Evidence

Question 1

California Introductory Paragraph

Answer 1

Under Proposition 8 of the California Constitution (hereafter Prop. 8), any evidence that is relevant may be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under California Evidence Code (hereafter CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury.

(If it’s a civil case, note Prop. 8 does not apply.)

Question 2

Evidence Issues

Answer 2

F-WRAPH

Form of Question
Witnesses
Relevance
Authentication / Best Evidence
Privileges
Hearsay

Question 3

Judicial Notice

Answer 3

The court’s acceptance of a fact as true without requiring formal proof. Facts are subject to judicial notice if:
i) The fact is generally known within the territorial JX of the court; or
ii) The fact can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Question 4

Leading Questions

Answer 4

Suggests the answer within the question.

Direct examination: not allowed, unless necessary to develop testimony (preliminary info), witnesses with difficulty communicating, antagonistic witnesses

Cross examination: allowed for questions within scope

Question 5

Types of improper questions

Answer 5

CACAR!

Compound questions
Assumpes facts not in evidence
Calls for conclusion / opinion
Argumentative
Repetitive

Question 6

Burden of production

Answer 6

A party’s obligation to provide sufficient evidence to support proposition of fact.

Question 7

Burden of persuasion

Answer 7

A party’s obligation to convince the factfinder to believe a proposition.

Civil standard: preponderance (clear and convincing for fraud)
criminal: beyond a reasonable doubt

Question 8

Rebuttable presumption

Answer 8

Shifts the burden of production (but not persuasion) to the opposing party.

Bursting bubble theory (FRE): a presumption “bursts” after sufficient evidence is introduced to sustain a contrary finding, so it is no longer preclusive.

No burst: judge instructs jury to accept presumption.

Burst: judge may instruct jury they may (but are not required to) draw conclusion.

Question 9

Conclusive presumption

Answer 9

Treated as rules of substantive law and may not be challenged by contrary evidence, no matter how strong the proof.

Question 10

Destruction of Evidence Presumption

Answer 10

raises a rebuttable presumption that such evidence would have been unfavorable to the party who destroyed the evidence. Proponent must establish:
1) Destruction was intentional
2) Destroyed evidence was relevant
3) Proponent acted with due diligence

Question 11

Relevance of Evidence

Answer 11

Evidence must be relevant to be admissible. It must be both logically and legally relevant.

Logical: Evidence is logically relevant if it is PROBATIVE and MATERIAL.

Legal: Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

Question 12

Character evidence

Answer 12

Character evidence is evidence offered to show a person’s general personality traits or propensities. As a general rule, character evidence is generally inadmissible.

Question 13

Exceptions to Character Evidence Ban

Answer 13

i.e., MIMIC

impeachment
essential element

motive
intent
absence of Mistake
Identity
Common plan

Question 14

Bad character evidence about defendant

Answer 14

prosecution can only introduce once door has been opened

Question 15

Good character evidence about defendant

Answer 15

Can be introduced by D (“mercy rule”), but opens door to:
- prosecution to call witness to rebut with reputation or opinion
- prosecution cross-examine D’s character witness with reputation, opinion, or ask about specific bad acts

Question 16

Bad character evidence about victim

Answer 16

D can introduce if relevant to defense, but opens door to: - prosecution to introduce reubttal evidence with reputation or opinion
- prosecution to attack D’s character for same trait with reputation, opinion, or specific acts

Question 17

Good character evidence about victim

Answer 17

Prosecution not permitted to introduce until door has been opened (bolstering)

Question 18

Habit evidence

Answer 18

Habit evidence is evidence of a person’s habit or an organization’s routine. It is admissible to prove that the person or organization acted in accordance with a habit or routine on a particular occasion.

Question 19

Witness Competence

Answer 19

Any person with personal knowledge who gives an oath to testify truthfully is competent to be a witness. A person who is unable to understand the requirement to tell the truth is incompetent.

Question 20

Lay opinions

Answer 20

Permitted when opinion is:
- rationally based on witness’s perception
- helpful to understanding their testimony or making a factual determination
- not based on scientific, technical, specialized knowledge

Question 21

Expert opinions

Answer 21

Permitted when witness is qualified, subject matter is scientific / specialized, and opinion will help the trier of fact. Testimony must be:
i) based on sufficient facts/data
ii) a product of reliable principles and methods
iii) reflection of reliable application of principles

It can be based on inadmissible materials if experts in the field would reasonably rely.

CA DISTINCTION: Requires preliminary showing that new scientific theory or technique has been generally accepted as valid in the field; trial court as gatekeeper.

Question 22

Impeachment

Answer 22

Impeachment attacks the credibility of a testifying witness based on character for untruthfulness, bias, perception, or prior contradictory statements. Any party may attack the credibility of any witness.

Question 23

Reputation and opinion evidence (impeachment)

Answer 23

A witness may testify about the opinion or reputation for another witness’s truthfulness.

Question 24

Specific instances (impeachment)

Answer 24

Generally inadmissible, but can ask about specific instances on cross if it’s probative of truthfulness (no extrinsic).

CA disstinction: can only ask about specific instances on cross in CRIMINAL CASES.

