Evidence

Question 1

Expert Opinion Rules

Answer 1

Under Federal Rule of Evidence (FRE) 702, an expert witness may state an opinion or conclusion, provided that: (I) the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue; (ii) the opinion is based on sufficient facts or data; (iii) the opinion is the product of reliable principles and methods; and (iv) the expert has reliably applied the principles and methods to the facts of the case. The expert must possess reasonable certainty or probability regarding his opinion. An opinion that is mere guess or speculation is inadmissible.

Question 2

Rebutting a Defendant’s Character Witness

Answer 2

If the defendant puts her character at issue by having a character witness testify as to his opinion of the defendant or the defendant’s reputation, the prosecution may rebut in the following manner: (i) by calling its own character witness to testify to the defendant’s bad reputation or their opinion of the defendant’s character for the particular trait involved; and (ii) on cross-examination, by inquiring whether the reputation witness knows or has heard of particular instances of the defendant’s misconduct pertinent to the trait in question. Fed. R. Evid. 405(a).

Question 3

Best Evidence Rule

Answer 3

The best evidence rule is more accurately called the “original document rule.” The rule is as follows: In proving the terms of a writing (recording, photograph, or X-ray), where the terms are material, the original writing must be produced.
Secondary evidence of the writing, such as oral testimony regarding the writing’s contents, is permitted only after it has been shown that the original is unavailable for some reason other than serious misconduct of the proponent. Fed. R. Evid. 1002.

Question 4

Kelly-Frye Standard

Answer 4

The Kelly-Frye states that reliability of scientific opinion is determined by one factor, which is that the opinion must be based on principles reasonably accepted by experts in the field. It is inapplicable to non-scientific opinion and medical opinion since those are based on facts and circumstances of the case.

Question 5

Three-Step Approach to Admissibility of Impeachment Evidence

Answer 5

1) Is the source of impeachment extrinsic evidence or testimony;
2) If it is extrinsic, is it admissible given an impeachment technique; and
3) Are there any other foundation requirements?

Question 6

Prior Consistent Statements

Answer 6

Prior Consistent Statements are not considered hearsay. They are considered admissible for all purposes if made before an alleged motive to fabricate arose otherwise, it will be considered inadmissible.

1) Note: Usually, Prior Inconsistent Statements are considered hearsay and are only allowed for impeachment purposes. However, if the statement was made under oath at a prior proceeding, it is admissible non-hearsay and may be admitted as substantial evidence of the facts stated.

Question 7

Prior Inconsistent Statements

Answer 7

A party may show, on Cross or with extrinsic evidence, that the witness has, on another occasion, made a statement inconsistent with his or her present testimony. However, a proper foundation must be laid and the statement must be relevant to an issue in the case.

Question 8

Logical Relevance

Answer 8

Logically relevant evidence is evidence that makes the existence of any material fact of an action more probable than it would be without the evidence.

“Here the evidence is logically relevant because….. Thus it is relevant/irrelevant.

Tip: Ask what the evidence is trying to prove, if it is related to a material issue in the case, and is it probative of that proposition?

Question 9

Legal Relevance

Answer 9

Even if evidence is relevant the court may do a balancing act whereby a judge may use their discretion to exclude the evidence if its probative value is substantially outweighed by unfair prejudice, confusion or waste of time.

“Here the evidence is more/less probative than prejudicial because….”, “Thus the evidence should be excluded/admitted.”

Question 10

Reliability

Answer 10

Evidence must also be reliable in order for admission.

Question 11

Personal Knowledge

Answer 11

One has perceived the facts with one or more or her senses and a reasonable juror believes the witness perceived the fact.

Question 12

Competency of a Witness (Testimonial Evidence)

Answer 12

There are four requirements for a witness to testify. 1) Personal Knowledge, 2) Present Recollection, 3) Communication, 4) Sincerity (Must understand legal duty to tell truth - CA)

Question 13

Hearsay

Answer 13

An out of court statement, offered in court, to prove the truth of the matter stated. It can be verbal or written of a person or any conduct that is intended to communicate.

“Here, the statement is/is not hearsay because _________.
The next issue is whether there is an exception to the hearsay rule. “

Question 14

Not Hearsay

Answer 14

Things that are not hearsay include: Independent Legal Significance, Offered to show the effect on the listener, to show speaker or writers knowledge, or show a circumstantial state of mind.

