Evidence

Question 1

Relevance

Answer 1

(small hurdle but check for each item of evidence)
a. Logical relevance: Evidence must be relevant for it to be admissible. It is relevant if it tends to prove/disprove a material fact
([CA] “a material fact in dispute”)

b. Legal relevance: FRE 403 [CEC 352] applies to balance probative value (PV) w/ risk of prejudice. A judge has broad discretion to exclude relevant evidence if its PV is substantially outweighed by the danger of unfair prejudice (UP) (e.g., gory imagery), confusion of the issues, waste of time (e.g., speculative answer), or misleading the jury

Question 2

Exclusion for public policy (five with two CA additions)

Answer 2

Relevant evidence may be excluded for public policy reasons below. It may still be admissible for other purposes, e.g., prove ownership/control, impeachment, admission, rebutting non-feasibility, bias
i. Subsequent remedial measure: Evidence of repair or precautions inadmissible to show culpability. Can use to show ownership or control or destruction of evidence, or to rebut claim that precautions were impossible
ii. Settlement offers or negotiation (FRE 408): Inadmissible to prove liability for, or invalidity of, a claim at actual dispute as to validity or amount of liability. Must exclude all contextual statements attached to offer
iii. Offers to pay medical expenses (FRE 409) are inadmissible. Accompanying admissions may be admissible
iv. Withdrawn guilty pleas: Inadmissible as too prejudicial, minimal PV (but can waive inadmissibility)
v. Liability insurance (“I have insurance”) or lack of: Can’t use to show culpability. Can use to show ownership or control, to impeach, or as part of admission
vi. [CA] Expression of sympathy relating to accident V inadmissible in civil cases, other admissions severable
vii. [CA] Mediation statements and writings inadmissible in discovery or proceedings (can waive)

Question 3

Preliminary facts for Judge to consider

Answer 3

Judge is not limited by evidence rules when determining preliminary facts (e.g., competency) except privileges
Authentication
Best evidence rule ([CA] secondary evidence rule)
Competency of witness
Conditional relevancy
Judicial notice
Rule of completeness

Question 4

Authentication

Answer 4

Real or written evidence requires proof to support a jury finding that it is what the proponent claims
i. Authentication generally requires witness’s first-hand knowledge or familiarity. Preponderance not needed
ii. Self-authenticating docs: certified public and business records, trade inscriptions ([CA] N/A), official pubs

Question 5

Best evidence rule ([CA] secondary evidence rule)

Answer 5

To prove the content of a writing or other tangible collection of data relevant to proving some material fact, the original must be introduced if available. Can still be hearsay
i. Applies where content is to be proven or testimony depends on the document (e.g., K, will, deed, X-ray)

Duplicates ([CA] handwriting included) are admissible to the same extent, unless 1) genuineness is at issue (one party contests authenticity), or 2) would be unfair in the circumstances to admit the duplicate in lieu

Original NOT required if: lost or destroyed (unless by opponent bad faith), opponent fails to produce, collateral matter, subpoena ineffective, independent source (personal knowledge), inscribed chattel

Question 6

Competency of witness

Answer 6

W must 1) have personal knowledge of the matter and 2) affirm/swear to testify truthfully
i. Judge and jurors are not considered competent to testify at trial
ii. [CA] W must also understand the duty to tell the truth. Judge and jurors may testify if no objection

Question 7

Conditional Relevancy

Answer 7

If relevance depends on a particular fact finding by the jury, the court will admit the evidence after the judge first makes a threshold (and final) determination that a reasonably jury could find the necessary fact

Question 8

Judicial notice

Answer 8

allows a party to “prove” an adjudicative (non-collateral) fact by the court’s recognition
i. Judge must take judicial notice if a party requests and supplies necessary information
ii. Judicially noticed facts are conclusive in civil cases, but jury may disregard in crim cases ([CA] civil/crim)

Question 9

Rule of completeness

Answer 9

If a party introduces part of a writing or recorded statement (even if inadmissible hearsay), the other party may require introduction of any other part in fairness (as long as not barred by, e.g., double hearsay)

