Evidence

Question 1

Logical relevance

Answer 1

All evidence must be logically relevant.

• FRE: Evidence is relevant if it has any tendency to prove or disprove a material fact.
• CEC: Evidence is relevant if it tends to be material to a disputed fact.

different language, same result.
Always analyze the relevancy of a piece of evidence first and state the FRE and CEC rules.

Question 2

legal relevance

Answer 2

A balancing test is used to determine legal relevance:

• logically relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or wasting time.

Question 3

CA Prop 8

Answer 3

Prop 8 is the “Victim’s Bill of Rights,” which provides that in criminal trials in CA state courts, all relevant evidence is admissible, even if objectionable under CEC, subject to a few special exemptions:

1. Defendant still must open the door to bring in evidence of his own character before the prosecution can do so.
2. Rape shield laws still limit evidence of a victim’s character.
3. Member of media still can’t be held in contempt for refusing to reaveal a confidential news source.
4. Court still has the power to exclude evidence using the legal relevance balancing test if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or wasting time. (CEC 352)
5. Secondary evidence rule still applies.
6. Hearsay may still not be admitted, unless subject to an exception.
7. Exclusionary rules based on the US Constitution still applies.
8. Exclusionary rules that were adopted by the California legislature with a 2/3 vote after 1982 still apply.
9. Privileges that already existed in 1982 still apply (e.g. AC privilege, profession, and both marital privileges)

In a CA state court crim case, always state the first paragraph in the beginning.
Mnemonic: DR Mammal Counts SHEEP

Question 4

public policy exclusions

Answer 4

Otherwise-relevant evidence. can be excluded for public policy reasons.

1. subsequent remedial measures
2. liability insurance
3. offers to pay medical expenses
4. settlement offers
5. offer to plead guilty
6. expressions of sympathy (CEC only)

Question 5

Subsequent remedial measures exclusion

Answer 5

General rule: Evidence of safety measures, or repairs performed after an accident, are not admissible to prove culpable conduct.

FRE only: in addition, in a product liability action, evidence of safety measures are not admissible to show defective product design.

Exceptions: SRM is admissible to establish:

1. ownership or control
2. precaution not feasible
3. destruction of evidence

Question 6

liability insurance

Answer 6

General rule: evidence of liability insurance is not admissible to prove culpable conduct.
Exceptions: insurance evidence is admissible to establish:

1. ownership or control
2. impeachment; or
3. admission: a statement of fault made in conjunction with a statement regarding the posession of insurance.

purpose: we wnat people to have insurance without fear that doing so suggests they have deep pockets or carry insurance because they are generally negligent.

Question 7

offer to pay medical expenses

Answer 7

General rule: offer to pay medical, hospital, or similar expenses occasioned by an injury are not admissible to prove liability for that injury.

FRE only exception: collateral admissions of fact made during an offer to pay medical expenses are admissible. (but not under CEC)

Question 8

Settlement offers

Answer 8

General rule: an offer to settle a claim and related statements are not admissible to prove the claim’s validity, liability, or amount.

Disputed claim only– this rule only applies to a claim that is disputed as to validity or amount. It does not apply if a claim has not yet been made.

CEC only: mediation proceeding discussion are also not admissible.

Question 9

Offer to plead guilty

Answer 9

General rule: an offer to plead guilty to a crime, and all related statements made during plea negotiations, are not admissible to prove that a criminal defendant is guilty, or a consciousness of guilt.

CA only: such statemetns may come in under Prop. 8.

Question 10

Expression of sympathy (CA only)

Answer 10

CEC only rule: evidence of expressions of sympathy are not admissible in civil actions that are related to the death or suffering of an accident victim, but statement of fault made in connection with the sympathy are admissible.

Question 11

direct examination

Answer 11

leading questions are not permitted unless the witness is “hostile.” A leading question is one that is framed to suggest the desired answer.

Question 12

cross examination

Answer 12

leading questions are usually permitted, and cross examination is limited to the subject matter of the direct examination.

