Evidence

Question 1

California Prop 8

Answer 1

Under Proposition 8 of the California Constitution (Prop 8), any evidence that is relevant may be admitted in a criminal case. However, Prop 8 makes an exception for balancing under California Code of Evidence (CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury.

if the case is civil, add the following sentence:
This case is civil, so Prop 8 will not be applied.

Question 2

Attorney Work Product Privilege

Answer 2

Material an attorney prepares for litigation is immune from discovery unless the opposing party shows a substantial need and inability to gather the material without undue hardship. Absolute privilege applies to mental impressions and opinions. Qualified privilege extends to other such as interview notes.

Question 3

Logical Relevance

Answer 3

Evidence is logically relevant when it tends to make a fact of consequence more or less probable than it would be without the evidence. In California, the evidence must have a tendency to prove or disprove a disputed fact.

Question 4

Legal Relevance

Answer 4

Evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or being needlessly cumulative.

Question 5

Remember - Important CA Evidence Distinctions

Answer 5

• Prop 8/CEC 352
• Spousal Privileges
• Spontaneous Statement
• Contemporaneous Statement
• Statement for Medical Diagnosis/Treatment

Question 6

Subsequent Remedial Measures

Answer 6

Evidence of safety measures or repairs performed after an accident are not admissible to prove culpable conduct. Evidence of subsequent remedial measures is permitted to show ownership or control, to rebut a claim the precaution was not feasible, or if the other party destroyed evidence.

Question 7

Liability Insurance

Answer 7

Evidence of liability insurance is not permitted to prove culpable conduct. However, evidence of liability insurance is permitted to establish ownership or control or impeachment purposes, and an admission of fault made in conjunction with the statement regarding liability insurance is admissible.

Example - “I have plenty of insurance.” This could be admitted to show the defendant felt they were at fault.

Question 8

Offers to Pay Medical Expenses

Answer 8

Offers to pay medical expenses are not admissible to prove liability for the injury.

FRE only: Collateral admissions of fact made during an offer to pay expenses are admissible.

Question 9

Settlement Offers

Answer 9

An offer to settle a claim and related statements are not admissible to prove liability or an amount in question.

Question 10

Guilty Pleas

Answer 10

An offer to plead guilty to a crime, and all related statements during made during plea negotiations, are not admissible to prove the defendant is guilty or conscious of guilt. Additionally, a withdrawal of a guilty plea is inadmissible.

Question 11

Leading Questions

Answer 11

Leading questions are not permitted on direct examination unless the witness is hostile. A leading question is one that is framed to suggest the answer.

Question 12

Scope of Re-Direct

Answer 12

Re-direct examination is limited to the subject matter of the cross examination.

Question 13

Scope of Re-Cross

Answer 13

Re-cross examination is limited to the subject matter of the re-direct examination.

Question 14

Competence and Personal Knowledge

Answer 14

Non-expert witnesses must be competent and possess personal knowledge about the matter to which they are testifying.

Question 15

Objections to Form

Answer 15

Objections to form include:
* Narrative - too broad (e.g., “what happened?”)
* Unresponsive - doesn’t answer the question or gives more info than asked for
* Compound question
* Argumentative
* Assumes facts not in evidence

Question 16

Present Recollection Refreshed

Answer 16

Present recollection refreshed allows any item to be used to refresh a witness’s memory when the witness is having trouble remembering. Once the witness has had a chance to review the item, they must testify from their refreshed memory.

Question 17

Lay Opinion

Answer 17

Lay opinion is admissible only if it is rationally based on the witness’s perceptions and is helpful to the trier of fact. Lay opinion may not be based on scientific or specialized knowledge.

Question 18

Expert Opinion

Answer 18

Expert opinion is admissible if:
i) they have specialized knowledge that will assist the trier of fact;
ii) the witness is qualified as an expert by knowledge, skill, education, or training;
iii) the testimony is based on sufficient facts or data; AND
iv) the testimony is the product of reliable principles and methods relied upon by the expert.

