Evidence

Question 1

Relevant**

CEC/FRE

Answer 1

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

Question 2

Proposition 8

Answer 2

Under Proposition 8, Relevant evidence only applies to Witness Impeachment rules and impeachment with illegally obtained evidence in violation of 4th, 5th, and 6th Amendments.

If you get a character evidence issue, you should mention that Proposition 8 does not apply to change the character evidence rules.

Relevant evidence shall not be excluded in any criminal proceeding, BUT DOES NOT APPLY TO:
1. Privilege
2. Hearsay
3. Evidence Code Section 352
4. Character Evidence

Question 3

CEC 352/ FRE 403

Answer 3

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

Question 4

Leading Question**

Answer 4

Leading question is one that suggests the answer in the question. Leading questions are permitted on cross-examination and on the examination of an adverse witness or hostile witness.

Question 5

Non-responsive answer**

Answer 5

Non-responsive answer is one that goes beyond the scope of the question. To the extent that an answer is non-responsive, it is subject to a motion to strike.

Question 6

Personal Knowledge/Foundation

Answer 6

whether the witness is shown to have personal knowledge - aka “presentation”

An examining attorney may not ask a witness to speculate or hypothesize as to the existence or meaning of a fact.

Question 7

Compound question

Answer 7

Compound question either has two verbs or two independent clauses in the same question

Question 8

Calls for a narrative

not stated rule

Answer 8

(“Tell us what happened next …”)

Question 9

Argumentative question

Answer 9

Argumentative question asks the witness to resolve an apparent contradiction in their testimony

Question 10

Assumes facts not in evidence

Answer 10

Questions stating facts that was not established by prior evidence

Question 11

Asked and answered

Answer 11

repeating the questions in the same examination

Question 12

Improper Questions

not rule

Answer 12

Improper questions are subject to Objections

Question 13

Improper Answers

not rule

Answer 13

Improper answers are subject to Motion to Strike

Question 14

Character Evidence

General

Answer 14

The use of prior conduct to infer a trait, and then the use of that trait to suggest or infer that the trait makes it more likely that a party has engaged in particular conduct at issue in the case.

Question 15

Character Evidence re: civil case

civil case/model answer/skip

Answer 15

[Evidence of a character trait] Character evidence, including specific conduct, is inadmissible in a civil case unless the character trait is in issue.

Question 16

Character in Issue

Answer 16

Usually, character evidence is inadmissible to prove conduct unless character is in issue. Where character is in issue, all three types of character evidence (opinion/reputation/specific conduct) are admissible.

Question 17

Civil case - Types of claims character evidence can be admissible

Answer 17

Civil:
1. reputation in a defamation case
2. negligent entrustment

Criminal:
1. entrapment defense
2. hate crimes
3. sexual assault
4. domestic abuse and child abuse

Question 18

Exception where Character Evidence is Allowed

FRE

Answer 18

Whe the Claim is criminal charge or civil claim based on sexual assault or child molestation, D’s prior bad acts of sexual assault or child molestation are admissible to prove character of predation and thus conduct in conformity with character in current case.

Question 19

Exception where Character Evidence is Allowed

CEC

Answer 19

The character exception for criminal cases in FRE is the same, but CA does not have an exception for civil actions based on sexual assault or child molestation and is inadmissible to prove propensity. But California does allow similar acts to prove propensity in domestic violence and child abuse cases.

Question 20

Mercy Rule

FRE/CEC

Answer 20

Under the Mercy Rule in FRE and CEC, criminal defendant must first offered the relevant character evidence, only in the form of opinion or reputation. Then the prosecutor may offered only relevant opinion or reputation character evidence of the defendant’s same bad character.
The prosecutor may also ask the character witness about their knowledge of the defendant’s specific conduct that are inconsistent withwhat they testified about the defendant’s character trait, not to prove those acts or the defendant’s character, but to test and impeach the character witness’s standard of evaluating the defendant’s character trait.

Question 21

Victim Character Evidence

FRE

Answer 21

Under FRE, the defendant must first offer evidence of the victim’s character evidence, only in the form of opinion and reputation. Then the prosecution can offer evidence of both the victim’s good character and the defendant’s same bad character trait.
In federal cases of homicide prosecutions, when the defendant introduces evidence that plaintiff attacked first, the prosecution may introduce the victim’s peaceable character for the first time, only in opinion or reputation evidence.

Question 22

Victim Character Evidence

CEC

Answer 22

In California, when the defendant first offered victim’s relevant character evidence, in any three forms (opinion, reputation, or specific acts), the prosecution may introduce all three types of the victim’s good character.

But in California, the prosecution can only offer evidence of the defendant’s same character trait if defendant introduces evidence of the victim’s character for violence. Thus, if the defendant introduces evidence of the victim’s violent character, the prosecutor may also introduce evidence of all three types of the defendant’s character for violence.