Question 13

redirect examination

Answer 13

limited to the subject matter of the cross examination.

Question 14

re-cross examination

Answer 14

limited to the subject matter of the re-direct examination.

Question 15

Witness competency

Answer 15

1. personal knowledge: W must have personal knowledge of the matter about which he is to testify.
2. truthful testimony: a witness must declare that he will testify truthfully.

Question 16

role of the judge

Answer 16

1. the trial judge may call witness and may ask questions of any witness.
2. CEC: a judge presiding at a trial is incompetent to testify at that trial, provided a party objects (same for a juror).

Question 17

types of objections to the form of the question (or answer)

Answer 17

1. narrative: questions calling for a narrative are too broad.
2. unresponsive: witness’s answer is unresponsive to the question. (CEC: a motion to strike can be made by either party, not just the examining party.)
3. compound question: two questions are contained in one question.
4. argumentative: the qeustion is unnecessarily combative.
5. leading question on direct: the question is phrased to suggest the answer the questioner desires
6. facts: assumes facts not in evidence.

mnemonic: NUCALF

Question 18

present recollection refreshed

Answer 18

a technique that allows any item to be used to refresh a witness’s memory where the witness’s recollection is currently uncertain. Once shown the item, the witness must then testify from his refreshed memory.

1. the item used to refresh is not considered evidence and may be otherwise inadmissible evidence.
2. right to inspect: the adversary has a right to inspect the item, cross examine, and introduce pertinent portions into evidence.
3. CEC: whether the refreshing is done before or during trial by means of a document, the writing must be produced or testimony is stricken unless the document is unavailable.

Question 19

lay opinion testimony

Answer 19

admissible if rationally based on the witness’s perceptions and is helpful to the trier of fact. These are not legal conclusions, but opinions.

• FRE only: lay opinion may not be based on scientific or specialized knowledge.

Question 20

expert opinion

Answer 20

admissible if all of the following are satisfied:

1. specialized knowledge will assist the trier of fact in understanding the evidence or determining a fact.
2. the witness is qualified as an expert by knowledge, skill, experience, training, or education.
3. the testimony is based on sufficient facts or data. The expert’s opinion may be based on: 1) firsthand knowledge; 2) observation of prior witnesses; or 3) a hypothetical question posed by counsel.
4. the testimony is the product of reliable principles and methods. FRE applies Daubert standard; CEC applies Kelly/Frye standard.
5. the witness has applied the principles reliably to the facts of the case.

Question 21

FRE: Daubert standard

Answer 21

FRE: Daubert standard of reliability requires the substance of the expert’s testimony to be:

1. peer-reviewed and published in scientific journals
2. tested and subject to retesting,
3. known for a low error rate, and
4. subject to a reasonable level of acceptance.

Question 22

CEC: the Kelly/Frye standard

Answer 22

Kelly/Frye standard of reliability requires:

1. the proponent must prove that the underlying scientific theory and the intstrument it uses—
2. has been generally accepted as valid and reliable in the relevant scientific field.

CEC exception: the standard does not apply to medical and nonscientfic testimony.

Question 23

impeachment

Answer 23

a witness’s credibility may be impeached by cross-examination, or with the proper foundation, by extrinsic evidence. Either party may impeach a witness.

Question 24

five ways to impeach a witness

Answer 24

1. character for truthfulness
2. prior inconsistent statement
3. bias
4. sensory or mental defect
5. contradiction of a witness’s testimony by another witness

Question 25

character for truthfulness: reputation and opinion re truthfulness

Answer 25

1. Reputation and opinion regarding truthfulness are allowed, but no specific acts may be inquired into that led to W’s opinion or the person’s reputation.

Question 26

Impeachment: prior inconsistent statement (PIS)

Answer 26

a witness may be impeached by a PIS

extrinsic evidence may be used to prove the PIS only if:

1. the witness who made the PIS is given an opportunity to explain or deny the PIS; and
2. the proponent of the PIS is given an opporunity to interrogate the impeaching witness.

