad character?

Answer 25

by introducing:

1) evidence of his/her own good character for a trait pertinent to the charged crime or
2) evidence of the alleged victim’s bad character.

Question 26

After a criminal defendant calls a witness to testify that the defendant’s character is inconsistent with the charged one, what may the prosecution then do?

Answer 26

1) ask the witness about a specific act committed by the defendant or
2) call another witness to provide reputation or opinion testimony on the defendant’s corresponding bad-character trait.

Question 27

What is the requirement when asking about specific act?

Answer 27

the question about a specific act must be asked by the prosecution in good faith (i.e., questions on a hunch will not suffice, even if the hunch proves accurate)

Question 28

What is the best evidence rule?

Answer 28

the original or reliable duplicate document MUST be produced when its contents are at issue—i.e., when (1) the document is used to prove the happening of an event, (2) the document has a legal effect, or (3) the witness is testifying based on facts learned from the document.

Ex: At issue is whether the D unlawfully used the idea of the P’s animal robot in a movie. The model is returned to the P and the P destroys it. This does not matter because the best evidence rule applies only to writings, recordings, and photographs
Ex: A P sued a D for fraudulent representations allegedly made by the D in selling a car to the P. At trial, the P testified that he received a letter from the D the day before the sale occurred in which the D wrote that the brakes on the automobile had just been replaced the week before. May the court admit the testimony. No. Even though this is not hearsay as a statement of an opposing party, the best evidence rule still applies

Question 29

Evidence of a remedial measure is inadmissible if it was undertaken by the defendant after the plaintiff was injured. A remedial measure undertaken before the plaintiff was injured is not subject to exclusion.

Answer 29

o

Question 30

Is a judgment of acquittal admissible?

Answer 30

No, because the judgment is inadmissible hearsay.

Question 31

A lay witness can testify as to whether a document is in person’s handwriting, but she needs to have personal knowledge before the litigation and must not have become familiar with the handwriting for the purpose of the current litigation

Answer 31

There is no such prohibition for handwriting experts.

Question 32

When is a person’s silence in response to another’s statement considered an adoptive admission?

Answer 32

1) the party was present and heard and understood the statement,
2) the party had the ability and opportunity to deny the statement, and
3) a reasonable person similarly situated would have denied the statement.

Question 33

What is the hearsay exception for absent public records?

Answer 33

testimony by a public official that a diligent search failed to disclose a public record is admissible to prove that the record does not exist—if the public office regularly kept records for a matter of that kind.

Question 34

A witness may be impeached (i.e., discredited) by evidence that directly contradicts the witness’s testimony on a material issue.

Answer 34

This can be done through both: intrinsic and extrinsic evidence

Question 35

When does the recorded recollection hearsay exception apply and the evidence can be read into evidence?

Answer 35

1) it concerns a matter that a witness once knew but cannot recall at trial,
2) it was made or adopted by the witness when the matter was fresh in his/her mind, and
3) it accurately reflects the witness’s personal knowledge at the time it was made.

Question 36

FRE 410 bars evidence of (1) withdrawn guilty pleas, (2) nolo contendere pleas, (3) statements made during plea proceedings, and (4) statements made during plea negotiations that did not result in a guilty plea or resulted in a guilty plea that was later withdrawn.

Answer 36

However, a defendant may waive these default protections if the waiver is made knowingly and voluntarily

+Prop 8 may bring these statements in

Question 37

What is the marital communications privilege and how long does it last?

Answer 37

Protects against disclosure of confidential spousal communications made in reliance on the sanctity of marriage during marriage in criminal & civil cases. It lasts indefinitely, even after divorce. Under the minority view, only the communicating spouse can assert the privilege, but generally both spouses can assert it.

Question 38

What is the spousal-immunity privilege? How long does it last?

Answer 38

Shields witness-spouse from testifying against spouse in criminal cases (in CA civil too) about matters that occurred BEFORE or during marriage. It lasts only during marriage and expires at divorce/annulment.

Question 39

Character evidence is generally inadmissible when it is used to prove that a person acted in conformity with his/her character during the litigated event.

Answer 39

But such evidence is admissible if a person’s character is an essential element of a civil claim, criminal charge, or asserted defense.

Question 40

When does the former testimony exception allow an unavailable declarant’s former testimony to be admitted?

Answer 40

• the testimony was given at a trial, hearing, or deposition in the current case or a different proceeding that involved similar parties and issues and
• the party against whom the testimony is offered had an opportunity and similar motive to develop that testimony through direct or cross-examination of the declarant.

+Remember that this exception rarely applies to grand jury testimony because a suspect/defendant is seldom present at grand jury proceedings and the prosecution’s motive to develop a grand jury witness’s testimony is often lacking

Question 41

An arrest alone does not qualify as a bad act that is admissible to attack a witness’s character for truthfulness.

Answer 41

o

Question 42

When does the statement against interest exception to hearsay apply?

Answer 42

it is contrary to an unavailable declarant’s pecuniary or penal interest.

In CA, it also includes statements that harm one’s SOCIAL interest

Question 43

When does the excited utterance exception to hearsay apply?

Answer 43

1) it relates to a startling event or condition and

2) it was made while the declarant was still under the stress of excitement caused by that event or condition.

Question 44

When may an expert rely on otherwise inadmissible hearsay in forming an opinion?

Answer 44

the opinion itself is still admissible if experts in that particular field would reasonably rely on those kinds of facts and data in forming an opinion.

Question 45

Generally in federal diversity actions, the court applies the FRE. However, when does the federal court use state substantive law?

Answer 45

when state law supplies the rule of decision for a claim or defense (i.e., in diversity cases), the court should apply state law to determine the effect of a PRESUMPTION on the claim or defense.

Question 46

What does the best evidence rule not apply to?

Answer 46

real or physical evidence

Question 47

Generally, jurors may not testify as a witness to what occurred during deliberations. What are the grounds for admitting posttrial juror testimony?

Answer 47

MOE

1) a Mistake made in entering the verdict onto the verdict form.
2) an Outside influence improperly brought to bear on a juror, or
3) Extraneous prejudicial information brought to the jury’s attention,

Question 48

When attacking a witness’s character for truthfulness with a specific instance of conduct of a mere bad act, how can this be introduced?

Answer 48

ONLY intrinsically. A conviction for a felony or a crime of dishonesty can be introduced intrinsically or extrinsically

Question 49

When can a prior inconsistent statement come in extrinsically to impeach a witness?

Answer 49

it can only be introduced extrinsically if the witness is given the opportunity to explain or deny the statement AND the opposing party is given the opportunity to examine the witness about the statement.

Question 50

Once a witness has used a writing to refresh his/her recollection, what does this entitle the adverse party to do?

Answer 50

1) have the writing produced for inspection,
2) cross-examine the witness about the writing, and
3) introduce into evidence any portion of the writing that relates to the witness’s testimony.

Question 51

What is the “bursting bubble” approach to presumptions?

Answer 51

the opposing party in a civil suit can overcome a rebuttable presumption by producing sufficient evidence to contradict the presumed fact. Once this occurs, the presumption “bursts” and the fact finder must weigh the evidence to decide the issue. Conversely, if no contrary evidence is introduced, the judge must instruct the jury to accept the presumption.

