Evidence Flashcards

Question 1

Q

Relevance

Answer

A

Relevance
For evidence to be admissible it must be both relevant and not excluded under the FRE or other law.

Question 2

Q

Relevance

Logical Relevance

Answer

A

Logical Relevance

Evidence is relevant if it has a tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. In CA, the fact must also be in dispute.

Question 3

Q

Relevance
Logical Relevance

Legal Relevance

Answer

A

Legal Relevance – Discretionary exclusion *generally at issue if prior conviction

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of: unfair prejudice; confusing the issues or misleading the jury; undue delay, wasting time, or needlessly presenting cumulative evidence.

UNFAIR PREJUDICE: The extent to which the information unfairly arouses the emotions of the jury, emotionalism is unfair if not connected to the facts of the case.

This item of evidence could be (highly/slightly/moderately) unfairly prejudicial because it tends to show__.

Question 4

Q

Relevance
Logical Relevance
Legal Relevance

Proposition 8

Answer

A

In CA criminal cases, Proposition 8 is a Victims’ Bill of Rights. All relevant evidence is admissible except for certain exclusionary rules such as exclusionary rules based on the US Constitution, privileges (e.g. spousal marital communications, attorney-client), and hearsay.

Question 5

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8

Policy Exclusions

Answer

A

Policy Exclusions – Limitation on Relevance.

Certain evidence that is otherwise relevant may be excluded for public policy reasons.

1) Liability Insurance
2) Subsequent Remedial Measures
3) Offer to Pay Medical Expenses
4) Offer to Settle/ Compromise
5) Withdraw Guilty Pleas
6) Expressions of Sympathy - CA ONLY

Question 6

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8

Policy Exclusions
>Liability Insurance

Answer

A

Liability insurance

Evidence that a person was or was not insured is inadmissible to prove whether a person acted negligently or wrongfully. However, evidence is admitted for another purpose such as proving witness bias, agency, ownership or control.

Question 7

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8

Policy Exclusions
>Liability Insurance
> Subsequent Remedial Measures

Answer

A

Subsequent Remedial Measures

Evidence of safety measures or repairs after an accident is inadmissible to prove negligence; culpable conduct; defective design in a products liability case, but it is admissible to prove ownership or control, to rebut a claim of no feasible precaution or to prove destruction of evidence. In CA, safety measures or repairs admissible to prove defective design in a products liability action based on a theory of strict liability.

Question 8

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8

Policy Exclusions
>Liability Insurance
> Subsequent Remedial Measures
> Offer to Pay Medical Expenses

Answer

A

Offer to Pay Medical Expenses

Evidence of payments or offers to pay medical expenses is inadmissible to prove liability for injuries. However, accompanying admissions of facts are admissible. ( it can be admitted for proving control or agency). Ca excludes accompanying admissions of fact.

Question 9

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8

Policy Exclusions
>Liability Insurance
> Subsequent Remedial Measures
> Offer to Pay Medical Expenses
> Offer to Settle/ Compromise

Answer

A

Settlement Offers/Offer to Compromise

Evidence of offers to settle are inadmissible to prove the validity or amount of disputed claim. Statements made during settlement discussions are inadmissible. CA also excludes mediation proceedings discussions.

Question 10

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8

Policy Exclusions
>Liability Insurance
> Subsequent Remedial Measures
> Offer to Pay Medical Expenses
> Offer to Settle/ Compromise
> Withdrawn Guilty Pleas

Answer

A

Withdrawn Guilty Pleas - plea discussions.
Evidence of withdrawn pleas, offers to plea, and related statements are inadmissible, unless the defendant opens the door. If another discussion from the plea is admitted, then out of fairness the rest will be admitted.

Question 11

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8

Policy Exclusions
>Liability Insurance
> Subsequent Remedial Measures
> Offer to Pay Medical Expenses
> Offer to Settle/ Compromise
> Withdrawn Guilty Pleas
> Expressions of Sympathy- CA Only

Answer

A

Expressions of Sympathy – California Only:
CA makes inadmissible in CIVIL actions expressions of sympathy relating to suffering or death of an accident victim. But statements of fault in connection with such an expression are not excluded.

Question 12

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8

Policy Exclusions
>Liability Insurance
> Subsequent Remedial Measures
> Offer to Pay Medical Expenses
> Offer to Settle/ Compromise
> Withdrawn Guilty Pleas
> Expressions of Sympathy- CA Only
Limited Admissibility

Answer

A

Limited Admissibility

If the court determines that with limiting instruction, the probative value is substantially outweighed by the danger of unfair prejudice with respect to its incompetent purpose, evidence may still be excluded.