Question 15

Unavailability

Answer 15

A declarant is deemed unavailable if they are 1) exempt due to privilege, 2) dead or sick, 3) refuses to testify, 4) cannot be procured by process or reasonable means, 5) memory fails on the subject (total loss in CA), 6) or in California – out of fear.

Question 16

Present State of Mind

Answer 16

A statement of a declarant’s then-existing state of mind, emotion, sensation or physical condition is admissible.

Question 17

Present Sense Impression

Answer 17

If the statement is explaining a condition or event made while the declarant was perceiving the event or immediately thereafter.

Question 18

Excited Utterance

Answer 18

An out of court statement relating to a startling event made while under the stress of the excitement of the event. It must be before the declarant has time to reflect on it.

Question 19

Prop 8 Summary

Answer 19

In California, the Truth and Evidence Amendment to the California Constitution, Proposition 8, makes all relevant evidence in a criminal case admissible, even if it’s objectionable under the CEC. However, courts still have the power to exclude evidence if unfair prejudice substantially outweighs its probative value.

Question 20

Best evidence rule

Answer 20

In proving the terms of a writing (recording, photo, X-ray, etc) where the terms are material the original writing must be produced. Secondary evidence of the writing such as oral testimony regarding the writings contents, is permitted only after it has been shown than the original is unavailable for some reason other than the serious misconduct of the proponent.

Question 21

Impeachment

Answer 21

The casting of an adverse reflection on the truthfulness of the witness

Question 22

Impeachment with a Prior Felony Conviction

Answer 22

Under the FRE, all felonies involving a false statement are admissible and there is no balancing of unfair prejudice against probative value except for old convictions over ten years.

Felonies not involving false statements may be admissible with the balancing test.

In California all moral turpitude felonies are admissible with a balancing test. All other felonies are inadmissible.

Question 23

Impeachment for Misdemeanor Crimes

Answer 23

Evidence of Prior Misdemeanor Convictions:
Under the FRE, all misdemeanors involving false statements are admissible and there is no balancing test except for old convictions. All other misdemeanors are inadmissible to impeach. In California, all misdemeanors are inadmissible unless they fall under Prop 8.

Question 24

Moral Turpitude Crimes

Answer 24

Crimes of lying, violence, theft, extreme recklessness and sexual misconduct but not crimes for merely negligent or unintentional acts.

Question 25

Authentication

Answer 25

Before a writing is received in evidence, the writing must be authenticated by proof showing that the writing is what the proponent claims it is.

A voice may be authenticated by anyone who has heard the voice at any time.

Question 26

Declarant’s state of mind

Answer 26

Statements introduced to show the state of mind of the declarant are not offered for the “truth of the matter asserted” and thus are not hearsay. Thus a statement offered to show the declarant’s knowledge is not hearsay.

Question 27

Vicarious Admission

Answer 27

Admissions are excluded from the hearsay rule and will be admitted. A party admission is any statement made by a party and it may be offered against him. The statement need not be against declarant’s interest.

Question 28

Impeachment - Bad Acts of truthfulness

Answer 28

Truthfulness:
Specific Bad Acts that are probative of truthfulness may be raised on certain circumstances on cross-examination and subject to the legal balancing test. 1) The question must be made in good faith, 2) extrinsic evidence is not allowed to prove the bad act so essentially the questioner is stuck with the answer received from the witness. CA: Not available in civil cases.

Question 29

Rehabilitation:

Answer 29

The rehabilitating evidence must support the witness’s credibility in the same respect as the attack.

Question 30

Business Record

Answer 30

Admissible where a sponsoring witness establishes the record was kept in the course of regularly conducted business activity. 1) Business activity, 2) regular practice, 3) personal knowledge (Must have a business duty to report), 4) timeliness.

Question 31

Spousal Testimonial Privilege:

Answer 31

Permits witnesses to refuse to testify against his or her spouse as regarding any matter. Under the FRE it applies only to criminal cases and in CA it applies to all cases and the spouse of the party is even privileged not to be called to witness stand.