Question 52

When does the “bursting-bubble” approach not apply?

Answer 52

• conclusive presumptions

- federal diversity cases, where state law governs the presumption

Question 53

What must be shown to authenticate evidence that is a physical representation of something that could not otherwise be seen—e.g., an electrocardiogram or x-ray image?

Answer 53

[AWQ]

• the process for creating the evidence was Accurate
• the machine that produced the evidence was Working properly and
• the operator of the machine was Qualified to operate it.

Question 54

Generally a duplicate is admissible to the same extent as an original unless…

Answer 54

• a genuine question is raised about the original’s authenticity or
• the circumstances make it unfair to admit the duplicate

Question 55

When the relevance of evidence depends on whether a fact exists, what is the standard that must be met?

Answer 55

proof must be introduced to support a finding that the fact does exist. Proof is sufficient when a jury could reasonably find the conditional fact by a preponderance of the evidence

• the court may admit the proposed evidence on the condition that such proof be introduced later.

Question 56

What are some self-authenticating documents?`

Answer 56

• official publications issued by a public authority
• newspapers and periodical
• trade inscriptions (ie., labels)
• notarized documents
• commercial paper
• records of a regularly conducted activity (e.g., a business) certified by a custodian of the records

Question 57

What are some situations in which a person is considered “unavailable” for hearsay exception purposes?

Answer 57

• exemption due to privilege
• refusal to testify despite a court order
• lacks memory of the subject matter of the statement
• death, infirmity, physical/mental disability
• is absent and cannot be subpoenaed to be present

Question 58

What does prop 8 “Truth in Evidence” law do?

Answer 58

it makes all relevant evidence admissible in criminal cases, even if objectionable under CEC, unless an exception applies

Question 59

What are the exemptions to Prop 8?

Answer 59

• exclusionary rule
• hearsay
• privileges before 1982
• limits on character evidence to prove D or victim’s conduct
• best evidence rule
• balancing under 352: Prejudice impact > probative value

+The D still must “open the door” to bring in evidence of his own character before the prosecution can do so

Question 60

What are the CA and F standards for relevant evidence?

Answer 60

CA: it must have a tendency to prove or disprove a “disputed fact.”
F: it must be probative of a material fact
+ They largely lead to similar outcomes

Question 61

What is the CA equivalent of FRE 403?

Answer 61

CEC 352

Question 62

What are the FRE and CEC rules on using the defendant’s prior sexual assaults in a civil case arising from rape or child molestation?

Answer 62

FRE: Character CAN be admitted in cases based on sexual assault or child molestation

CEC: This exception does not apply (generally character in these cases can’t be used) (it can be used when character is an essential element of a claim or defense)

Question 63

When a defendant puts on good character evidence, what is the limitation?

Answer 63

the defendant’s character evidence must be pertinent to the crime charge (e.g., on trial for embezzling money cannot put on evidence of peaceable nature)

Question 64

What are the FRE and CEC rules on a defendant attacking a victim’s character?

Answer 64

FRE: only reputation or opinion evidence of the victim’s character can be used

CEC: A criminal defendant may attack a victim’s character through opinion, reputation, AND specific act

Question 65

What are the FRE and CEC rules on when the defendant claims or offers evidence that the victim was the first aggressor?

Answer 65

FRE: the prosecution may offer evidence of the victim’s character for peacefulness

CEC: there is no exception that allows prosecutors to do this

Question 66

What are the FRE and CEC rules on when can a judge be a witness?

Answer 66

FRE: presiding judge is absolutely barred from testifying as a witness in the trial

CEC: judge may testify if no party objects

Question 67

What are the FRE and CEC rules on post-verdict attacks on verdicts by jurors?

Answer 67

FRE: jurors can only provide information regarding outside influences that may have affected the verdict

CEC: Jurors can provide information on any improprieties that may have affected the jurors, but cannot testify as to how those influences affected their reasoning

Question 68

What are some ways to impeach a witness?

Answer 68

• inability to perceive or recall
• prior inconsistent statement
• character for dishonesty/truthfulness
• witness’s criminal record
• evidence contradicting the witness’s testimony
• bias

Question 69

What is the “good after bad” rule?

Answer 69

After bad character evidence regarding the witness’s credibility is offered, good character evidence regarding truth-telling may be offered

Question 70

What are the FRE and CEC rules on using convictions to impeach witnesses in civil cases?

Answer 70

FRE: all felonies and misdemeanors involving dishonesty (crimen falsi) are automatically admissible if under 10 years; other felonies are subject to judicial discretion

CEC: only felony convictions if they involve moral turpitude are admissible for impeachment in a civil case; court has discretion to balance.

Question 71

What is the CEC rule on using convictions to impeach witnesses in criminal cases?

Answer 71

Under Prop. 8, all felony convictions, as well as misdemeanors that involve moral turpitude, are admissible to impeach in criminal cases, as long as the danger of unfair prejudice does not substantially outweigh their probative value. There is no 10-year time limit. There is no “reverse rule” for balancing interests when the defendant is the witness to be impeached

Question 72

What are the FRE and CEC rules on using specific instances of dishonest conduct to impeach a witness?

Answer 72

FRE: In civil and criminal cases, parties can cross-examine with specific acts of dishonesty, but the cross-examiner is stuck with the witness’s answer

CEC: In civil cases, the cross-examination is prohibited and extrinsic evidence cannot be used. In criminal cases, the initial cross examination and the extrinsic evidence (to prove up) are permitted

Question 73

What is always required when questioning about specific acts of dishonesty?

Answer 73

good-faith basis

Question 74

What are the FRE and CEC rules on impeaching a witness with prior inconsistent statements?

Answer 74

FRE: the prior inconsistent statement is only admissible for its truth if it was under oath in a proceeding [so generally it is only for impeachment]

CEC: all prior inconsistent statements are admissible for impeachment and as substantive evidence

Question 75

What are the FRE and CEC rules on rehabilitating a witness after impeachment with prior consistent statements?

Answer 75

FRE: prior consistent statements must have been made prior to the witness developing the motive to lie in order to be admissible

CEC: A prior consistent statement may be used to rehabilitate a witness so long as the statement was made before the witness’s alleged inconsistent statement

Question 76

When can a lay witness give opinion testimony?

Answer 76

When the opinion is 1) rationally based on the perception of the witness; and 2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue

Question 77

What tests are used in CA and F for expert opinion?

Answer 77

CA: Kelly/Frye

FRE: Daubert

Question 78

What is the Daubert test?

Answer 78

expert testimony is admissible, considering:
-Testing of method
-Reliability
-Acceptance of method in the field (reasonable)
-Peer review and publication
[TRAP]

Question 79

What is the Kelly/Frye test?

Answer 79

If there is novel scientific evidence, the proponent must show that the scientific theory or technique has been generally accepted as valid and reliable in the relevant scientific field. For instance, polygraphs would be rejected because they are generally regarded as unreliable

Question 80

What are the FRE and CEC rules on ancient document?

Answer 80

FRE: A document or data compilation, including data stored electronically, is considered authentic if it is (i) at least 20 years old, (ii) in a condition unlikely to create suspicion as to its authenticity, and (iii) found in a place where it would likely be if it were authentic.