Question 13

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence

Answer

A

Generally, evidence of a person’s character is inadmissible to prove they acted in conformity with that character on a given occasion. However, character evidence is generally admissible for any non-propensity purpose, such as when character is at issue in a case (i.e. defamation) or to impeach. (opinion, reputation, specific instances of conduct)

Question 14

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence
> Civ. Prior Acts of Sex Offense

Answer

A

FRE – Prior acts of Sex Offense Cases in cases for similar claims
Defendant’s prior acts of sexual assault or child molestation are admissible to prove defendant’s conduct in the present case.

Question 15

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence
Defendant’s Character Criminal

Answer

A

Defendant’s Character - Criminal Case

In a criminal case, defendant may provide evidence of his own character. Prosecution is not allowed to do so until the defendant opens the door. Defendant may “open the door” and call a witness to offer evidence of their good character or innocence with opinion and reputation evidence. Defendant cannot open the door with a trait of their own honesty, dishonesty must be challenged first.

Question 16

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence
Defendant’s Character Criminal
» CA: only Reputation/Opinion

Answer

A

California Distinction: Only reputation and opinion on direct and cross.

In a criminal case, a prosecutor generally cannot introduce evidence of a defendant’s character unless the defendant opens the door. California recognizes several exceptions: (1) in a sexual assault/child molestation case; (2) in a domestic violence case; (3) in an elder abuse case; and (4) where the defendant has put on evidence of the victim’s violent character, the prosecution can put on evidence of the defendant’s violent character.

Question 17

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence
Defendant’s Character Criminal
Victim’s Character Criminal

Answer

A

Victim’s Character – Criminal Case

In a criminal case, the defendant may introduce reputation and opinion evidence of the character of the victim of the crime, where the conduct of the victim, in conformity with his character, tends to prove the innocence of the accused(except rape); prosecution may rebut with evidence of the same trait in the defendant.

Question 18

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence
Defendant’s Character Criminal
Victim’s Character Criminal
» CA: Reputation/Opinion/Specific instances

Answer

A

In California, reputation, opinion, and specific instances of conduct are permitted on both direct and cross examination for victims. The defendant can be the first to offer the victim’s character evidence, and the prosecution may rebut. Under Prop 8, if victim’s character is relevant, it is admissible subject to CEC 352 balancing. Prop 8 does not change the criminal rule.

Question 19

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence
Defendant’s Character Criminal
Victim’s Character Criminal

Other purpose - Specific Acts

Answer

A

Other purpose - Specific Acts

Evidence of other crimes or misconduct is admissible if these acts are relevant to some issue other than the defendant’s character or disposition to commit the crime or act, such issues include: Intent, Preparation, Identity, Knowledge, Absence of mistake, Motive, Opportunity and plan. A plea of not guilty puts Identity and Motive at issue. Prosecution must provide reasonable notice of any such evidence that they intend to offer at trial, although the court may excuse a lack of pretrial notice. Specific Instances of conduct is admissible on Cross (but not when prosecution is calling its own witness. Prosecution cannot ask about specific acts).

Question 20

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence
Defendant’s Character Criminal
Victim’s Character Criminal
Other purpose - Specific Acts

Habit/Routine

Answer

A

Habit/routine

Evidence of a person’s habit, or an organizations routine practice is admissible to prove that on a particular occasion they acted in accordance with the habit/practice.

Question 21

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence
Defendant’s Character Criminal
Victim’s Character Criminal
Other purpose - Specific Acts
Habit/Routine

Character Witness for Truthfulness

Answer

A

Character Witness for Truthfulness

Character for truthfulness can be attacked by reputation and opinion. Evidence of truthful character is admissible only after the witness’s character has been attacked. Other party may rebut with Good character evidence (reputation/opinion). Evidence of Specific instances of conduct be inquired into if they are probative of the character for truthfulness or untruthfulness of: the witness; or another witness whose character the witness is being cross-examined about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Question 22

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence
Defendant’s Character Criminal
Victim’s Character Criminal
Other purpose - Specific Acts
Habit/Routine
Character Witness for Truthfulness
Cross-Examination

Attacking & Supporting Declarant Credibility

Answer

A

Attacking and supporting Declarant Credibility - 806

Once hearsay or nonhearsay is admitted, declarant credibility may be attacked.

Question 23

Q

Relevance
Logical Relevance
Legal Relevance
Proposition 8
Policy Exclusions

Character Evidence
Defendant’s Character Criminal
Victim’s Character Criminal
Other purpose - Specific Acts
Habit/Routine
Character Witness for Truthfulness

Cross-Examination

Answer

A

Cross Examination

A party has absolute right to cross-examine a witness who testifies live.
Cross-Examination should not exceed the scope of the direct. However, courts may allow inquiry into additional matters on cross that weren’t addressed on direct.

