Evidence

Question 1

California Evidence Essays - Preamble

Answer 1

Proposition 8 amends the California Constitution such that “relevant evidence shall not be excluded in any criminal proceedings.” This rule is subject to some exemptions, including the rule for legal relevance, privileges authorized by the CEC, and hearsay exceptions. In this case, Proposition 8 applies because it is a criminal proceeding.

Question 2

California Evidence Essays - Preamble Civil Cases

Answer 2

This case is civil, so Prop. 8 will not be applied to the evidence.

Question 3

Logical Evidence

Answer 3

Evidence is logically relevant if it has any tendency to prove or disprove a disputed facts that is of consequence in determining the action.

FRE do not require the fact is dispute.

Question 4

Legal Relevance

Answer 4

The court may exclude relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, misleading the jury, confusing the issues, undue delay, wasting time, or needlessly cumulative evidence.

Question 5

Character Evidence

Answer 5

Character Evidence is generalized information about a person’s behavior. Character evidence is generally inadmissible to prove conduct in conformity with their character.

In a criminal case, the prosecution is not permitted to introduce evidence of a defendant’s bad character to show they have a propensity to commit crimes and therefore likely committed the crime in question.

Question 6

Character Evidence Exception: Character at Issue

Answer 6

Character evidence is admissible when character is an essential element of a claim or defense, such as in defamation cases.

Question 7

Character Evidence Exception: Domestic Violence

Answer 7

Evidence of a defendant’s prior act of domestic violence is admissible in a criminal case in which the defendant is accused of committing an act of domestic violence.

Question 8

Character Evidence Exception: MIMIC

Answer 8

Evidence of prior bad acts is admissible if offered to show (1) motive, (2) intent, (3) absence of mistake, (4) identity, or (5) common plan or scheme.

Question 9

Habit Evidence

Answer 9

A habit is something that is routine, regular, or automatic and is admissible to prove conduct in conformity with the habit.

Question 10

Leading Question

Answer 10

A leading question is one that suggests the answer within the question and such questions are generally not allowed on direct examination unless the witness is hostile, the questions are necessary to develop testimony, or the witness has a difficulty communicating.

The proper remedy is to strike the question and allow the attorney to rephrase the question.

Leading questions are permitted on cross examination.

Question 11

Assumes Facts Not in Evidence

Answer 11

A question that assumes as true facts that have not yet been established is not permitted. The attorney must first introduce the relevant evidence and lay a proper foundation.

Question 12

Witness: Personal Knowledge

Answer 12

A witness must have personal knowledge of a matter in order to testify about it.

Question 13

Lay Witness: Opinions

Answer 13

Opinions by lay witnesses are generally inadmissible except when they are (1) rationally based on the witness’s perception, (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, (3) not based on scientific, technical, or other specialized knowledge.

Question 14

Expert Witness

Answer 14

Courts require an expert (1) be qualified by knowledge, skill, experience, training, or education, (2) base his testimony on sufficient facts or data, (3) base his testimony on reliable principals and methods, and (4) apply those principals and methods reliably to the facts of the case.

Question 15

Expert Witness: Opinions

Answer 15

Before an expert witness may testify, the court must first determine that the subject matter of the witness’s testimony is (1) scientific, technical, or other specialized knowledge, and (2) will help the trier of fact understand the evidence or determine a fact in issue.

Question 16

Compound Question

Answer 16

A compound question requires answers to multiple questions and is not permitted.

Question 17

Impeachment: Bias

Answer 17

Impeachment is the process of casting doubt on a witness’s credibility or attacking a witness’s veracity. Evidence of bias, motive to lie, prejudice, or having an interest in the outcome of the case is admissible to impeach a witness.

Question 18

Impeachment: Character for Truthfulness: Specific Acts: California

Answer 18

In California, A witness’s character for truthfulness may be impeached on cross-examination by introducing specific acts in criminal cases, but not civil cases.

California allows introduction of extrinsic evidence to prove specific acts.

Question 19

Public Policy Exclusion: Subsequent Remedial Measures

Answer 19

Evidence of safety measures taken or repairs made after an accident is inadmissible to provide negligence, culpable conduct, a defective product or design, or the need for warning or instruction. California does not apply this rule to strict products liability cases.

Such evidence is allowed when used to impeach or to prove ownership or control.

Question 20

Hearsay

Answer 20

Hearsay is an out of court statement that is offered to prove the truth of the matter asserted.

Under FRE, there are exclusions and exceptions to hearsay. Under California, there are only exceptions.

Question 21

Hearsay: Assertive Conduct

Answer 21

A statement is a person’s oral or written assertion, or it may be nonverbal conduct intended as an assertion. Nonassertive conduct is not hearsay.

Question 22

Hearsay Exception: Spontaneous Statement: California

Answer 22

A spontaneous statement is a statement made about a startling event or condition while the declarant is under the stress of excitement that it caused.

Question 23

Hearsay Exception: Contemporaneous Statement: California

Answer 23

A statement regarding something the declarant themselves is doing at the very time they make the statement is admissible as a contemporaneous statement.