Question 23

Specific Acts - Character Purpose

Not in model answer

Answer 23

Evidence of specific acts is not permitted to prove character (other than in sexual assault or misconduct cases), except: (1) where character is in issue in civil and criminal cases; (2) on cross-examination to impeach a character witness’ credibility—which is not using the evidence as character evidence but to test the character witness’ standard for the defendant’s character trait; and (3) in California, as evidence of the victim’s character and the defendant’s character in response to such evidence of the victim’s violent character.

Question 24

Specific Acts - Non-Character Purposes

Model Answer

Answer 24

Evidence of specific conduct can be used to prove [non-character evidence], which is a non-character purpose.

List of non-character purposes:
a) Common plan or scheme
b) Identity
c) Motive
d) Opportunity
e) State of mind
f) Defendant’s mens rea
g) Notice

simmson

Question 25

common plan or scheme

not rule

Answer 25

a) E.g., theft of ice cream truck used in armed robbery not admissible to prove criminal character but to prove it was part of plan to rob bank

Question 26

Identity

not rule

Answer 26

the prior acts are so identical as to be like a fingerprint

Question 27

Motive

not rule

Answer 27

defendant’s prior conviction and parole not used to prove criminality but motive for killing officer who stopped him for a parole violation

Question 28

Opportunity

not rule; n/a

Answer 28

n/a

Question 29

State of mind

not rule

Answer 29

a) E.g., the victim’s prior violence could be used, in part, to show defendant reasonably feared for his life

Question 30

Defendant’s mens rea

not rule

Answer 30

E.g., a series of violent prior acts toward a particular victim used to show intent to harm or kill that particular victim despite asserted defense of accidental killing

Question 31

Notice

Answer 31

a) E.g., The prior surgeries resulting in injuries due to slippage of the drill bits occurred in 1993. If those surgeries were prior to the surgery on plaintiff, then they occurred before the surgery on plaintiff. Here, if the prior slippages are used to show that Dr. Jones was on notice that drill bits that are not checked and secured before surgery can slip, then they are used for an admissible non-character purpose, since if Dr. Jones had notice that drill bits that are not checked and secured before surgery can slip, then he had a duty to test the drill bit before using it during plaintiff’s surgery, so that his failure to do so, which he admitted, would be a breach of that duty.

Question 32

Habit

Answer 32

Habit evidence is admissible to show that the party likely acted in conformity with the habit

a) Requires the repeated same response to the same stimulus
b) Look for the words, “always,” “never,” “repeatedly”
c) Admissible to show that the party likely acted in conformity with the habit

Question 33

Custom

Answer 33

Similar fact pattern with regard to business practice, the evidence is admissible as a “custom”

a) Requires the repeated same response to the same stimulus
b) Look for the words, “always,” “never,” “repeatedly”
c) Admissible to show that the party likely acted in conformity with the habit

Question 34

Policy Exclusions

outline rule, not model rule

Answer 34

Evidence are inadmissible to prove fault or liability—with some important exceptions.

Question 35

Subsequent Remedial Measures

FRE; model answer

Answer 35

Evidence of subsequent remedial measures is inadmissible to prove negligence, culpable conduct, defect in a product or product’s design or need for a warning or instruction.

Question 36

Subsequent Remedial Measures

CEC

Answer 36

in California, acts of “negligence or culpable conduct” are limited to negligence and carelessness. They do not include the marketing, design, or distribution of a defective product.

Admissible to prove product defects but not negligence/liability

Question 37

Offers of Compromise

Answer 37

Offers of compromise require the existence of an actual dispute as to liability or damages before the offer of compromise is made inadmissible to show fault. The entire statement is excluded, including admissions made with the offer of compromise or settlement negotiation.

Question 38

Offers to Pay Medical Expenses

FRE

Answer 38

Only an offer to pay medical expenses is excluded – no other kinds of offers are excluded, and any admission made with the offer to pay medical expenses are admissible.

Question 39

Humanitarian Offers

CEC

Answer 39

Offers to pay medical expenses and any other humanitarian offers are excluded, and the accompanying admissions are also excluded.

Question 40

Benevolent Gestures

CEC

Answer 40

CEC excludes benevolent gestures but does not exclude the accompanying admissions.

Question 41

Liability Insurance - Evidence of insurance

Answer 41

Evidence of liability insurance is inadmissible to prove liability or fault, but admissible to prove ownership or control of the insured area or premises.

Question 42

Liability Insurance - Absence of insurance

FRE v. CEC

Answer 42

FRE: Absence of liability insurance is inadmissible

CEC: under the CEC, the absence of liabilty insurance is not necessarily inadmissible, so the opponent must argue inadmissibility under Section 352.