Question 24

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment

Answer

A

Impeachment
A witness’s credibility may be attacked through: contradiction, Prior inconsistent statements, bias or interest, reputation or opinion for untruthfulness, prior acts of misconduct involving untruthfulness, prior criminal conviction

Question 25

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Answer

A

No extrinsic evidence is allowed to contradict a witness as to a collateral matter. Cross-examiner cannot bring in another witness or other evidence to prove the witness is lying as to a collateral matter. (probative value substantially outweighed by danger of confusion of the issues, and waste of time).

(extrinsic evidence is any evidence other than witness’s testimony at the current proceeding, includes evidence of prior inconsistent statements made out of court).

Collateral matter is a fact no material to the case (i.e. witness of murder said he was heading to the store, instead he was heading to the mistress’s house).

Question 26

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements

Answer

A

Prior Inconsistent Statements (PIS) - look who makes it. Third party or P or D? *check for hearsay

A statement different from and inconsistent with a material portion of the witness’s present testimony may be used to impeach - not for its truth(hearsay) except if it was given under oath AND at a trial, hearing, or other proceeding or in a deposition. A proper foundation requires the target witness is given an opportunity to explain or deny the PIS and the other party is given opportunity to interrogate the witness. The foundation is not required if hearsay declarant.

Question 27

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive

Answer

A

Bias, Interest, Motive

A witness may be impeached by a showing of bias, or an interest in a particular outcome in the suit by extrinsic evidence after a foundation is laid by inquiry on cross-examination of the target witness.

Rebut - prior consistent statement
Prior consistent statement is admissible to rebut a charge of recent fabrication or improper influence or motive. ( witness attacked on theory of motive, if a statement was made before motive arose then the prior statement may be admitted).

Question 28

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies

Answer

A

Sensory Deficiencies
A witness may be impeached by showing that their sensory abilities or recollection could be so impaired so as to make it doubtful that they could have perceived or had knowledge of the facts to which they are testifying.

Question 29

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies
Specific Acts of deceit or Lying

Answer

A

Specific Acts of deceit or Lying

Specific acts of deceit or lying not resulting in conviction is admissible so long as the questioning is in good faith. No extrinsic evidence is permitted(you must take the answer of the witness and cannot bring in another witness to impeach the target witness) and it is limited to cross-examination. (isn’t true that you lied on your 2010 taxes). Other party may rebut with Good character evidence (reputation/opinion).

Question 30

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies
Specific Acts of deceit or Lying
- CA Distinction

Answer

A

California Distinction:

Inadmissible under CEC, but Prop 8 makes it admissible in criminal cases if relevant; to be relevant the misconduct must be act of moral turpitude; both cross examination and extrinsic evidence permitted subject to balancing.

Question 31

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies
Specific Acts of deceit or Lying
- CA Distinction
—-Bad Reputation/Opinion re: Truth & Veracity

Answer

A

Bad Reputation/Opinion regard Truth & Veracity

Truth and veracity can be shown by reputation and opinion. Other party may rebut with Good character evidence (reputation/opinion).

Question 32

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies
Specific Acts of deceit or Lying
Crime Involving Dishonesty

Answer

A

Crime Involving Dishonesty

Felony or misdemeanor convictions involving dishonesty are always admissible to impeach. However, if the conviction is more than 10 years old, the judge can exclude if its probative value is substantially outweighed by its prejudicial effect.

Question 33

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies
Specific Acts of deceit or Lying
Crime Involving Dishonesty

Answer

A

Felonies Not Involving Dishonesty

Felonies not for dishonesty have a 10 year limit from latter of conviction or release from confinement. Requires probative value/ prejudicial effect determination, and proper notice must be given.

Question 34

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies
Specific Acts of deceit or Lying
Crime Involving Dishonesty
– CA conviction Moral Turp. Crime

Answer

A

Conviction of a crime – CA

In a CA Criminal Case, a party may impeach a witness with any felony or misdemeanor that involves “moral turpitude” subject to the court’s balancing of the equities. “moral turpitude” means lying, violence, extreme recklessness, or sexual misconduct. Crimes not involving moral turpitude are inadmissible to impeach. In Civil Case: California makes misdemeanors convictions inadmissible to impeach.

Question 35

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies
Specific Acts of deceit or Lying
Crime Involving Dishonesty
– CA conviction Moral Turp. Crime
»>Rebut: Good Reputation

Answer

A

Rebut - Good reputation

Good reputation for truth may be shown if impeachment involves a character attack. (prior conviction, specific act of deceit or lying, bad reputation/opinion for truth).