Kings < Queens For Real

Question 19

Kelly/Frye Standard

Answer 19

In California, the court will apply the Kelly/Frye standard of reliability, which requires the expert’s testimony be based on principles generally accepted by experts in the field.

Question 20

Daubert/Kumho Standard

Answer 20

Under the FRE, the Daubert/Kumho standard of reliability applies, which requires the substance of the expert’s testimony be peer reviewed and published, tested and subject to retesting, known for a low error rate, and reasonably accepted in the community.

“PPT ER”

Question 21

Attorney-Client Privilege

Answer 21

A lawyer shall not reveal any confidential communication between himself and the client relating to the representation unless the client gives informed consent. The client holds the privilege and survives after death.

In California, the privilege ceases when deceased client’s estate has been fully distributed and the personal representative has been discharged.

Question 22

Exceptions to Attorney-Client Privilege

Answer 22

The privilege does not apply if the communication was used by the client in the furtherance of crime or fraud, or is related to a dispute with the lawyer.

In California, disclosure is permitted to prevent a crime that is likely to result in death or bodily harm.

Question 23

Doctor-Patient Privilege

Answer 23

The FRE does not recognize the doctor-patient privilege, with the exception of psychotherapists. In California, confidential communications related to or made while obtaining medical diagnosis or treatment are privileged. The privilege may not be asserted if the patient has put his physical condition at issue or if the doctor is under a duty to report.

Question 24

Psychotherapist-Patient Privilege

Answer 24

The FRE recognizes the privilege for psychotherapist-patient communications. The CEC extends the privilege to social workers as well. The privilege does not apply if the patient puts his mental health at issue, the psychotherapist is court-appointed, the patient is a danger to themself and/or others, or if the patient is a minor and possible victim of a crime.

Question 25

Self-Incrimination

Answer 25

The Fifth Amendment provides that no person shall be compelled to be a witness against himself.

Question 26

Spousal Immunity

Answer 26

A person may not be called as a witness to testify against their spouse relating to any event before and during marriage. The privilege is held by the witness spouse and can only be asserted during the marriage.

Question 27

Confidential Marital Communications

Answer 27

One spouse may not disclose the confidential communications of the other spouse that were made during the marriage. This privilege is held by both spouses and may be asserted against the other, and survives the marriage. An exception applies if the communication involves crime against the testifying spouse or the children.

Question 28

Character Evidence (Civil)

Answer 28

Character evidence is generally not admissible to prove conduct in conformity with that character trait on a particular occasion. However, character evidence is admissible where character is at issue and an essential element of the case. When character evidence is admissible, all three forms (reputation, opinion, and specific acts) are allowed.

Five causes of action where permitted - fraud, negligent hiring, negligent entrustment, defamation, and child custody)

“Children Depend on Fun Noisy Neighbors”

Question 29

Character Evidence (Criminal)

Answer 29

Only the defendant may offer evidence of a pertinent character trait, but once he “opens the door,” the prosecution may offer rebuttal evidence.

Question 30

Victim’s Character

Answer 30

A defendant may offer evidence of a victim’s character, the prosecution may offer rebuttal evidence of the victim’s character or evidence of the defendant’s character for the same trait. In California, this only applies to a trait of violence.

Question 31

Rape Shield Laws

Answer 31

Rape shield provisions generally disallow evidence of a rape or prior sexual assault victim’s past sexual conduct. Specific acts may only be introduced to prove the source of semen or injury to the victim, prior consensual acts with the defendant, or as constitutionally required. In California, the defendant can offer a victim’s prior sexual conduct to show he reasonably believed she consented, but not to prove actual consent.

Question 32

Character Evidence for Other Purpose

Answer 32

In some circumstances, evidence of specific acts may be admissible for a purpose other than propensity, which include motive, intent, absence of mistake, identity (M.O.), and common plan or scheme.

Mnemonic - “MIMIC”

Question 33

Habit Evidence

Answer 33

Evidence of a person’s habit is admissible to show the person acted in accordance with the habit on a particular occasion. Additionally, evidence of a routine business practice may be admissible to show that the practice was followed on a particular occasion.

