Evidence

Question 1

Relevance

High

Answer 1

• To be admissible, evidence must be relevant. Evidence must be both logically AND legally relevant.
• Logical Relevance: Evidence is logically relevant if: (1) it has any tendency to make a fact more or less probable than it would be without the evidence; AND (2) the fact is of consequence in determining the action ([CA] the fact of consequence must be in dispute).
• Legal Relevance: Evidence is legally relevant if it’s NOT excluded: (1) on other policy grounds; AND (2) a danger of: (a) unfair prejudice; (b) confusing the issues; (c) misleading the jury; (d) undue delay; (e) wasting time; OR (f) being needlessly cumulative substantially outweighs the probative value.

Question 2

California Proposition 8

High

Answer 2

• Under Proposition 8 of the California Constitution, all relevant evidence is ADMISSIBLE in a criminal trial.
• However, such evidence is still subject to balancing: exclusion if the risk of unfair prejudice, confusion of issues, misleading to the jury, or being needlessly cumulative substantially outweighs the probative value.
• In addition, Proposition 8 does not affect the following: (1) exclusionary rules based upon the U.S. Constitution; (2) the secondary/best evidence rule; (3) hearsay exclusions; (4) privilege exclusions; (5) evidence barred under rape-shield statutes; (6) limits on prosecution from offering specific character evidence (prior to defendant “opening the door”).

Question 3

Subsequent Remedial Measures

Medium

Answer 3

• Evidence of subsequent remedial measures is NOT admissible to show culpability or negligence. [FRE] Evidence of subsequent remedial measures is also NOT admissible in strict products liability cases to prove a defect in a product/design or a need for a warning/instruction.
• However, the court may admit such evidence for other purposes, such as: (i) impeachment; or (ii) to prove a disputed issue as to ownership, control, or feasibility/impossibility of precautionary measures.
• Types of subsequent remedial measures include changes to company rules, installation of safety devices, and postincident discipline or termination of an employee.

Question 4

Evidence of Liability Insurance

Medium

Answer 4

• Evidence of liability insurance is NOT admissible to prove culpability - that a person acted negligently or wrongfully. However, the court may admit such evidence for another purpose, such as proving bias/prejudice of a witness, or proving agency, ownership, or control.

Question 5

Offers to Pay Medical Bills

Medium

Answer 5

• Evidence of paying or promising/offering to pay medical expenses or bills is NOT admissible to prove liability (even if there is no disputed claim).
• [FRE] Any related statements or factual admissions (other than the offer to pay) ARE ADMISSIBLE.
• [CA] Related factual statements are NOT admissible.

Question 6

Offers to Settle

Medium

Answer 6

• Offers to compromise, and statements made during settlement negotiations are NOT admissible to: (a) prove the validity or amount of a disputed claim (the claim must be filed or threatened); OR (b) to impeach by a prior inconsistent statement or contradiction.
• However, the court may admit such evidence for another purpose, such as proving bias/prejudice of a witness, negating a contention of undue delay, or proving obstruction in a criminal matter.
• [CA] Excludes written/oral statements made during mediation proceedings.

Question 7

Statements of Sympathy

Low

Answer 7

• [CA] Statements of sympathy made to a person or their family are NOT admissible in a civil case as evidence of an admission of liability. Any accompanying statements of fault are admissible.
• [FRE] No such exclusion exists.

Question 8

Authentication of Evidence: General Rule

High

Answer 8

• All evidence MUST be authenticated before being admitted into evidence. A party must prove that the item it seeks to admit is actually what the party purports it to be, UNLESS the parties stipulate otherwise.

Question 9

Authentication of Evidence: Physical Evidence

High

Answer 9

• Physical evidence may be authenticated through: (a) witness testimony; OR (b) by evidence that shows it has been held in a substantially unbroken chain of custody.

Question 10

Authentication of Evidence: Voice Recordings

Medium

Answer 10

• Voice recordings may be authenticated by anyone who has (1) heard the person speak (either first hand or electronically); AND (2) identified the recorded person as the speaker.

Question 11

Best Evidence Rule

High

Answer 11

• Under the Best Evidence Rule, a party must provide the original document (or a reliable duplicate) when a witness (a) testifies to the contents of a writing; OR (b) testifies to knowledge gained solely from a writing.
• [CA] This rule is called the Secondary Evidence Rule.
• [FRE] Handwritten duplicates are NOT admissible. [CA] Handwritten duplicates ARE admissible.