Question 36

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies
Specific Acts of deceit or Lying
Crime Involving Dishonesty
– CA conviction Moral Turp. Crime
»>Rebut: Good Reputation
»>Pardon/Annulment/ certificate of rehabilitation

Answer

A

Pardon/Annulment/ certificate of rehabilitation

Evidence is not admissible if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation AND the person has not been convicted of a later felony.

Question 37

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies
Specific Acts of deceit or Lying
Crime Involving Dishonesty
– CA conviction Moral Turp. Crime
»>Rebut: Good Reputation
»>Pardon/Annulment/ certificate of rehabilitation
»> Juvenile Adjudication

Answer

A

Juvenile Adjudication

Admissible if offered in a criminal case, adjudication was of a witness, not the defendant; conviction of the adult for the offense would be admissible; evidence is necessary to determine the guilt or innocence.

Question 38

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility

Impeachment
> Collateral Matter Doctrine

Prior Inconsistent Statements
Bias, Interest, Motive
Sensory Deficiencies
Specific Acts of deceit or Lying
Crime Involving Dishonesty
Rehabilitation after impeachment

Answer

A

Good reputation for truth may be shown if impeachment involves a character attack. (prior conviction, specific act of deceit or lying, bad reputation/opinion for truth).

Prior consistent statement is admissible to rebut a charge of recent fabrication or improper influence or motive. ( witness attacked on theory of motive, if a statement was made before motive arose then the prior statement may be admitted).

Question 39

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment

Witness Competency

Answer

A

Witness Competency
In general every person is competent, unless the rule provides otherwise. The witness must have personal knowledge, memory of the event, communicate what is witnessed, and take an oath. In CA, the Witness must also understand the difference between a truth and lie. California also disqualifies witnesses who were hypnotized before trial to help refresh recollection except, in a criminal case, witnesses hypnotized by police using procedures that protect against suggestion.

Question 40

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment

Witness Competency
Lay Witness

Answer

A

Lay Witness

A lay witness may testify to their opinion when the testimony is rationally based on the perception of the witness and is helpful to the trier of fact. These are not legal conclusions, but opinions. (e.g. estimating driving speed, identity of a person, value of property, familiarity of handwriting, physical condition, intoxication etc.)

FRE Only: lay opinion may not be based on scientific or specialized knowledge.
If most people would not have the experience needed to form a reliable opinion, it is a SKILLED WITNESS opinion, and the foundation must be laid explicitly

Question 41

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment

Witness Competency
Lay Witness
Expert Witness

Answer

A

Expert Witness

Expert testimony must be helpful to the trier of fact. The expert must possess special knowledge, skill, experience, education or training. The expert must believe her opinion to a reasonable degree of certainty. The opinion must be based on facts (expert may base opinion on admitted evidence, personal knowledge, or inadmissible evidence properly relied upon). If the expert opinion is based on science, court will consider whether the evidence is: peer tested and capable of retesting, published, has low error rate, reasonably accepted in field of study.

Question 42

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment

Witness Competency
Lay Witness
Expert Witness
> Opinion on the Ultimate Issue

Answer

A

Opinion on the ultimate issue

Generally, an opinion on the ultimate issue is not automatically objectionable. In criminal cases, experts are excluded from testifying to criminally accused mens rea.

Question 43

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment

Witness Competency
Lay Witness
Expert Witness
> Opinion on the Ultimate Issue
> Disclosing Bases of expert opinion

Answer

A

Disclosing Bases of expert opinion

Expert may give an opinion and reasons for it, without state facts or data it is based on, but on cross-examination may have to disclose the facts or data.

Question 44

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment

Witness Competency
Lay Witness
Expert Witness
> Opinion on the Ultimate Issue
> Disclosing Bases of expert opinion
> CA Kelley Frye Standard

Answer

A

Kelley/Frye General Acceptance Standard - CEC

In CA the reliability of scientific opinions determined by one factor: the opinion must be based on principals generally accepted by experts in the field. This standard is not altered by Prop 8 because it is a standard of relevance. Kelley/Frye inapplicable to non-scientific opinions and medical opinions, reliability of which is based on facts and circumstances of the case.

Question 45

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency

Documentary Evidence

Answer

A

Documentary Evidence - Writings
and other Physical Evidence

Every item of non-testimonial evidence must be authenticated. Parties may stipulate to the authenticity of a document. A document can be authenticated by a witness with personal knowledge testifying that the document is what it purports to be. The burden is “sufficient to sustain a finding”.