CEC: A dispositive document (such as a will or deed) that is over 30 years old is presumed to be authentic if it (i) does not look suspicious; (ii) is found in a place where it would likely be if authentic; and (iii) has been treated as authentic by people who care about its
authenticity.

Question 81

What are the FRE and CEC rules on self-authenticating document?

Answer 81

FRE: Certain documents, such as certified copies of public records, are self-authenticating; this can include certified copies of business records

CEC: Business records are not self-authenticating

Question 82

What is the physician-patient privilege?

Answer 82

[CA ONLY] Statements made by a patient to a doctor for the purpose of obtaining medical treatment for physical, mental or emotional condition are privileged. The patient holds the privilege. The privilege does not exist in criminal cases.

+FRE: does not apply in federal court unless a state law applies

Question 83

The psychotherapist-patient privilege covers confidential communications and exists in federal and CA court. Privilege held by the patient.

Answer 83

In CA, it does not apply if the patient’s mental condition is at issue

+The privilege DOES NOT apply when the communication resulted from a court-ordered exam OR the case is a commitment proceeding OR the patient’s mental condition is at issue

Question 84

What are some CA-only privileges?

Answer 84

• clergy-penitent (held by both)
• news reporters are immune from contempt of court for refusal to disclose sources. But disclosure can be compelled if necessary to provide the criminal D the right to a fair trial
• sexual assault counselor-victim (not absolute if probative value outweighs the effect on the victim)

Question 85

A car company has a defect with their gas pedal. P wants to introduce evidence that the company recalled the car after the accident and redesigned the gas pedal. Is this admissible, FRE and CEC?

Answer 85

FRE: inadmissible

CEC: admissible (subsequent remedial measures are permitted in strict liability cases)

Question 86

When can evidence of subsequent remedial measures be admitted?

Answer 86

For other purposes such as 1) impeachment, 2) to prove ownership or control, or 3) to prove the feasibility of precautionary measures

Question 87

What is the CA/F distinction on offering to pay medical expenses?

Answer 87

CA: Both accompanying statements and the offer to pay medical expenses are INadmissible

F: collateral statements of fact accompanying offer to pay or payments are admissible

Question 88

What is the F/C distinction on using nolo contendere pleas in CIVIL cases?

Answer 88

F: generally not admissible in civil cases against the D

C: NC felony pleas are admissible; NC misdemeanor pleas are inadmissible

Question 89

What do “Rape shield” laws do?

Answer 89

they generally bar evidence of a rape or sexual assault victim’s past sexual conduct (e.g., mode of dress, lifestyle).

Question 90

What are the exceptions to “rape shield laws?”

Answer 90

• (crim) Specific acts of consensual intercourse with the D are only permitted to show consent
• (crim) evidence of sex between victim and another person is admissible to show source of semen, injury, or other physical evidence
• (civ) evidence is admissible if the probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party

Question 91

What is the rule on using the defendant’s prior sexual conduct?

Answer 91

Evidence of the defendant’s prior sexual assault is admissible and is not limited to convictions

Question 92

What is the distinction in F/C court regarding the use of prior statements of identification?

Answer 92

Both require witnesses who made ID to testify at trial

CA: 2 additional requirements (by a preponderance of evidence the events were fresh in the witness’s mind AND the witness must testify that at the time of the ID, the witness believed the ID was accurate)

Question 93

What is the rule on opposing party’s admissions?

Answer 93

A statement of opposing party is admissible, even if it was not against interest when made and was not based upon personal knowledge
+It can come in even if it was obtained deceptively (e.g., by secretly recording a conversation)

Question 94

What is the F/C distinction on vicarious statements?

Answer 94

In CA, the witness’s vicarious statement is limited to the witness’s own activity.

Ex: “I fell asleep while driving” is admissible under both F/C. “I think the mechanic forgot to screw in the bolts” is admissible under F, but not admissible in CA.

Question 95

What is the CA difference regarding the definition of unavailable?

Answer 95

“unavailability” does not include mere lack of memory unless an expert establishes that physical or mental trauma resulting from the alleged crime caused the witness to be unable to remember

Question 96

What are the F/C requirements of a dying declaration?

Answer 96

F: 1) death is imminent, 2) the statement pertains to the cause or circumstances of her death, 3) only applies to civil and criminal homicide cases, 4) declarant is unavailable

C: 1) declarant must have actually died, 2) admissible in all proceedings

Question 97

What is the present sense impression exception to hearsay?

Answer 97

A statement is admissible if it is describing an event that is made while or immediately after the declarant perceived it

-In CA, PSI does not exist. Instead, CA has the “contemporaneous statements” exception which only applies to statements that explain the declarant’s own conduct

Question 98

What is the CA name for the equivalent to the “excited utterance” exception?

Answer 98

the “Spontaneous Statement” exception

Question 99

What is the business record exception to hearsay?

Answer 99

[ABC (think of a business on Sesame Street)]

• At or near time of occurrence;
• By someone with knowledge of the event and a duty to record;
• record made in the Course of business

In F: the burden is on the opponent
In C: the burden is on the proponent to demonstrate by a preponderance that record is trustworthy

Ex: It does not have to be made by someone with personal knowledge. It could be based on information from one with personal knowledge such as a resident in a hospital noting in the hospital chart based on an operating physician’s findings

+It can apply to criminal business too

Question 100

What is the distinction between F/C in the public records exception

Answer 100

Remember CA is more untrusting of biz

F: burden on the opponent to show business record is not trustworthy

C: burden on the proponent to demonstrate by a preponderance that record is trustworthy

Question 101

Which jurisdiction has a residual “catch-all” exception for hearsay that nevertheless is trustworthy enough to come in

Answer 101

federal. CA has no such exception

Question 102

If the essay question is criminal, you should discuss prop 8. What exactly is the approach?

Answer 102

For each piece of evidence 1) apply the normal rules, 2) explain that prop 8 admits evidence, 3) determine if there is a prop 8 exemption

Question 103

What is the general rule on liability insurance?

Answer 103

evidence of liability insurance is not admissible to prove (or disprove) wrongdoing (such as negligence or ability to pay a judgment)

+It can come in to show motive. Ex: the defendant is on trial for arson and evidence of insurance on the house has a tendency to show that the defendant had a motive

Question 104

What is the minimum standard to testify?

Answer 104

A witness must have personal knowledge of the matter and must declare that they will testify truthfully

Ex: Even a witness with dementia who cannot remember her age, level of education, or could not recall where she had met the defendant before CAN be a testifying witness so long as she has personal knowledge and declares that she will testify truthfully

+it is presumed that a witness of any age, EVEN 4, is competent to testify so long as the minimum standard is met

Question 105

What are the 6 objections to the form of the question?

Answer 105

CLAN FU

• compound question
• leading question
• argumentative
• narrative (too broad; e.g., “so what happened?”)
• facts (assumes facts not in evidence)
• unresponsive

Question 106

When faced with an essay question involving privilege, what should the order of answering the question be?

Answer 106

establish:

1) the relationship / applicable privilege
2) that the communication is confidential
3) which party holds the privilege
4) if any exceptions apply

Question 107

What is the CEC-only rule when the D offers evidence of the victim’s violent character?