Question 43

Offers of Pleas

FRE v. CEC

Answer 43

Offers of pleas and withdrawn pleas are inadmissible in all cases. In CEC, plea offers are admissible to impeach the party if they testify inconsistently with the plea.
In FRE, plea offers are inadmissible if they were presented to the prosecutor, but in CEC, the pleas may also be inadmissible if they were made to non-transporting police officers if the accused reasonably believes the officers have authority to convey the offer.

—
General: Offers of pleas and withdrawn pleas are inadmissible in all cases.
CEC: plea offers are admissible to impeach the party if they testify inconsistently with the plea

FRE: plea offers are inadmissible if they were presented to the prosecutor/US attorney

CEC: plea offers are inadmissible if they were made to the prosecutor and also non-transporting police officers if the accused reasonably believes the officers **have authority to convey the offer **

Question 44

Hearsay**

Answer 44

An out of court statement used to prove the truth of the matter asserted. In general, hearsay is inadmissible.

Question 45

Hearsay

Approach

Answer 45

1. First define hearsay
2. Then discuss whether the statement was an out-of-court statement
3. Then discuss whether it is being used to prove its truth or non-hearsay

Question 46

Non-hearsay Purpose

Not Rule

Answer 46

1. effect on the hearer/listener
2. verbal acts (such as the words of an offer and acceptance or a gift, conspiracy)
3. the giving of a warning or notice, or
4. consciousness
5. knowledge
6. notice

Question 47

Effect on hearer

Not Rule

Answer 47

e.g., In a self-defense claim by A for killing B, it doesn’t matter if the statement by B, “I am going to kill you!” while moving threateningly toward A is true—it only matters that B said it and A reasonably believed it (this is effect on the hearer).

Question 48

Statement

Hearsay

Answer 48

“Statement” includes conduct intended to substitute for an assertion.

Does not include machine output/animal noises.

Question 49

Hearsay Exclusions

FRE v. CEC/not rule

Answer 49

Hearsay Exclusions: Items that are defined by rule as not hearsay:
1. Admissions (statements) of party opponents
a) Admissions
b) Vicarious admissions
c) Co-conspirator admissions
d) Adoptive admissions
e) Authorized admissions

2. Prior statements of witnesses
3. Prior inconsistent statements by witness and prior consistent statements by witness
4. Prior identification by witnesses
   a) Declarant MUST be available to be cross-examined

FRE: exclusion
CEC: exception

Question 50

Admission of Party Opponent**

Answer 50

An admission of a party-opponent is a statement that, if true, proves an aspect of the opposing party’s case.
—
FRE - not hearsay
CEC - a hearsay exception

Question 51

Adoptive admissions**

Answer 51

An adoptive admission is a statement made to, or in the hearing of, a party, where the party would be expected to object to the statement if it is not true.

—
silience:
criminal: nope
civil: without rejection, as a reaosnable person would have reject, it is presume affirmation

e.g.,
Here, a reasonable physician would have protested if the statement that the drill bit looked wobbly were untrue. Thus, if Dr. Jones heard Nurse Clark’s statement, it would be admissible as an adoptive admission. Even if Dr. Jones denies hearing it, if a jury believes he did hear it, the statement will come in as an adoptive admission. Only if D. Jones denied Nurse Clark’s statement at the time would it not be an adoptive admission.

Question 52

Vicarious Admission/Authorized admissions**

General & FRE v. CEC

apply the law of agency

Answer 52

FRE: Employee’s admissions binds the employer if statement was made while the employee is still employed and if the statements concern a matter within the employee’s course and scope of employment.

CEC: An employee’s admission binds the employer only if the employer’s liability is based on a theory of respondeat superior, the employee is the declarant, and the statement would be considered an employee’s admission even if the employee is no longer employed when he or she makes the admission.

—

Vicarious admissions (made while employed about a matter in the course and scope of agency); and …
a) FRE: Still employed
b) CEC: If employer liability based on employee liability, and employee makes an admission

Question 53

Co-conspirator admissions

Answer 53

admissions made in course of and in furtherance of conspiracy

Question 54

Prior inconsistent statements

General & FRE v. CEC

Answer 54

Prior inconsistent statements are always admissible for a non-hearsay purpose of impeachment. But, under FRE, to be used substantively for their truth, prior inconsistent statements must be made under oath in a prior proceeding or deposition. Under the CEC, prior inconsistent statements are admissible for substantive and impeachment, whether or not they were made in a prior proceeding under oath, unless barred by the US Constitution or Section 352.

Extrinsic evidence of a PIS is admissible if the witness was given an opportunity to explain or deny the prior statement or is not excused from testifying.

—
General: Prior inconsistent statements are always admissible to impeach, which is a non-hearsay purpose.

FRE: Under the FRE, such prior inconsistent statements are admissible for their truth only if given under oath.