Question 46

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency

Documentary Evidence
> Oral Statements

Answer

A

Oral Statements

When a statement is admissible only if said by a particular person, authentication as to the identity of the speaker is required. A voice may be identified by the opinion of anyone who has heard the voice at any time. The opinion must be rationally based on the perception of the witness

Question 47

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency

Documentary Evidence
> Oral Statements
> Self Authenticating Evidence

Answer

A

Self-authenticating evidence

Writings that contain identifying information do not need separate authentication. E.g. deeds, notarized documents, newspapers, certified copies of public records, trade inspections.

Question 48

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency

Documentary Evidence
> Oral Statements
> Self Authenticating Evidence
> Ancient Documents

Answer

A

Ancient Documents:

If document is (Federal 20, California 30) years old or more, does not on its face present irregularities, and was found in a place of natural custody authenticity is established. These are admissible whether or not the declarant is available.

Question 49

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency

Documentary Evidence
> Oral Statements
> Self Authenticating Evidence
> Ancient Documents
> Photos

Answer

A

Photos

Photos can be authenticated through the testimony of a person with knowledge of the facts relevant to the issue, if the witness verifies the that photos is an accurate depiction of what it purports to show.

Question 50

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency

Documentary Evidence
Best Evidence Rule

Answer

A

Best Evidence Rule:
(CA Secondary evidence rule)

Applies when the writing is legally operative, or dispositive instrument or when witnesses knowledge of the fact is from reading the document.
If the content of the writing is material(at issue), the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing’s contents, is permitted only after it has been shown that the original or duplicate is unavailable. Handwritten copy is not a duplicate.

Ca Admits duplicates and other written evidence of contents of originals, such as hand written notes.

Question 51

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency
Documentary Evidence

Privileges

Answer

A

PRIVILEGES
For all privileges, the holder of the privilege may assert it. For a privilege to be valid, the disputed communication must have been made in confidence or be presumed to have been made in confidence. A privilege holder waives privilege by failing to assert it, voluntarily disclosing privileged matter, or contractually waiving privilege.

Question 52

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency
Documentary Evidence

Privileges
> Attorney Client

Answer

A

Attorney Client Privilege
Communication between an attorney and client are privileged if the communications occurred while the client was seeking legal services and made in confidence. A lawyer shall not reveal the information unless the client gives informed consent or the disclosure is impliedly authorized in order to carry out representation. The client holds the privilege, and it can remain until after the client dies. Communications do not include physical evidence. In CA, the privilege does not survive the client and terminates when the estate is settled.

Crime/Fraud Exception
The attorney client privilege does not apply when the communication was used in furtherance of something the client should have known was a crime or fraud.
Prevent Death or substantial bodily harm

A communication is not protected by attorney client privilege when the lawyer reasonably believes disclosure is necessary to prevent a crime that is likely to result in death/ substantial bodily harm.

Question 53

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency
Documentary Evidence

Privileges
> Attorney Client
> Physician Patient

Answer

A

Physician-patient privilege
*Civil case in Diversity applicable to FRE

There is no federal privilege however, every state has the privilege so if a court is sitting in diversity in a civil suit, then under Erie, state law would apply.

CA: This privilege does not apply when patient puts her condition at issue. Not applicable to FRE, but CA, there is a privilege for confidential patient communications for statements made during medical diagnosis.

Does not apply fi the physician/psychotherapist believes the patient is dangerous to himself or others, nor when the doctor is required to report to a public officer (i.e. child abuse).

Question 54

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency
Documentary Evidence

Privileges
> Attorney Client
> Physician Patient
> Psychotherapist/ Patient

Answer

A

Psychotherapist/patient

Communications between a psychotherapist/patient are privileged. In CA such communications are not privileged if there is reason to believe the patient is a danger to themselves or others and the disclosure of the privileged communication is necessary to end the danger.

Question 55

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency
Documentary Evidence

Privileges
> Attorney Client
> Physician Patient
> Psychotherapist/ Patient
> Spousal Privilege

Answer

A

SPOUSAL PRIVILEGE

Spousal privilege is comprised of two privileges: (1) spousal immunity, and (2) confidential marital communications.

Question 56

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency
Documentary Evidence

Privileges
> Attorney Client
> Physician Patient
> Psychotherapist/ Patient
> Spousal Privilege
»>Spousal Immunity

Answer

A

Spousal Immunity – criminal only

Spousal immunity is granted to one spouse from testifying against his or her spouse during a valid marriage. The witness spouse holds the privilege and may choose whether to waive it. The privilege can only be claimed while married and does not survive after marriage, but includes information learned before marriage. In federal courts it only applies criminally. In CA, this applies in both civil and criminal.