FRE limitation: if the PIS is not given under oath, the PIS can only be used for impeachment purposes, so it will not be admitted for its truth.

Question 27

Impeachment: bias

Answer 27

a witness may be impeached by a showing of bias, self-interest, or motive.

extrinsic evidence is allowedif the witness is given an opportunity to explain or deny.

Question 28

Impeachment: sensory or mental defect

Answer 28

a witness may be impeached by showing that his capacity to observe or remember is impaired.

Question 29

contradiction by another witness

Answer 29

a witness may contradict the testimony of a prior witness, but this rule is limited and the contradiction can’t concern a collateral matter. A collateral matter would be when the contradiction is on a fact not material to the case, so it only contradicts the witness.

Question 30

Rehabilitating impeached witnesses

Answer 30

• must meet the attack: the rehabilitating evidence must support the witness’s credibility in the same respect as the attack.
• good character: can show witness’s good character where evidence of his character for untruthfulness has been shown.
• prior consistent statement: can be used to rebut an express or implied charge of recent fabrication, or that witness’s testimony was the product of improper motive.

Question 31

Can specific bad act be introduced to impeach a witness for his character for truthfulness?

Answer 31

Specific bad acts may be raised in certain circumstances:

FRE: specific bad acts that are probative of truthfulness may be inquired into on cross-examination but are always subject to the legal relevance balancing test. extrinsic evidence is not allowed to prove the bad act (stuck with the answer you got).

CEC:

• civil court: both inquiry and extrinsic evidence of specific bad act are prohibited.
• criminal court: both inquiry and extrinsic evidence of specific bad act are allowed under Prop. 8.

Question 32

Can past criminal convictions be used to impeach a witness under character for truthfulness?

Answer 32

Depends on the type of convictions:

1. crimen falsi;
2. felony conviction;
3. misdemeanor conviction;
4. old convictions of more than 10 years.

I. crimen falsi (FRE): all crimen falsi convictions (felonies or misdemeanors) for crimes involving a false statement are admissible and the judge may not exclude under the legal relevance balancing test, unless the conviction is more than 10 years old.

II. Felony conviction

FRE: depends on witness status:

• W is a criminal D, felony conviction admissible if probative value > prejudicial effect.
• W is not criminal D, felony conviction admissible if probative value&raquo_space; prejudicial effect. (higher standard)

CEC: felony conviction is admissible if: 1) it has not been expunged or pardoned, and 2) the felony involves moral turpitude; and 3) subject to legal relevance balancing test.

III. Misdemeanor conviction

• FRE: misdemeanors that are not crimen falsi are not admissible to impeach.
• CEC: misdemeanors can only be used in criminal court if the crime involves moral turpitude. (civil court does not allow misdemeanors)

IV. Old convictions may not be used if more than 10 years has elapsed from both the conviction and the prison term, unless specific facts make the probative value of the conviction substantially outweigh the prejudicial effect.

Question 33

Bolstering witness’s credibility

Answer 33

FRE: Bolstering is not allowed until after witness’s credibility has been attacked.

CEC: Bolstering is allowed. Either side may offer evidence supporting a witness’s credibility before it has been attacked.

Question 34

What is

Attorney-client privilege

Answer 34

A client has a right not to disclose any confidential communication between the attorney and the client relating to the professional relationship.

Question 35

When

client is a corporation

Answer 35

• Federal common law: AC privilege applies to employees/agents if authorized by the corporation to make the communication to the lawyer.
• CEC: applies to employees/agents if the natural person to speak to the lawyer on behalf of the corporation, or the employee did something for which the corporation may be held liable and the corporation instructed her to tell its lawyer what happened.

both rules yield the same result.

Question 36

what are

confidential commuications

Answer 36

privilege applies only to communications that are intended to be confidential

1. the presence of a 3rd party may destroy the privilege
2. does not apply to physical evidence turned over to the lawyer, only to communications, so the presentation of physical evidence is not privileged.
3. CEC only: allows the privilege holder to stop eavesdroppers and other wrongful interceptors from revealing information.