Answer 107

prosecution can offer evidence that the defendant has a violent character

Question 108

A D testifying on the stand always puts his credibility and character for truthfulness at issue, but not necessarily his general character

Answer 108

o

Question 109

When character is at issue, always consider if it can be admitted for some other purpose besides propensity

Answer 109

o

Question 110

What are the 3 factors considered in determining if something is a habit?

Answer 110

[RSS] like checking the rss feed is a habit

1) the more regular the behavior, the more likely it is a habit
2) the more specific, the more likely it is a habit
3) the more semi-automatic, the more likely it is a habit

Question 111

What is the general rule on old convictions?

Answer 111

old convictions may not be used if more than 10 years have elapsed from both the conviction and the prison term, unless specific facts make the probative value substantially outweigh the prejudicial effect

Question 112

What are three situations in which a statement is actually nonhearsay?

Answer 112

Statements that…

• show effect on listener/reader
• show declarant’s state of mind (knowledge/mental state)
• have independent legal significance (words establishing a K, defamatory words)

Question 113

What is the underlying purpose of the hearsay rule?

Answer 113

the purpose of the hearsay rule is that without the speaker present, there may be problems concerning ambiguity, insincerity, memory, and inaccurate perception.

Question 114

What is a co-conspirator admission?

Answer 114

a statement made during the course of the conspiracy and in furtherance of the conspiracy.

Note: it is still subject to the confrontation clause so if the co-conspirator refuses to testify, the admission will not be admitted

Question 115

What is a Statement Made for Medical Diagnosis or Treatment?

Answer 115

A statement describing medical history or past or present symptoms is not excluded as hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment.

Note: it may still be inadmissible if protected by the physician-patient privilege

[Why you’re sore, but nothing more. Why you’re lame, but not who’s to blame.]

+Ex: a questionnaire in which the decedent wrote “Yesterday I I had chest pains”

+It does NOT need to be made to a physician

Question 116

What are the requirements of past recollection recorded?

Answer 116

FIFA [past ReGOOOLection recorded]

1) Firsthand knowledge of the witness
2) witness now has Impaired recollection
3) events were Fresh when recorded
4) record was Accurate when written

+It can then be read into evidence

Question 117

Multiple hearsay problems are often found in business records or public records. The first level is the record itself; the second level is the information provided by another person

Answer 117

If either statement is inadmissible, the whole piece of evidence is inadmissible.

Question 118

What are the F/C rules on learned treatises that allow them to be read into evidence?

Answer 118

F: it must be established as a reliable authority and called to the attention or used by the expert witness The passage can then be admitted as a basis for the expert’s opinion AND as substantive evidence to prove a material fact. However, the expert may only read the statement into evidence; it cannot be received as an exhibit.

C: Narrower definition as it is only for facts of general notoriety and interest. The work must be “historical,” a “book of science or art,” or “maps and charts.”

Question 119

What is the “OJ” exception?

Answer 119

In CA, a statement describing physical abuse that was made at or near the time of injury will be permitted if it is given under trustworthy circumstances

Question 120

What is “forfeiture by wrongdoing?”

Answer 120

A hearsay exception that will allow the hearsay to come in when a party has engaged in witness tampering intended to make the witness unavailable. It must be shown that the party:

• wrongfully caused the D’s unavailability AND
• did so intending that result

Question 121

What are some ways to authenticate real evidence?

Answer 121

distinctive characteristics or chain of custody

+chain of custody ONLY applies to real evidence, not documentary evidence

Question 122

What are some ways to authenticate writings or recordings?

Answer 122

• eye-witness testimony
• voice identification
• handwriting verification (expert or nonexpert with personal knowledge)
• circumstantial evidence (e.g., postmark, address)

Question 123

When tasked with a question about introducing a document, what should be discussed?

Answer 123

1) relevance
2) authentication
3) Best evidence rule
4) hearsay
5) any applicable hearsay exception

Question 124

If a defendant claims self-defense in a murder trial, when may the prosecution offer evidence regarding the victim’s good character under the (FRE) and the (CEC)?

Answer 124

The prosecution may offer evidence of the victim’s good character under the FRE, but not the CEC.

Question 125

CA has NO accountant-client privilege

Answer 125

o

Question 126

When writing the essay, always discuss the logical and legal relevance for each item of evidence

Answer 126

o

Question 127

When discussing any california evidence essay, start with an introductory paragraph discussing Prop 8 and California Evidence Code 352, like the following:

Answer 127

Under Proposition 8 of the California Constitution, any evidence that is relevant may be admitted in a criminal case. This rule is subject to a number of exceptions, including privileges, hearsay exceptions, and balancing under CEC 352. ([if civil] This case is civil, so Prop 8 will not be applied to the evidence)

Question 128

Once testimony is determined to be reliable and relevant, what are the four requirements for an expert witness to testify?

Answer 128

1) the witness is qualified as an expert by knowledge, skill, experience,
2) the testimony is based on sufficient facts or data
3) the testimony is the product of reliable principles and methods
4) the witness applied the principles and methods reliably to the facts

Question 129

What is the approach when handling a hearsay question on an essay?

Answer 129

1) write the rule
2) explain why it could be hearsay
3) Look for non-assertive conduct (only assertive conduct is barred)
4) state non-hearsay uses
5) look for double hearsay
6) state all relevant nonhearsay exceptions
7) state all relevant hearsay exceptions

Question 130

What are the hearsay exception where it is immaterial if the declarant is unavailable?

Answer 130

• Present sense impression
• excited utterance
• statement of mental, emotional or physical condition
• statement made for medical diagnosis/treatment
• recorded recollection
• business records
• learned treatise
• judgment of previous conviction

Question 131

What are defined as nonhearsay?

Answer 131

[POP]

• prior in/consistent statement
• opposing party statements
• prior statement of identification

Question 132

What is the collateral-evidence rule?

Answer 132

The collateral-evidence rule prohibits the use of extrinsic evidence to impeach a witness with a prior inconsistent statement that pertains to a collateral matter—i.e., a matter that is irrelevant to the outcome of the case.

Question 133

Evidence of a victim’s other sexual behavior or sexual predisposition is generally inadmissible in a civil proceeding involving sexual misconduct. However, when can it be permitted?

Answer 133

evidence of a victim’s other sexual behavior may be admitted if the court determines that the probative value of the evidence substantially outweighs the danger of harm to the victim and unfair prejudice to any party.

Question 134

What is the doctrine of curative admission?

Answer 134

when inadmissible evidence is improperly admitted against a party, the court may permit that party to introduce additional inadmissible evidence for the purpose of rebuttal. Such evidence can be admitted at the court’s discretion when NECESSARY to remove unfair prejudice.

Question 135

A criminal defendant who testifies at a preliminary-questions hearing can be cross-examined about issues related to the admissibility of the contested evidence and the defendant’s credibility—but not about other issues in the case

Answer 135

o

Question 136

When may a testifying defendant put on evidence of their truthfulness?

Answer 136

when their truthfulness has been attacked

Question 137

What is the federal inadvertent-waiver rule?