Can only be claimed during marriage.
Only witness spouse may testify
Does not apply to actions between spouses
Invoking privilege makes them unavailable

Question 32

Spousal Confidential Communication Privilege

Answer 32

Under both the FRE and CEC any communication between spouses is privileged and protects any confidential spousal communications during the marriage.

Privilege survives the marriage (just comms, not acts).

Both spouses may assert and can prevent the other from testifying except for crimes against the other spouse or child.

Evoking makes spouse unavailable for hearsay purposes.

Question 33

On Direct

Answer 33

Leading questions should not be used on the direct examination of a witness except to develop the witness testimony or if the witness is an expert.

Question 34

Subsequent Remedial Measures

Answer 34

Evidence of repairs made following an injury is inadmissible to prove negligence, culpable conduct, a defect in a product or its design or defective warning or instruction.

Exception: Show ownership/control, rebut a claim the precaution was not feasible or to prove destruction of evidence.

CA ONLY: Is admissible to prove defective design in a product’s strict liability case.

Question 35

Liability Insurance

Answer 35

Evidence of insurance is not permitted except to show ownership/contrl, purposes of impeachment as part of an admission.

Question 36

Character Evidence:

Answer 36

Character evidence is generally inadmissible to show that on a particular occasion the person acted in accordance with the character trait.

Question 37

Easy Hearsay Test

Answer 37

1) Find the statement
Exam Tip: It is usually in parenthesis if it is a verbal expression.
2) Find what the statement allegedly proves.
3) Then, given what it allegedly proves, would the jury be misled if the out-of-court speaker was lying or mistaken?
4) If yes, then it is hearsay. If no, then it is not hearsay.

Question 38

Prop 8 Exemptions

Answer 38

In criminal trials, all relevant evidence is admissible, even if objectionable under the CEC subject to the following exemptions:

1. Defendant must still open the door to bring evidence of his own character before the prosecution does.
2. Rape Shield Laws still limit evidence of victim’s character.
3. Members of the media still cant be held in contempt for refusing to reveal a confidential news source
4. Court still has power to exclude using legal relevance balancing test
5. Secondary evidence rule still applies
6. Hearsay may still not be admitted unless subject to an exception
7. Exclusionary Rules based on US Constitution still apply (Miranda, Confrontation clause, etc.)
8. Exclusionary Rules adopted by California Legislature still apply
9. Privileges that already existed in 1982 still apply (attorney/client, professional, marriage, etc).

“Dr. Mammal Counts SHEEP”

Question 39

Specific Instances of Defendant’s Bad Conduct

Answer 39

Specific instances of the defendant’s bad acts or other crimes are inadmissible to suggest the defendant is more likely to have committed the crime currently charged. However, it may be admitted to prove anything relevant, other than character, such as “MIMIC”.
1) M: Motive;
2) I: Intent (Absence of a Mistake);
3) M: Mistake or Accident (The Absence Thereof);
4) I: Identity (Similarity or Uniqueness to Prove, such as Modus Operandi); and
5) C: Common Plan or Scheme (An act is one part of the scheme to commit another crime).

Question 40

Nonhearsay Purpose
(Hearsay Exemptions)

Answer 40

An out-of-court statement may be nonhearsay by definition when it is not being offered for the truth of the matter asserted but for some other reason such as in the following situations where evidence is offered to show”

1. Effect on Listener or Reader
   (Listener told brakes are bad)
2. Declarant’s state of mind
   (Knowledge of acts, mental state, show motive - not truth of the statement)
3. Independent Legal significance
   (solicitation, words of defamation, contract words)

Question 41

Hearsay Exceptions - All Admissions

Answer 41

Party Admissions
Adoptive Admissions
Vicarious Admission
Co-Conspiracy Admissions

Question 42

Party Admission

Answer 42

A party admission is any statement made by a party, and it may be offered against him. The statement need not be against declarant’s interest.

Question 43

Adoptive Admission

Answer 43

A statement made by another where the party knows of its content and voluntarily manifests belief in the truth of the statement by words or actions.

IOW: An adoptive admission is generally where the defendant, knowing the content of an accusation against him, adopts the truth of the accusation by his words or conduct.