Question 37

the presence of

professional services

Answer 37

the communication must be made for the purpose of facilitating legal services, a fee need not be paid.

Question 38

holder of privilege

Answer 38

only the client holds the privilege and L may assert it on the client’s behalf.

Question 39

How long does

privilege lasts until

Answer 39

federal common law: after death, with the exception of a will contest.

CEC: privilege ends when the dead client’s estate has been fully distributed and his personal representative has been discharged.

Question 40

Exceptions to AC privilege

Answer 40

1. crime/fraud: communication used if furtherance of something the client should have known is a crime/fraud; or
2. dispute with lawyer
3. two or more parties consult on a matter of common interest and the communication is offered by one against another
4. CEC only: L reasonably believes the disclosure is necessary to prevent a crime that is likely to result in death or substantial bodily harm. (this is to prevent a crime, if the crime already happened, the exception does not apply.)

Question 41

doctor-patient privilege

Answer 41

federal common law: there is no doctor-patient privilege.
CEC: DP privilege applies only to communications made to medical personnel for the purpose of medical diagnosis and treatment
CEC exceptions: the privilege does not apply if–

1. patient put his physical condition in issue;
2. doctor’s assistance was sought to aid wrongdoing
3. dispute between doctor and patient
4. information the doctor is required to report
5. commitment, competency, or license revocation proceedings

Question 42

psychotherapist-patient and social worker-client privilege

Answer 42

federal common law: there is a therapist patient privilege for confidential communications;
CEC: there is a therapist-patient or social worker-client privilege for confidential communications.

privilege does not apply when:
1. patient puts his mental condition in issue
2. services were sought to aid wrongdoing
3. dispute between the therapist/SW and patient
4. patient is a danger to self and others
5. therapist is court-appointed
6. patient is a minor and possible crime victim.

Question 43

what are the

two types of marital privileges

Answer 43

1. spousal immunity (adverse testimony priivlege)
2. marital confidential communication privilege

Question 44

adverse testimony privilege (spousal immunity)

Answer 44

one spouse cannot be compelled to testify against the other spouse.

• duration: can only be claimed during marriage but covers information learned before or during the marriage.
• holder: only the witness spouse hold the privilege
• federal common law: applies to criminal case only
• CEC: applies to both criminal and civil cases and the spouse is privileged from being called to the witness stand.
• exceptions: does not apply in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse’s children.
• effect: invoking the privilege makes the spouse unavailable for hearsay purposes.

Question 45

marital confidential communications privilege

Answer 45

one spouse may not disclose the confidential communications of the other made during the marriage.

1. duration: the privilege survives the marriage, but only covers statements made during marriage.
2. holder: both spouses may assert the privilege not to disclose and one spouse may prevent the other spouse from disclosing.
3. exceptions: does not apply in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse’s children.
4. effect: invoking the privilege makes the spouse unavailable for hearsay purposes.

Question 46

CEC only privileges

Answer 46

1. counselor-victim privilege for confidential communications between a counselor and a victim of sexual assault or domestic violence.
2. clergy-penitent privilege for penitential communications.
3. news reporters are immune from contempt of court for refusal to disclose sources.

Question 47

Forms of character evidence

Answer 47

1. reputation
2. opinion
3. specific acts

Question 48

civil court character evidence rule

Answer 48

general rules: character evidence is generally not admissible to prove conduct in conformity with that character trait on a particular occasion.

exception: character “at issue” and is an essential element of the case, character evidence is admissible.

FRE only exception: for cases based on sexual assault or child molestation, CE can be admitted.

Question 49

rape sheid provisions in civil court

Answer 49

Evidence of a rape victim’s past sexual conduct is generally not allowed:

• FRE: P must put his reputation in issue for reputation evidence to be admitted. Reputation, opinion, and specific acts evidence are only admissible if the probative value substantially outweighs the danger of unfair prejudice.
• CEC: D cannot offer evidence of P’s prior sexual conduct unless to prove prior sexual conduct with the defendant.

