Evidence

Question 1

California Proposition 8

Answer 1

Proposition 8 of the California (CA) Constitution (Prop 8) allows a court to admit all evidence that is relevant to disputed material facts in criminal cases. However, a court may chose to refuse to admit relevant evidence if the evidence’s probative value would be substantially outweighed by the prejudicial effect, would confuse the issues, or would mislead the jury

Question 2

Logical and Legal Relevance

Answer 2

Evidence is logically relevant if it tends to prove/disprove a material [disputed] fact. Legally relevance is found so long as the probative value is not substantially outweighed by the prejudicial effect.

Question 3

Public Policy Exceptions

Answer 3

Subsequent Remedial Measures: Measures taken after an injury are not admissible to show that there was an injury. However, can be shown to demonstrate control or that the fix was possible.

Offers to Pay Medical Expenses - inadmissible, accompanying admissions may be admissible (but not in CA)

Settlement Offers- Inadmissible to prove liability for, or invalidity of, a claim at actual dispute. Includes all contextual statements

Withdrawn guilty please- Inadmissible

Liability Insurance- Can’t be used to show culpability but can show ownership

Question 4

Personal Knowledge /Authentication

Answer 4

A testifying witness must be competent and have personal knowledge of the matter they are testifying about
Kids are allowed to testify so long as they understand the difference between truth/lying

All tangible items of evidence must be authenticated. To authenticate a piece of evidence, the party that profers the evidence must show sufficient evidence the item is what they say it is.

Question 5

Best Evidence Rule (Secondary Evidence Rule CA)

Answer 5

The best evidence rule is implicated when a documentary piece of evidence is being shown to prove its contents (contracts, records) or if a witness is relying on it to testify (not needed if they had PK). The BER requires that the original, or a duplicate be introduced. A duplicate must be produced by an accurate process.

Original NOT required if: lost or destroyed (unless by opponent in bad faith), opponent fails to produce, collateral matter, unless duplicate authenticity in question

Question 6

Judicial Notice

Answer 6

Allows a party to “prove” a fact that can’t be in contention, i.e. July 8th, 2023 was a Saturday.
Party or judge can move for

Mandatory for Civil trials but NOT criminal trials (permissive) under FRE
Mandatory for both under CA

Question 7

Rule of Completeness

Answer 7

If a party introduces part of a writing/recording, the other party may require introduction of the other documents/rest of the document.

Question 8

Lay/Expert Testimony

Answer 8

Lay Testimony: Testimony must be based on PK; be helpful to trier of fact; and not based on scientific knowledge/expertise

Expert Testimony: Must be based on sufficient facts & reliable principles. Reasonable principles are:
MR - Daubert - from a peer reviewed journal; that is tested (and subject to testing); and is generally accepted by expert’s community
CA - Kelly/Frye - expert proves underlying theory; that is generally accepted by expert’s community; and applies that theory to their testimony

Question 9

Confrontation Clause

Answer 9

Prior OOC statements, made by unavailable declarant, are inadmissible against CRIMINAL defendant, unless prior opportunity for cross-examination. Only applies to testimonial statements, non-testimonial (like calls to police during emergency) exempt.

Question 10

Privileges

Answer 10

Attorney-Client Privilege: Confidential; communications; between attorney and client; for the purpose of receiving legal advice. Exceptions include: crime/fraud, attorney vs client, former joint clients, voluntary disclosure

Work Product Privilege: Documents made in preparation for litigation are privileged, unless substantial need and other side can’t reasonably obtain. Mental impressions of ATTORNEY (+ their agents) never discoverable

Physician-Patient (CA only): confidential; communications; made to doctor/nurse/chiropractor (and the like); for the purpose of treatment/diagnosis

Marital Communication Privilege: A confidential; communication; between spouses; during the marriage, lasts after marriage and held by both spouses

Spousal Testimonial Privilege: The privilege for spouses to refuse to testify against one another, held by the witness spouse. Overrides immunity reqs.