Question 12

Character Evidence

High

Answer 12

• Generally, evidence of a person’s character is NOT admissible to show propensity (that on a particular occasion the person acted in conformity with the character trait). HOWEVER, character evidence is generally admissible for any non-propensity purpose, such as when character is an ultimate issue in a case (i.e. defamation) or to impeach.
• BUT character evidence may be offered as circumstantial evidence to prove propensity in certain limited circumstances:
• Defendant’s Character: In criminal cases, a defendant may always introduce evidence of his own character. The prosecution is NOT allowed to present evidence of the defendant’s character to prove propensity UNLESS the defendant first presents evidence of his own character (the defendant “opens the door”). [CA] Prosecution can initiate a showing of defendant’s acts of domestic violence or elder abuse.
• Victim’s Character: In criminal cases, except in cases involving rape, a defendant may offer evidence of the victim’s character to prove the defendant’s innocence. If the defendant presents such evidence, the prosecution may present evidence of the: (a) victim’s good character for the same trait; or (b) defendant’s same bad character trait ([CA] limited only to violent character trait).
• [FRE] In a Homicide Case the prosecution may offer evidence of the victim’s character for peacefulness ONLY IF the defendant claims the victim was the aggressor (self-defense). [CA] No such rule exists.
• For Sex-Offense Cases involving alleged sexual misconduct, evidence offered to prove a victim’s sexual behavior or predisposition is generally NOT admissible. However, certain exceptions to this rule exist. In a criminal case, the court may admit: (a) evidence to show that the defendant was or was not the source of physical evidence, such as semen or bruises; (b) evidence of sexual relations between the defendant and victim if offered by the defendant to prove consent; or (c) evidence whose exclusion would violate the defendant’s constitutional rights. In a civil case, evidence of the victim’s past sexual conduct or predisposition is admissible only if its probative value substantially outweighs the danger of harm to the victim and unfair prejudice to any party.
• Civil Cases: Character evidence CANNOT be introduced in a civil case to prove propensity, unless the exception for sex-offense cases applies (see above). [CA] There is no exception for sex-offense cases.
• Methods of Proving Character: [FRE] When character evidence is admissible, it may be proven in the following ways: (1) on direct examination by opinion testimony or testimony of reputation in the community; OR (2) on cross examination of the character witness by opinion, reputation, or specific acts. [CA] The method of proving character is the generally the same as the FRE. There is an exception when the defendant opens the door by offering evidence of the victim’s bad character. In that case, opinion, reputation, and specific acts are admissible in a criminal case on both direct and cross examination to prove the victim’s conduct generally.

Question 13

Prior Bad Acts

High

Answer 13

• Evidence of prior bad acts (crimes, wrongs, or acts) is NOT admissible to show propensity (that on a particular occasion the person acted in conformity with a character trait).
• However, evidence of prior bad acts may be admissible for other relevant non-propensity purposes, such as proving Motive, Identity, Absence of Mistake or Accident, Intent, a Common Plan or Scheme, Opportunity, or Preparation.

Question 14

Habit and Routine Practice

Low

Answer 14

• Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the party acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or if there was an eyewitness.
• A habit is a regular response to a repeated situation (i.e. going down a stairway two stairs at a time), and usually has four key elements: (1) specificity; (2) repetition; (3) duration; AND (4) is semi-automatic or reflexive. Usually, courts limit habit evidence to behaviors that are semiautomatic or reflexive.

Question 15

Impeachment: Prior Inconsistent Statements

Medium

Answer 15

• Prior inconsistent statements are admissible to impeach a witness’s trial testimony. A party DOES NOT need to show or disclose the contents of the prior statement when examining a witness on it, but must (on request) show it or disclose its contents to the adverse party’s attorney.
• Extrinsic evidence is admissible only if: (1) relevant to a material issue at trial (one other than the witness’s credibility); AND (2) a proper foundation is shown – (i) the witness is first given an opportunity to explain or deny the statement, and (ii) the adverse party is given an opportunity to examine the witness about it. HOWEVER, the above limitation on extrinsic evidence is not applicable to statements by a party opponent.
• [CA] Extrinsic evidence must be excluded UNLESS: (a) the witness was examined on the subject to give him an opportunity to explain or deny the statement; (b) the witness has not been excused from giving further testimony; OR (c) the interests of justice so require it.
• [CA] A Prior Inconsistent Statement is admissible as nonhearsay when offered only to impeach a witness. If the Prior Inconsistent Statement is offered to prove the truth of the statement, it will be deemed hearsay. However, such evidence is still admissible because a prior inconsistent statement is an exception to the hearsay rule under the California Evidence Code. (Note, a prior inconsistent statement could also be admissible under another hearsay exception, such as if it were a statement by a party opponent).