Question 50

criminal court character evidence

Answer 50

Where character evidence is allowable, the character trait must always be pertinent to the case.

Question 51

Defendant’s character

Answer 51

General rule: only D can “open the door” to evidence of a pertinent character trait, but once the door is open, the prosecution can rebut as to that character trait.

Exceptions:

• FRE and CEC: prosecution can be. the first to offer character propensity evidence in sexual assault or child molestation cases.
• FRE only: where D offers evidence of the victim’s character, prosecution can offer evidence that D has the same character trait.
• CEC only: where D offers evidnece of the victim’s violent character, prosecution can offer evidence that D has a violent character. (CEC applies only to the fcharacter trait of violence and is narrower than FRE)
• CEC only: in prosecution for domestic violence or elder abuse, prosecution may ofer evidence that D committed other acts of domestic violence or elder abuse.

When D is testifying on the stand, it always put his credibility and character for truthfulness at issue, but not necessarily his general character.

Question 52

Victim’s character

Answer 52

• General rule: only D can “open the door” to evidence of victim’s pertinent character trait, but once opened, the prosecution can rebut as to that character trait.
• FRE only exception: if D claims or offers evidence that the victim was the first aggressor, the prosecution may offer evidence of the victim’s character for peacefulness.

Question 53

Forms of victim’s character evidence allowed

Answer 53

Victim’s character on direct examination:

• FRE: only reputation and opinion evidence are allowed to show character; no specific acts evidence is allowed.
• CEC: all three forms of evidence are allowed to show character (reputation, opinion, and specific acts).

Victim’s character on cross examination:

• both FRE and CEC: all three forms of evidence are allowed.

FRE only exception: if D claims that V was the first aggressor, the proseuction may offer evidence of the victim’s character for peacefulness only by reputation and opinion evidence, no specific acts evidence is allowed.

Question 54

Forms of Defendant’s character evidence allowed

Answer 54

D’s character on direct examination:

• only reputation and opinion evidence are allowed to show character, no specific acts allowed.

D’s character on cross examination:

• FRE- all three forms allowed. But, while specific acts may be asked about, no extrinsic evidence regarding the specific act is allowed. So the prosecutor is stuck with the answer witness gave.
• CEC: only reputation and opinion are allowed to rebut, no specific acts. (Prop. 8)

Question 55

Rape shield law in criminal court

Answer 55

evidence of a rape or sexual assault victim’s past sexual conduct is generally not allowed.

reputation and opinion evidence are always inadmissible.

specific acts are only admissible to prove the limited issues of:

• third party is the source of semen or injury to the victim; or
• prior acts of consensual intercourse with the defendant; or
• constitutionally required.

CEC only: D can offer V’s prior sexual conduct to show he reasonably believed she consented, but not to show that she did consent.

Question 56

“Other purpose” for character evidence

Answer 56

in both civil and criminal courts: while character evidence is generally not admissible to show conduct in conformity with the character trait, specific acts evidence may be admissible for some other purpose:

1. to show intent to commit the act. evidence that D committed similar prior wrongful acts could be admitted to negate good faith.
2. preparation to commit the act. Evidence of prep steps taken to commit the act can be admissible.
3. identity of the perpetrator including M.O.
4. knowledge of some fact or event.
5. absence of mistake or accident. Evidence that D engaged in similar misconduct in the past would negate any possibility of a mistake or accident.
6. motive to commit the crime.
7. opportunity to commit the act.
8. plan or scheme.

mnemonic: I PIK A MOP

Question 57

Habit and custom

Answer 57

Habit and custom is a regular response to a repeated situation and is admissible to show conduct in conformity with that regular response on a particular occasion.

applies to persons and businesses:

• Person: evidence of a person’s habit is admissible to show the person acted in accordance with the habit on a particular occasion.
• Business practices: the routine practice of an organization is admissible to show the practice was followed by the business on a particular occasion.

