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CA Bar Exam Essay Rules > Evidence > Flashcards

Evidence Flashcards

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1
Q

Logical Relevance?

A
  • Any tendancy to prove or disprove a material fact
  • Cal - disputed fact

Same thing.

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2
Q

Legal Relevancy Exclusion?

A

Probative vs. prejudicial balancing test

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3
Q

Prop. 8 - Victim’s Bill of Rights

A

Criminal Trials Only - All relevant evidence is admissible subject to few exemptions.

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4
Q

Prop 8. - Victim’s Bill of Rights Exceptions?

A

DR Mammal Counts SHEEP
* D opens door to character
* Rape shield laws (victim’s character)
* Member of media (confidential sources)
* Court can still balances probative vs. prejudicial and exclude
* Secondary evidence rule
* Hearsay
* Exclusionary rules based on US Constitution
* Exclusionary rules by CA after 1982
* Privileges existing in 1982

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5
Q

Public Policy Exceptions - Subsequent Remedial Measures?

A

Not allowed except:
* Ownership and control
* Rebut infeasibility
* Other party destroyed evidence

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6
Q

Public Policy Exceptions - Liability Insurance?

A

Not allowed except:
* Onwership and control
* Impeachment
* Admission

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7
Q

Public Policy Exceptions - Offers medical expenses?

A

Not allowed except:
* FRE: Admission
* CEC: None

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8
Q

Public Policy Exceptions - Settlement Offer?

A

Not allowed except:
* Disputed claim/settlement
* CEC: also applies to mediation

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9
Q

Public Policy Exceptions - Offers to Plead?

A

Not allowed except:
* Cal - Prop 8 allows.

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10
Q

Public Policy Exceptions - Expression of Sympathy?

A

Not allowed except:
* Admission of fault

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11
Q

Witness Testimony Requirement?

A

Personal knowledge.

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12
Q

Objection to Form Grounds?

A

NU CALF
* Narrative
* Unresponsive
* Compound
* Argumentative
* Leading
* Facts not in evidence

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13
Q

Present Recollection Refreshed?

A
  1. Witness shown item to refresh
  2. Witness testifies from memory
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14
Q

Lay Opinion Testimony?

A

Based on personal knowledge; not scientific or specialized knowledge

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15
Q

Expert Opinion Testimony?

A
  1. Assists trier of fact
  2. Qualifies as expert
  3. Opinion based on sufficient facts
  4. Reliable principles (Daubert or Frye)
  5. Applied principles reliably
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16
Q

FRE - Daubert Expert Test?

A
  1. Peer reviewed and published
  2. Tested
  3. Known for low error
  4. Reasonable level of acceptance
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17
Q

CEC - Frye Test

A
  1. Generally accepted as valid and reliable in field
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18
Q

Attorney-Client Privilege?

A
  • Confidential communication (intended) for purpose of legal services
  • Last until after death (FRE) or estate settled (CEC)
  • Exceptions for crime/fraud, dispute with L, or consultation
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19
Q

Doctor-Patient Privilege?

A
  • FRE: None
  • CEC: communication made for diagnosis and treatment only
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20
Q

Psychotherapist- Patient Privilege?

A

FRE and CEC have for confidential communications.

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21
Q

Marital Adverse Testimony (Spousal Immunity)

A
  • Only claimed during marriage but applies to things before and during
  • Holder is witness spouse
  • Federal - criminal only
  • Except cases between spouses
22
Q

Marital Confidential Communication?

A
  • Claimed during and after marriage but only for things during marriage
  • Holder: both spouses (either may invoke)
  • Except case between spouses
23
Q

Four CEC Only Privileges?

A
  1. Doctor-patient
  2. Counselor-victim
  3. Clergy-penitent
  4. News reporters (sources)
24
Q

Three Types of Character Evidence?

A
  1. Reputation
  2. Opinion
  3. Specific Acts
25
Q

Character Evidence - Civil Court Rules?

A
  • Not for conduct in conformity
  • Except character at issue
  • FRE exception for sexual assault/child molestation
  • Rape Shield Laws (if P places at issue or in Cal to prove P’s sexual conduct with D)
26
Q

Character Evidence - Criminal Court Rules for D’s Character?

