Evidence

Question 1

Prop 8 Rule Statement

Answer 1

Under Prop 8, the Victim’s Bill of Rights of the California Constitution, all relevant evidence is admissible except for certain exclusionary rule such as rules based on the U.S. Constitution, privileges (e.g. spousal, marital communication, attorney-client), and hearsay.

A court may choose to refuse to admit relevant evidence if the evidence’s probative value would be substantially outweighed by the prejudicial effect, would confuse the issues, or would mislead the jury

Question 2

Logical and Legal Relevance

Answer 2

Evidence is logically relevant if it tends to prove/disprove a material [disputed] fact.

Legal relevance is found so long as the probative value is not substantially outweighed by the prejudicial effect.

Question 3

Authentication

Answer 3

A document entered into evidence must be authenticated by a witness with personal knowledge of the document

Question 4

Public Policy Exceptions

Answer 4

• Subsequent Remedial Measures: Measures taken after an injury are not admissible to show that there was an injury. However, can be shown to demonstrate control or that the fix was possible.
• Offers to Pay Medical Expenses - inadmissible, accompanying admissions may be admissible (but not in CA)
• Settlement Offers- Inadmissible to prove liability for, or invalidity of, a claim at actual dispute. Includes all contextual statements
• Withdrawn guilty pleas- Inadmissible
• Liability Insurance- Can’t be used to show culpability but can show ownership

Question 5

Best Evidence Rule/Secondary Evidence Rule (CA)

Answer 5

When the contents of a writing are at issues (contracts, records), the original document must be produced.

Machine duplicates are permitted uless the authenticity of the original is disputed. **

Summaries of voluminous writings: If original documents are so voluminous that they can’t be conveniently introduced into evidence, a summary may be introduced through a sponsoring witness.

Original NOT required if: lost or destroyed (unless by opponent in bad faith), opponent fails to produce, collateral matter, unless duplicate authenticity in question

Question 6

Judicial Notice

Answer 6

Judicial notice is the process of establishing facts without presenting evidence. The court can take judicial notice of facts not subject to reasonable dispute because they are either:
1. **Generally known ** within the jurisdiction, or
2. Capable of accurate and ready determination by a source whose accuracy cannot be reasonably questioned.

FRE:
Civil Cases: Jury must accept; Criminal Cases: May Accept
CA: Mandatory for both under CA

Question 7

Dying Declaration

Answer 7

A statement made by the declarant, while she:
(1) believed death was imminent,
(2) about the cause or circumstances of her impending death
is a hearsay exception.
- In CA Declarant must be dead

Question 8

Rule of Completeness

Answer 8

If a party introduces part of a writing/recording, the other party may require introduction of the other documents/rest of the document.

Question 9

Lay Testimony

Answer 9

Lay Testimony: Testimony must be based on personal knowledge; be helpful to trier of fact; and not based on scientific knowledge/expertise

Question 10

Expert Testimony

Answer 10

Expert Testimony: is admissible if:
1. Specialized knowledge will assist the trier of fact
2. The witness is qualfied as an expert by knowledge, skill, education, or training

The tesitmony but be the product of reliable principles and methods:
* FRE: *Daubert *MR - from a peer reviewed journal; that is tested (and subject to testing); and is generally accepted by expert’s community
* CA - Kelly/Frye - expert proves underlying theory; that is generally accepted by expert’s community; and applies that theory to their testimony

Question 11

Confrontation Clause

Answer 11

Under the Sixth Amendment to the U.S. Constitution, prior **testimonial **evidence is inadmissible against a **criminal **defendant unless the **declarant is unavailable **and the defendant has a chance to cross-examine the declarant at the time the statement was made.

Question 12

Privileges

Answer 12

• Attorney-Client Privilege
• Work Product Privilege
• Physician-Patient (CA only)
• Marital Communication Privilege
• Spousal Testimonial Privilege

Question 13

Attorney-Clent Privilege

Answer 13

Confidential; communications between attorney and client; for the purpose of receiving legal advic are not admissible.

Exceptions include: crime/fraud, attorney vs client, former joint clients, voluntary disclosure

Question 14

Work Product Privilege

Answer 14

Work Product Privilege: Documents made in preparation for litigation are privileged, unless substantial need and other side can’t reasonably obtain.