Question 58

similar happenings

Answer 58

evidence that similar happenning occurred or failed to occur in the past are allowed if the events are substantially similar. Typically this evidence is used to show a prior accident or injury, or the absence of a past accident or injury.

Question 59

Factors to determine if the evidence is habit and custom evidnece

Answer 59

1. the more specific the behavior, the more likely it’s a habit.
2. the more regular the behavior, the more likely it’s a habit.
3. the more unreflective or semi-automatic, the more likely it’s a habit.

Question 60

Define

Hearsay

Answer 60

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

Question 61

nonhearsay purpose

Answer 61

an out of court statement may be nonhearsay by definition when it is not being offerred for the truth of the matter asserted, but for some other reasons:

1. effect on listender or reader such that the listener or reader was put on notice of some information, obtained certain knowledge, had a certain emotion, or behaved reasonably or unreasonably.
2. declarant state of mind to show knowledge of facts or mental state.
3. independent legal significance: a statement that itself has legal significance, e.g., solicitation, words of defamation, words establishing a contract.

Question 62

multiple hearsay

Answer 62

occurs where an out-of-court statement quotes or paraphrases another out-of-court statement.

Each level of hearsay must fall within a hearsay exception to be admissible.

e.g. police report including bystander statements; surgical report ccontaining medical personnels observation, witness testifying what another person told him a third party said.

Question 63

party admission

Answer 63

a party admission is any statement made by a party. The statement need not be against declarant’s interest. But the statement must be offered by the opposing party.

Question 64

hearsay policy

Answer 64

the purpose of hearsay rule: danger of misinterpretation without the speaker present to clarify.

hearsay exception purpose: where circumstances provide an aura of authenticity to a statement, it should be admissible, because we are less concerned of the danger of misrepresentation.

Question 65

co-conspirator admissions

Answer 65

statements made during the course of and in furtherance of the conspiracy.

Confrontation Clause co-con admission is subject to the confrontation clause requirement that a D is allowed to confront his accusers, so if the co-con refuses to testify, the co-con admission will not be admitted.

Question 66

Hearsay Exceptions

Answer 66

• 4 admissions: co-conspirator, adoptive, vicarious, party admission.
• 4 witness statements: medical, present sense impression, excited utterance, then-existing state.
• 3 prior statements of available witnesses: prior consistent statement, prior inconsistent statement, identification.
• 4 documents: prior recollection recorded, business record, learned writing, public record;
• 4 declarant unavailable: former testimony, dying. declaration, declaration against interset, forfeiture by wrongdoing.

Question 67

adoptive admission

Answer 67

an adoptive admission is a statement made by another where the party knows of its content and voluntarily manifests belief in the truth of the statement by words or action.

• silent adoptive admission: an adoptive admission can be made by silence if a reasonable person would have spoken up, but always subject to 5th Amendment right to remain silent.

Question 68

vicarious admission

Answer 68

a vicarious or representative admission that can arise in two ways:

1. explicit authorization: a statement made by an authorized spokesperson of party.
2. employee or agent: a statement made by an agent/employee of the party concerning a transaction within the scope of the agent/employee relationship, and made during the existence of the relationship.

CEC is more narrow: a statement by an employee of a party is a party admission of that employer only where negligent conduct of that employee is the basis for employer’s liability in a case of respondeat superior.

Question 69

medical diagnosis or treatment statements

Answer 69

a statement made for the purpose of medical diagnosis or treatment is admissible.

• statement may be made by third party if made to help obtain treatment.
• statement may include the cause of the condition, but not statements of fault.
• CEC: statement of past and present physical condition is only admissible if made to obtain medical diagnosis and treatment by a child abuse victim.

Question 70

statement of then-existing mental, emotional, or physical condition

Answer 70

admissible to show the condition ofr state of mind.

does not apply to a statement of memory or belief.

Question 71

present sense impression (PSI)

Answer 71

FRE:

• a statement is admissible if describing or explaining an event or condition and made while declarant was perceiving the event or condition or immediately thereafter.

