Evidence

Question 1

Relevance

Answer 1

To be admissible, evidence must be RELEVANT. Evidence needs to be both LOGICALLY and LEGALLY relevant

Question 2

Logical Relevance

Answer 2

Evidence is logically relevant if: (1) it has a TENDANCY 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 requires IN DISPUTE, rather than OF CONSEQUENCE)

Question 3

Legal Relevance

Answer 3

Evidence is legally relevant if it is NOT EXCLUDED: (1) on other policy grounds AND (2) under FRE 403/CEC 352.

Question 4

FRE 403/CEC 352

Answer 4

Court will exclude relevant evidence if its PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED by a danger of: (1) unfair prejudice; (2) confusing the issues; (3) misleading the jury; (3) undue delay; (4) wasting time; OR (5) being needlessly cumulative.

Question 5

Probative Value

Answer 5

Probative value is the ability of the evidence to prove something important at trial

Question 6

FRE 403/CEC 352( Unfairly Prejudicial)

Answer 6

Evidence is UNFAIRLY PREJUDICIAL when the evidence is (1) UNNECESSARY and (2) might cause the jury to IMPROPERLY SYMPATHIZE OR DISLIKE a party

Question 7

Alternative to Excluding Evidence

Answer 7

Court can limit the unfair prejudice to a party by (1) limiting the scope of evidence or examination of specific topics OR (2) giving the jury a limiting instruction.

Question 8

California Prop 8

Answer 8

Under Prop 8 of the CA Constitution, ALL RELEVANT EVIDENCE IS ADMISSIBLE IN A CRIMINAL TRIAL. Prop 8 DOES NOT AFFECT: (1) exclusionary rules based upon the US Constitution; (2) secondary/best evidence rule; (3) hearsay; (4) privilege exclusions; (5) evidence barred under rape-shield statutes; (6) limits on prosecution from offering specific evidence

Question 9

Policy Exclusions

Answer 9

There are several policy exclusions: (1) Subsequent Remedial Measures; (2) Evidence of Liability Insurance; (3) Offers to Pay Medical Bills; (4) Offers to Settle; and (5) Statements of Sympathy (CA only).

Question 10

Subsequent Remedial Measures

Answer 10

Evidence of Subsequent Remedial Measures is NOT ADMISSIBLE to show CULPABILITY; NEGLIGENCE; or SPL (prove a defect in a product/design; or warning/instruction)

EXCEPTION: May be admissible for other purposes such as: (1) impeachment OR (2) prove a disputed issue to ownership, control, or feasibility/impossibility of precautionary measures.

Question 11

Evidence of Liability Insurance

Answer 11

Evidence of liability insurance (or lack of insurance) is NOT ADMISSIBLE TO PROVE CULPABILITY (that a person acted neglgiently or wrongfully).

EXCEPTION-> Can come in to prove ANOTHER PURPOSE such as (1) bias/prejudice of a witness; (2) agency; (3) ownership; (4) control; or (5) motive

Question 12

Offers to Pay Medical Bills

Answer 12

Evidence of paying or promising/offering to pay MEDICAL EXPENSES or BILLS is NOT ADMISSIBLE TO PROVE LIABILITY for injury (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 13

Statements of Sympathy (CA ONLY)

Answer 13

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.

Question 14

Authentication of Evidence: General Rule

Answer 14

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 15

Authentication of Evidence: Physical Evidence

Answer 15

Physical evidence may be authenticated through: (1) WITNESS TESTIMONY; OR (2) by evidence that shows it has been held in a SUBSTANTIALLY UNBROKEN CHAIN OF CUSTODY.

Question 16

Authentication of Evidence: Voice Recordings

Answer 16

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 17

Best Evidence Rule/ Secondary Evidence Rule (CA)

Answer 17

A party must provide the ORIGINAL DOCUMENT (or a RELIABLE duplicate) when a witness (1) testifies to the CONTENTS OF A WRITING; OR (2) testifies to KNOWLEDGE GAINED SOLELY FROM A WRITING.

FRE-> Handwritten duplicates are NOT admissible.

CA-> Handwritten duplicates ARE admissible.

Question 18

Character Evidence (General Rule)

Answer 18

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).

Question 19

EXCEPTIONS TO CHARACTER EVIDENCE

Answer 19

Character evidence is generally ADMISSIBLE: (1) for NON-PROPENSITY PURPOSES OR (2) when “CHARACTER IN ISSUE”- it’s an essential element or ultimate issue of a charge, claim, or defense (i.e. defamation, negligent entrustment)

Question 20

Exceptions to Character Evidence (Proving Propensity Allowed)

Answer 20

Character evidence MAY be offered as circumstantial evidence to PROVE PROPENSITY in the criminal cases and in FRE civil cases for victim’s character (sex-offense case). CA civil does not allow sex-offense case character evidence.

Question 21

Character Evidence- Criminal Case (D’s Character)

Answer 21

In criminal cases, a D MAY ALWAYS introduce evidence of THEIR OWN character trait. The PROSECUTION is NOT ALLOWED to present evidence of D’s character to prove propensity UNLESS D FIRST PRESENTS EVIDENCE of that character trait (D ‘opens the door’)

CA-> The prosecution can initiate a showing of D’s acts of domestic violence or elder abuse.

Question 22

Character Evidence- Criminal Case (Victim’s Character- Non Sex-Offense Case)

Answer 22

In non sex-offense cases, a D MAY offer evidence of the VICTIM’S CHARACTER to prove D’s innocence. If D presents such evidence, PROSECUTION MAY present evidence of: (1) VICTIM’S GOOD CHARACTER for the same trait; OR (2) D’s BAD CHARACTER for the same trait.

in CA-> This only applies to VIOLENT CHARACTER TRAIT.

