Evidence

Question 1

Relevance

Answer 1

Evi mb both logically relevant and legally relevant tb admissible.

Question 2

Logical Relevance

Answer 2

Under FRE, logical relevance means that the evidence tends to prove or disprove a fact that is of consequence in the action.

CA rules are in accord; however, the CEC also specifically reqs that the evidence go to a disputed fact.

Question 3

Legal Relevance

Answer 3

Legal relevance means that the probative value of the evi is not subst outweighed by danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evi.

Question 4

Public Policy Exclusion

Answer 4

(1) Subsequent Remedial Measures;
(2) Liability insurance;
(3) Offers to pay medical expenses;
(4) Settlement offers.

CA - Expressions of sympathy not admissible in civil action related to death or suffering of an accident V, but stmt of fault made in connection w/ sympathy admissible

Question 5

Witness Capacity Requirements

Answer 5

W must have personal knowledge of the matter about which and must declare that will test truthfully. Lay opinion test is admissible if rationally based on W’s perception and is helpful to the trier of fact. Lay opinion may not be based on scientific or specialized knowledge.

Question 6

Expert Testimony

Answer 6

Expert opinion is admissible if specialized knowledge will assist trier of fact in understanding the evi or determining a fact; the W is qualified as an exp by knowledge, skill, experience, training, or education; test is based on suff facts or data may be based on firsthand knowledge, observation of prior Ws, or hypo question; and the test is product of reliable principles and methods.

Question 7

FRE Daubert Standard

Answer 7

Requires the substance of exp’s test be peer reviewed and published in scientific journals, tested and subjected to retesting, known for a low error rate, and subject to a reas level of acceptance

Question 8

CEC Frye Standard

Answer 8

Requires that proponent must prove that the underlying scientific theory and instruments it uses, and it has been gen accepted as valid and reliable in the relevant scientific field.

Question 9

Character Evidence

Answer 9

Gen, not admissible in civil case to prove conduct in conformity w/ that character trait on a particular occasion. CE is admissible where character is at issue and is an essential element of the case. In crim case, where CE is allowable, the character trait mb pertinent to the case. Only ∆ can open the door to evi of pertinent character trait, and prosecution can rebut as to that character trait. Only rep and opinion evi is allowed not specific acts evi on direct. On cross, all 3 forms available.

Question 10

Specific Acts Evidence Exception to Character Evidence

Answer 10

Specific acts may be allowed for other purpose:  
Intent to commit act; 
Preparation to commit act; 
Identity of perp; 
Knowledge; 
Absence of mistake; 
Motive; 
Opportunity; 
Plan or scheme.

Question 11

Hearsay

Answer 11

HS is a stmt, other than the one made by the decl while test at the current trial or hearing, offered in evidence to prove the TOTMA. Eve that falls w/in the definition of HS will be excluded upon objection unless it comes under an exception to the rule.

Question 12

Hearsay Exclusions

Answer 12

Party admission;
Adoptive admission;
Vicarious admission;
Co-conspirator statements.

Question 13

Statement of an Opposing Party/Admission

Answer 13

A stmt made by a party and offered against that party is not HS under FRE, and is considered a HS exception under the CEC. This type of stmt has traditionally been called an admission.

Question 14

Adoptive Admission

Answer 14

A stmt made by another where the party knows of its content and voluntarily manifests belief in the truth of the stmt by words or action. Silence can be an adoptive admission if a aRP would have spoken up, subject to 5th right to silence.

Question 15

Co-Conspirator Admissions

Answer 15

Stmts made during the course of the conspiracy and in furtherance of conspiracy.

Question 16

Excited Utterance/Spontaneous Statement FRE/CEC

Answer 16

The FRE recognizes a HS exception for a stmt made by a decl during or soon after a startling event. The stmt mb made under the stress of excitement produced by the startling event, and must concern the immediate facts of the event.

There is a counterpart CEC provision for spontaneous stmts.

Question 17

Present Sense Impression

Answer 17

A stmt is admissible if describing or explaining an even tor condition and made while decl was perceiving the event or condition.

Question 18

CEC Contemporaneous Statement

Answer 18

CEC doesnt recognize a HS exception for PSI. The CEC does make an exception for contemporaneous stmts that are made at the time of an occurrence; however, the exception applies only to a stmt the decl makes to explain, qualify, or make understandable his own conduct, and the stmt mb made while the decl is engaged in that conduct.

Question 19

Present State of Mind or Condition

Answer 19

A stmt of the decl’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory, or physical condition is not HS and is admissible.
Memory or belief is not admissible.

CEC, decl of the decl’s then-existing SOM, including a stmt of intent or plan can be admitted to prove that intent or plan. Admissible as circumstantial evi that tends to show what the decl intends to do in the future, or that such intent was carried out.

Question 20

Statement for Medical Diagnosis or Treatment

Answer 20

A stmt that describes a person’s med history, past or present symptoms, or their inception or general cause is admissible as an exception to the HS rule if it was made for—and was reas pertinent to—med diagnosis or treatment.

Other part of stmt which includes fault not admissible.

Question 21

Prior Inconsistent Statements

Answer 21

Subst admissible and admissible for impeachment as long as PIS was made under oath as party of a formal proceeding.

Only for impeachment purpose if not made under oath at prior proceeding.

Question 22

Prior Consistent Statement

Answer 22

Only admissible substantively if offered to rebut a charge of recent fabrication, or improper motive. Need not be made under oath.