Question 10

Character evidence

Answer 10

(susceptible to probative value v. unfair prejudice balance)
Character describes one’s disposition with respect to general traits (good driver, trustworthy, etc.).
Character evidence is generally inadmissible to prove conduct in conformity therewith. (Just because Δ did [specific bad things showing similar character] before does not mean he did [charged act] in this case.)
b. Ways to prove: reputation, opinion (can test basis by asking whether W knows of a particular conduct), specific acts
c. EXCEPTION [crim only]: Δ opens the door or Δ alleges self-defense in homicide – rep/op on direct exam + sp on x-exam ([CA] rep/op/sp on direct or x-exam)
i. Δ opens the door to say Δ is of good pertinent character (W’s testimony puts Δ character in issue)
ii. Δ opens the door to say V is of bad pertinent character (except sexual in rape cases) to show Δ’s innocence
1. [CA] Π can rebut only after Δ’s evidence of V’s violent character (narrower than FRE)
iii. Only then may Π rebut w/ Δ’s bad char (of same trait) or V’s good char w/ sp (x-exam) or rep/op (own W)
1. [CA] Domestic or elder cases: Π can initiate showing Δ’s acts of domestic violence or elder abuse

Question 11

FRE Character evidence – Types of admissible evidence in criminal case where
* Δ opens the door or
* Δ alleges self-defense in homicide

Answer 11

Reputation or opinion evidence on direct exam
Specific acts on cross-exam

Π can rebut Δ’s character evidence after Δ opens the door to say V is of bad pertinent character to show Δ’s innocence

Question 12

CEC Character evidence – Types of admissible evidence in criminal case where
* Δ opens the door or
* Δ alleges self-defense in homicide

Answer 12

Reputation evidence, opinion evidence, or specific acts on direct exam or cross-exam

Π can rebut Δ’s character evidence after Δ opens the door with V’s violent character to show Δ’s innocence (narrower than FRE)
Domestic or elder cases: Π can initiate showing Δ’s acts of domestic violence or elder abuse

Question 13

Hearsay

Answer 13

out-of-court statement [out of this court] made by the declarant offered to prove the truth of the matter asserted. It is inadmissible upon proper objection unless an exemption/exception applies.
i. Out-of-court (OOC) statement may be oral or written, includes assertive conduct, excludes depositions
ii. Multiple hearsay (double hearsay) (X said Y said Z): Admissible only if each level of hearsay is admissible
iii. The statement is not hearsay where the OOC statement is introduced for other purposes, to show: legally operative facts of independent legal significance (e.g., K terms, defamatory words), effect on listener (notice, knowledge, motive), knowledge of speaker, or state of mind (insanity, belief)

Question 14

Exceptions to hearsay

Answer 14

([CA] fall under “exceptions”) (“prior” statements need declarant’s availability)
i. Prior inconsistent statements
ii. Prior consistent statements
iv. Admissions by party
-Adoptive admissions
-Vicarious admissions

Question 15

Prior inconsistent statements

Answer 15

To admit a prior statement inconsistent with declarant’s in-court testimony, declarant must be available, and the prior statement must have been given under oath
([CA] oath N/A)

Question 16

Prior consistent statements

Answer 16

offered to rebut a charge that W has motive to lie/exaggerate. Declarant must testify at trial + be subject to x-exam + statement made before the alleged motive to lie or exaggerate arose
iii. Prior statements identifying a person after perceiving him – must be available to testify at trial

Question 17

Admissions by party

Answer 17

Statements by opponent (cannot bring own) acknowledging a fact relevant to the case. Statement need not be against declarant’s interest when made, may be opinion or based on hearsay (no personal knowledge needed). Cf. statements against interest (§ IV-b-i-1)

Question 18

Adoptive admissions

Answer 18

(conduct, or silence where the party understood the accusatory statement + capable of denying + reasonable person would have, if untrue, denied under the same circumstances, e.g., not in police presence—suspect in custody has no duty to speak)

Question 19

Vicarious admissions

Answer 19

a. Co-parties: Party admissions are NOT admissible against co-Π/Δ
b. Authorized: Statement of a person expressly/impliedly authorized by party to speak on its behalf is admissible against the party
c. Agents: Statement by an agent (e.g., employee) within scope of agency, made during existence of relationship, is admissible against principal
d. Co-conspirators: Statement of any conspirator is admissible against all members of the conspiracy if it was in furtherance of the conspiracy (look for confrontation clause issue)

Question 20

Hearsay exemption/exception when Declarant is unavailable via PRISM

Answer 20

Statements against interest
Former testimony
Dying declarations
Pedigree/family
Forfeiture by wrongdoing
[CA] Past physical or mental condition (including statement of intention) at issue if it is at issue
[CA] Threat of physical harm