CEC contemporaneous statement:

• applies to a statement explaining the declarant’s own conduct and made while declarant was engaged in that conduct. (narrower than FRE)

Question 72

excited utterance

Answer 72

a statement is admissible if relating to a startling event or condition and made while the declarant was still under the stress of excitment caused by the event or condition.

Question 73

prior statements of available witnesses

prior inconsistent statement (PIS)

Answer 73

a PIS is substantively admissible, and not merely admissible for impeachment purposes, if:

• oath: the PIS was made under oath as part of a formal proceeding; and
• cross examination: the declarant is subject to cross examination concerning the PIS.

Question 74

prior statements of available witnesses

prior consistent statement (PCS)

Answer 74

a PCS is only admissible substantively if offered to rebut a charge of recent fabrication, or improper motive. It need not be made under oath.

Question 75

prior statement of available witnesses

prior identification (PID)

Answer 75

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

Question 76

document hearsay exception:

Recollection Recorded

Answer 76

if a witness cannot testify from memory, a party may introduce a written record of an event.

requirements:

1. first-hand knowledge of the sponsoring witness
2. events were fresh in the memory when record was made
3. witness now has impaired recollection
4. record was accurate when written.

The writing itself is not admissible evidence, but its contents may be read to the jury. it may only be admitted into the exhibits if offered by the opposing side.

Question 77

document hearsay exception:

business record

Answer 77

admissible where a sponsoring witness establishes the record was kept in the course of regularly conducted business activity.

• business activity includes events, conditions, opinions, or diagnosis. (CEC does not allow dianogsis or opinions)
• regular practice to keep such a record.
• personal knowledge: the record is made by a person with personal knowledge of the information contained in the record.
• business duty to report: the record must be made by one with a business duty to report.
• timeliness: made at or near the time of matters referenced.

Question 78

document hearsay exception:

public records and reports

Answer 78

admissible if within one of the following categories:

1. agency’s record of its own activities.
2. matters observed in the line of duty and under a duty to report.
3. investigative reports with factual findings resulting from investigations made.
4. criminal case limitation– FRE only: criminal prosecution cannot use matters observed by police officers or police investigations against a criminal defendant.

Question 79

document hearsay exception:

learned writings and commercial publications

Answer 79

• FRE: admissible if called to the attention of an expert witness and established as reliable authority.
• CEC: admissible only for facts of general notoriety and interest.

Question 80

when is a witness deemed unavailable?

Answer 80

1. privileged from testifying
2. death or illness prevents witness from testifying
3. reasonable means can’t procure the witness
4. witness refuses to testify despite a court order: CEC requires refusal to be made out of fear.
5. witness unable to remember: CEC requires total memory loss.

Question 81

hearsay exceptions requires witness unavailability

former testimony

Answer 81

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.

civil case only:
- FRE only: allows predecessor in interest to have been present in earlier proceeding to develop testimony.
- CEC only: allows if anyone with a similar interest was present in earlier proceeding, or it is being offered against the person who offerred it on her own behalf in the earlier proceeding, or against a successor in interest of such person.
- CEC only: deposition testimony given in the same civil action is admissible for all purposes if deponent is unavailable at trial or lives mroe than 150 miles from the courthouse.

Question 82

hearsay exceptions requires witness unavailability

dying declaration

Answer 82

admissible where a statement is made by a declarant, while believing his death was imminent, and is concerning the cause or circumstances of his impending death.

• FRE: only allowed in civil and criminal homicide cases. Declarant need not be dead, but only be unavailable.
• CEC: applies to all civil and criminal cases and declarant must actually be dead.
• CEC OJ exception: statement describing physical abuse: applies to allow a statement made at or near the time of injury or threat, describing infliction or threat of physical abuse, in writing, recorded, or made to police or medical professional, under trustworthy circumstances.

Question 83

hearsay exceptions requires witness unavailability

declaration against interest

Answer 83

a declaration against interest is admissible if, at the time it was made, it was against the declarant’s financial or penal interest.