CEC: Under the CEC, prior inconsistent statements are admissible for substantance and impeahcment, unless barred by the U.S. Constitution or the judge under CEC 352, whether or not they were made in a prior proceeding under oath.

FRE & CEC: Under both the CEC and FRE, extrinsic evidence of a prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the inconsistent statement, or is not excused from testifying. However, this foundation is not required when the statement qualifies as an opposing party’s statement.

—

FRE:
* Always admissible to impeach
* Admissible for truth only if made under oath

CEC:
* Always admissible to impeach
* Always admitted for substance (not just impeachment)

Question 55

Prior consistent statements

Answer 55

Prior consistent statements first require an attack on witness’ credibility through bias, interest or prior inconsistent statement and must be made before the bias, interest, or prior inconsistent statement arose.

Question 56

Prior identification exclusion

Answer 56

The prior identification exclusion requires the opportunity to cross-examine the declarant witness.

Question 57

Prior Statements of Identification

General & FRE v. CEC

Answer 57

This allows statements made by the witness identifying the defendant or perpetrator immediately after perceiving them, so long as the witness also is subject to cross-examination as a witness. FRE permits this evidence in all cases, but CEC only permits this evidence in criminal cases.

FRE: This evidence is permitted under the FRE in all cases,

CEC: This evidence is only permitted in criminal cases.

Question 58

Present Sense Impressions

FRE

Answer 58

A present sense impression is a statement made by the declarant explaining or describing an event while the event occurs or immediately thereafter.

e.g., witness narrating the event
Nurse Clark’s observation that the drill bit looked wobbly described the condition of the drill bit and was made when she perceived it. Thus, it would qualify as a present sense impression.

Question 59

Contemporaneous Statements

CEC

Answer 59

A contemporaneous statement is a statement offered to explain, qualify, or make understandable conduct of the declarant and made while the declarant was engaged in such conduct.

—

• narrating your own conduct during event
• this is not the exception for someone describing their emotions—just their conduct.

Question 60

Statement for the Purpose of Diagnosis or Treatment

FRE

Answer 60

Statements made describing the pain, the cause of the pain, medical history, and past and present symptoms, if they are pertinent to diagnosis or treatment, are admissible.

FRE: statements of current and past conditions
CEC: statements only for current conditions

a statement of remembered fact (such as saying defendant was negligent) is inadmissible

Question 61

Statement of Past Physical Condition

CEC

Answer 61

CEC allows statements of “the declarant’s then existing … physical sensation (including a statement of … pain, or bodily health).”

a statement of remembered fact (such as saying defendant was negligent) is inadmissible

Question 62

Hearsay Exceptions

2 types

Answer 62

1. Require unavailability, and
2. the rest of it

Question 63

Declarant is unavailable

Rule??

Answer 63

Declarant is unavailable if:
1. Exempt from testifying by court ruling on the ground of privilege
2. Testifies to lack of memory of the subject matter of the statement
3. Unable to present or testify because of death or physical or mental illness (sick or dead)
4. Absent – beyond the court’s reach of subpoena – and the statement’s proponents has been unable to procure declarant’s attendance or testimony by process or other reasonable means
5. FRE - Declarant refuses to testify despite a court order – FRE ONLY
6. CEC – if declarant suffers total memory loss or refuses to testify out of fear, CA regards the declarant as unavailable
7. Forfeiture rule: declaration admissible if “unavailability” was procured by the proponent of the statement

Question 64

Hearsay Exceptions that require Unavailability

Not Rule

Answer 64

Hearsay exception require unavailability
1. former testimony,
2. dying declaration,
3. statement against interest,
4. CEC - crime victim statements

Question 65

Former Testimony

General & FRE v. CEC

Answer 65

General: Former testimony refers to testimony under oath, if the party against whom it is offered, or their predecessor in interest in a civil case, had an opportunity and similar motive to cross-examine the witness.

Subrule - CEC: In California civil cases, such evidence may also be offered against a non-party in the prior case if the party who cross-examined the witness in the prior case had a similar interest and motive as the party against whom the statement is now offered.

Question 66

Dying Declaration**

General & FRE v. CEC

Answer 66

For a dying declaration to be admissible, the statement must be made by a dying person, and it must concern the cause and circumstances of the impending death, of which the declarant must have personal knowledge, and the declarant must believe their death is immediately impending.

FRE: In federal, a dying declaration only applies to all civil and homicide cases.
CRE: In California, a dying declaration is admissible in both civil and criminal cases.

—

FRE:
* Civil Actions and Homicide
* The statement must be:
* made by a declarant who believes their death was imminent, and
* the statement must be concerning the cause and circumstances of their death.