Question 16

Impeachment: Prior Convictions

Medium

Answer 16

• [FRE] Evidence of prior convictions may be admitted to attack a witness’s character for truthfulness in certain instances.
• Prior felony or misdemeanor convictions involving dishonesty (a dishonest act or false statement) are ALWAYS admissible to impeach a witness (the judge has no discretion to exclude it). All other misdemeanors are NOT admissible to impeach. A felony is a crime that (in the convicting jurisdiction) was punishable by: (a) death; OR (b) imprisonment for more than one year.
• Felonies that DO NOT involve dishonesty are admissible in the following cases: (1) in a civil or criminal case where the witness is not a criminal defendant (subject to the FRE 403 exclusions); and (2) in a criminal case where the witness is a defendant, but only if the probative value outweighs its prejudicial effect.
• Notwithstanding the above, if 10-years have passed since the later of the witness’s conviction or release from confinement, evidence of the conviction is admissible only if: (1) its probative value substantially outweighs its prejudicial effect and; and (2) proper notice was given.
• [CA] Prior felony convictions involving moral turpitude are ADMISSIBLE to impeach, subject to CEC 352 balancing. Felonies that do not involve moral turpitude are NOT ADMISSIBLE. In a criminal case, misdemeanors are ADMISSIBLE under Proposition 8 for crimes involving moral turpitude (subject to CEC 352 balancing). Otherwise, misdemeanor convictions are NOT ADMISSIBLE. Moral Turpitude is a broad standard, and includes crimes involving lying, violence, sex crimes, and extreme recklessness.

Question 17

Impeachment: Specific Instances of Conduct

Medium

Answer 17

• [FRE] A witness’s credibility may be attacked on cross-examination by questioning him with specific instances of conduct (i.e. prior bad acts) ONLY IF the conduct is probative of the witness’s character for truthfulness or untruthfulness. However, extrinsic evidence is NEVER admissible to attack or support such instances of a witness’s credibility. Even if a witness lies or denies a specific instance of conduct, he CANNOT be contradicted by extrinsic evidence, such as documentary evidence or by testimony of another witness to show that the witness is lying.
• [CA] Prior bad acts (specific instances of conduct) are generally NOT ADMISSIBLE. However, prior bad acts are admissible under Proposition 8 only if the act(s) involve moral turpitude. In such instances, the use of extrinsic evidence is permitted on cross-examination.

Question 18

Impeachment: Bias

Low

Answer 18

• A witness’s bias, interest, motive, or partiality is ALWAYS relevant for impeachment. The Supreme Court has held that proof of bias is relevant because the finder of fact (and weigher of credibility) is entitled to assess all evidence which might bear on the accuracy and truth of a witness’s testimony.
• Extrinsic Evidence: Most jurisdictions require that the witness be questioned about the bias before extrinsic evidence of the bias is admissible.

Question 19

Lay Witness Testimony & Opinions

High

Answer 19

• A lay witness is any person who gives testimony in a case that is NOT called as an expert. A lay witness’s testimony is admissible if he is competent to testify. To be competent, the witness must: (1) take an oath to tell the truth; AND (2) have the capacity to perceive, recall, and communicate. Additionally, a witness may only testify to matters of which he has personal knowledge. [FRE] Competency is presumed except for the presiding judge and jurors. [CA] In addition to the above competency factors, the witness must also understand the legal duty to tell the truth. Also, the presiding judge and jurors may testify if there is no objection.
• A lay witness may only offer an opinion if it is: (1) rationally based on the witness’s perception; AND (2) helpful to clearly understand the witness’s testimony or to determine a fact in issue (legal conclusions are not helpful). [FRE] The opinion cannot based on scientific, technical, or other specialized knowledge.