A
  • D must open door
  • Pertinent character trait only
  • If D on stand then truthfulness at issue
  • P can open door for sex assault/child molestation
  • FRE - if D offers V character, prosecution can match for D
  • CEC - if D offers V’s violent character only can match
  • CEC exception for elder abuse/domestic violence
27
Q

Character Evidence - Criminal Court Rules for Victim’s Character?

A
  • D must open door
  • Pertinent character trait only
  • NOT allowed under rape shield rules
28
Q

Character Evidence - Other Purposes? (I PIK A MOP)

A

I PIK A MOP
* Intent
* Preparation
* Identity or M.O.
* Knowledge of fact or event
* Absence of mistake/accident
* Motive
* Opportunity
* Plan or scheme

29
Q

Habit/Custom and Similar Happenings?

A

Can be allowed.

30
Q

Impeachment - Character for Truthfulness?

A
  • Reputation and opinon allowed
  • Criminal conviction if felony
  • Crimen Falsi if less than 10 years
  • CEC - misdemeanor if criminal
31
Q

Impeachment - Prior Inconsistent Statement?

A

Extrinsic evidence allowed if explained or denied.

32
Q

Impeachment - Bias?

A

Extrinsic evidence allowed if explained or denied.

33
Q

Impeachment Grounds?

A
  1. Character for truthfulness
  2. Prior inconsistent statement
  3. Bias
  4. Sensory or mental defect
  5. Contradiction by another witness
34
Q

Rehabilitate impeached witness?

A
  • Meet the attack
  • Good character if attacked
  • Prior consistent statement
35
Q

Bolster the witness?

A

FRE: Not allowed
CEC: Allowed

36
Q

Hearsay?

A

Out of court statement offered for the truth of the matter asserted.

37
Q

Nonhearsay Purposes?

A
  1. Effect on the listener
  2. Declarant’s state of mind
  3. Independent legal signficance (e.g., solicitation, defamation, contract)
38
Q

Admissions - Excluded from Hearsay?

A
  1. Party opponent admission
  2. Adoptive/Silent Adoptive
  3. Vicarious (employee or agent in scope)
  4. Co-Conspiratory (during and in furtherance subject to 6th Amendment, must testify)
39
Q

Other Witness Hearsay Exceptions?

A
  1. Medical purpose diagnois and treatment
  2. State of mind (then existing)
  3. Present sense impression (describing event/condition)
  4. Excited utterance (made under stress during event)
  5. Prior inconsistent statement
  6. Prior consistent statement
  7. Prior identification
40
Q

Business Record Hearsay Exception Elements?

A
  1. Business activity
  2. Regular practice to keep
  3. W with firsthand knowledge
  4. Business duty to report
  5. Timely
41
Q

Public Record Hearsay Exception Elements?

A
  1. Agency record of own acts
  2. Matters observed with duty to report
  3. Ivestigative reports

FRE: not against criminal D

42
Q

Declarant Unavailable If:

A
  1. Privileged
  2. Death or illness
  3. Cannot be reasonably procured
  4. Refuses to testify
  5. W cannot remember
43
Q

Declarant Unavailable - Former Testimony Allowed?

A
  • Civil case only
  • FRE: predecessor in interest
  • CEC: similar interest in prior proceeding dn deposiition in same proceeding allowed
44
Q

Witness Unavailable - Dying Declarations Elements?

A
  1. Regarding circumstances of death
  2. While believing death imminent

FRE: Civil and criminal homocide only and death not required

45
Q

Witness Unavailable - Declaration Against Interest?

A

Financial or penal interest
* CEC adds against social interest

46
Q

Residual “catch-all” hearsay exception?

A
  1. Trustworhty
  2. Regarding material fact
  3. More probative than other evidence; AND
  4. Notice given
47
Q

Document Authentication?

A
  1. Real evidence: distinctive characteristic of chain of evidence
  2. Deomstrative: fair representation
  3. Writing/recording by admission, testimony, handwriting, circumstantial ,etc.
  4. Self-authenticating (business records)
  5. Ancient Documents - 20 years old and free of suspicion
48
Q

Best Evidence Rule/Secondary Evidence Rule?

A

To prove contents, must produce original document or machine duplicates.

49
Q

Summary of voluminous writings?

A

May be introduced by sponsoring witness.

50
Q

Judicial Notice Allowed If:

A
  1. Not subject to reasonable dispute;
  2. Generally known in jurisdiction; and
  3. Capable of accurate and ready determination.

CA Bar Exam Essay Rules (16 decks)

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