For example, let’s say the defendant makes a statement, “Yeah, man, that guy didn’t know who he was messing with.” That statement is admissible by itslef as an admission. But it becomes much more powerful as an adoptive admission when it is coupled with the cellmate’s question, “You shot the guy because of the way he looked at you?”

Sometimes a defendant can adopt an accusation by his silence. If someone is accused of a crime under circumstances where he could hear, understand, and reply to the accusation, and he does not respond, both the accusation and his response (or lack thereof) may be admitted in court. The prosecutor can argue from this that the defendant admitted the crime.

Similarly, if the defendant responds to an accusation in a way that is evasive or equivocal, that can be admitted in court.

Question 44

Silent Adoptive Admission

Answer 44

Adoptive admission can be made by silence if a reasonable person would have spoken up, but always subject to the fifth amendment right to remain silent.

Question 45

Vicarious Admission

Answer 45

A vicarious admission can arise in one of two ways:
1) Explicit Authorization - made by an authorized spokesman
2) Employee or Agent - Statement must be within scope of the agent/employee relationship and made during the existence of the relationship.

CEC: Narrows exception to cases only where negligent conduct of that employee is the basis for liability.

Question 46

Confrontation Clause - Co-Conspirator

Answer 46

The confrontation clause of the 6th Amendment guarantees a criminal defendant the right “to be confronted with witnesses against him.” This gives a defendant the right to keep out certain out-of-court declarations where the declarant is not available to be cross examined.

• An out of court testimonial statement by a witness cannot be admitted in a criminal case unless the witness is made available for cross examination at trial.
• An out of court non-testimonial statement can be admitted even if unavailable for cross examination.

A co-conspirator admission is subject to the confrontation clause requirement that a defendant is allowed to confront his accusers so if the co-conspirator refuses to testify, the co-conspirator admission will not be admitted.

Question 47

Hearsay - Admission by Co-Conspirator

Answer 47

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

Question 48

Spontaneous, excited, or contemporaneous statement hearsay exceptions

Answer 48

1. Medical Diagnosis or Treatment Statements
   - Include cause of condition but not statements of fault
2. State of Mind: Then existing mental, emotional or physical condition.
   - Does not apply to statements of memory or belief
3. Present Sense Impression
4. Excited Utterance

Question 49

Present Sense Impression

Answer 49

A statement is admissible if describing or explaining an event or condition and made while the declarant was perceiving the event or condition or immediately thereafter.

Question 50

Excited Utterance

Answer 50

Admissible if relating to a startling event or condition and made while the declarant was still under the stress of excitement caused by the event or condition.

Question 51

Hearsay Exceptions - ALL

Answer 51

1. Admissions
2. Spontaneous, excited, or contemporaneous statements (Medical Diagnosis, State of Mind, Present Sense impression, Excited utterances)
3. Prior Statements of available witnesses
4. Document hearsay exceptions (Past recollection recorded, business records, public records and reports)
5. Declarant unavailable hearsay exceptions (UNAVAILABLE DUE TO Privileged, death or illness, Cant produce despite reasonable means, witness refusal, unable to remember, THE EXCEPTIONS ARE: Former testimony, Dying declarations, declaration against interest, forfeiture by wrongdoing).
6. Residual Catch All

Question 52

Hearsay Exception - Prior Statements of Available Witnesses

Answer 52

Prior Inconsistent statement: A substantively admissible and not merely admissible for impeachment if 1) taken under oath as part of a formal proceeding, 2) the declarant is subject to cross-examination concerning the statement.

Prior Consistent statement: Only admissible substantively if offered to rebut a chart of recent fabrication or improper motive. NEED NOT be made under oath,

Prior Identification of a person, made after perceiving the person is substantively admissible if the declarant testifies at trial.

