Evidence

Question 1

CA Prop 8

Answer 1

All relevant evidence is admissible, even if objectionable under the CEC, subject to a few exceptions.

Examples:
* D must still “open the door” to bring in evidence of his own character before prosecution can do so
* Court can still exclude evidence if probative value is substantially outweighed by risks
* Hearsay cannot be admitted unless an exception applies
* Miranda, Confrontation Clause still apply

Question 2

What is the FRE 403 Balancing Test?

Answer 2

Balancing test that the court uses to decide whether relevant evidence should be admitted. The relevant evidence will be excluded if certain risks substantially outweigh its probative value

Risks: confusion of issues, unfair prejudice, misleads jury, waste of time, unduly cumulative

Question 3

What is a testimonial statement (Crawford) and when can it be admitted?

Answer 3

An out-of-court statement that is (1) formal in nature (given during police interrogation, grand jury, former trial, preliminary hearing etc) and (2) that is foreseeably going to be used in prosecution.

Testimonial statements can only be admitted against a criminal D if
- (1) Declarant is now unavailable AND
- (2) Defendant had a prior opportunity to cross examine the declarant

Question 4

Attorney-Client Privilege

Answer 4

Communications between an attorney and CL or CL’s representatives are privileged in all proceedings unless waived. To be protected, a communication must be
- (1) intended to be confidential and
- (2) made to facilitate legal services

Question 5

What must a court do if the competency of a child witness is questioned?

Answer 5

The court must evaluate the child’s (1) intelligence, (2) ability to differentiate between truth and false (3) understanding of the importance of telling the truth and (4) child must have personal knowledge of the matter on which they intend to testify

Question 6

Mercy Rule

Answer 6

D is permitted to introduce a pertinent trait of character about themselves to establish good character (assault = peaceful character; embezzlement = honest character) via a witness’s opinion or reputation testimony.

Opens the door for prosecution to attack D’s character

Question 7

When is evidence of D’s past crimes/bad acts admissible? What types?

Answer 7

Can be introduced if used for some other purpose other than propensity (must past 403 balancing test)

• KIPPOMIA: Knowledge, Intent, Preparation, Plan/Common Scheme, Opportunity, Motive, Identity (MO), Absence of Mistake or Accident

Question 8

What are the three basic ways to impeach a character witness?

Answer 8

Character for untruthfulness (including character witness testimony, specific acts on cross, criminal convictions, prior inconsistent statements)

Bias

Sensory or mental competence

Question 9

How is the Daubert Test used to determine whether an expert witness can testify?

Answer 9

Courts require that expert:

1. Be qualified by SKEET: skill, knowledge, experience, education, and training
2. Base their testimony on sufficient facts/data
3. Base their testimony on reliable principles and methods AND
4. Apply the principles and methods reliably to the facts of the case

Question 10

What are two ways to authenticate a signature or someone’s handwriting?

Answer 10

Comparison: expert witness or jury compares the authenticated and disputed handwriting

Lay witness: witness w/ personal knowledge of authentic writing (acquired outside litigation) gives opinion on disputed writing

Question 11

Relevancy standard (FRE)

Answer 11

Evidence is relevant if it has any tendency to prove or disprove a material fact

Question 12

Do the rules of evidence apply at grand jury proceedings?

Answer 12

No.

Question 13

what are the two exceptions to attorney-client privilege?

Answer 13

1. Crime or fraud: privilege doesn’t apply if CL seeks legal services to aid in the planning or commission of a fraud/crime, (even if the attorney is unaware that the CL is seeking their services for an illegal purpose)
2. Attorney defending malpractice claim: privilege doesn’t apply if communication relates to an alleged breach of attorney’s duty

Question 14

What are differences between statement against interest and statement of a party opponent?

Answer 14

• statement of a party opponent not hearsay while statement against interest is a hearsay exception
• statement of a party opponent does not have to be against declarant’s interest. It applies to any statement
• statement against interest is not just limited to the parties in the action, while statement of a party opponent is

Question 15

What are the hearsay exceptions that require the declarant to be unavailable?

Answer 15

“Former Teacher Dies Saving an Idiot”
* Former Testimony
* Dying Declaration
* Statement Against Interest

Question 16

Former Testimony

Answer 16

Statement admissible if:
* (1) declarant is unavailable
* (2) declarant’s prior testimony was given under oath
* (3) party against whom testimony is now offered was a party in previous action, in which there was an opportunity to cross-examine declarant

Question 17

Dying Declaration

Answer 17

Out-of-court statement admissible if:
* (1) Declarant is unavailable
* (2) Statement was made under the belief of impending death
* (3) Statement related to circumstances surrounding the belief of impending death

Note: only available in civil and homicide cases

Question 18

Statement Against Interest

Answer 18

• (1) Declarant unavailable
• (2) Statement made was against declarant’s civil, penal, financial, or proprietary interest
• (3) reasonable person wouldn’t have made the statement unless it were true

Statements that would subject a declarant to criminal liability are NOT admissible unless the trustworthiness of the statement can be corroborated

Question 19

What are the hearsay exceptions where it doesn’t matter whether declarant is unavailable or not?

Answer 19

“Present and Excited for SOM PBR and DMT to recollect and record my past”
* Present Sense Impression
* Excited Utterance
* State of Mind
* Public Records
* Business Records
* Statement Made for Medical Diagnosis or Treatment
* Past Recollection Recorded

Question 20

A ruling on evidence can be reversed on appeal only if:

Answer 20

(1) a party’s substantial right has been affected AND (2) the judge was notified of the mistake at trial and given a chance to correct OR

(3) Plain error rule applies: error is obvious on its face. Appelate court will reverse to prevent a miscarriage of justice (even if no objection/offer of proof was made at trial)

Question 21

Business Records Exception

Answer 21

For the BR exception to apply, the record must have been (1) kept in the course of regularly conducted business and (2) made by a person w/ knowledge of the matter at or near the time of the matter’s occurrence

Question 22

When can a statement of a co-conspirator come in against D?

Answer 22

If the statement was made in furtherance of the conspiracy

Question 23

Past Recollection Recorded

Answer 23

A recorded recollection is admissible if (1) it was made by the witness near the time of the event (2) the witness doesn’t remember the recorded statement (3) it is about something the witness once had knowledge of and (4) there is sufficient evidence that the record was accurate when made