Question 20

Expert Witness Testimony

High

Answer 20

• Expert testimony is permitted when: (1) the witness is qualified as an expert (by knowledge, skill, experience, training, or education); (2) the testimony is helpful to the trier of fact (if an average layperson/jury could not figure the issue out for themselves); (3) the testimony is based on sufficient facts or data (e.g. documentary evidence, personal knowledge, examination); (4) the testimony is based on reliable principles and methods; AND (5) the expert has reasonably applied the principles and methods to the facts of the case.
• FRE Daubert/Kumho standard: (1) testability; (2) publication and peer review; (3) error rate; (4) standards and controls; AND (5) whether it is generally accepted in the field.
• CA’s Kelley/Frye standard: reliability is based on whether a methodology is generally accepted in the field.

Question 21

Scope of Cross-Examination

Low

Answer 21

• The scope of cross-examination is limited to: (1) the subject matter of the direct examination; AND (2) matters affecting the witness’s credibility.

Question 22

Refreshing Recollection

Medium

Answer 22

• Refreshing a witness’s recollection using a document is permitted when (1) the witness once had personal knowledge of the matter, (2) but is unable to recall the matter while testifying [in CA the refreshing may be done prior to or during trial]. When refreshing recollection, the witness will be able to read the document into the record. However, only the opposing party may offer the document into evidence if it is otherwise inadmissible (but it may be admitted by the offering party if admissible under another ground, such as a recorded recollection). The opposing party is also entitled to have the document produced at the hearing/trial, to inspect it, and to cross-examine the witness about it.

Question 23

Judicial Notice

Medium

Answer 23

• A court may take judicial notice of indisputable facts that are either: (a) commonly known in the community; OR (b) readily capable of verification and cannot reasonably be questioned. The court may take judicial notice at any stage of the proceeding.
• [FRE] In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
• [CA] Judicially noticed facts are conclusive in BOTH civil and criminal cases.

Question 24

Trial Objections: Assumes Facts Not in Evidence

Medium

Answer 24

• A question that assumes facts not in evidence OR incorporates facts that have not yet been entered into evidence.

Question 25

Trial Objections: Calls for Narrative

Low

Answer 25

• A question that calls for a narrative is open ended and requires more than a short response.

Question 26

Trial Objections: Leading Question

High

Answer 26

• A leading question is one that suggests an answer to the witness. Leading questions are permitted on crossexamination, but NOT on direct examination UNLESS (a) the witness is hostile, an adverse party, or identified with the adverse party; (b) it clarifies background information; OR (c) the witness has difficulty remembering.
• [CA] Leading questions are only permitted on direct in the interests of justice.

Question 27

Trial Objections: Non-Responsive Answer

Medium

Answer 27

• A non-responsive answer provides more information than the question asked for.

Question 28

Trial Objections: Speculation

Medium

Answer 28

• A witness may ONLY testify to personal knowledge and
  cannot speculate.

Question 29

Trial Objections: Vagueness

Low

Answer 29

• A witness may ONLY testify to personal knowledge and
  cannot speculate.

Question 30

Prohibition Against Jury Investigations

Low

Answer 30

• Juries are prohibited from conducting independent investigations of the case. Such conduct may result in a mistrial for the defendant.

Question 31

Hearsay Definition

High

Answer 31

• Hearsay is (1) an out-of-court statement, (2) that is offered to prove the truth of the matter asserted. Hearsay is ONLY admissible if it falls under an exception. A “statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. However, if the act DOES NOT assert or communicate anything (i.e. crying), it is not deemed a statement for hearsay purposes.

Question 32

Multiple Hearsay

High

Answer 32

• When evidence contains hearsay within hearsay (multiple or double hearsay), each level of hearsay must fall within an exception to be admissible.

Question 33

Non-Hearsay: Statements Offered for Other Purpose

High

Answer 33

• If an out-of-court statement is offered to prove something other than the truth of the statement, it is non-hearsay and is ADMISSIBLE. Common non-hearsay statements include: (1) **verbal acts of independent legal significance **(i.e. a contract was formed); (2) statements offered to show the effect on the listener; (3) statement offered as circumstantial evidence of the declarant’s mental state; (4) prior inconsistent statements (only statements made under oath at trial, hearing, or deposition are admissible as substantive evidence; otherwise as impeachment); (5) prior consistent statements (admissible as substantive evidence); (6) prior statements of identification (requires the declarant testify and be subject to cross-examination; and (7) admissions of a party opponent (applies to anything a party said).