Question 53

Legal Relevance Public Policy Exclusions

Answer 53

Subsequent Remedial Measures
(CA: OK to show defective design in Products Liability)

Proof of Liability Insurance
(Admissible to show ownership, control, impeachment, and part of an admission)

Settlement Offers

Withdrawn Guilty Pleas
(CA: balance the prejudicial effect)

Payment/Offer to Pay Medical Expenses (CA admissions of fact during negotiations are inadmissible)

Expressions of Sympathy CA rule: inadmissible for civil actions

Question 54

Admissibility of (Name of Evidence) - Essay heading

Answer 54

THe admissibility of (name of evidence) is dependant on the Federal Rules of Evidence and/or the California Evidence Code (if asked to apply CA)

Question 55

Settlement Offers

Answer 55

Evidence of settlements, offers to settle, and related statements are inadmissible to prove liability or fault.
o CA Only: Discussions during mediation proceedings are also inadmissible

Question 56

Withdrawal of Guilty pleas

Answer 56

Under the FRE, withdrawn pleas, offers to plead guilty or evidence of statements made in negotiating such pleas are not admissible in any proceedings.
o CA Only: Balance the prejudicial effect. Proposition 8 is unclear as to its admissibility standards so state this and weigh the effects.

Question 57

Payment or Offers to Pay medical expenses

Answer 57

Evidence of payments or offers to pay medical expenses is inadmissible when offered to prove liability for the injuries in question. Federal law only also excludes such statements if they are part of a settlement offer.
o CA Only: Also makes inadmissible admissions of fact made in the course of making such payments or offers.
o Expressions of Sympathy
o CA Only: California makes expressions of sympathy relating to suffering or death of an accident victim inadmissible in civil actions.

Question 58

Reliability - Essay Headings

Answer 58

RELIABILITY
Personal Knowledge
Expert Witness
Authentication
Best/Second evidence

Question 59

Character Evidence - Essay Headings

Answer 59

CHARACTER:
Civil Case
Criminal Case
Victim to Prove Conduct
Defendant to Prove Conduct
Rape Shield Statutes
Specific Acts (MIMIC)

Question 60

Impeachment - Essay Heading

Answer 60

IMPEACHMENT:
Prior inconsistent statement
Prior felony conviction
Prior Misdemeanor Conviction
Non-Conviction bearing truthfulness

Question 61

Privileges - Essay Heading

Answer 61

PRIVILEGES
Marital (eval both types)
- Spousal testimonial
- Confidential communications
Attorney-Client
Physician/patient

Question 62

Hearsay - Essay Heading

Answer 62

HEASAY
Identify
Exemptions (non-hearsay)
Exceptions (3-5 generally)

Question 63

Double Hearsay - Essay Heading

Answer 63

DOUBLE HEARSAY
Id that you have two levels
FIRST LEVEL
exceptions
SECOND LEVEL
exceptions

CONCLUSION

Question 64

Legal Relevance - Essay Heading

Answer 64

LEGAL RELEVANCE:
Prop 8 - CA Criminal Case (Truth and evidence law)
Subsequent Remedial Measures
Liability Insurance
Settlement Offers
Withdrawn guilty pleas
Offer to pay medical expenses
Expressions of Sympathy (CA only)

Question 65

Character Evidence in a Civil Case

Answer 65

Character evidence in a civil case is inadmissible to prove conduct. One exception exists under the Federal Rules where the claim is based on sexual assault or child molestation. In such a case, defendant’s prior acts of sexual assault or child molestation are admissible to prove defendant’s conduct in this case.

o CA: There are no exceptions for civil cases, it is never admissible.

Question 66

Character Evidence in a Criminal Case - DEFENDANT’s Character

Answer 66

FRE and CA: The prosecution may only rebut after the defendant opens the door by offering character evidence. (Prop. 8 does not change this rule in CA).

Exceptions (Where the Prosecution may be the first to offer Evidence of a Defendant’s Character to Prove Defendant’s Conduct):

o Federal and CA: In cases of sexual assault or child molestation, prosecution may offer evidence that the defendant committed other acts of sexual assault or child molestation

o Federal Only: Where the court has admitted evidence of a victim’s character offered by the accused, the prosecution may offer evidence that the accused has the same character trait.

o CA Only: 1) In a prosecution of a crime of domestic violence, prosecution may offer evidence that the D committed other acts of domestic violence, and 2) Where the court has committed evidence of a victim’s character for violence offered by the accused, the prosecution may offer evidence that the accused has a violent character (CA is more narrow than Federal).

Exam Tip: The two major issues here are the character evidence admissible to prove conduct of the defendant or the victim. Remember, there are separate doors to the admissibility to such evidence and both are closed when the prosecution begins its case. Usually only the defendant can open these doors and usually they are opened separately.