Answer 137

Disclosure of a communication protected by the attorney-client privilege or work-product doctrine does not operate as a waiver in a federal or state proceeding if:
-the disclosure was made in a federal proceeding or to a federal agency
-the disclosure was inadvertent
-the privilege holder had taken reasonable steps to prevent disclosure AND
the privilege holder promptly took reasonable steps to rectify the error

Question 138

When can a statement in a learned treatise, periodical, or pamphlet be excepted from the rule against hearsay?

Answer 138

1) the publication is established as a reliable authority by a party’s expert or judicial notice and
2) the statements are called to the attention of or relied on by an expert witness during examination.

Question 139

What are the 5 common noncharacter purposes of specific (bad) acts?

Answer 139

MIMIC
Motive
Intent
absence of Mistake
Identity
Common scheme

Question 140

When discussing legal relevance in an evidence essay, what do you say?

Answer 140

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or confusion.

Question 141

Generally, the credibility of a witness cannot be bolstered. When is this allowed?

Answer 141

Reputation or opinion evidence of the truthful character of the witness is admissible only after the witness’s character for truthfulness has been attacked. Evidence that impeaches the witness but does not specifically attack the witness’s character for truthfulness, such as testimony that the witness is biased, does not constitute an attack.

Question 142

What is the limit on what an expert witness can say?

Answer 142

an expert may not state an opinion about whether a criminal defendant had the requisite mental state of any element of the crime charged or of a defense (e.g., intent)

Question 143

The use of leading questions may also be restricted when the cross-examination is one of form rather than fact, such as when a party is cross-examined by his own lawyer after having been called as a witness by an opposing party.

Answer 143

o

Question 144

When a D “opens the door” by offering evidence of his good character, what can the prosecution do?

Answer 144

the prosecution is free to rebut the defendant’s claims by attacking the defendant’s character through opinion/reputation NOT specific instances of conduct

Question 145

What happens when a party shows that another party intentionally destroyed evidence?

Answer 145

there is a rebuttable presumption that the destroyed evidence would have been unfavorable to the party that destroyed it

+Courts use different remedial measures when the evidence was destroyed by negligently.

Question 146

What are the rules for using evidence of a juvenile adjudication to impeach a defendant? A witness?

Answer 146

-Defendant: evidence of a juvenile adjudication is not admissible to impeach the defendant

• Witness: evidence of a juvenile adjudication can be used to impeach the non-defendant-witness’s character for truthfulness if:
• -used in a criminal case;
• -an adult’s conviction for that offense would be admissible to attack the adult’s credibility; AND
• -admitting the evidence is necessary to fairly determine guilt or innocence

+Can also be used to impeach a witness’s credibility by showing bias

Question 147

What does the attorney-client privilege protect?

Answer 147

confidential communications made for the purpose of obtaining legal assistance.

Communications made for other purposes (e.g., business advice or opinions) are not protected

Question 148

What happens if a witness is testifying on a relevant matter based on their personal knowledge, but the information is contained elsewhere?

Answer 148

this is ok. A witness can testify about firsthand experiences or observations even when other evidence may contain the same information

Ex: The victim is prepared to testify that the caller had a distinctive accent like the D’s, but the victim cannot positively identify the voice as the D’s. The victim recorded the call, but has not brought the tape to court. Yes, the testimony of the distinctive accent is permitted even though there is a tape that tells the same information

Question 149

What is the approach on an essay when asked whether testimony should be admitted?

Answer 149

• logical & legal relevance
• personal knowledge
• hearsay
• any exceptions to hearsay

Question 150

What is the main privilege and the component privileges when there is a spouse testifying?

Answer 150

“Spousal privilege” comprises two distinct privileges: spousal immunity and confidential marital communications

Question 151

When discussing logical relevance in an evidence essay, what do you say?

Answer 151

Evidence is relevant if it is probative of a material fact.

Question 152

What happens if a couple discuss something confidentially and their neighbor overhears 20 feet away?

Answer 152

the husband and wife each hold the privilege and because the neighbor was an unknown eavesdropper, the testimony by the neighbor of what was said can be withheld

Question 153

In a civil case, when may ordinary work product be compelled?

Answer 153

Through a showing of:

• substantial need for the material AND
• the materials cannot be obtained by other means without undue hardship

Ex: Attorney interviews an employee and the employee soon after dies

Question 154

What is required for the plea negotiation/settlement exception?

Answer 154

both parties must intend to enter negotiations

Question 155

The plaintiff’s key witness testifies. The defense then called a new witness to testify that the plaintiff’s witness has a poor reputation in the community for honesty and had once cheated in a community raffle. Which parts of the testimony can be admitted?

Answer 155

The testimony about the witness’s reputation for honesty is ok.

The testimony about the cheating in a raffle should be excluded because a specific instance of conduct involving a bad act (that was not a conviction) can only be introduced intrinsically

Question 156

A note by a mother says “My daughter did it” and an affidavit from the physician saying the mother knew she was about to die is provided to lay the foundation. Who decides the admissibility of this note?

Answer 156

the judge as a preliminary fact question and the judge may consider the affidavit

Question 157

What happens if a witness is impeached with a felony or crime of dishonesty that was pardoned, annulled, or there was a certificate of rehabilitation?

Answer 157

The crime is potentially admissible UNLESS the pardon was based on a finding of innocence or a finding of rehabilitation with no subsequent felony

+But if the person was pardoned automatically, then it can be used because it was not based on a finding of innocence

Question 158

When can a juvenile adjudication be used against a defendant-witness for impeachment?

Answer 158

Juvenile adjudications are NEVER allowed to impeach a defendant-witness.

Question 159

What must a party do after being notified that privilege information was received?

Answer 159

the party must

1) promptly return, sequester, or destroy the information and any copies.
2) not use or disclose the information until the claim of privilege is resolved AND
3) take reasonable steps to retrieve information already disclosed

Question 160

Who holds the spousal immunity privilege?

Answer 160

the witness-spouse

Question 161

What is the property interest hearsay exception?

Answer 161

A document that affects a property interest is excepted from hearsay if:

• the matter stated was relevant to the document’s purpose AND
• later dealings with the property do not contradict the truth of the statement

Ex: An authenticated copy of a state court judgment obtained against the ex-girlfriend three years ago to show that the money was not a gift to the ex-girlfriend and belonged to the corporation

Question 162

A codefendant who had assisted the defendant in 5 of the 75 transactions for which the defendant was being tried, testified that he was present and saw the defendant endorse 5 of the checks. The prosecutor then moved for admission of all 75 checks that the defendant had allegedly endorsed, arguing that a comparison by the jury of the signatures would demonstrate that they were all signed by the defendant?

Should the court permit the proposed comparison of the handwriting specimens by the jury?

Answer 162

Yes, because the jurors are allowed to determine the genuineness of handwriting specimens based on comparison with authenticated specimens

Question 163

A woman sued a neighbor for shooting her husband from ambush. The woman offers to testify that, the day before her husband was killed, he described to her a chance encounter with the neighbor on the street in which the neighbor said, “I’m going to blow your head off one of these days.”

Is the woman’s testimony concerning her husband’s statement admissible?

Answer 163

No. While this was a statement of a party-opponent and therefore nonhearsay, it was hearsay by the deceased husband. Therefore, it cannot come in.

Question 164

How can a physical object be authenticated through comparison?