Question 34

Hearsay Exclusion: Admissions of a Party Opponent

High

Answer 34

• A statement/admission by a party opponent is NOT hearsay and is ADMISSIBLE. [FRE] Statements by a party opponent are deemed to be non-hearsay. [CA] such statements are an exception to the hearsay rule.

Question 35

Hearsay Exclusion: Adoptive Admission

Medium

Answer 35

• A person’s silence may constitute an adopted admission if: (1) the person heard the statement; AND (2) a reasonable person would have denied the statement. An adoptive admission is excluded from hearsay under the Statements by a Party Opponent hearsay rule.

Question 36

Hearsay Exclusion: Vicarious Admissions

High

Answer 36

• A vicarious admission is excluded from hearsay under the Statements by a Party Opponent hearsay rule. Vicarious admissions are those made by: (a) an authorized spokesperson; (b) a principal or agent made during/within the scope of the agency relationship; OR (c) coconspirators.
• [CA] There is no principal agent situation, BUT in respondeat superior civil cases, statements made by an employee are admissible if the employee’s negligent conduct is the basis for the employer’s liability.

Question 37

Hearsay Exclusion: Prior Statement of Identification

Low

Answer 37

• [FRE] A declarant’s prior statement of identification of a person is NOT hearsay if: (1) the declarant testifies; AND (2) is subject to cross-examination about the prior statement.
• [CA] Statements previously made by a witness are an exception to the hearsay rule if: (1) the statement identifies someone who participated in a crime or other occurrence; (2) the statement was made at the time the crime or occurrence was fresh in the witness’s mind; AND (3) before the evidence of the statement is offered, the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.

Question 38

Hearsay Exception: Declarant Unavailable Requirement

High

Answer 38

• A declarant is deemed unavailable as a witness if he: (a) is exempted from testifying due to privilege; (b) refuses to testify despite a court order to do so [does not apply in CA – unless the declarant (a) refuses to testify out of fear, or (b) persistently refuses to testify despite having been found in contempt of court]; (c) testifies that he does not remember the subject matter [in CA, total memory loss is required]; (d) cannot be present to testify because of death or illness; OR (e) is beyond the reach of a court’s subpoena, and his attendance cannot be procured by reasonable means. The unavailability of the declarant must not have been caused by either party.

Question 39

Hearsay Exception: Dying Declaration

Medium

Answer 39

• A dying declaration is an exception to the hearsay rule, and MAY ONLY be used in either: (a) a civil case; OR (b) a criminal homicide case [in CA can be used in any criminal case].
• In order to be admissible: (1) the declarant must be unavailable [in CA the declarant must be dead]; (2) the statement was made under a sense of impending death; AND (3) the statement was about the circumstances or cause that put the declarant in the position of impending death [in CA statement must concern what killed him].

Question 40

Hearsay Exception: Statement Against Interest

High

Answer 40

• A statement against interest is an exception to the hearsay
  rule, and is admissible when: (1) it’s a statement against
  the declarant’s penal, proprietary, or pecuniary interest when made (i.e. criminal, property, civil liability interests);
  (2) the declarant has firsthand knowledge; (3) a reasonable
  person in the declarant’s position would have made the
  statement only if the person believed it to be true; AND (4)
  the declarant is unavailable.
• [CA] Statements against one’s societal interests are also admissible.
• [FRE] If a statement against interest is offered in a criminal case, it MUST be supported by corroborating circumstances that clearly indicate its trustworthiness.

Question 41

Hearsay Exception: Former Testimony

Medium

Answer 41

• Prior statements made under oath are admissible if: (1) the statements are offered against a party who was present in
  the previous trial (in a civil case, a party who was in privity with the party in the previous case is sufficient); (2) the same issues are involved; (3) the party who it is offered against had the same motive and opportunity to cross examine the witness in the previous trial; AND (4) the declarant is unavailable.
• [CA] The party whom the statements are offered against
  DOES NOT have to be in privity with a party in the previous
  case (the parties sharing similar interests is sufficient).

Question 42

Hearsay Exception: Excited Utterance

High

Answer 42

• An excited utterance is an exception to the hearsay rule. An excited utterance is a statement (1) relating to a startling event or condition, (2) made while the declarant was under the stress of excitement that the event/condition caused. There can be a slight delay between the event and the
  statement.
• [CA] This exception is referred to as a Spontaneous Statement.