Question 21

Statement against interest

Answer 21

Interest (pecuniary, penal, proprietary,
[CA] social) when made. The declarant must have had personal knowledge of the facts and awareness that it was against his interest
Collateral matter (evidence solely affecting the credibility of a witness) is admissible
b. [FRE] Against criminal liability, need corroborating circumstances of trustworthiness

Question 22

Former testimony

Answer 22

Testimony that is now offered against a former party in former action, or a predecessor in interest (civil cases), who had an opportunity to x-exam W at prior/preliminary hearing (including deposition but not grand jury) + similar motive to develop W’s testimony

Question 23

Dying declarations

Answer 23

(FRE: homicide or civil actions only. CA: all civil or criminal cases)
Declarant must have believed death was imminent (actual death not needed) + statement concerns cause or circumstances of what he believed to be his imminent death
[CA] Declarant must actually be dead + statement concerns what did cause the death

Question 24

Pedigree/family

Answer 24

Statements concerning personal or family relationship closely associated with W

Question 25

Forfeiture by wrongdoing

Answer 25

Statements offered against a party who deliberately caused a declarant’s unavailability (e.g., Δ might arrange for a key witness to be murdered)

[CA] Applicable only where declarant was killed or kidnapped by person statement is offered against. Requires C&C evidence (more than standard FRE preponderance)

Question 26

Two CA only exceptions/exemptions when hearsay declarant is unavailable

Answer 26

6. [CA] Past physical or mental condition (including statement of intention) at issue if it is at issue
7. [CA] Threat of physical harm: Statement that describes or explains infliction or threat of physical injury on declarant is admissible if 1) made at or near time of infliction or threat, 2) circumstances
   indicate trustworthiness, 3) in writing, recorded, made to police or medical personnel

Question 27

Hearsay exemption/exceptions independent of declarant availability

Answer 27

1. Excited utterance
2. Present sense impression
3. Then-existing state of mind
4. Declarations of physical condition
5. Business records
6. Present recollection revived
7. Past recollection recorded
8. Public records
   -Ancient documents
   -Family records
   -Learned treatises
   -Catch-all: Trustworthy + necessary in interests of justice (probative, material) + notice to adversary

Question 28

Excited utterance

Answer 28

FRE: “Excited utterance” made w/o reflection which relates to a startling event while under excitement of startling event

CA: “Spontaneous statement” made w/o reflection which relates to, narrates, describes, or explains a startling event while under excitement of event

Question 29

Present sense impression

Answer 29

“Present sense impressions” of what was perceived at time of event or immediately after

“Contemporaneous statements” explains own conduct made while engaged in conduct

Question 30

Past bodily condition

Answer 30

FRE Admissible only if made to medical personnel for diagnosis, treatment, or testimony

CEC: Admissible only by child-abuse or child-neglect victim under 12 made to medical personnel for medical diagnosis or treatment

Question 31

Business Records

Answer 31

Records of acts, conditions, events, transactions, opinions, or diagnoses made at or near the time of event with personal knowledge of matters during regular course of business. Entrant must have had a business duty to make the entry (e.g., not crime witnesses)

[CA] Conclusions, opinions, and diagnoses are not admissible as a business record

b. Requires authentication of record via custodian testimony or written certification

c. Excludes reports prepared for litigation, or by outsider (unless via a different exception)

d. Absence of entry in records: Negative purposes allowed to prove nonoccurrence of matter if it was regular practice to record all such matters, if witness is familiar + diligent search

e. Discretion to exclude if source of information or circumstances indicate lack of trustworthiness (those prepared in anticipation of litigation)

Question 32

Present recollection revived

Answer 32

Testifying witness can refresh memory by looking at any evidence (no hearsay problem because evidence itself is offered into evidence)

Question 33

Past recollection recorded

Answer 33

A record that is on a matter 1) testifying witness once had personal knowledge of but now cannot recall well enough (refreshing attempted and fails), 2) was made or adopted by W when the matter was fresh in memory, and 3) accurately reflects W’s knowledge

Question 34

Public records

Answer 34

A record of public office made w/in scope of duty of public employee, admissible if it sets out
1) activities of office,
2) matter observed pursuant to duty (NOT if police observations in crim case), or
3) factual findings from investigation (in civil case or against gov’t in crim case)

[CA] Admissible if made within scope of duty of public employee, made at or near time of event, and trustworthy source of information

A police record not qualifying as a business record may be admitted under this exception

Absence of public records: Custodian may testify that diligent search failed to find a record to show that the matter was not recorded or did not occur

Prior judgments: Prior felony judgment admissible to prove a fact essential to judgment

