Evidence

Question 1

CEC Relevance

Answer 1

Evidence, including evidence relevant to credibility, having any tendency in reason to PROVE OR DISPROVE any disputed fact of consequence to the determination of the action.

Question 2

Proposition 8

Answer 2

Relevant evidence shall not be excluded in any criminal proceeding, except
(1) character evidence
(2) privilege,
(3) hearsay, and
(4) CEC 352.

Only applies to impeachment and impeachment with illegally obtained evidence.

Question 3

FRE 403/CEC 352

Answer 3

Relevant evidence may be excluded if its probative value is substantially outweighed by undue prejudice, confusion, or delay.

Only discuss if otherwise admissible, and at the end.

Question 4

Objections - Form

Answer 4

(1) Leading
(2) Compound
(3) Calls for Narrative
(4) Argumentative
(5) Assumes facts not in evidence
(6) Ask and Answered

Question 5

Objections - Answers

Answer 5

(1) Non-Responsive - Motion to Strike

Question 6

Character Evidence General Rule

Answer 6

Evidence of a person’s character, when offered to prove that person engaged in particular conduct, is inadmissible [unless character at issue].

Question 7

When Is Character At Issue?

Answer 7

Civil - Reputation in defamation

Criminal - Entrapment requirements an absence predisposition to sell (evidence of prior sale admissible)

Question 8

SA Exception - FRE

Answer 8

In a criminal or civil case for sexual assault or child molestation, D’s prior bad acts of sexual assault or child molestation are admissible to prove character trait and conduct in conformity with that character trait.

Question 9

SA Exception - CEC

Answer 9

In a criminal ONLY case for sexual assault, child molestation, domestic violence, or child abuse, D’s prior bad acts of all of them are admissible to prove character trait and conduct in conformity with that character trait.

Question 10

Defendant Character (Mercy Rule)

Answer 10

In criminal cases, D may first offer opinion or reputation evidence of D’s relevant “good” character trait; then prosecution may either:

(1) rebut with opinion or reputation evidence of relevant character trait of defendant; or

(2) impeach the character witness using evidence of specific acts of D inconsistent with trait.

Question 11

Victim Character FRE

Answer 11

In criminal cases, D may first offer opinion/reputation evidence of V’s relevant character trait; then prosecution may rebut with opinion/reputation evidence of
(1) victim’s relevant good character trait, and
(2) defendant’s relevant bad character trait.

In Homicide - if D claims self defenses and argues that V attacked first, prosecution may introduce opinion/rep of V’s peacefulness.

Question 12

Victim Character CEC

Answer 12

In criminal cases, D may first offer all three types of character evidence of V’s relevant character trait, then Prosecution can rebut with all three types of character evidence of
(1) “good” character of V, and
(2) if introduced character trait of V is violence, prosecution can also introduce all three types of character evidence of D for violence.

Question 13

Non-Character Purposes

Answer 13

Specific acts of a party are admissible for noncharacter purposes (i.e., purposes other than proving conformity of conduct to character trait):
(1) Motive
(2) Identity,
(3) Opportunity
(4) Plan
(5) state of mind,
(6) D’s mens rea.

Question 14

Habit

Answer 14

Admissible to show that the party likely acted in conformity with habit. Requires the repeated same response to the same stimulus.

Question 15

Custom

Answer 15

Similar fact pattern regarding business practice, the evidence is admissible as a “custom”.

Question 16

Policy Exclusions

Answer 16

(1) Subsequent Remedial Measures
(2) Offers of Compromise
(3) Offers to Pay Med Expenses
(4) Liability Insurance
(5) Plea Offers

Question 17

Subsequent Remedial Measures

Answer 17

FRE:
Prohibits admission to prove negligence, fault, or damages, in negligence and product liability cases.

Permits admission for other purposes, like proving ownership, control, or feasibility of precautionary measures or alternate design, if controverted, or impeachment.

CEC:
Prohibits admission to prove negligence or liability.

Permits to prove product defects (and thus that D is liable).

Question 18

Offers of Compromise

Answer 18

Requires existence of actual dispute as to liability or damages.

The entire statement is excluded, including admissions made with the offer of compromise or settlement negotiation.

Question 19

Offers to Pay Medical Expenses

Answer 19

FRE:
Excluded BUT admissions made with the offer are admissible.

CEC.
Offers and other humanitarian offers are excluded, AND accompanying admissions are excluded. (E.g., an offer to pay funeral expenses or, after D negligently damages P’s house, an offer to put P up in a hotel.)

Question 20

Liability Insurance

Answer 20

FRE:
Inadmissible to prove liability or fault, but admissible to prove ownership or control

Absence of liability insurance is inadmissible.

CEC:
Inadmissible to prove liability or fault, but admissible to prove ownership or control

Absence of liability insurance is not necessarily inadmissible – opponent must argue inadmissibility under CEC 352

Question 21

Offer of Pleas

Answer 21

FRE:
Offers and withdrawn pleas are inadmissible in ALL cases.

CEC:
Same as FRE, but admissible to impeach if they testify inconsistently with the plea.

Question 22

Hearsay Steps

Answer 22

(1) Define hearsay,
(2) Discuss whether statement was an out of court statement (or there was no true statement at all), then
(3) Discuss whether it is being used to prove its truth or non-hearsay purpose.

Question 23

Hearsay Rule

Answer 23

An out of court statement used to prove the truth of the matter asserted.

Watch out for: Gestures, “I have insurance to cover you” used to show conscious of liability

Question 24

Non-Hearsay Purposes

Answer 24

(1) Effect on listener
(2) Verbal Acts
(3) Giving of warning or notice, or consciousness

Question 25

Hearsay Exclusions

Answer 25

Admissions (Statements) of party opponents
- Admissions
- Vicarious Admissions
- Co‐Conspirator Admissions
- Adoptive Admissions
- Authorized Admissions

Prior Statement of Witnesses:
- Prior Inconsistent Statement
- Prior Consistent
- Prior Idenficiation

Question 26

Vicarious Admission Difference

Answer 26

FRE: Still employed - Course and Scope

CEC: If employer liability is based on employee liability, and employee makes an admission (respondeat superior)

Question 27

Prior Inconsistent Statement Difference

Answer 27

FRE:
- Always admissible to impeach
- Admissible for truth ONLY if made under oath

CEC:
- Always admissible to impeach AND for substance

Question 28

Prior Statement of Identification Difference

Answer 28

CEC: ONLY in criminal cases