Question 43

Hearsay Exception: Present Sense Impression

High

Answer 43

• Present sense impression is an exception to the hearsay rule. A present sense impression is a statement describing an event made by the declarant: (a) while observing the event; OR (b) immediately thereafter. A few minutes after the event is within the period contemplated under this hearsay
  exception.
• [CA] This exception is referred to as a Contemporaneous Statement, and it only applies when the statement: (1) is offered to explain, qualify, or make understandable conduct of the declarant; AND (2) was made while the declarant was engaged in such conduct.

Question 44

Hearsay Exception: Business Records

High

Answer 44

• Business records are an exception to the hearsay rule.
• [FRE] A business record is admissible if it is: (1) a record of events, conditions, opinions, or diagnoses; (2) kept in the regular course of business; (3) made at or near the time of the matter described; (4) made by a person with knowledge of the matter; (5) is the regular practice of the business to make such a record; AND (6) the opponent party does not show that the record was made under
  circumstances indicating a lack of trustworthiness. The witness who lays the business records foundation DOES NOT need be the author of the record or attest to its accuracy.
• [CA] The business record exception DOES NOT include
  records of opinions or diagnosis (even though courts usually do admit simple opinions and diagnosis). Additionally, the
  party introducing the business record has the burden of showing that the record was made under circumstances indicating trustworthiness.

Question 45

Hearsay Exception: Government/Public Records

Medium

Answer 45

• [FRE] The following records are admissible under the government or public records hearsay exception: (1) a record describing the policies and practices of a public office; (2) observations made by someone in accordance with his duties by law (except police reports in criminal cases); (3) factual findings from a legally authorized investigation (but are only admissible in civil cases or against the government in criminal cases). HOWEVER, if the opposing party shows that the record was made under circumstances indicating a lack of trustworthiness, the record will NOT be admitted.
• [CA] Government or public records are admissible as long as the writing was (1) made by and within the scope of duty of a public employee; (2) made at or near the time of the act, condition, or event; AND (3) the record was made under circumstances indicating trustworthiness. This exception
  applies to civil and criminal cases, though there may be confrontation clause issues when such records are used against the defendant in a criminal case.

Question 46

Hearsay Exception: Past Recollection Recorded

Medium

Answer 46

• A past recollection recorded is a record made on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately.
• A past recollection recorded is an exception to the hearsay rule, and is admissible if: (1) the witness had personal knowledge of the events at one time; (2) the writing was made or adopted by the witness; (3) the writing was made while the events were still fresh in the mind of the witness; (4) the writing is accurate; AND (5) the witness can no longer remember the event. If admitted, the record MAY be read into evidence. However, the record MAY ONLY be received as an exhibit if it is offered by an adverse party.

Question 47

Hearsay Exception: State of Mind

High

Answer 47

• Statements of the declarant’s then-existing state of mind (i.e. motive, intent, or plan) OR emotional, sensory, or physical condition are an exception to the hearsay rule. However, statements of memory or belief offered to prove a fact remembered/believed is NOT admissible UNLESS it relates to the validity or terms of the declarant’s will.

Question 48

Hearsay Exception: Statements Made for Medical Diagnosis/Treatment

Answer 48

• A statement is NOT excluded by the hearsay rule when the statement: (1) is made for and reasonably pertinent to medical diagnosis or treatment; AND (2) describes medical history or symptoms (past or present). Statements not relevant to medical diagnosis or treatment (i.e. statements of fault) generally DO NOT fall within this hearsay xception.
• [CA] Statements concerning a person’s past physical state
  are admissible ONLY IF they were made to medical personnel for the diagnosis or treatment of a child abuse/neglect victim less than 12 years of age.

Question 49

Hearsay Exception: Catch-All Exception

Low

Answer 49

• [FRE] A hearsay statement is NOT excluded by the rule against hearsay (even if the statement is not specifically covered by a hearsay exception) when the statement: (1) has equivalent circumstantial guarantees of trustworthiness; (2) is offered as evidence of a material fact; (3) is more
  probative on the point for which it is offered than any other
  evidence that the proponent can obtain through reasonable
  efforts; AND (4) admitting it will best serve the interests of
  justice. The statement is admissible ONLY IF the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to oppose its introduction.
• [CA] Does not have a catch-all hearsay exception.