Question 11

Character Evidence

Answer 11

Character is generalized information about a person’s behavior. CE is generally not admissible to prove the propensity of the defendant.
Direct Examination, reputation or opinion testimony only. Specific acts only allowed on cross-exam (but not in CA)

Civil Case
Not admissible, unless character is at issue (defamation, negligent entrustment, child custody, domestic abuse)
Criminal/Civil
Not admissible, unless MIMIKCOP
Admissible for sex crimes
Rape-Shield statute
Criminal
Defendant or Victim?
Defendant must open door to himself or victim, trait must be pertinent
If defendant, can attack character for the reverse of the trait
If victim, can attack defendant for same trait or can bolster the victim for the reverse of the attack

Habit/Business Routine Evidence is always allowed in

Question 12

Impeachment (Truthfulness)

Answer 12

Impeachment is challenging a witness’s credibility. Reputation/Opinion evidence
Challenge for Truthfulness:
Reputation/Opinion evidence okay, specific acts only on cross-exam and have to accept answer (i.e. no extrinsic evidence).

Model Rules
Criminal Conviction for truthfulness
Can always come in, so long as not >10 yrs old

Criminal Felony Conviction
Criminal Defendant
Can come in if PV outweighs PE (presumption in favor of it not coming in).
Witness
Can come in so long as PV is not substantially outweighed by PE.

Criminal Misdemeanor
Can’t use

CA
If felony or misdemeanor is of moral turpitude it comes in

Question 13

Impeachment (Other besides truthfulness)

Answer 13

Impeach on Bias: Can impeach someone if they have a motive to lie.

Impeach of Prior Inconsistent Statement: A Prior Inconsistent Statement that was not under oath when it was said can be used for impeachment if it contradicts present testimony.

Impeach based on personal knowledge deficiency: You can always impeach someone for something that diminishes their PK. (Say a glasses wearer wasn’t wearing them)

Question 14

Hearsay

Answer 14

An out of court statement offered to prove the truth of the matter asserted

Question 15

Non-hearsay

Answer 15

Legally Operative Fact: A statement used to prove that the declarant said something or the statement is the element of a claim (defamatory statement, contract language)

Effect on Listener: (Notice, knowledge, motive) of the listener

Statement of Mind: (insanity, belief) of the speaker

Admission by Party Opponent (general, adoptive, vicarious, co-conspirator): Statements by opponent that is related to the claim.
Adoptive: Silence or conduct where party understood the accusatory statement, could deny, and didn’t even if a reasonable person would have, can be adoptive admission
Vicarious: Employees/agents in the scope of employment/agency
Co-conspirator: statement of a conspirator during the conspiracy, in furtherance of the conspiracy.

Prior Consistent Statement: offered to rebut a charge that witness had motive to lie. Declarant must have testified, be subject to cross, made BEFORE alleged motive to lie.

Prior Inconsistent Statement: To admit for substantive evidence, must have been made under oath previously.

Prior Identification: Prior identificatio of person after perceiving them and able to testify.

Question 16

Hearsay Exceptions (Unavailable Witness)

Answer 16

Statement Against Interest: A Statement Against Interest is a statement made by a declarant (1) against their pecuniary, criminal, (or social in CA) interest; (2) that a reasonable person would not have said unless they believed it to be true.

Former Testimony: testimony given at a (1) prior proceeding under oath; (2) party against whom the testimony is offered was a party in the former action; (3) same subject matter; and (4) opportunity to cross at prior proceeding

Dying Declaration: A dying declaration is a statement made while the declarant: (1) believes that they will imminently die; and (2) it is about the cause of their death. (Applies to homicide and civil cases under the FRE, any case in CA). (In CA, they actually have to die).

Question 17

Hearsay Exceptions

(Witness Available or Unavailable)

Answer 17

Excited Utterance (Spontaneous Statement in CA): Excited utterance is a statement made by declarant while, or shortly after, experiencing a stressful or exciting situation, while still under the stress of the event.

Present Sense Impression (Contemporaneous Statement in CA): The PSI is a statement made by a declarant (1) while, or shortly after, witnessing something; (2) that describes the thing being witnessed. (In CA, it requires the declarant to be making it while the conduct is occurring and it can only be about the declarant’s conduct).

Business Record: A business record requires that it be made (1) for a business purpose; (2) in the regular course of conduct; (3) by a person with personal knowledge; (4) who had a duty to record; and (5) was made timely to the event.

Public Record: A Public Record is a record made by (1) a public officia;l (2) within the scope of their duties; (3) timely to the event.
Can also be used to show absence if custodian’s diligent search failed

Recorded Recollection: A recorded recollection is a statement that was made by a person (1) who had personal knowledge; (2) the record reflects their knowledge; (3) was timely made; (4) who testifies that they can no longer remember the event.

Past/Present Injury:
Present: Made spontaneously to the injury
Past: Made to medical personnel, for the purpose of receiving medical treatment/diagnosis.