Question 35

Ancient Documents

Answer 35

Statements in 20YO+ document are admissible and self-authenticating ([CA] 30YO+)

Question 36

Family Records

Answer 36

Statements of fact concerning personal or family history found in family keepsakes

Question 37

Learned treatises

Answer 37

Statements from reliable authorities ([CA] only facts of general notoriety and interest)

Question 38

Catch-all

Answer 38

Trustworthy + necessary in interests of justice (probative, material) + notice to adversary

Question 39

Lay witness testimony

Answer 39

FRE Opinion testimony or inferences by lay witness admissible only if 1) rationally based on W’s perception (personal knowledge, 5 senses), 2) helpful to clear understanding W’s testimony or to determining a fact in issue, and 3) not based on scientific, technical, or other specialized knowledge (unless grossly apparent)

CEC: Opinion testimony or inferences by lay witness admissible only if 1) rationally based on W’s perception (personal knowledge, 5 senses), and 2) helpful to clear understanding W’s testimony

Question 40

Expert witness testimony

Answer 40

Expert witness may testify as to an ultimate issue. May not state an opinion as to criminal Δ’s mental state that is an element of crime or defense, or conclusory legal opinions

FRE: Factors for reliability of expert opinion: 1) Generally accepted in relevant scientific community, 2) peer reviewed (capable of retesting), 3) published, 4) low error rate, 5) generally accepted in relevant field

CEC: Factor for reliability of expert opinion: Generally accepted in relevant field

Question 41

Impeachment

Answer 41

refers to the casting of an adverse reflection of the truthfulness of a witness to discredit him

Rehabilitation: Show of W’s truthfulness. Impeached W may be rehabilitated on redirect or by EE: W may explain original response; another W may testify to reputation or opinion for truthfulness; pt may show prior consistent statement (only to defeat charge of fabrication) made before time of alleged motive to lie or exaggerate

Impeachment need not positively controvert prior testimony (W2 can say he doesn’t recall what W1 saw)

A witness may be impeached by any party, including his own

[CA] “Moral turpitude”: Defined by a broad “readiness to do evil” standard, e.g., lying, violence, sex crimes, extreme recklessness. NOT: simple assault, drug possession, negligence, unintentional acts

Question 42

Impeachment by prior inconsistent statements (PIS)

Answer 42

Intrinsic evidence: X-exam (including collateral/non-material matters, e.g., different sock colors, reason for why W was out)

Extrinsic evidence: Non-collateral only: Relate circumstances to recall (may be after PIS admitted to evid) + give W opp to explain/deny + give other side opp to interrogate

Question 43

Impeachment by Prior bad acts (sp) re: truthfulness (act of lying or deceit)—cross-examiner must inquire in good faith

Answer 43

Intrinsic evidence X-exam (ct has discretion to allow)
Extrinsic evidence: Never admissible (must take W’s answer)
[CA] Not admissible, except in criminal cases (Prop 8) for acts of moral turpitude, via cross-examination and extrinsic evidence, subject to balancing of PV and UP

Question 44

Impeachment by Prior convictions
- Felonies (if PV > UP)
- Any crime involving dishonesty
- Other crimes within judge’s discretion

Answer 44

• [FRE] Evidence of criminal Δ’s conviction, up to 10 yrs old unless PV&raquo_space; UP (FRE 609)
• [FRE] Evidence of a previous judgment of felony conviction is also a hearsay exception to prove any fact essential to the judgment (FRE 803(22)(C), see Prior judgments above)
• [CA] Only felonies and criminal misdemeanors involving moral turpitude are admissible under Prop 8, subject to PV/UP balancing

Question 45

Examination of witnesses

Answer 45

The judge (the court) may reasonably control the examination of witnesses and presentation of evidence to effectively ascertain the truth, avoid waste of time, and prevent harassment of witnesses
Bases for objection to form of question:
nonresponsive (answer to different Q or no answer, may be stricken by motion to strike),
Q/A requiring speculation,
Compound question (more than 1 at a time),
Loaded question (assumes facts—answer requires unintended admission: “Have you stopped beating your wife?”),
Argumentative (prompts W to draw legal conclusion),
Calling for a narrative (asks for story, not facts)

The judge may call W upon his own initiative and interrogate any W who testify, as long as no partisanship