Answer 164

it may be compared to another that has been authenticated as genuine. Such a comparison may be made by either an expert or the trier of fact. there is no need for the judge to be satisfied that the items are sufficiently similar

Ex: The prosecution seeks to introduce a diamond-encrusted pendant found among the defendant’s possessions after his arrest. The prosecution claims that such pendants were only given to high-ranking officials of a brutal regime. A pendant from a museum that has been authenticated may be admitted so that the jury may compare the pendants for authentication purposes

Question 165

What is required when a party uses a summary, chart, or calculation to prove the contents of documents that are too voluminous to be conveniently examined in cort?

Answer 165

original or a reliable duplicate mast be made available to other parties for examination or copying at a reasonable time and place

Question 166

What is the rule on a judge questioning a witness?

Answer 166

The court is authorized to develop or clarify testimony by calling a witness sua sponte or at the suggestion of a party and/or examining a witness

Question 167

Remember that questions are debatably hearsay.

Answer 167

Argue both ways as questions often implicitly assert something

Ex: “Shouldn’t we do a complete systems check?”

Question 168

What is the name of the best evidence rule in CA?

Answer 168

Secondary Evidence Rule

Question 169

What are statements offered to prove something other than the truth of the matter asserted?

Answer 169

• legally operative facts
• effect on recipient
• state of mind
• linking a person to an event, place, object (ex: hotel receipt)
• impeachment and rehabilitation

Question 170

A defendant is on trial for murdering his girlfriend and her unborn child. Whether the girlfriend was pregnant is at issue. The prosecution has called a witness to testify that the girlfriend told her, two days before the murder, “I’m pregnant with [the defendant’s] child.” Is this statement admissible?

Answer 170

yes, as a statement by the girlfriend of her then-existing physical condition

+statements about mental feeling, pain, bodily health can all come in as a statement regarding one’s emotional/physical condition

Question 171

What happens when a party shows that another party’s NEGLIGENCE led to destruction of evidence?

Answer 171

The court should only order measures that are no greater than necessary to cure the prejudice

Ex: Allow the parties to present evidence at trial regarding the destroyed evidence

Question 172

What is the hearsay exception for personal or family history?

Answer 172

A statement concerning the unavailable declarant’s own birth, adoption, marriage, divorce, legitimacy, or familial relationship is not excluded as hearsay

Ex: family bible, genealogy chart, engraving on ring or urn, inscription on portrait, engraving on burial marker

Question 173

What happens if a jury makes a mistake from misunderstanding the court’s instructions?

Answer 173

this testimony cannot be heard. Testimony regarding mistakes only applies when there is a mistake in entering the verdict onto the verdict form

Question 174

A plaintiff sued a defendant for civil battery. At trial, the defendant testified that he was nowhere near the plaintiff when the plaintiff sustained the injuries. The defendant now seeks to call a witness to testify to the defendant’s reputation for both peacefulness and truthfulness. Is this allowed?

Answer 174

No this witness should not be allowed for either reason. This is a civil suit so the defendant cannot bring in good character evidence if it is pertinent to the charge crime. Also, the defendant’s truthfulness has yet to be attacked

Question 175

When an out-of-court statement is admitted under a hearsay exception, the declarant can be impeached as if the declarant had testified at trial.

Answer 175

Ex: Witness testifies that, although he did not see the accident, he heard his girlfriend say, “I can’t believe that employee just waved them through without looking.” The water park seeks to cross-examine the witness about a prior incident in which the girlfriend lied on a job application. This is ok.

Question 176

A D is on trial for the murder of his father. The D’s defense is that he shot his father accidentally. The prosecutor calls a police officer to testify that on two occasions in the past year, he had been called to the defendant’s home due to loud arguments between the D and father and had found it necessary to stop the defendant from beating his father. Is the evidence admissible?

Answer 176

Yes, to negate mistake or accident and prove deliberate act

Question 177

A disclosure to a 3rd party operates as a waiver of the A-C privilege unless:

Answer 177

1) the disclosure was inadvertent;
2) the privilege holder had taken reasonable steps to prevent disclosure; AND
3) the privilege holder promptly took reasonable steps to rectify the error

+The privilege is held by the client, but the attorneys actions, as an agent, can lead to waiver

Question 178

A P has sued a D for personal injuries after the D’s caged-rat bit him as P tried to feed the rat. At trial, the P offers evidence that immediately after the incident D said, “I’d like to give you this $100 bill because I feel so bad about this.” Is the statement admissible?

Answer 178

Yes, as the statement of a party-opponent

Question 179

A D was charged with perjury for having falsely testified in an earlier civil case that he knew nothing about a business fraud. In the perjury trial, the defendant again testified that he knew nothing about the business fraud. In rebuttal, the prosecutor has called the defendant’s neighbor to testify that after the civil trial was over, the D admitted to the neighbor that he had known about the fraud.

Is the neighbor’s testimony in the perjury trial admissible?

Answer 179

yes, both to impeach the defendant’s testimony and as substantive evidence of the perjury. This was both a prior inconsistent statement, so it can be used for impeachment, and an opposing party’s out-of-court statement, so it can be used as substantive evidence.

Question 180

What is the CA equivalent of a present sense impression?

Answer 180

contemporaneous statement

Question 181

What is the name of the hearsay exception in CA when a statement purports to describe or explain the infliction of physical injury upon the declarant that was made at or near the time of the infliction or threat of physical injury?

Answer 181

threat of infliction of injury

The declarant must be unavailable , the statement must have been made under circumstances that would indicate its trustworthiness, and the statement was made in writing or to a medical/emergency official

Question 182

What is the CA rule on using past evidence that the D committed a sexual assault or domestic violence?

Answer 182

• admissible in a criminal case in which the D is accused of committing a sexual assault, or domestic violence
• not admissible in a civil case

Question 183

At a D’s trial for the sale of drugs, the government called a drug user to testify, but the drug user refused to answer any questions about the defendant and was held in contempt. The government then calls an officer to testify that, when the drug user was arrested for possession and offered leniency if he would identify his source, the drug user had named the D as his source. Is the officer’s testimony concerning the drug user’s identification of the D admissible?

Answer 183

No, because it is hearsay not within any exception.

Question 184

What is the hearsay exception when the declarant is speaking about their thinking, condition, belief or memory?

Answer 184

then-existing state of mind exception

Question 185

When a witness gives reputation or opinion testimony about a criminal defendant’s good character, how can the witness be impeached?

Answer 185

• cross-examining the witness about a specific instance of conduct by the defendant that relates to the trait in question OR
• calling another witness to provide reputation or opinion testimony on the D’s corresponding bad-character trait

Question 186

A D was charged with battery for allegedly attacking a man after the two of them left a local bar together. No one else witnessed the incident. At trial, each testified that he had acted only in self-defense. The D has called his next-door neighbor as a witness to testify to the D’s reputation for truthfulness and peacefulness. The government has objected to the testimony. How should the court proceed?

Answer 186

Admit the evidence regarding the defendant’s reputation for peacefulness because criminal Ds can offer evidence of their good character if it is pertinent to the charges against them.

But exclude the evidence regarding his truthfulness because there is no indication that his character for truthfulness had been attacked.

Question 187

What are the exceptions to the Best Evidence Rule?