Question 67

Character Evidence in a Criminal Case - VICTIM’s Character

Answer 67

Most of the same rules apply. The prosecution cannot be the first to offer character evidence to prove conduct (the trial begins with the door closed).
o Federal Only: In a homicide case, the prosecution can be the first to offer evidence that the victim had a peaceful character if the defendant offers evidence that the victim attacked first. Only reputation and opinion evidence, no specific instances on direct, but allowed on cross-examination.
o CA Only: If the evidence of the victim’s character is relevant, it is admissible subject to 352 balancing. The defendant can be the first to offer character of the victim to prove conduct, then the prosecution may rebut (the door is open). In CA, reputation, opinion and specific instances are permitted on both direct and cross.

Question 68

Rape Shield Statutes

Answer 68

These statutes limit the defense of the alleged victim’s character when offered to support the defense of consent. In a criminal case, evidence of sexual behavior by the victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence is admissible. In a civil case, evidence offered to prove the sexual disposition of the alleged victim is admissible subject to the weighing of its probative value against its prejudicial effect.
o The CA Rule is similar and Proposition 8 does not apply to evidence barred by this rule.

Question 69

Specific Acts of Misconduct

Answer 69

Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant’s character or disposition to commit the crime charged. Such crimes may be admissible to show Motive, Intent (Absence of a Mistake), Mistake or Accident (The Absence Thereof), Identity (Similarity or Uniqueness to Prove, such as Modus Operandi), and Common Plan or Scheme. (“MIMIC Rules”).

Question 70

Prior Inconsistent Statements of a witness now testifying at trial

Answer 70

Federal and California - Not hearsay if offered only to impeach

Federal Only - If given under oath at a trial or deposition, it is also not hearsay to prove truth of the facts asserted, otherwise hearsay, and inadmissible to prove those facts.

CA Only - Hearsay if offered to prove truth of facts asserted, but admissible under an exception which extends to all inconsistent statements of witnesses whether or not under oath.

Question 71

Impeachment with Prior Felony Conviction

Answer 71

Under the FRE, all felonies involving a false statement (i.e., perjury, forgery, fraud) are admissible and there is no balancing of unfair prejudice against probative value except for old convictions (more than 10 years). Convictions for felonies not involving false statements may be admissible, but the court must balance the probative value to the prejudicial effect.
CA Only: All felonies involving “moral turpitude” are admissible, but the court must balance the probative value to the prejudicial effect. Felonies not involving moral turpitude are inadmissible in CA. Prop 8 does not make such felonies admissible because convictions must involve a crime of moral turpitude to be relevant for impeachment.
o Moral Turpitude: Crimes of lying, violence, theft, extreme recklessness, and sexual misconduct, but not crimes for merely negligent or unintentional acts.

Question 72

Impeachment with Prior Misdemeanor Convictions

Answer 72

Under the FRE, all misdemeanors involving false statements are admissible, and there is no balancing of unfair prejudice against probative value except for old convictions. All other misdemeanor convictions are inadmissible to impeach.

CA Only: The CEC makes misdemeanor convictions inadmissible to impeach. However, as a result of Prop. 8, misdemeanors can be admitted in a criminal case if involving a crime of moral turpitude subject to balancing the probative value versus unfair prejudice. However, misdemeanors are inadmissible in a civil case in CA.

EXAM TIP: ABOUT CONVICTION EVIDENCE: (Felony and Misdemeanor)
o If the conviction is otherwise admissible under the above rules, extrinsic evidence can be used under FRE and CEC law to prove the conviction.
o If the conviction is otherwise admissible under the above rules, but more than 10 years have passed since the conviction or release from prison (whichever is later), the evidence is inadmissible under Federal law unless the probative value outweighs the prejudicial effect.
o There is no specific rule in CA. CA courts may balance, which permits consideration of any factor bearing on probative value, including age of conviction.