Example - someone always fastens their seatbelt before driving, outgoing mail is always placed in the dropbox at 3pm each day

Question 34

Impeachment

Answer 34

A witness’s credibility may be impeached by cross-examination, or by extrinsic evidence with the proper foundation (e.g., other witnesses).

Ways to impeach a witness:
1. Character for truthfulness (can be shown by reputation and opinion, past crimes, or specific bad acts)
2. Prior inconsistent statement (extrinsic evidence may only be used if the person who made the PIS is given an opportunity to explain it)
3. Bias (a witness may be impeached by a showing of bias, self-interest, or motive)
4. Sensory/mental defect (a witness may be impeached by showing their capacity to observe or remember is impaired)

Question 35

Prior Convictions

Answer 35

Felony or misdemeanor convictions involving dishonesty are always admissible to impeach. Felonies not for dishonesty have a 10-year limit from the conviction or release from confinement, whichever is later. A balancing test is required to assess the probative value versus the prejudicial effect.

Question 36

Rehabilitating an Impeached Witness

Answer 36

A witness may be rehabilitated with evidence of his good character when evidence of his character for untruthfulness has been shown, and a prior consistent statement may be introduced to rebut a charge of recent fabrication or improper motive.

Question 37

Hearsay

Answer 37

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay is inadmissible unless an exception applies.

Question 38

Non-Hearsay

Answer 38

Statements not offered to prove the truth of the matter asserted are non-hearsay and admissible. These include statements offered to show the effect on the listener, prior consistent/inconsistent statements, and the declarant’s state of mind.

Remember - California makes no distinction between non-hearsay and hearsay exceptions; they’re all exceptions under the CEC!

Question 39

Effect on the Listener

Answer 39

A statement offered to show the effect on the person who heard it is not hearsay.

Example - somebody is told their brakes are bad, shown to demonstrate they knew they were bad

Question 40

Declarant’s State of Mind

Answer 40

A statement may be offered to show circumstantial evidence of the declarant’s mental state.

Example - “I am Abraham Lincoln” can be offered to show the person is delusional

Question 41

Independent Legal Significance

Answer 41

A statement that itself has independent legal significance is not hearsay and is admissible.

Example - solicitation, words of defamation

Question 42

Multiple Hearsay

Answer 42

Multiple hearsay occurs where an out of court statement contains another out of court statement. Each level of hearsay must fall within its own exception to be admissible.

Question 43

Declarant Unavailable

Answer 43

A declarant is deemed unavailable if they refuse to testify due to privilege, are unable to recall or testify from memory, they are sick or dead, or they cannot be compelled to testify with reasonable effort.

Question 44

Party Admission

Answer 44

A party admission is any statement made by a party and may be offered against him. The statement need not be against his interest.

Question 45

Silent Adoptive Admission

Answer 45

An adoptive admission occurs when a defendant remains silent after hearing or becoming aware of a statement, whereas a reasonable person would have spoken up.

Question 46

Vicarious Admission

Answer 46

A vicarious admission is a statement of a party opponent made by an authorized representative of another person or organization and is non-hearsay.

Question 47

Statement of Co-Conspirator

Answer 47

A statement made during the course of and in furtherance of a conspiracy is admissible. However, a co-conspirator’s statement is subject to the Confrontation Clause requirement that a defendant has a right to confront is accusers, so if the co-conspirator refuses to testify, the statement will NOT be admitted.

Question 48

Excited Utterance

Answer 48

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of the excitement caused by the event or condition.

CA - “Spontaneous Statement”

Question 49

Present Sense Impression

Answer 49

A present sense impression is a statement describing or explaining and event or condition made while the declarant was perceiving the event or immediately thereafter.

CA - “Contemporaneous Statement”

“They’re coming in through the back door! Save the children!”

Question 50

Statement for Medical Diagnosis or Treatment

Answer 50

A statement made for the purpose of obtaining medical diagnosis or treatment is admissible. In California, the statement of a past or present physical condition is only admissible if made by a child abuse victim.