Question 50

Confrontation Clause

High

Answer 50

• The Sixth Amendment’s Confrontation Clause (as applied to
  the states via the Fourteenth Amendment) gives a criminal defendant the right to confront witnesses against him. The
  use of an out-of-court statement (even if it falls within a hearsay exception or exemption) violates a defendant’s Sixth Amendment rights when: (1) the statement is “testimonial”; (2) the declarant is unavailable to be crossexamined at trial; AND (3) the defendant did not have an
  opportunity to cross-examine the declarant before trial. This
  prohibition is subject to some exceptions, such as dying declarations and wrongdoing by the defendant.
• Courts have held that the following statements are testimonial in nature: (a) statements made to grand juries (and in other similar situations); (b) an affidavit or certified report containing forensic laboratory results; and (c) statements made to the police whose primary purpose
  (when viewed objectively) is to collect testimony to be used at a later trial. HOWEVER, statements made to the police where the primary purpose of the questioning was to assist the police in an ongoing emergency are NOT considered testimonial.
• When determining whether a statement is testimonial, consider the primary purpose of the conversation, and whether there is some intent to preserve for trial what is being said. For example, where the primary purpose of a police interrogation is to gather evidence, any statements made are testimonial. However, where the rimary purpose of a police interrogation is to assist in an ongoing emergency, any statements made are NOT testimonial.

Question 51

Privileges & Eavesdroppers

Medium

Answer 51

• Unknown eavesdroppers DO NOT destroy privilege. However known or anticipated eavesdroppers WILL destroy privilege.

Question 52

Attorney-Client Privilege

High

Answer 52

• The attorney-client privilege protects confidential communications between an attorney and client from disclosure if: (1) the communication was confidential (it was not knowingly made in front of third-parties); AND (2) the communication was made to facilitate legal services. Such communications remain privileged even after the client dies. When the client is a corporation, only communications between the attorney and high-level employees are protected (unless Upjohn).
• The privilege DOES NOT apply when: (a) legal services are sought to further a crime or fraud; (b) there is litigation related to a breach of duty between the attorney and client; OR (c) joint clients are later involved in civil litigation.

Question 53

Attorney Work Product Doctrine

High

Answer 53

• In Federal court, the work product doctrine protects ALL materials prepared by an attorney or his agents in anticipation of or during litigation. Such materials are protected from disclosure UNLESS a party can show: (1) a substantial need for the materials exist; AND (2) a substantial equivalent of the materials cannot be obtained without undue hardship. Whether the identity of a witness constitutes work product is unsettled, and courts are split on the issue.
• In California, the work product privilege applies solely to materials prepared by the attorney in anticipation of litigation. This is unlike the federal rules, where the work product doctrine applies generally to materials prepared in
  anticipation of litigation.
• Absolute Privilege: Materials prepared in anticipation of litigation that are comprised of the attorney’s mental impressions, notes, or opinions are absolutely protected and are NOT discoverable.
• Qualified Privilege: Other materials prepared in anticipation of litigation are deemed as qualified work product. These materials MAY be discoverable upon a showing of substantial need and inability to acquire the materials elsewhere.

Question 54

Physician-Patient Privilege

Low

Answer 54

• In California, confidential patient communications made to a physician for the purpose of medical diagnosis or treatment ARE PRIVILEGED. This includes any diagnosis, advice given by the physician, and information obtained
  during an examination. The patient holds the privilege (not the physician), and only the patient can invoke or waive it.
  The privilege may be waived by the patient when the medical condition is placed “in issue” (i.e. a personal injury lawsuit
  relating to the condition).
• Federal courts DO NOT recognize a Physician-Patient Privilege. However, under the FRE, state law governs privilege for civil cases regarding a claim or defense for which state law supplies the rule of decision (e.g. in a
  diversity action filed in federal court).

Question 55

Spousal Privilege: Confidential Marital COmmunications

Medium

Answer 55

• Communications between a husband and wife are privileged
  in both civil and criminal cases if: (1) made during the course of a valid marriage; AND (2) were intended to be confidential. The privilege is held by both spouses (either may assert it), and applies even after divorce. If a spouse
  divulges the content of communications to a third-party, the
  privilege for those disclosed communications no longer applies.

Question 56

Spousal Privileges: Spousal Immunity

Medium

Answer 56

• [FRE] A witness-spouse in a valid marriage may refuse to testify against his or her spouse in a criminal case (even if the spouse is not a defendant). The witness-spouse alone holds the privilege, and the privilege ends after divorce. Spousal immunity DOES NOT apply in civil cases.
• [CA] The spouse holding the privilege may refuse to testify
  in both civil and criminal cases.