CEC:
* All civil and criminal cases
* Unavailability not required - only dying

Question 67

Statement Against Interest

General & FRE v. CEC

Answer 67

A statement against interest is admissible if the declarant is unavailable and the statement is contrary to the declarant’s pecuniary, social (CA), or proprietary interest, or would tend to subject the declarant to criminal or civil liability.
—
Statement against interest because this requires unavailability, it is never used against a party (their statements are admissions). The statement must be contrary to the person’s pecuniary or proprietary interest, or would tend to subject them to criminal or civil liability or, in California, is against their social interest.

FRE: a statement against interest may ONLY be disserving of the declarant’s interest—not someone else’s.

CEC: A recent case law allows a statement exculpating another person if doing so further inculpates the declarant; and a recent Court of Appeal case even suggests that a statement inculpating both declarant and another person is admissible

—-
FRE:
* Unavailable
* Pecuniary/proprietary interest
* May only be disserving of declarant’s interest

CEC:
* Add social interest
* May now include certain statements exculpatory of others and inculpatory of others

Question 68

Crime Victim Statement

CEC

Answer 68

Crime victim statement is where the declarant is unavailable and the statements involve a threat or injury, are made shortly after the threat or injury, and are in writing, recorded, or made to law enforcement, medical personnel, or domestic abuse shelters or similar agencies.

Question 69

Other Hearsay

Not Rule

Answer 69

Common Non-unavailability exceptions:
1. Present sense impression (FRE only)
2. Excited utterance (FRE)/ Spontaneous statement (CEC)
3. Statement of then existing mental, emotional, or physical condition
4. Past recorded recollection
5. Business records
6. Official records
7. Convictions (Cal.)
8. Learned Treatises

Question 70

Excited Utterance (FRE) / Spontanteous Statement (CEC)

Answer 70

Declarant must make the statement that relates to, describes, or narrates the event and must be made while under the stress of a startling event – the declarant’s reflective powers have not returned.

—
Tip:
* Describes startling or exciting event while still under stress of the event
* if unclear or could be argue both ways with jury/court, then analyze accordingly

e.g., spontaneous statement from bystander 3 minute after accident v. immediately to the Officer

Here, there is no indication that the bystander made the statement spontaneously while still under the stress of witnessing the accident, since the Officer arrived three minutes after the accident. But if the bystander were still under such stress (since the bystander came up to the Officer “immediately”), the bystander did purport to describe the accident, and in that case, the statement would be admissible as a spontaneous statement.

Question 71

State of Mind aka statements of then existing mental, emotional or physical condition**

Answer 71

There is an exception for statements of the declarant’s then existing state of mind, which also includes their emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered.

Question 72

Past Recorded Recollection

Answer 72

This requires that the declarant have no memory of the matter; that the memorandum have been made when the declarant’s memory was fresh and accurately reflected their knowledge; it was made by declarant or at her direction; and the writing may only be read into the record, and not introduced as an exhibit.

—
* not used the document itself get admitted as evidence
* but to help the person remember and get a statement in the record
* e.g., using diary if person forgot the event but just the
statement read into record - i passed the red light

Question 73

Present Recollection Refreshed

Answer 73

Present recollection refreshed is a process, not a hearsay issue. The witness must initially fail to recall something, but any written thing can be used to refresh their memory. Witness cannot read from it—it is only there to refresh their memory. Anything used to refresh memory must be shown to the opposing party, which they can use to cross-examine the witness.

Question 74

Business and Official Record

Approach

Answer 74

1. Watch out for multiple hearsay - reports that include or incorporate statement by witnesses or others
2. Such statements must have an independent, separate hearsay exception

Question 75

Business Records

memorize!!

Answer 75

Business records are hearsay exception when their entry reflects that they are prepared by someone with a duty to enter the record accurately. The four requirements are:
1. the writing be made in the regular practice of the business;
2. the writing be made at or near the time of the act, condition, or event recorded;
3. the custodian testifies to the record’s identity and its mode of preparation; and
4. the sources of information and method and time of preparation were such as to indicate its trustworthiness.

—
Tip: absence of business records also an exception when expected to normally exist

part of writing analysis under hearsay. Note that authentication and best/second evidence rule matter

Question 76

Official Records

memorize!!

Answer 76

Official records, including property records, are made pursuant to legal duty by the government employees.
—
There is an exception for records and reports of public offices or agencies, setting forth matters observed pursuant to duty imposed by law as to which matters there was a duty to report.

—
Tips:
* absence of official records also an exception when expected to normally exist
* Officer’s report was made pursuant to a duty of a police officer to observe the scene of an accident and report on it

part of writing analysis under hearsay. Note that authentication and best/second evidence rule matter

Question 77

California Judgments of Conviction - Official Records

Subrule for Official Records

Answer 77

California has specific exceptions for judgments of conviction—both felonies and misdemeanors—which apply so long as they are considered official records

Question 78

Learned Treatises

FRE

Answer 78

Learned treatises include published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

The treatise material is only admissible to the extent it is called to the expert witness/witness’s attention during cross-examination or expert witness/witness’s relied upon it during direct examination.
–

The treatise material is only admissible to the extent it is called to the attention of a witness or an expert witness upon cross-examination or relied upon by the witness or expert witness in direct examination.