Answer 187

• admission by opposing party’s testimony, deposition, or written statement
• original is unavailable (lost, destroyed, failure to produce)
• a public record that can be proven by certified copy, comparison testimony
• when the party holding the original was put on notice that the original would be a subject of proof and the party does not produced it.
• the original is in the possession of a person or entity that is not a party to the litigation and the evidence cannot be obtained by any available judicial process (e.g., a foreign third party)

Question 188

When can a caller authenticate a voice?

Answer 188

When a caller dialed a number believed to be the speaker’s and the speaker identified himself upon answering.

+But if someone just picks up a call and someone identifies themself, this cannot be used for authentication

Question 189

A D is on trial for attempted fraud. The state charges that the D switched a price tag. The D has testified in her own behalf that someone else must have switched the tag. On cross-examination, the prosecutor asks whether the D was convicted twice within the last 5 years of misdemeanor fraud of a retailer by the same means of switching the price tag. Is this question proper for impeachment and to prove that the D committed the crime?

Answer 189

It is proper for both purposes.

Impeachment because this was a crime of dishonesty less than 10 years old

Admissible to show she committed the crime because it shows intent

Question 190

Are trade secrets privileged?

Answer 190

No trade secrets are not privileged

Question 191

When a person’s character is directly at issue, what can be admitted?

Answer 191

character evidence can be admitted through reputation or opinion testimony OR specific instances of conduct

Ex: At a civil trial for slander, the P showed that the D had called the P a thief. In defense, the D called a witness to testify, “I have been the P’s neighbor for many years, and people in our community generally have said that he is a thief.” This testimony is admissible because character evidence can be admitted through reputation or opinion testimony OR specific instances of conduct when a person’s character is directly at issue

Question 192

At trial, the injured pedestrian called a witness who testified that he saw the accident and as the car sped off he accurately dictated the license plate number into the voice recorder app on his phone. The witness has stated he no longer remembers the number. May the voice recorder be played?

Answer 192

yes as a present sense impression AND as a recorded recollection

Question 193

What is the scope of cross-examination?

Answer 193

the scope of cross-examination is limited to the subject matter of direct examination AND matters affecting the witness’s credibility. The court may permit inquiry into additional matters

Question 194

What is the major exception to the spousal-immunity or marital-communications privilege?

Answer 194

when one spouse is charged with a crime against the other spouse or a child of either spouse, neither privilege applies

ALSO if both spouses are engaged in a joint crime

Question 195

In a car crash case, the P introduced evidence that a bystander made an excited utterance that the D ran a red light. The D called a witness to testify that later the bystander, now deceased, told the witness that the D went through a yellow light. Is the witness’s testimony admissible?

Answer 195

yes, but only for the purpose of impeaching the bystander

Question 196

A D was charged with sexual assault. At trial, the D has called the victim’s best friend to testify that the victim stated on the night of the assault that she intended to sleep with the D. Is the best friend’s testimony admissible?

Answer 196

Yes, because the testimony goes to the issue of consent

Generally, evidence of the victim’s sexual behavior is inadmissible. But there is an exception for evidence to show someone else was the source of the evidence and evidence of specific instances of a victim’s sexual behavior with respect to the D to show consent

Question 197

At a party’s request or upon the court’s own initiative, the court must exclude witnesses from the courtroom so that they do not hear the testimony of other witnesses. What are the individuals who are excepted from this rule?

Answer 197

• a party who is a natural person
• a police officer in charge of the investigation
• a person whose presence is essential to a party’s presentation of its case
• a person, such as a victim, whose presence is permitted by statute

Question 198

Why is it that the learned treatise hearsay exception only allows a statement to be read into evidence and used as substantive evidence, but the entire book is not admitted?

Answer 198

courts do not want the jury to read the treatise and come up with their own theories of the case

Question 199

What is the rule on evidence of a D’s character to prove that the D acted in conformity with that character trait?

Answer 199

evidence of a civil defendant’s character is NOT allowed to prove that the D acted in conformity with that character trait UNLESS the D’s character is an essential element of a claim or defense

Ex: A teacher is sued for civil battery. The principal is called to say the teacher has a reputation for peacefulness. But this CANT come in because the D’s character for peacefulness is not an element of either battery or self defense

Question 200

A defendant on trial for forging checks took the stand in his own defense. On direct examination, the defendant denied having forged any checks; he stated that before he graduated from college the year before, he worked in his university’s academic records office, indicating that he was “a trustworthy person.” On cross-examination, the prosecutor asked the defendant if he had falsified records while working in the academic records office. The defendant denied that he had done so. The prosecutor then wanted to call to the stand his former supervisor from the university to testify that she had to investigate the defendant after allegations of misconduct, and that when questioned, he had admitted to her that he had falsified records. The defendant was removed from his position, but no formal charges had been brought against him. Can the prosecutor be allowed to call the D’s former supervisor?

Answer 200

No, because the testimony would be impeachment by extrinsic evidence of a specific instance of conduct. A specific instance of conduct, if used to impeach the credibility of a testifying witness, may not be proved by the introduction of extrinsic evidence. The adverse party may cross-examine the witness about the conduct, but must take his answer as he gives it.

Question 201

A plaintiff sued a defendant for injuries she sustained when she slipped on a wet floor in the defendant’s restaurant. The plaintiff saw a physician and underwent physical therapy sessions to treat her injuries. During one session, the plaintiff said to her physical therapist, “You know, I saw the ‘Caution, Floor is Wet’ sign before I fell, but I was in such a hurry to get back to my table that I ignored it.” Another patient undergoing physical therapy with another therapist overheard the statement, and informed the defendant, who happened to be his friend. The defendant wants to introduce the testimony of his friend, as whether the plaintiff had notice of the wet floor is at issue in the case. The plaintiff objects to the testimony. Should the court allow the friend to testify as to the plaintiff’s statement?

Answer 201

Yes because the statement qualifies as a statement by an opposing party. A prior out-of-court statement by a party to the current litigation used against that party is, by definition, not hearsay.

Question 202

When can a dying declaration be used?

Answer 202

only in homicide prosecutions or civil cases

Ex: Dying declaration cannot be used in a criminal trial for attempted murder

Question 203

Generally, propensity evidence is inadmissible. What is a significant exception?

Answer 203

In a criminal or civil case involving sexual assault or child molestation, evidence that the accused committed any other sexual assault or child molestation is admissible for ANY relevant purpose – even to show the accused’s propensity to commit the charged assault or molestation

Question 204

A D was charged with murder. A witness testified for the prosecution. On cross-examination of the witness, the D seeks to elicit an admission that the witness was also charged with the same murder and that the prosecutor told her, “If you testify against the D, we will drop the charges against you.” Is the evidence about the prosecutor’s promise admissible?

Answer 204

Yes, as proper impeachment of a witness to show bias

Question 205

In a personal injury case, after the P threatened to sue, the store manager said “I know there was slush on that marble entryway, but I think your 4 inch heels were the real cause of your fall. So let’s agree that I’ll pay your medical bills, and you release us from any claims you might have.” The P refused the offer. At trial, the P seeks to testify to the manager’s statement that “there was slush on that marble entryway.” Is this statement admissible?