Mental impressions of ATTORNEY (+ their agents) never discoverable

Question 15

Physician-Patient (CA only)

Answer 15

Physician-Patient (CA only): confidential; communications; made to doctor/nurse/chiropractor (and the like); for the purpose of treatment/diagnosis are not discoverable

Patient holds the privilege.

Question 16

Marital Communication Privilege

Spousal Testimonial Privilege

Answer 16

Marital Communication Privilege: A confidential; communication; between spouses; during the marriage, lasts after marriage and held by both spouses - not discoverable

Spousal Testimonial Privilege: The privilege for spouses to refuse to testify against one another, held by the witness spouse

Question 17

Character Evidence

Answer 17

Character is generalized information about a person’s behavior. Character evidence is generally not admissible to prove the propensity of the defendant.

Direct Examination, reputation or opinion testimony only. Specific acts only allowed on cross-exam (but not in CA)

Civil Case
Not admissible, unless character is at issue (defamation, negligent entrustment, child custody, domestic abuse)

Criminal/Civil
Not admissible, unless MIMIC
Admissible for sex crimes
Rape-Shield statute

Criminal
Defendant or Victim?
Defendant must open door to himself or victim, trait must be pertinent
If defendant, can attack character for the reverse of the trait
If victim, can attack defendant for same trait or can bolster the victim for the reverse of the attack

Habit/Business Routine Evidence is always allowed in

Question 18

What is character evidence?

Answer 18

Character evidence is any document or testimony offered to prove a person acted in certain way on a particular occasion based on that person’s character. Such evidence is generally inadmissible to prove conformity with the character trait.

Criminal Cases:
D: Can only come in against D if D opens door.
V: D can use to show self-defense; P can respond

Question 19

Impeachment (Truthfulness)

Answer 19

Impeachment is challenging a witness’s credibility via reputation/opinion evidence.

Specific acts may be asked about only on cross-exam and have to accept answer (i.e. no extrinsic evidence).

Question 20

Impeachment By Prior Crimes

Answer 20

FRE:
Criminal Conviction for truthfulness - can always come in, so long as not >10 yrs old

Criminal Felony Conviction -
For Defendant: can come in against a criminal D if the probative value outweights the prejudicial effect.
For Witness: Can come in so long as PV is not substantially outweighed by PE.

Criminal Misdemeanor
Can’t use

CA: If felony or misdemeanor is of moral turpitude it comes in

Question 21

Methods of Impeachment (besides truthfulness)

Answer 21

Impeachment Can Be For:
* Bias
* Prior Inconsistent Statements
* Deficiency of Personal knowledge

Question 22

Other Crimes Evidence (MIMIC)

Answer 22

Past Crimes (Mimic)
A defendant’s past crimes or other wrongful acts are not admissible to show criminal propensity but admissible as circumstantial evidence of motive, intent, mistake (absence of), identity, and common plan or scheme.

Question 23

Hearsay

Answer 23

An out of court statement offered to prove the truth of the matter asserted

Question 24

Non-hearsay

Answer 24

Legally Operative Fact: A statement used to prove that the declarant said something or the statement is the element of a claim (defamatory statement, contract language)

Effect on Listener: (Notice, knowledge, motive) of the listener

Statement of Mind: (insanity, belief) of the speaker

Admission by Party Opponent (general, adoptive, vicarious, co-conspirator): Statements by opponent that is related to the claim.
Adoptive: Silence or conduct where party understood the accusatory statement, could deny, and didn’t even if a reasonable person would have, can be adoptive admission
Vicarious: Employees/agents in the scope of employment/agency
Co-conspirator: statement of a conspirator during the conspiracy, in furtherance of the conspiracy.

Prior Consistent Statement: offered to rebut a charge that witness had motive to lie. Declarant must have testified, be subject to cross, made BEFORE alleged motive to lie.

Prior Inconsistent Statement: To admit for substantive evidence, must have been made under oath previously.

Prior Identification: Prior identificatio of person after perceiving them and able to testify.

Question 25

Non-hearsay: Admission By Party Opponent

Answer 25

A party admission is a statement made by a party and offered against
him and is admissible. Admissions are excluded from hearsay and
are admissible.