Question 23

Character Evidence- Criminal Case (Victim’s Character- Homicide Case)

Answer 23

FRE-> In a criminal homicide case, a D MAY offer evidence of the victim’s character for violence TO ESTABLISH SELF-DEFENSE.

The PROSECTION may offer evidence of the VICTIM’S CHARACTER FOR PEACEFULNESS ONLY IF D claims the VICTIM WAS THE AGGRESSOR (self-defense).

CA-> No rule exists.

Question 24

Character Evidence- Criminal Case (Victim’s Character- Sex-Offense Case)

Answer 24

Evidence offered to prove a VICTIM’S SEXUAL BEHAVIOR OR PREDISPOSITION is generally NOT ADMISSIBLE.

EXCEPTION-> In a criminal case, the court MAY admit specific instances evidence: (1) of victim’s sexual behavior if offered to prove that D was not involved in the sex crime (not the source of semen, injury, or physical evidence); (2) of sexual relations b/w D and V if offered (a) by D to prove consent or (b) the prosecutor for any reason; OR (3) whose exclusion would violate D’s constitutional rights. If admissible, ONLY SPECIFIC INSTANCES PROOF IS ALLOWED; Reputation or Opinion proof is NOT ALLOWED.

Question 25

Character Evidence- Civil Case (General Rule)

Answer 25

Character evidence CANNOT be introduced in a civil case to prove propensity, UNLESS the FRE EXCEPTION for sex-offense cases applies.

Question 26

Character Evidence- Civil Case (Victim’s Character- Sex-Offense Case)

Answer 26

Evidence offered to prove a VICTIM’S SEXUAL BEHAVIOR OR PREDISPOSITION is GENERALLY NOT ADMISSIBLE.

In a civil case, the court may admit evidence offered to prove V’s SEXUAL BEHABIOR OR PREDISPOSITION ONLY IF its PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHS the danger of (1) harm to any victim, AND (2) unfair prejudice to any party.

If allowed, TYPICALLY ONLY OPINION AND SPECIFIC INSTANCES are ALLOWED. But the court MAY admit evidence of V’s REPUTATION if the victim has PLACED IT IN CONTROVERSY.

CA has no sex-offense case exception.

Question 27

Methods of Proving Character

Answer 27

Under FRE, when character evidence is admissible, it can be proven: (1) in ALL INSTANCES by OPINION testimony OR testimony of REPUTATION in the community; OR (2) SPECIFIC ACTS ONLY IF (a) on CROSS-EXAM OR (b) “CHARACTER IN ISSUE.” (essential element of a charge, claim, or defense).

CA: The method of proving character is the generally the same as the FRE. However, under CEC, there is an exception when D OPENS THE DOOR BY OFFERING EVIDENCE OF V’S BAD CHARACTER. In that case, all 3 types of evidence (opinion, reputation, specific acts) are admisisble in a criminal case on BOTH DIRECT AND CROSS EXAMINATION to prove the victim’s conduct generally.

Question 28

Prior Bad Acts

Answer 28

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)

EXCEPTION-> Prior bad acts may be admissible for OTHER RELEVANT NON-PROPOSENTIY PURPOSES, such as proving MOTIVE, IDENTITY, ABSENCE OF MISTAKE OR ACCIDENT, INTENT, A COMMON PLAN OR SCHEME, OPPORTUNITY, PREPARATION, OR KNOWLEDGE.

Question 29

Habit and Routine Practice

Answer 29

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.

Habit is a REGULAR RESPONSE TO A REPEATED SITUATION (i.e. usually going down a stairway two stairs at a time), and usually has 4 KEY ELEMENTS: (1) specificity; (2) repetition; (3) duration; AND (4) is semi-automatic or reflexive. Usually, courts limit habit evidence to behaviors that are semi-automatic or reflexive.

Question 30

Impeachment (Prior Inconsistent Statements)

Answer 30

PIS 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 content to the adverse party’s attorney.

Question 31

Impeachment (Prior Inconsistent Statements- Extrinsic Evidence)

Answer 31

Only admissible if: (1) RELEVANT to a material issue at trial (one other than the witness’s credibility); AND (2) a PROPER FOUNDATION is shown- (a) the witness is first given an OPPORTUNITY TO EXPLAIN OR DENY the statement; and (b) the ADVERSE PARTY IS GIVEN AN OPPORTUNITY TO EXAMINE THE WITNESS about it.

Exception-> THE LIMIT ON EXTRINSIC EVIDENCE IS NOT APPLICABLE TO STATEMENTS BY A PARTY-OPPONENT.

CA-> Extrinsic evidence must be excluded UNLESS: (1) the witness was examined on the subject to give him an opportunity to explain or deny the statement; (2) the witness has not been excuded from giving further testimony; OR (3) the interests of justice so require it.

In CA-> a PIS is admissible as non-hearsay when offered ONLY TO IMPEACH a witness. If the IS is OFFERED TO PROVE THE TRUTH OF THE STATEMENT, it will be deemed hearsay. However, such evidence is still admissible because a PIS is an exception to the hearsay rule. Note-> a PIS could also be admissible, such as party opponent)

Question 32

Impeachment: Prior Convictions

Answer 32

Under the FRE, evidence of PRIOR CONVICTIONS may be admitted to attack a witness’ character for truthfulness in certain instances.