—

Tip:
* a learned treatise includes any type of scholarly publication.
* It can be introduced through any expert who considers it authoritative or used it in forming their opinion, and it can be used to impeach an expert simply by calling it to her attention.
* Any learned treatise, article, book, in the sciences, medicine, history, etc.
* Can be introduced if expert considers it in forming opinion or testifies it is authoritative, and can be used to impeach an expert by merely calling it to the expert’s attention

Can be followed by impeachment for creditbililty if professional/expert’s recommendation contradict with the learned treatise’s recommendation

Question 79

Learned Treatises

CEC

Answer 79

Medical treatises are not included, and it can only be introduced if an expert considers it authoritative or used it in forming their opinion.

—

• medical treatises not included
• may only be admitted if an expert testifies they considered it or it was authoritative;
• cannot impeach an expert by merely calling it to the expert’s attention

Can be followed by impeachment for creditbililty if professional/expert’s recommendation contradict with the learned treatise’s recommendation

Question 80

Lay Opinion**

Answer 80

Lay opinion is admissible if the opinion is rationally based on the witness’ perception and is helpful to understanding the witness’ testimony.

—
Lay opinion is based on facts subject to reasonable perception by the senses.

—
The major issues regarding lay opinion are:
1. whether it is this type of thing a lay opinion can cover, such as manner, temperature, and behavior, and
2. whether the witness shows an adequate foundation or personal knowledge, because lay opinion is based on reasonable perception – the senses – and
3. whether it helps the fact-finder understanding of the testimony

Question 81

Expert Opinion**

Answer 81

An expert must be qualified in the subject matter by education or experience, have a proper factual basis for the testimony, and the testimony must be of help to the fact-finder–which means that the methodology must be generally accepted in the relevant scientific community. Moreover, in California, expert opinion in reports is limited to readily observable facts and conditions.
—
An expert must be qualified to give an opinion, and in doing so, may rely on information or data of the type ordinarily and normally relied upon by experts in the field to which the expert belongs. Moreover, in California, expert opinion in reports is limited to readily observable facts and conditions.

—
Note:
1. an expert must be qualified in the subject matter, and
2. have a proper factual basis for the testimony
3. For the testimony to be of help to the fact-finder, the methodology must be generally accepted in the relevant scientific community

E.g,. not qualified and other not readily observable fact or condition
* Here, interviews with witnesses and the parties, skid marks and the like appear to be the kind of information ordinarily and normally relied upon by experts in accident reconstruction. However, there is no showing this particular Officer had experience in accident reconstruction and was qualified to render such an opinion, and Officer did not appear at trial and thus did not testify to his qualifications.
* Moreover, his conclusion of fault is not a readily observable fact or condition. Thus, the court had insufficient evidence to allow his opinion in as an expert.

Question 82

Opinion of Legal Conclusion

Lay and Expert Opinion

Answer 82

An opinion that is a legal conclusion is not admissible as either a lay or expert opinion.

Question 83

Writing Analysis

Approach

Answer 83

1. Authentication
2. Best Evidence Rule
3. (Multiple) Hearsay
   (a) hearsay rule
   (b) the writing contains two level of hearsay:
   (i) the writing itself
   (ii) the statement in the writing

Question 84

Authentication**

Answer 84

A writing is authenticated when sufficient evidence proves that the writing is what it purports to be.

—
Self-authentication
Under FRE, some documents are self-authenticating, such as deeds that are notarized, newspapers, official records, and trade labels
Under CEC certified copies of public records are self-authenticating.
—
(1) A writing is authenticated when sufficient evidence shows it is what its proponent purports it to be.
—
(2) Any writing can be authenticated by any number of the methods by someone who can prove the document is what it purports to be.

Question 85

Authentication of Phone Call

Answer 85

Oral statements must be authenticated in cases where the speaker’s identity must be shown to make the statement relevant.

Statements made during a telephone call may be authenticated by testimony 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) the speaker has identified himself.

Question 86

Best Evidence Rule**

FRE

Answer 86

Evidence of an original, including its photocopies, of a writing is required to prove its contents.

Question 87

Secondary Evidence Rule**

Answer 87

Under the CEC, copies of a writing are preferred to prove the writing’s contents.
—
Evidence of at least a copy of a writing is required to prove its contents [unless:

(A) the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent;
(B) if the proponent does not have possession or control of the original or a copy of the writing and either:
1. Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court’s process or by other available means; or
2. The writing is not closely related to the controlling issues and it would be inexpedient to require its production; or
(C) if the writing is a true summary.]