Question 46

Leading questions

Answer 46

i (suggesting the answer, e.g., “Isn’t that correct?”) are not allowed on direct examination
1. EXCEPT to 1) hostile (unwilling) witnesses, 2) adverse witnesses, 3) child witnesses, 4) solicit preliminary background information (“You’re licensed, right?”), or 5) refresh W’s recollection
2. Allowed on x-exam, BUT x-exams are limited to 1) matters brought out on direct exam and inferences naturally drawn therefrom and 2) matters affecting the credibility of the witness
3. Showing W a document to refresh recollection is not “leading”
4. Adverse W generally cannot be asked a leading question by his own attorney on x-exam

Question 47

PRIVILEGES (Not provided by FRE but governed by common law. In CA, statutory and exempt from Prop 8)

Answer 47

Attorney-client privilege
Spousal testimonial privilege
Marital communications privilege
Physician- (state created—presume N/A in MBE) / psychotherapist-patient privilege:

Question 48

Attorney Client Privilege

Answer 48

Communication between client and atty (or representative assisting w legal services, e.g., physician examining client) intended by client to be confidential and with purpose to seek legal advice is privileged (may refuse to disclose) indefinitely, even after death, unless waived by client
([CA] ends when estate distributed).
Atty may invoke privilege on client’s behalf. Voluntary disclosure waives privilege to disclosed material
EXCEPTIONS: Comm furthers what client should have known was a crime or fraud, between former joint clients, dispute between atty and client,
[CA] reasonably necessary to prevent death or serious bodily harm

Question 49

Spousal testimonial privilege

Answer 49

Privilege not to testify against spouse in criminal cases ([CA] applies to civil/crim)
i. Held by witness. Must be married at time of testimony. Covers observations and communications

Question 50

Marital communications privilege

Answer 50

Privilege not to disclose private communication between spouses (civil/crim)
Held by both. Covers confidential spousal comm’n from during marriage. Waived by known eavesdroppers

Question 51

EXCEPTIONS to both spousal testimonial and marital communication privileges

Answer 51

suits against each other, crime against a spouse or either spouse’s child, joint furtherance of future crime or fraud (spouses are co-Δ)

Question 52

Physician- (state created—presume N/A in MBE) / psychotherapist-patient privilege

Answer 52

Confidential medical communication between professional and patient made with purpose of diagnosis or treatment. Patient holds privilege (doc may claim privilege on patient’s behalf if patient cannot)
i. EXCEPTIONS: patient puts his condition at issue (e.g., personal injury suit), important to prevent injury to a person, sought to aid planning of crime/tort

Question 53

6TH AMENDMENT CONFRONTATION CLAUSE

Answer 53

(overrides hearsay exceptions, check co-conspirator admissions)
a. Any prior out-of-court testimonial statements by an unavailable declarant are inadmissible against CRIMINAL Δ, unless Δ has had prior opportunity to x-exam declarant at the time of statement, absent forfeiture caused by Δ’s wrongful act intended to keep the witness from testifying
i. Testimonial statement: Solicited by the state for the primary purpose of statement during police interrogation was to prove past events potentially relevant to later criminal prosecution
ii. Non-testimonial statement: Primary purpose of statement during police interrogation was to aid police during ongoing emergency
1. However, the emergency can abate during the call, turning the statement testimonial

Question 54

Prop 8

Answer 54

Prop 8 is part of the CA Constitution. Prop 8 makes all relevant evidence in a CRIMINAL case ADMISSIBLE, even if objectionable under the CEC, UNLESS it falls under certain EXCEPTIONS (CHOP SUR):

i. Constitution
ii. Hearsay
iii. Open the door
iv. Privilege
v. Secondary evidence rule
vi. Unfair prejudice
vii. Rape-shield statutes

Question 55

Constitution

Answer 55

Exclusionary rules under the U.S. Constitution, e.g., confrontation clause, Miranda violation

Question 56

Hearsay

Answer 56

Hearsay evidence remains inadmissible, and exceptions to the hearsay rule are still admissible

Question 57

Privilege

Answer 57

Prosecution is still prohibited from offering evidence of Δ’s or V’s character before Δ opens

Question 58

Secondary Evidence Rule

Answer 58

CA’s version of best evidence rule still applies

Question 59

Unfair prejudice

Answer 59

Prop 8 preserves CEC 352, giving judge discretion to exclude evidence if PV less than UP

Question 60

Rape Shield Statutes

Answer 60

prevent Δ from offering evidence of V’s sexual conduct to prove behavior, unless V’s prior sexual conduct was with Δ. If Π asks V about prior sexual conduct, Δ may x-examine and rebut