Question 73

Non-Conviction Misconduct Bearing on Truthfulness

Answer 73

Under the FRE, acts of lying are admissible in both civil and criminal cases, subject to balancing. Extrinsic evidence is inadmissible, but the witness may be asked about his or her misconduct on cross-examination.
o CA Only: Inadmissible under the CEC, but Prop 8 makes it admissible in criminal cases if relevant. To be relevant, the misconduct must be an act of moral turpitude and both cross-examination and extrinsic evidence is permitted.
o Example of how to apply impeachment: Here, the evidence as to M’s alcoholism may be offered to prove that M is an incompetent witness and has difficulty with his memory, perception and capacity to perceive because of his drinking problem. If it were demonstrated that M had been drinking on the evening that he witnesses the accident, this evidence could be offered to impeach M’s ability to recall the events accurately. Therefore, the evidence admissible as impeachment evidence. (ALWAYS CONCLUDE)

Question 74

Attorney-Client Privilege

Answer 74

Under both the FRE and CEC, any communication between an attorney and a client or their representative, which the client intended to be confidential, and made to facilitate rendition or professional legal services is privileged unless waived by the client.
Also, under both the FRE and CEC the privilege does not apply where: 1) The professional services were sought to further a crime or fraud, or 2) Two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another, or 3) Communication related to the alleged breach of duty between lawyer and client.
CA Only
(Additional exception)
Privilege does not apply where the lawyer reasonably believes disclosure of communication is necessary to prevent a crime that is likely to result in death or substantial bodily harm.

Question 75

Physician-Patient Privilege and Psychotherapist-Patient Privilege

Answer 75

Federal Only: There is a psychotherapist-patient privilege, but there is no doctor-patient privilege. (Remember sometimes the MBE will assume the existence of a doctor-patient privilege).
CA: Both privileges exist.

Question 76

Most tested hearsay exceptions

Answer 76

o Admission (including Vicarious Admissions)
o Declarations Against Interest
o Dying Declarations (In CA, declarant must be dead)
o Excited Utterance
o Declaration of Present Sense Impression (CA is narrower, a statement can be made after the perception of the event, not immediately during it)
o Statements of Present Physical Condition/Statement of Present Mental State
o Past Recollection Recorded/Testimony at Formal Trial
o Business Records/Official Records and Writings
o Judgment of Felony Conviction
o Prior Inconsistent Statement of Witness Now Testifying at Trial
o Prior Consistent Statements of Witness Now Testifying at Trial

Question 77

Judicial notice

Answer 77

1. The process of establishing facts without presenting evidence.
   a. Facts Appropriate for Judicial Notice: Courts will take judicial notice of indisputable facts that are either:
   1) Matters of common knowledge in the community (notorious); or
   2) Facts capable of verification by an easily accessible source of unquestionable accuracy (manifest facts).
   3) Note: Increasingly, courts have taken judicial notice of scientific principles as a type of manifest fact.
   4) It can be taken at any time, whether or not requested.
   b. Procedure for Taking Judicial Notice:
   1) A party may formally request judicial notice in order to compel it.
   2) If judicial notice is not requested, the court has discretion to take judicial notice.
   3) CA: Courts must take judicial notice of matters generally known within the jurisdiction, even if it was not requested.
   c. Criminal Cases: Courts may instruct the jury to the fact being conclusive, but the jury is not required to accept the fact as conclusive.
   d. Civil Cases: If a court instructs the jury as to a judicially noticed fact as being conclusive, the jury must accept the fact as conclusive.
   1) CA: This rule applies to both criminal and civil cases.

Question 78

Confrontation Clause

Answer 78

Prior testimonial evidence (statements made at a prior proceeding) may not be admitted unless:
a. The declarant is unavailable; and
b. The defendant had an opportunity to cross-examine the declarant at the time the statement was made.
1) Testimonial: Statements from a preliminary hearing, grand jury proceeding, former trial, police interrogation to establish past acts.
2) Non-Testimonial: However, statements from police interrogations intended to aid police in responding to an on-going emergency are not testimonial.