Question 88

Hearsay under Writing

approach

Answer 88

1. Almost Always multiple hearsay
2. each level of hearsay must be independently admitted
3. Writing is usually admitted by business or official record
4. Statement in writing is admitted by any hearsay exclusion/exception

Question 89

exception to multiple hearsay for the writing

example analysis from exam

the writing can be ignore and just go for the statement

Answer 89

The [writing] contains a statement that was made out of court because a writing is made out of court. It is only relevant to the extent it “testifes” to the facts stated in the note - [the fact which is held true].

Question 90

Methods of Impeachment of a Witness

Not Rule

Answer 90

I. Reputation or Opinion

II. Creditibilty Issue
* Bias or interest
* Prior inconsistent statements
* Opinion/reputation as to truthfulness of witness

III. Specific Acts
* Convictions/prior bad acts

Question 91

Impeachment of Witnesses

FRE

Answer 91

Impeaching a witness’s credibility involves the use of prior inconsistent statements, bias, opinion or reputation as to the truthfulness, prior bad acts or convictions.
—
Impeaching a witness (including a party who testifies and hearsay declarants) on their credibility, other than impeaching a character witness, involves the use of prior inconsistent statements, bias, opinion or reputation as to truthfulness, prior bad acts or convictions.

Question 92

Impeachment of Witness for Bias or Interest

Answer 92

A witness may be impeached for bias or interest. Extrinsic evidence of the bias or interest is admissible if the witness is given an opportunity to explain or deny the bias or interest, or is not excused from testifying.

Question 93

Impeachment for Opinion / Reputation

Answer 93

A witness may be impeached by another witness testifying to the first witness’ untruthful character through opinion or reputation.

Question 94

Impeachment of Hearsay Declarant

Answer 94

A hearsay declarant may be impeached in all the ways a witness may be impeached, but no opportunity to explain or deny the prior inconsistent statement is required to introduce a statement [extrinsic evidence] impeaching a hearsay declarant.

Question 95

Impeachment of Witnesses – Convictions for Untruthfulness**

Model Answer

Answer 95

Any witness, whether or not a party, may be impeached by any conviction—felony or misdemeanor—involving dishonesty or a false statement, and any bad act involving untruthfulness.

Question 96

Impeachment of Witnesses – Convictions and Bad Acts

FRE v. CEC

Answer 96

A witness may be impeached with any felonies committed within the prior 10 years, although witnesses who are also criminal defendants may only be impeached if the probative value exceeds the prejudicial effect.

A witness may also be impeached with misdemeanor involving dishonesty or untruthfulness.

A witness may only be impeached with prior convicted bad acts involving untruthfulness, but no extrinsic evidence of the prior bad act is admissible.

Untruthfulness is a false statement and is narrower than dishonesty.

CEC only permits impeachment of a witness’ credibility through felony convictions (in criminal cases only those involving moral turpitude.)

—
FRE:
* A witness may be impeached with any felonies committed within the prior 10 years.
* witnesses who are also criminal defendants may only be impeached if the felony’s the probative value exceeds the prejudicial effect.
* A witness may also be impeached with misdemeanors involving dishonesty or untruthfulness.
* A witness may only be impeached with prior unconvicted bad acts involving untruthfulness, but no extrinsic evidence of the prior bad act is admissible. Untruthfulness is a false statement, and is narrower than dishonesty.

CEC: California law only permits impeachment of a witness’ credibility through felony convictions (in criminal cases, convictions or prior bad act involving moral turpitude is admissible).

—
Note:
1. There is no California equivalent to the FRE allowing impeachment through misdemeanors or other bad acts going to dishonesty or truthfulness.
2. Indeed, the CEC specifically prohibits the use of any specific acts of conduct to impeach a witness’ credibility, other than felony convictions.
3. these limitations on impeachment of witnesses only apply in California civil cases; they no longer apply in California criminal cases under Proposition 8, so almost any evidence of convictions or prior bad acts involving moral turpitude is admissible to impeach a witness, including extrinsic evidence of bad acts, subject only to CEC 352
4. This is one of the few areas where a Proposition 8 analysis should be used—but, again, ONLY in a criminal case.
5. In civil cases, the prohibition on impeachment with misdemeanors and prior bad acts remains
6. Moreover, where a witness—particularly a party-witness—is impeached with prior bad acts, there is a potential for jury confusion as to whether the evidence is used for permissible impeachment or for impermissible character purposes, so this is one time when you would use a FRE 403 / CEC 352 analysis

Question 97

Privileges

FRE v. CEC; not rule

Answer 97

Note:
* No list of privileges in the FRE.
* Instead, use federal common law or state privilege rules
* Commonly tested privileges:
* Attorney-client
* Physician-patient
* Martial communications privilege
* Spousal privileges

Question 98

attorney-client privilege

Answer 98

The attorney-client privilege attaches when someone consults with a person whom they reasonably believe to be an attorney. The privilege applies to all communications intended to be confidential, and all communication between an attorney and client is presumed confidential. Both attorney and client holds the privilege but only client can waive it.