Question 57

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency
Documentary Evidence

Privileges
> Attorney Client
> Physician Patient
> Psychotherapist/ Patient
> Spousal Privilege
»>Spousal Immunity
»> Confidential Marital Communications

Answer

A

Confidential Marital Communications

A communication is confidential marital communication when it was made during the marriage and in reliance on the intimacy of the marital relationship. Either spouse may refuse to disclose the communication and may prevent the other spouse from disclosing. The privilege lasts after the marriage ends, but only covers communications made during the marriage.

Question 58

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency
Documentary Evidence

Privileges
> Attorney Client
> Physician Patient
> Psychotherapist/ Patient
> Spousal Privilege
»>Spousal Immunity

> > > Confidential Marital Communications
- - - Eavesdroppers

Answer

A

Eavesdroppers

	Modernly, in the absence of negligence by the one claiming privilege, an eavesdropper will be prohibited from testifying.

Question 59

Q

Relevance
Proposition 8
Policy Exclusions
Character Evidence
Attacking & Supporting Declarant Credibility
Impeachment
Witness Competency
Documentary Evidence

Privileges
> Attorney Client
> Physician Patient
> Psychotherapist/ Patient
> Spousal Privilege
»>Spousal Immunity

> > > Confidential Marital Communications
- - - Eavesdroppers
- - - Exceptions

Answer

A

Exception: Suits between spouses; suit in which one spouse is charged with a crime or tort against children; co defendant spouses.

Question 60

Q

Relevance
Prop 8

Hearsay Within Hearsay

Answer

A

Hearsay within Hearsay
A hearsay statement that includes other hearsay within it is admissible only if each of the hearsay statements independently falls within an exception.

Outer Layer – [record/statement] Establish that the outer layer is hearsay. Then identify whether an exemption/exception applies to the rule.

Inner Layer – [Statement within Record or statement] Establish that the inner layer is hearsay. Then identify whether an exemption/exception to the rule applies. _

Question 61

Q

Relevance
Prop 8

Hearsay Within Hearsay
Hearsay

Answer

A

Hearsay(FRE 801)
Hearsay is an extrajudicial statement offered to prove the truth of the matter asserted. Hearsay is not admissible unless it falls under a valid exception. A “statement” includes a person’s oral assertions, written assertions, or nonverbal conduct if the person intended it as an assertion. Nonhuman assertions are not statements e.g. radar gun reading, dog barking.

Here, the statement was made out of court because [facts].

The statement is offered to prove [what is it -not hearsay if evidence of legally operative facts or verbal acts; used to prove effect on listener or reader; circumstantial evidence of declarant’s state of mind.]

The evidence is a statement because [only do if nonverbal]. The evidence [is/ is not] offered to prove the truth of the matter because [facts].

Question 62

Q

Relevance
Prop 8

Hearsay Within Hearsay
Hearsay

Confrontation Clause - Criminal

Answer

A

Confrontation Clause – Criminal - Do not do confrontational clause if Not hearsay statements .

An otherwise admissible out-of-court statement offered against D in a criminal case may be excluded if: 1) the declarant is currently unavailable,
2) D had no prior opportunity to cross-examine the declarant about the statement at the time it was made,
3) the statement is testimonial.

An out-of-court statement is admissible if declarant is unavailable as a result of D’s own wrongdoing.

Question 63

Q

Relevance
Prop 8

Hearsay Within Hearsay
Hearsay

Confrontation Clause - Criminal
> Unavailable Declarant

Answer

A

Unavailable Declarant

Prosecution must make a good faith effort to obtain the witness’s presence at trial.

Question 64

Q

Relevance
Prop 8

Hearsay Within Hearsay
Hearsay

Confrontation Clause - Criminal
> Unavailable Declarant
> Testimonial Statement

Answer

A

Testimonial Statement

A statement made in furtherance of a police investigation that are: not a part of an ongoing emergency; during court proceedings; or a formal interview. Melinda diaz a scientific report/lab report is deemed testimonial. The defendant must get a chance to confront the declarant. So an expert must come in and provide additional testimony.

Answer 65

A

Waiver
A D waives his Confrontation clause objection by: failing to take exhaust procedural tools for compelling witness to appear, or by engaging in wrongdoing that prevented the prosecutor from producing the declarant. If a court finds a waiver, the statement is admissible.

Answer 66

A

Not Hearsay / not offered for its truth

If an extrajudicial statement is offered to prove something other than the truth of the matter asserted, it is not hearsay and is admissible.