Includes statements that are:
* Adoptive: Silence or conduct where party understood the accusatory statement, could deny, and didn’t even if a reasonable person would have, can be adoptive admission
* Vicarious: Employees/agents in the scope of employment/agency (in CA - only where negligence of the employee is at issue)
* Co-conspirator: statement of a conspirator during the conspiracy, in furtherance of the conspiracy.

Question 26

Nonhearsay: Prior Consistent Statement

Answer 26

Prior Consistent Statement: A prior consistent statement is admissible if offered to rebut a charge of lying.

Question 27

Nonhearsay: Prior Inconsistent Statement

Answer 27

Prior Inconsistent Statement: A witness may be impeached by a prior inconsistent statement if that statement.

• Extrinsic evidence only permissible if the witness is given an opportunity to explain or deny

Question 28

Nonhearsay: Prior Identification

Answer 28

Prior Identification: Prior identification (PID) of a person, made after perceiving the person, is substantively admissible if the declarant testifies at
trial.

Question 29

Hearsay Exceptions (Unavailable Witness)

Answer 29

• Statement Against Interest
• Former Testimony
• Dying Declaration
• Statement of Personal Family History

Question 30

Hearsay Exception: Statement Against Interest (Unavailable D)

Unavailable

Answer 30

A statement against interest is one made by an unavailable declarant & against her financial or penal interest when made and is admissible as an exception to the hearsay rule.

Question 31

Hearsay Exception: Former Testimony (Unavailable D)

Answer 31

Former Testimony: testimony given at a (1) prior proceeding under oath; (2) party against whom the testimony is offered was a party in the former action; (3) same subject matter; and (4) opportunity to cross at prior proceeding

Question 32

Hearsay Exception: Dying Declaration (Unavailable D)

Answer 32

Dying Declaration: A dying declaration is a statement made while the declarant: (1) believes that they will imminently die; and (2) it is about the cause of their death. (Applies to homicide and civil cases under the FRE, any case in CA). (In CA, they actually have to die).

Question 33

Hearsay Exception: Statement of Personal Family History (Unavailable D)

Answer 33

**Statement of Personal Family History: **Statement concerning births/death where the declaration is a member of the family and thes tatemetns are based on personal knowledge. *

Question 34

Hearsay Exceptions

(Witness Available or Unavailable)

Answer 34

• Present State of Mind
• Excited Utterance/Spontaneous Statement
• Present Sense Impression/Contemporaneous
• Medical Diagnosis or Treatment Statements
• Business Record:
• Other: Public Records, ancient documents, family records,

Question 35

Hearsay Exception: Present State of Mind

Answer 35

**Present State of Mind: **Statements of a declarant’s then existing state of mind, emotion, sensation, or physical condition are admissible.

Question 36

Hearsay Exception:
Excited Utterance/Spontaneous Statement (CA)

(Witness Available or Unavailable)

Answer 36

Excited Utterance/Spontaneous Statement (CA): Excited utterance is a statement made by declarant while, or shortly after, experiencing a stressful or exciting situation, while still under the stress of the event.

Question 37

Hearsay Exception:
Excited Utterance/Contemporaneous Statement (CA)

(Witness Available or Unavailable)

Answer 37

FRE: Present Sense Impression: A statement made by a declarant (1) while, or shortly after, witnessing something; (2) that describes the thing being witnessed.

CA: Contemporaneous Statement: A statement offered to explain, qualify, or make understandable the defendants’ conduct while it is occuring is admissible.

Question 38

Hearsay Exception: Business Record

Answer 38

Business Record: A business record requires that it be made (1) for a business purpose; (2) in the regular course of conduct; (3) by a person with personal knowledge; (4) who had a duty to record; and (5) was made timely to the event.

(Witness Available or Unavailable)

Question 39

Hearsay Exception: Public Record

Answer 39

Public Record: A Public Record is a record made by (1) a public officia;l (2) within the scope of their duties; (3) timely to the event.

Can also be used to show absence if custodian’s diligent search failed

(Witness Available or Unavailable)

Question 40

Hearsay Exception: Recorded Recollection

Answer 40

Recorded Recollection: A recorded recollection is a statement that was made by a person (1) who had personal knowledge; (2) the record reflects their knowledge; (3) was timely made; (4) who testifies that they can no longer remember the event.

(Witness Available or Unavailable)

Question 41

Hearsay Exception: Medical Diagnosis/Treatment Statements

Answer 41

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

(Witness Available or Unavailable)