Question 99

Attorney Made Inadvertenat

FRE 502

Answer 99

When made in a federal proceeding or to a federal office or agency, the disclosure does not operate as a waiver in a federal or state proceeding if: (1) the disclosure is inadvertent; (2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and (3) the holder promptly took reasonable steps to rectify the error.

Question 100

marriage and privileges

approach

Answer 100

approach:
1. SP (to take the stand)
2. relevant
3. martial privilege
4. SP (testifying on the stand)

Question 101

Spousal Privileges**

Answer 101

There are two spousal privileges:
1. The privilege not to be called as a witness by party adverse to current spouse; and,
2. The separate privilege not to testify against a current spouse.

These privileges only exist during the marriage, and are held only by the testifying spouse. [The privileges do not apply if, prior to marriage, spouse observed acts of other spouse and knew other spouse had been charged/arrested. Moreover, waiver of one of the spousal privileges does not waive the other spousal privilege.]
—

Spousal privileges are only held by testifying spouse, and these privileges end when the marriage ends. The privileges do not apply if, prior to marriage, spouse observed acts of other spouse and knew other spouse had been charged/arrested. Moreover, waiver of one of the spousal privileges does not waive the other spousal privilege.

Question 102

Marital Communications Privilege

Answer 102

Martial communications privilege attaches to all communication between two married persons and is intended to be confidential. As a general matter, the communication / statements between spouses during marriage are presumed confidential. Both spouses hold the privilege to refuse to disclose and prevent others from disclosing their confidential communication during marriage, and the privilege survives the marriage.

—
The California Evidence Code provides that a person, whether or not a party, has the privilege to (1) refuse to disclose, and (2) to prevent others from disclosing, a communication that was made in confidence between that person and his or her spouse. All communications between spouses are presumed to be intended to be confidential.

—
Note:
* This privilege extends beyond marriage so that even after divorce, former spouse can block anyone, including other spouse, from disclosing the communications.
* However, one opposing privilege can argued whether the presumption of confidentiality has been overcome.
* e.g., bystander was on sidewalk when he hears the husband tells wife he killed the victim at kitchen next to an open window.

Question 103

Privileges

General: Key Issues

Answer 103

The key issues in privilege include:
1. to whom the privilege applies—who is the holder and who can claim the privilege other than the holder;
2. whether the communication is confidential or is intended to be confidential;
3. who is included within the privilege; and
4. has the privilege been waived or terminated.

—
e.g.,
The attorney-client privilege is tested fairly often, and is a good barometer of these issues:
* When someone consults with a person whom they reasonably believe to be an attorney, the privilege attaches to communications between them.
* Both the client and the attorney are entitled to assert the privilege, although the privilege belongs ultimately to the client—who is the only one who can waive it.
* The privilege applies to all communications intended to be confidential, whether or not someone “eavesdrops.”
* Moreover, if a communication is made between attorney and client, physician and patient, or spouses, it is presumed confidential, unless the presumption is overcome.

Question 104

Third Party Necessary

Privileges - Element 3

Answer 104

The presence of any person necessary to the accomplishment of the purpose of the representation, or to assist the client or patient in the communication of the information, is permitted, and the privilege still covers them, so the presumption of confidentiality is not overcome.

Question 105

Waiver of Privilege

Privilege; Not rule??

Answer 105

• Only the client can waive the privilege
• A waiver of the privilege can be intentional or negligent (failure to claim the privilege).
• In the event of an inadvertent waiver of the privilege through accidental disclosure, the privileged document must be returned and cannot be referred to in any proceeding.

Question 106

Crime‐Fraud Exception for client/spouse

Answer 106

Any privileged communication made in order to enable the client or spouse to commit a crime or fraud is within the crime‐fraud exception, and thus the privilege is lost.

Question 107

Crime-Tort Exception for patient

CEC

Answer 107

In CA, any privileged communication made in order to enable the patient to commit a crime or a tort is within the exception, and thus the privilege is lost.

Question 108

Phyisican-Patient Privilege in Criminal Cases

CEC

Answer 108

No physician‐patient privilege in criminal cases.

Question 109

Judicial Notice

Answer 109

Judicial notice is a method of establishing facts without the necessity of a jury deciding them.

To qualify for judicial notice, the fact must be not subject to reasonable dispute, in that it is either:
(1) generally known within court’s territorial jurisdiction (for example, the capital of a state or the fact that boiling water is hot) or
(2) capable of accurate and ready determination by resort to unquestioned accurate sources (such as the time of sunrise or sunset determined from an almanac or newspaper).

Judicial notice may be taken whether requested or not. If taken, the fact is conclusively established in a civil case, but is only an inference in criminal cases.