Question 79

Objections (All)

Answer 79

There is a need for timely and specific objections or else they are waived. The following are a few of the more commonly-used objections:

Calls for Narrative: This objection is used when open-ended question(s) are asked where the witness could go on a tangent.
b. Unresponsive: It does not answer the question, or it answers beyond the scope.
c. Leading Question: A leading question is one that suggests the answer to the person being interrogated (e.g,. questions that may be answered by a mere “yes” or “no”).
1) On Direct Examination (“On Direct”):
a) Leading questions should not be used on the direct examination of a witness except to develop the witness’ testimony, or if the witness is an expert; or
b) When the witness needs aid to respond. Witness has loss of memory, immaturity, physical, and/or mental weakness.
On Cross Examination (“On Cross”):
a) Ordinarily interrogation may be by leading questions on cross-examination; or
b) When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
c) Note: On Cross, one must stay within the scope of what was asked on direct, otherwise, it becomes a direct examination and no leading questions will be permitted in that line of questioning.
d. Assumes Facts not in the Evidence: This means that the examiner has not laid the proper foundation for asking the question.
e. Argumentative: Argumentative really means the ‘question’ is not truly a question. Rather, the question is making a comment and/or point to the jury and not actually seeking an answer.
f. Compound: Compound is asking two questions in one question, which tends to confuse the jury.
Best Evidence: The original document is the best evidence instead of a copy if the original is available. The original is not available if a search for it did not find the original; if it is in the hands of an adversary; or it is beyond the jurisdiction of the court to subpoena.
h. Beyond the Scope of (Direct, Cross, or Redirect) Examination. Although the court has discretion to allow it, ordinarily the scope of a cross-examination cannot exceed the scope of the direct examination. Likewise, redirect examination ordinarily cannot exceed the scope of the cross-examination.
i. Lack of Foundation: If the witness is a layperson, the usual foundation objection is a lack of showing that the witness has personal knowledge of the facts the question seeks. If the witness is an expert, the usual foundation objection is a lack of showing that the expert is qualified to give the opinion sought.
j. Hearsay: Hearsay is not admissible unless it comes within one of the many exceptions. Hearsay is evidence and can be used by itself to support a verdict if it is received without objection.
k. Improper Impeachment: The impeachment method offered falls outside of what is allowed. Examples: Contradictory Evidence; Prior Inconsistent Statements; Bias or Prejudice, Reputation for Poor Character for Honesty; or Conviction of a Crime that involved Dishonesty or False Statement or Imprisonment for More than One Year.
Lack of Personal Knowledge: A [non-expert] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.
m. Privilege: Privilege arises where the question calls for disclosure of privileged matter(s).

Question 80

Rehabilitation

Answer 80

A witness who has been impeached may be rehabilitated by the following methods:
a. Prior Consistent Statements: Prior Consistent Statements are allowed if witness’ testimony has been attacked with an express or implied charge the witness is lying or exaggerating for some personal motive.
b. Good Reputation for Truthfulness: When the witness’ character for truth and veracity has been attacked, other witnesses may be called to testify to the good reputation for truthfulness.
c. Explanation on Redirect: May explain or clarify facts brought out during cross examination.

Question 81

Past Recollection Recorded

Answer 81

Requirements:
a) Witness once had personal knowledge of the facts;
b) The document was made by the witness, or under the witness’ direction, or was adopted by the witness (indication by doing or saying something that indicated she agreed with the contents);
c) The document was written or adopted at a time when the facts were fresh in the witness’ memory;
d) The document was accurate when made; and
e) The witness now has insufficient recollection to testify as to the matters contained in the document.
2) One cannot read the document aloud in court for hearsay reasons.

Question 82

Refreshing Recollection

Answer 82

Anything can be used to refresh a party’s recollection, but this means the opponent may inspect and offer into evidence if that document is used to refresh the witness’ recollection. One cannot read from the document or item to refresh recollection while testifying. Since the writing is not being offered into evidence, there is no hearsay problem.

Question 83

Crawford v. Washington

Answer 83

If a statement is “testimonial” Crawford imposes a bright-line rule: the statement may not be admitted against the accused unless the declarant is made available for cross-examination by the accused either at the time of the statement or at the time of the accused’s trial.

Examples: Police interrogation of witness/co-conspirator - testimony cant come in if wit does not testify.

Remember: Confrontation clause / crawford does not apply to non-testimonial statements.

Question 84

Testimonial

Answer 84

A statement made for the primary purpose of creating evidence for the defendant’s prosecution.

Question 85

Forfeit of Confrontation Clause

Answer 85

If Defendant kills victim for the purpose of preventing testimony then this is a waiver to the confrontation clause.