Question 23

Prior Identification

Answer 23

Substantively admissible if decl testifies at trial.

Question 24

Past Recollection Recorded

Answer 24

At trial, if a W states that he doesn’t have suff recollection of an event tb able to test fully and accurately, even after consulting a writing provided to him on the stand, the writing itself may be read into evi. The doc itself isn’t admitted into evi unless offered by the adverse party.

Question 25

Past Recollection Recorded Foundation Procedure

Answer 25

In order to qualify as past recollection recorded, a foundation mb laid for the doc’s admissibility, which must show that:

(1) the W at one time had personal knowledge of the facts recited in the writing;
(2) the writing was made by the W or made under his direction;
(3) the writing was made while the matter was fresh in the mind of the W;
(4) the writing is accurate; and
(5) the W has insufficient recollection to test fully and accurately.

Question 26

Business Record

Answer 26

A writing that’s made as a memo or record of an act is admissible in evi as proof of that act if it was made in the reg course of bus, and if it was the reg course of such bus to make it at the time of the act or w/in reas time thereafter. Stmts w/in bus record must consist of matters w/in the personal knowledge of either the recorder or of someone w/ a bus duty to transmit the matters to the recorder. Thus, the record’s contents don’t have tb win the personal knowledge of the recorder if both the recorder and the transmitter of the record’s contents are EEs of the same bus.

Question 27

Business Record Authenticity

Answer 27

The auth of the record mb est for this exception to apply. The usual method of auth is to have the custodian or other W test to the ID of the record and the mode of its preparation.

Question 28

Public Records

Answer 28

Admissible if w/in one of following categories:

(1) Agency’s record of its own activities;
(2) Matters observed in the line of duty and under duty to report;
(3) Investigative reports w/ factual finding resulting from investigations made;
(4) Criminal case limitation - FRE Crime prosecution cannot use matters observed by police officers or police investigations against a crim ∆.

Question 29

Public Records

Answer 29

Admissible if w/in one of following categories:

(1) Agency’s record of its own activities;
(2) Matters observed in the line of duty and under duty to report;
(3) Investigative reports w/ factual finding resulting from investigations made;
(4) Criminal case limitation - FRE Crime prosecution cannot use matters observed by police officers or police investigations against a crim ∆.

Question 30

Declarant Unavailability Required

Answer 30

(1) Former testimony;
(2) Statements against interest;
(3) Dying declarations;
(4) Statement of personal family history;
(5) Stmt offered against party procuring decl’s unavailability.

Question 31

Former Testimony

Answer 31

Admissible where the party against whom the test is now offered had, during the earlier hearing or depo, an app to examine that person and a similar motive to develop the test.

Question 32

Dying Declaration

Answer 32

Admissible where a stmt is made by a decl, while believing his death was imminent and is concerning the cause or circumstances of his impending death. Only allowed in crim homicide and civil cases. Decl need not be dead, but only be unavailable.

Question 33

Declaration Against Interest

Answer 33

Admissible if, at the time it was made, it was against the decl’s fin or penal interest. If offered to exculpate the accused, there mb corroborating evidence.

Question 34

Forfeiture by Wrongdoing

Answer 34

Where party has engaged in W tampering intended to make the W unavailable.

Question 35

Best Evidence Rule

Answer 35

To prove the contents of a writing, the OG mb produced. Machine duplicates are allowed unless the authenticity of the OG is disputed.

Question 36

Voluminous Writings

Answer 36

If the OG docs are so voluminous that they cant be conveniently introduced into evidence, a summary may be introduced through a sponsoring W.

Question 37

Judicial Notice

Answer 37

The process of establishing facts w/o presenting evi. Ct can take judicial notice of facts not subject to reas dispute bc they’re either:

(1) generally known w/in the jdx; or
(2) capable of accurate and ready determination by a source whose accuracy cannot be reas questioned.

Question 38

Authentication Phone Call

Answer 38

Oral stmts mb authenticated in cases where the ID of the speaker mb shown to make the stmt relevant. STmts made during a phone call may be auth by test as to one of the following:

(1) the listener recognizes the speaker’s voice;
(2) the speaker has knowledge of certain facts that only a particular person would have; or
(3) speaker has ID’d himself.

Question 39

Statement to Show Effect on the Hearer

Answer 39

A stmt that is inadmissible HS if offered to prove the truth of the stmt may be admissible nonHS to show the stmt’s effect on the person who hears it.

Question 40

Leading Questions

Answer 40

A Q is leading and therefore objectionable on direct exam, when it suggests the answer to the W.

Question 41

Leading Question on Direct Exceptions

Answer 41

(1) Qs used to elicit prelim or introductory matter;
(2) cases in which a W had a loss of memory or another circumstance in which he needs assistance in responding; or
(3) cases in which a W is hostile or an adverse party.

Question 42

Nonresponsive Questions

Answer 42

A W’s response may be stricken as non responsive if it goes beyond the scope of the specific Q that has been asked. When a Q calls for a yes or no answer, any addtl test is subject to being excluded as nonrespsonsive.
Under CEC, a motion to strike a nonresponsive answer can be made by counsel for any party.

Question 43

Speculation

Answer 43

An examining att may not ask a W to speculate or hypothesize as to the existence or meaning of a fact. Test mb based upon the W’s personal knowledge rather than on conjecture.