• FRE if offered to exculpatethe accused, there must be corroborating evidence.
• CEC: includes a statement against one’s social interest.

be careful that confrontation clause may apply to exclude the statement.

Question 84

hearsay exceptions requires witness unavailability

forfeiture by wrongdoing

Answer 84

a hearsay exception will apply where a party has engaged in witness tampering intended to make the witness unavailable.

Question 85

residual “catch-all” hearsay exception

Answer 85

an otherwise hearsay statement may be admissible if trustworthy, is regarding a material fact, is more probative on the point than other evidence, and notice is given to the opposing side.

Question 86

relevance

Answer 86

all documentary evidence must be relevant in order to be admissible.

Question 87

authentication

Answer 87

all evidence, other than testimony, must be authenticated as genuine in order to be admitted. Authentication is proof that the item is what the proponent claims it is.

Question 88

Authenticating real (physical) evidence

Answer 88

Real (physical) evidence can be authenticated by distinctive characteristic or chain of custody.

Question 89

Authenticating demonstrative evidence

Answer 89

demonstrative evidence must be a fair representation

Question 90

authenticating writings and recordings

Answer 90

writings and recordings can be authenticated by admissions, eye-witness testimony, voice identification, handwriting verifications (expert of nonexpert with personal knowledge, or trier of fact with sample comparisons), circumstantial evidence (e.g. postmark, address), etc.

Question 91

ancient documents

Answer 91

ancient documents can be authenticated by evidence that the document is in a condition to be free from suspicion of inauthenticity, was found in a place such a writing would be kept, and it is at least:

• FRE: 20 years old;
• CEC: 30 years old

Question 92

self-authenticating documents

Answer 92

certain documents are self authenticating such as certified copies of public records (e.g., deeds), official publications, newspapers, and periodicals.

• FRE only: business record and trade inscriptions.
• CEC only: signature of notary or domestic public employee.

Question 93

Best Evidence Rule (FRE) and Secondary Evidence Rule (CEC)

Answer 93

to prove the contents of a writing (including photos, x-rays, recordings), the original writing must be produced. machine duplicates are also allowed unless the authenticity of the original is disputed.

1. If original or photocopy is unavailable: oral testimony is admissible, and the CEC even allows handwritten duplicates.
2. BER does not apply when the fact to be proved exists independently of the writin (e.g. witness can testify from personal knowledge), where writing is collateral (minor), voluminous records, or public records.

Question 94

summaries of voluminous writings

Answer 94

if original documents are so voluminous that they can’t be conveniently introduced into evidence, a summary may be introduced through a sponsoring witness.

Question 95

burden of production

Answer 95

the party that bears the burden of production must come forward and produce evidence to establish that fact or issue.

Question 96

burden of persuasion

Answer 96

the produced evidence must be sufficient to establish the fact or issue.

• civil case: burden typically rests with the plaintiff and usually must be established to a preponderance of evidence.
• criminal case: the burden of persuasion rests with the prosecution and must be proven beyond a reasonable doubt.

Question 97

presumptions

Answer 97

inferences that the jury must draw from a set of facts.

• civil case presumption operates to shift the burden of producing evidence (not persuasion) to the opposing party.
• there is no criminal case presumption. The burden of production and persuasion is always on the prosecution.

Question 98

judge and jury allocation

Answer 98

• judge decides issues of law
• jury decides issues of fact.

Question 99

judicial notice

Answer 99

the process of establishing facts without presenting evidence. The court can take judicial notice of facts not subject to reaosnable dispute because they are either:

1. generally known within the jurisdiction; or
2. capable of accurate adn ready determination by a source whose accuracy cannot be reasonsably questioned.

FRE: a party must request judicial notice to compel judicial notice. If not requested, the court has discretion to take judicial notice. Judicial notice can occur at any time, including appeal.

• civil case: the jury must accept the judicial noticed fact.
• criminal case: the jury may accept the judicial noticed fact.

CEC: whether requested or not, the court must take judicial notice of matters generally known within jurisdiction. CEC does not distinguish between civil and criminal.