Question 51

Statement of Then-Existing Mental, Emotional, or Physical Condition

Answer 51

A statement of the declarant’s then-existing state of mind (motive, intent, or plan) or emotional, sensory, or physical condition (mental feeling, pain) is admissible.

Note - this is almost like present sense impression but describing how you’re feeling instead of the event

Question 52

Statement of Party Opponent

Answer 52

A statement made by a party to the current litigation is not hearsay if offered by the opposing party and is admissible.

Question 53

Prior Inconsistent Statement

Answer 53

A prior inconsistent statement is substantively admissible (not just for impeachment) if it was made under oath and the declarant was subject to cross-examination.

Question 54

Prior Consistent Statement

Answer 54

A prior consistent statement is admissible substantively if offered to rebut a charge of recent fabrication or improper motive, and need not have been made under oath.

Question 55

Prior Identification

Answer 55

The prior identification of a person, made after perceiving the person, is substantively admissible if the declarant testifies at trial.

Question 56

Past Recollection Recorded

Answer 56

If a witness once had personal knowledge of an event but cannot now recall well enough to testify to it, they may introduce a written record of the event so long as the writing was made while the events were still fresh in the witness’s memory and the witness had firsthand knowledge.

Question 57

Business Records

Answer 57

Records that are routinely kept in the regular course of business are admissible if the record is made by a person with firsthand knowledge of the event, at or near the time of the event referenced.

Mnemonic - “ABC” (at/near time, by person w/ knowledge, course of business)

Question 58

Public Records

Answer 58

Public records are admissible if they set forth the agency’s record of its own activities and were made in the line of duty and under a duty to report, or show factual findings resulting from an investigation.

CA - prosecution cannot use matters observed by police officers or investigations against a criminal defendant

Question 59

Learned Treatise

Answer 59

Information from a learned treatise may be admissible if called to the attention of the expert witness upon cross examination or relied upon during testimony, and is established as reliable. Statements may be read into evidence and need not be made by the expert.

Question 60

Absence of a Regularly Recorded Record

Answer 60

Evidence that a matter is not included in a record is admissible if the purpose is to prove the matter did not occur or exist and a record was typically made for such a matter.

Question 61

Former Testimony

Answer 61

Former testimony is admissible where the party against whom the testimony is now offered had, during the earlier hearing or deposition, an opportunity to examine that person and a similar motive to develop the testimony.

Question 62

Dying Declaration

Answer 62

A dying declaration is admissible where a statement is made by a declarant while believing his death is imminent, and concerns the cause or circumstances of their impending death.

FRE - only allowed in civil and criminal homicide cases
CA - have to actually die, applies in all civil and criminal cases

Question 63

Statement Against Interest

Answer 63

A statement made against one’s penal, proprietary, or pecuniary interest, which they would not have been made unless they actually believed it to be true, is admissible.

Question 64

“Catch All” Hearsay Exception

Answer 64

A statement that would otherwise constitute hearsay may be admissible if trustworthy, regarding a material fact, more probative than other evidence, and notice is given to the opposing party.

Question 65

Remember - Declarant Unavailable Hearsay Exceptions

Answer 65

1. Forfeiture by wrongdoing
2. Statement against interest
3. Former testimony
4. Dying declaration

Mnemonic - “FAT D”

Question 66

Ancient Documents

Answer 66

An ancient document is admissible if it is more than 20 years old, there are no obvious signs of altercation, and it was found where expected.

CA - 30 years

Question 67

Authentication

Answer 67

Tangible evidence must be authenticated in order to be admitted. Writings and recordings can be authenticated by admissions, eye-witness testimony, voice or handwriting identification, or circumstantial evidence.

Remember - can gain knowledge of a voice for litigation purposes, but not handwriting

Question 68

Best Evidence Rule

Answer 68

The best evidence rule requires that the original document or a reliable duplicate be produced in order to prove the contents of a writing, recording, video, or photograph.

CA - “Secondary Evidence Rule”