Answer 205

No, because it is a statement made in the course of compromise negotiations

Question 206

A D is on trial for knowing possession of a stolen tv. The D claims that the tv was a gift from a friend, who has disappeared. The D seeks to testify that he was present when the friend told her neighbor that the tv had been given to the friend by her mother. Is the D’s testimony about the statement admissible?

Answer 206

Yes, as nonhearsay evidence of the D’s belief that the friend owned the tv

Question 207

A man was charged with armed robbery of a store and denied that he was the person who had robbed the store. In presenting the state’s case, the prosecutor seeks to introduce evidence that the man had robbed 2 other stores in the past year. Is this evidence admissible?

Answer 207

No, because its probative value is substantially outweighed by the danger of unfair prejudice. If there was evidence that the crimes had the same ‘signature’ as the present one, then it may have come in to show identity

Question 208

A D was tried for the homicide of a girl whose strangled body was found beside a remote logging road with her hands taped together. After the D offered evidence of alibi, the state calls a witness to testify that the D had taped the witness’s hands and tried to strangle her in the same location two days before the homicide but she escaped. Is the evidence admissible>

Answer 208

yes, as tending to show the D is the killer. This is Identity evidence

Question 209

At trial, the prosecutor calls the D’s wife as a willing witness to testify that the D told her in confidence that he misrepresented his assets on the loan application. The D objects to his wife’s testimony. Should the testimony be admitted?

Answer 209

No, because even though the wife is a willing witness, the D has the right to exclude confidential marital communications in federal court

Question 210

At trial, an eyewitness testifies for the P in a case in which the P’s car was pushed off the road by a military convoy. On cross-examination the eyewitness is asked whether he belongs to a religious group that refuses on principle to file federal tax returns, because the funds are used for war. Is the question proper?

Answer 210

Yes, because the witness’s beliefs are relevant to the possibility of bias

Evidence of religious beliefs CANNOT be used to attack the witness’s character for truthfulness

Question 211

After a slip and fall, the manager says “I’m so sorry about the water on the floor there, but don’t worry – the store will pay for the ambulance and your hospital bill.” Is this statement admissible?

Answer 211

The testimony about the water is an admissible statement of an opposing party, but the rest of the testimony is inadmissible as an offer to pay medical expenses

Question 212

The best evidence rule only applies when a document’s CONTENTS are at issue.

Answer 212

Ex: An agent seeks to testify based on personal knowledge to a conversation between defendants. There is a recording of the conversation too. Regardless of whether the recording is produced, the agent can testify

Question 213

What is the psychotherapist-patient privilege?

Answer 213

it protects confidential communications between a patient and a pyschotherapist (i.e., a psychologist or psychiatrist) or a social worker made during the course of treatment or diagnosis. The privilege belongs to the patient but MUST be asserted by the psychotherapist in the patient’s absence

Question 214

At trial, to prove that the substance added to the resident’s food could result in death, the prosecutor, without first calling any witnesses, offers to read into evidence several pages from a standard medical treatise that supports the prosecution’s claim that the substance the D added to the food is lethal. Is the evidence admissible?

Answer 214

No, because the treatise excerpts were not offered during the examination of a qualified witness

Under the learned treatise exception to hearsay, a party may read statements in a publication into evidence if:
1) the publication is established as a reliable authority by a party’s expert or judicial notice and

2) the statements are called to the attention of or relied on by an expert witness during examination.

Question 215

A man has sued a police officer for excessive force. At trial, the officer admits hitting the man in the head but contends that the force was necessary, because the man was resisting arrest. In support of his contention, the officer seeks to introduce evidence that the man had resisted arrest on three prior occasions during the last 10 years. Is the testimony regarding the man’s conduct admissible?

Answer 215

No, because evidence of prior incidents is impermissible character evidence because it is being used to prove that the man has a propensity to resist arrest

Question 216

When an expert relies on hearsay in making an opinion, when will the underlying information be disclosed to the jury?

Answer 216

Only if the court determines that its probative value in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect

Question 217

Where does the physician-patient privilege exist?

Answer 217

ONLY CA

But both CA and F have psychotherapist-patient privilege

Question 218

A party seeks to admit expert testimony. What is the standard that must be met for this to come in?

Answer 218

the testimony is:

• relevant
• reliable by a preponderance of the evidence

Question 219

A stockholder sued a corporation for losses he allegedly suffered when the price of the stock dropped. At trial, the stockholder seeks to testify that, in his opinion, the drop in the corporation’s stock price was directly attributable to the public revelation about the false earnings report. The stockholder conceded that he has no formal education or training in economics or the stock market. Should the stockholder be permitted to testify to his opinion?

Answer 219

No. The stockholder is a lay witness so he cannot offer opinion testimony based on scientific, technical, or other specialized knowledge relating to stock price changes

Question 220

What is the standard required when authenticating physical evidence?

Answer 220

There is no standard required (i.e., no clear and convincing or preponderance). All that is required is a prima facie showing that the object is what the proponent claims it to be

Question 221

What does the attorney-client privilege NOT protect?

Answer 221

• business advice or opinions
• existence of a-c relationship
• client’s identity

Question 222

A lawyer was called to testify in a hit-and-run accident. It is alleged the driver came out of the lawyer’s parking lot. The lawyer refuses to disclose the identity of the client. Must the lawyer do so?

Answer 222

Yes, because the identity of a lawyer’s client is not privileged when disclosure would not reveal a confidential attorney-client relationship

Question 223

A declarant’s then-existing mental, physical, or emotional condition is admissible as an exception to the hearsay rule

Answer 223

o

Question 224

What is a vicarious statement?

Answer 224

A statement is a vicarious admission if it was made by an agent concerning a matter within the scope of his agency while the employment relationship existed

Question 225

The trial judge ordered all witnesses excluded from the courtroom during the trial except for the parties. The trial judge then ordered the P to testify first during his case in chief and to relate his version of events before hearing the testimony of other eyewitnesses. The P has objected to the order requiring him to testify first. Did the trial judge exceed her authority in ordering the P to testify first?

Answer 225

No, because the trial judge has broad discretion to exercise control over the order of examining witnesses

The judge has this control over mode/order of examining witnesses and presenting evidence to:

• make procedures effective for determining truth
• avoid wasting time
• protect witnesses from harassment or undue embarrassment

Question 226

What is the general rule regarding evidence and the grand jury?

Answer 226

The FRE do not apply to grand jury proceedings. The only exception is evidentiary rules on privilege.

Question 227

What does FRE 408 say?

Answer 227

Statements made during compromise negotiations are generally inadmissible to prove the validity or amount of a disputed claim OR impeach by prior inconsistent statement

This applies if the statement is used in a later criminal case

Question 228

Evidence of an organization’s routine practice is admissible to prove that the organization acted in accordance with that practice on a particular occasion

Answer 228

Ex: Supervisor testifies that the company issues thousands of policies each year and that it is routine practice for agents to discuss supplemental policy options with each customer. This statement can be heard.

Question 229

Where do FRE not apply?

Answer 229

• grand jury proceedings
• probation/parole revocation hearings
• preliminary-question determinations
• search/arrest warrant determinations
• extradition proceedings
• bail & other release hearings
• sentencing hearings