1) Acts of Independent Legal Significance
2) Effect on the Listener
3) Declarant’s mental State
4) Impeachment Purposes

Answer 67

A

Acts of Independent Legal Significance

Statements containing legally operative words, such that the statement itself is a legal factor in the case is not hearsay. (contract or threat)

Answer 68

A

Effect on the Listener

A statement is not hearsay when offered to show the effect on the recipient.

Answer 69

A

Declarant’s mental state

Statements offered to show the declarant’s mental state or state of mind are not offered to prove the truth of the matter asserted, and are thus admissible. Statements concerning a then existing condition or mental state usually offered to show intent at the time or circumstantial evidence that an event was carried out.

Answer 70

A

Impeachment Purposes

Statements offered for impeachment purposes are not offered to prove the truth of the matter asserted and thus are admissible.

Answer 71

A

NONHEARSAY EXEMPTIONS
There are four exemptions to the ban on hearsay. CEC does not have nonhearsay exemptions. Must be Declarant as witness or declarant is opposing party.

Answer 72

A

Prior Inconsistent Statements

Prior inconsistent statements are admissible for substantive purposes if: 1) the declarant is testifying at trial and is subject to cross-examination; 2) the statements were previously made under penalty of perjury; and 3) the prior statements are inconsistent with present testimony being given at trial. If the statements were not previously made under penalty of perjury, they can only be offered for impeachment purposes, not substantive purposes. CA allows all inconsistent statements of the witness, whether or not under oath.

Answer 73

A

Prior consistent Statements

Prior consistent statements are admissible for substantive purposes if :1) the declarant is testifying at trial and is subject to cross-examination; and 2) the prior consistent statement was made before the declarant had motive to fabricate the statement. It is offered to rebut a charge of fabrication, improper bias, or improper motive.

Answer 74

A

Bolstering own Witness (FRE 608)

Bolstering not allowed. A lawyer may not offer evidence supporting a witness’ credibility until after it has been attacked.

A prior consistent statement by the witness cannot be admitted to bolster a witness.

Except: A Prior consistent statement would be admissible if the statement is one of identification. A prior out-of-court statement of identification that was made by a witness who testifies at trial is excluded from the definition of hearsay and, therefore, may be admitted.

Answer 75

A

Prior Statements of Identification
Prior statements of identification are admissible for substantive purposes if the declarant is testifying at trial and is subject to cross-examination.

Answer 76

A

Admission by a Party Opponent

Prior out of court statements made by a party opponent are admissible as non hearsay. Statements made by an authorized spokesperson, an agent within the scope of and during the agency relationship, or co-conspirators during and in furtherance of the conspiracy are considered vicarious admissions and are imputed on the party opponent. The statement need only be contrary to the declarant’s present interest.

Answer 77

A

Vicarious statements - re Negligence
In CA, Statement by party’s employee is party admission of employer only where negligent conduct of employee is basis for employer’s liability under respondeat superior.

Answer 78

A

Adoptive Admissions
Silence is considered an adoptive admission if the party heard and understood the statement and remained silent where a reasonable person would have denied the statement.

Answer 79

A

HEARSAY EXCEPTIONS: DECLARANT UNAVAILABILITY NOT REQUIRED

Hearsay is not admissible unless it falls under a valid exception. The following six exceptions apply regardless of whether the declarant is deemed unavailable: present sense impression; excited utterance; state of mind; medical diagnosis or treatment; recorded collection; and business records.

Answer 80

A

Present sense Impression
(CA: Contemporaneous statement)

An admissible statement made by the declarant in which she describes an event as it takes place or immediately thereafter.

In CA, it is a statement explaining conduct of the declarant made while the declarant was engaged in that conduct.

Answer 81

A

Statement Describing Infliction or Threat of Physical Abuse: (watch for Confrontation Issues)

In CA, Statements made at or near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recorded or made to police or medical professional, under trustworthy circumstances.

Answer 82

A

Excited Utterance (CA: Spontaneous Statement)
An excited utterance is a statement made by the declarant while still under the stress from a startling event regarding the circumstances of the event.

Answer 83

A

Then-Existing State of Mind or bodily condition

A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition is admissible to prove the declarant’s state of mind or the declarant’s conduct. Can be used as circumstantial evidence that intent was carried out. A statement regarding memory, a past belief, or a past state of mind to prove the fact remembered or believed is not admissible unless it relates to the validity or terms of the declarant’s will.

Answer 84

A

Medical Diagnosis or treatment

A statement of a person’s past or present condition is admissible so long as it is made for the purpose of medical diagnosis or treatment, regardless of whether the statement is made to a medical professional. It can be about the general cause.

Answer 85

A

Physical/ Mental Condition – Unavailable Declarant.(California Distinction)
A statement of declarant’s past physical or mental condition, including a statement of intention, is admissible to prove that condition if it is an issue in the case – no requirement that statement be made for medical purposes. Declarant must be unavailable.