Question 24

Hearsay Exception: Business Records Exception

Answer 24

A record or writing of an act or event made in the regular course of business is not excluded as hearsay if it was made (1) at or near the occurrence of the event it records, (2) by a person with knowledge of the event and under a duty to report it, (3) as part of the regular practice of the business to make the record.

California requires a showing that the record is trustworthy and does not require that the taking of the record was a regular practice of the business.

Question 25

Hearsay Exception: Adoptive Admission

Answer 25

Silence in response to a statement is considered an adoptive admission by the opposing party and excepted from the rule against hearsay if (1) the person were present, (2) heard and understood the statement, (3) had the ability and opportunity to deny it, and (4) a reasonable person would have denied the statement.

Question 26

Non-hearsay Use: Legally Operative Facts

Answer 26

A statement offered to prove that the statement was made, regardless of its truth, is not hearsay.

Question 27

Public Policy Exclusion: Insurance Coverage

Answer 27

Evidence that a person was or was not insured against liability is inadmissible to prove negligence or that the person acted wrongfully.

Question 28

Hearsay Exception: Dying Declaration

Answer 28

A statement qualifies as a dying declaration when (1) the declarant believes their death is imminent and (2) the statement pertains to the cause or circumstances of that death.

The declarant must be unavailable to testify at trial. This exception only applies to criminal homicide cases and civil cases.

Question 29

Present Sense Impression

Answer 29

A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay.

Question 30

Excited Utterance

Answer 30

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. The event must shock or excite the declarant and the statement must relate to the event.

The declarant does not need to be a participant in the event.

Question 31

Public Policy Exclusion: Offer to Pay Medical Expenses

Answer 31

Evidence of the payment, offer to pay, or promise to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

However, any conduct or statement that accompanies the payment, offer to pay, or promise to pay is admissible.

Question 32

Authentication

Answer 32

All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what it is claimed to be.

Question 33

Voice Authentication

Answer 33

When a statement is made by someone whose voice is only heard, but not seen, it must be authenticated. The voice can be identified by any person who has heard the voice at any time.

Question 34

Best Evidence Rule

Answer 34

The best evidence rule requires that the original document, or a reliable duplicate, be produced to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. This rule applies only when the contents of the document are at issue or when a witness is relying on the contents of the document when testifying.

A duplicate is a counterpart produced by any process or technique that accurately reproduces the original.

Question 35

Secondary Evidence Rule

Answer 35

Under the Secondary Evidence Rule, an original document or a reliable duplicate must be introduced to prove the contents of the document when the contents of the document are at issue. California allows both duplicates and other written evidence of the content of the original.

Question 36

Multiple Hearsay

Answer 36

A statement that contains hearsay within hearsay may be admissible if each part of the combined statement conforms to a hearsay exception.

Question 37

Hearsay Exception: Present Recollection Refreshed

Answer 37

A witness may examine any item to refresh the witness’s present recollection. The witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself. The item is generally not admitted into evidence.

The opposition is entitled to have the item produced to inspect, cross examine the witness about it, and introduce any relevant portion into evidence.

Question 38

Hearsay Exception: Past Recorded Recollection

Answer 38

If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established (1) the record is about a matter which the witness once had knowledge, (2) the record was prepared or adopted by the witness when the matter was fresh, (3) the record accurately reflects the witness’s knowledge, and (4) the witness testifies they have insufficient memory of the events to testify fully and accurately, despite having their memory refreshed.

The witness may read it to the jury, but it is not introduced into evidence, unless offered by the adversary.

Question 39

Hearsay Exclusion: Admission by Party Opponent

Answer 39

A prior statement made by a party to the current litigation is not hearsay if an opposing party offers it.

Question 40

Hearsay Exception: Statement Against Interest

Answer 40

A statement made by a declarant who is unavailable to testify is not excluded as hearsay if the statement (1) was against the declarants interest at the time it was made and (2) would not have been made by a reasonable person unless he believed it to be true.

Question 41

Non-hearsay Use: Effect on the Listener

Answer 41

A statement offered to show the effect on the person who heard it is not hearsay because it is being offered to prove something other than the truth of the statement.

Question 42

Impeachment: Prior Inconsistent Statement

Answer 42

A witness may be impeach by calling into question her credibility. A witness may be impeached with any prior inconsistent statement.

(If prior inconsistent statement was made under oath at trial, hearing, or deposition, then it is not hearsay and may be used as substantive evidence.)

Question 43

Confrontation Clause

Answer 43

In a criminal trial, the Confrontation Clause of the 6th Amendment requires that, in order to admit an out of court testimonial statement of an unavailable declarant against the defendant, the defendant must have had a prior opportunity to cross-examine the declarant.

Question 44

Confrontation Clause: Testimonial

Answer 44

A statement made with the primary purpose of ascertaining past criminal conduct.

Exception: Emergency Doctrine provides statements made for the purpose of getting help should not be considered testimonial.

Question 45

Hearsay: Evidence Generated by a Machine

Answer 45

For the hearsay rule to apply, the declarant must be a person. Evidence generated by a computer is not hearsay.