Answer 86

A

Recorded Recollection
The record may be read into evidence if the witness cannot recall events or information, provided that: 1) the record is about a matter the witness once had personal knowledge of; 2) the record was made or adopted by the witness when the matter was fresh in the witness’s mind. 3) the record accurately reflects the witness’s personal knowledge; and 4) the witness can no longer recall the events or information well enough to testify, even after reviewing the writing on the stand. Under recorded recollection, the record may be read into evidence but only OC can decide to enter it as an exhibit.

Answer 87

A

Business records

A business record is admissible as a valid exception if it is: 1) kept in the course of regularly conducted business; & 2) made by a person with knowledge of the matter at or near the time of the matter’s occurrence. However a it is not admissible if the opponent can show that the source or preparation of the records lacks trustworthiness.
CA Does not refer to opinions or diagnoses, but courts still will admit simple opinions and diagnoses.

Answer 88

A

Judgement of Previous Conviction:

Hearsay statement describing felony conviction is admissible in both civil and criminal cases to prove any fact essential to the judgment, but when offered by the prosecution for purposes other than impeachment, judgments against persons other than the accused are inadmissible. In CA, The specific exception for convictions applies only in civil cases.

Answer 89

A

Public Records

These records are admissible if 1) they set forth the office activities; 2) about a matter observed while under a legal duty to report (except in a criminal case for a matter observed by police); or 3) shows factual findings of a legal investigation. These are admissible whether or not the declarant is available. In Ca, includes statements made by a public employee in the scope of duty at or near the time of the act and circumstances indicate trustworthiness.

Answer 90

A

The following four exceptions apply only if the declarant is deemed unavailable: former testimony; dying declaration; statements against interest; and forfeiture by wrongdoing.

A declarant is deemed unavailable as a witness if the declarant: 1) exempt from testifying because of privilege; 2) refuses to testify despite a court order to do so; 3) testifies to not remembering the subject matter; 4) unavailable to testify because of a death or then-existing infirmity, physical illness or mental illness; or 5) is absent and the statement’s proponent has not been able, by process or other reasonable means to procure the declarants attendance. (If crim defendant – 5th amendment right not to testify satisfies unavailability)

Answer 91

A

Former Testimony
Former testimony is admissible if: 1) the declarant is unavailable; 2) the statement was prior testimony given at trial hearing or deposition; and 3) the opposing party had an opportunity and similar motive to develop the testimony through cross or direct examination.
Ca follows the FRE rule in addition: 1) The former testimony is offered against the person who offered it in evidence on her own behalf in the earlier proceeding, or against a successor in interest of such person 2) Deposition testimony given in the same civil action In which the hearsay is offered at trial is admissible for all purposes if the deponent is unavailable or lives more that 150 miles from the courthouse.

Answer 92

A

Dying Declarations

A statement is admissible if: 1) the declarant is unavailable; 2) the declarant believed that her death was imminent when she made the statement 3) the statement pertains to the cause or circumstances of her death; and 4) the statement is being introduced in a homicide or civil case. Declarant need not die.
In CA, Exception applies in all civil and criminal cases, and the declarant MUST be dead

Answer 93

A

A statement is admissible if: 1) the declarant is unavailable; 2) the declarant believed that her death was imminent when she made the statement 3) the statement pertains to the cause or circumstances of her death; and 4) the statement is being introduced in a homicide or civil case. Declarant need not die.
In CA, Exception applies in all civil and criminal cases, and the declarant MUST be dead
Statements against interest

Answer 94

A

Statements against interest

A statement is admissible if: 1) the declarant is unavailable; 2) the statement is against the declarant’s self-interest; and 3) a reasonable person would not have made the statement unless he believed it to be true.
In CA, Also within the exception is a statement against social interest because it risks making declarant an object of “hatred, ridicule, or social disgrace in the community”.

Answer 95

A

Forfeiture by wrongdoing

A party forfeits her hearsay objection if the party intentionally or wrongfully makes the declarant unavailable to testify as proven by a preponderance of the evidence. This allows statements that would normally be inadmissible hearsay to be introduced against the wrongdoer by forfeiture.

Answer 96

A

807 Interests of Justice
The FRE provides a general catch-all exception for hearsay statements not covered by exceptions. The statement must have circumstantial guarantees of trustworthiness, be necessary so the interests of justice will be served by its admission and there must be notice to the proponents adversary.

Answer 97

A

Attacking and supporting Declarant Credibility - (806)

Once hearsay or nonhearsay is admitted, declarant credibility and witness testifying’s credibility may be attacked.

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