Question 25

Criminal convictions for impeachment

Answer 25

Conviction for crime of dishonesty: admissible Conviction for other felony (witness): regular 403 balancing Conviction for other felony (D): prosecutor must show more probative than prejudicial 10-year rule: if more than 10 years old, must show substantially more probative than prejudicial and give written notice

Question 26

Prior inconsistent statements for impeachment

Answer 26

May be used to impeach if inconsistent with prior testimony. If using extrinsic evidence, witness must be given opportunity to explain or deny.

Question 27

Impeachment of hearsay declarants

Answer 27

Credibility of declarant may be attacked as if they really testified.

Question 28

Rehabilitation of impeached witnesses

Answer 28

Witnesses may be rehabbed by rebuttal evidence, via: - Explanation or clarification - Reputation or opinion evidence of character for truthfulness - Prior consistent statement offered to rebut express or implied charge that witness lied

Question 29

Recollection refreshed

Answer 29

A witness may examine any item to refresh their present recollection (can’t read from it). Adverse party can: - Ask for production of document - Inspect document - Cross-examine witnesses about document - Introduce any relevant portion into evidence if they want

Question 30

Authentication

Answer 30

All tangible evidence must be authenticated. Authentication is production of sufficient evidence to support a finding that the thing is what the proponent claims it is.

Question 31

Authentication of physical objects

Answer 31

Physical objects can be authenticated by: - Testimony of personal knowledge - Testimony of distinctive characteristics - Chain of custody (required for blood samples etc.) - Witness with personal knowledge that a reproduction is accurate - Witness to accurate process for things like x-rays and ekgs

Question 32

Best Evidence Rule

Answer 32

Applies when: - Contents of document are at issue OR - Witness is relying on contents when testifying Requires that the original document or a reliable duplicate be produced to prove the contents of a writing, recording, or photo. Duplicates are admissible if no genuine question of authenticity.

Question 33

Spousal Immunity

Answer 33

Spouses may not be required to testify against each other in criminal cases. Applies to events before and during marriage, expires after marriage. HOLDER: witness spouse, MAY choose to testify CA DISTINCTION: applies to all cases, not just criminal

Question 34

Marital Communication Privilege

Answer 34

Spouses’ communications during marriage are privileged; doesn’t expire. HOLDER: both spouses CA DISTINCTION: may be asserted to prevent ANYONE from testifying about a marital communication, including eavesdroppers

Question 35

Lawyer-Client Privilege

Answer 35

Protects communications made during or when seeking lawyer services. Exceptions for crime fraud, client dispute with attorney, CA DISTINCTION: when lawyer believes necessary to prevent death or bodily harm Holder: client

Question 36

Physician-patient privilege

Answer 36

State privilege that protects statements made for purposes of obtaining medical treatment, except info that doesn’t relate to treatment, physical condition is at issue in case, patient dispute with physician, waiver. Does not apply in federal court where state law doesn’t apply HOLDER: patient CA DISTINCTION: also protects diagnosis from licensed physician in civil cases

Question 37

Psychotherapist Patient Privilege

Answer 37

Protects statements made to psychotherapist / social worker, except for court order, mental condition at issue, commitment proceedings, CA DISTINCTION: if patient is a danger and disclosure necessary to prevent harm HOLDER: patient

Question 38

Subsequent remedial measures

Answer 38

Inadmissible to prove liability, fault, or defective product. Admissible to impeach, show feasibility of repair, prove ownership/control.

Question 39

Settlement offers

Answer 39

Inadmissible to prove liability or amount of disputed claim, or to impeach. Admissible to prove bias, delay, obstruction.

Question 40

Plea negotiations

Answer 40

No contest, withdrawn guilty please, statements made during plea ngotiations/proceedings are inadmissible for ANY PURPOSE. Can be waived.

Question 41

Offers to Pay Medical Expenses

Answer 41

Inadmissible to prove liability. Conduct and statements in conjunction are admissible (but not in CA).

Question 42

Liability Insurance

Answer 42

Inadmissible to prove liability/fault. Admissible to show agency, control, bias.

Question 43

Sexual Conduct

Answer 43

VICTIM: Generally inadmissible, except if to prove consent (criminal case) or if probative value substantially outweighs (civil). DEFENDANT: admissible in sexual assault cases (in CA, limited to criminal)

Question 44

Common non-hearsay uses (besides truth of the matter!)

Answer 44

- Effect on listener - Circumstantial evidence of state of mind - Legally significant verbal act

Question 45

Non-hearsay categories

Answer 45

Opposing party's statements (including judicial admission, adoptive admission, vicarious statements) Declarant-witness's prior statements (prior inconsistent statements, prior consistent statements, prior statements of identification)

Question 46

Opposing party's statements

Answer 46

A statement made by a party to the current litigation is not hearsay when offered by an opposing party. AKA Admission of Party Opponent. Need not be against interest. Includes judicial admissions (during proceeding); adoptive admission (express or implied); vicarious statements (employee/authorized/co-conspirator)

Question 47

Judicial Admission

Answer 47

Admissible as statement of party opponent; made during discovery or stipulation during proceeding, CONCLUSIVE!

Question 48

Adoptive Admission

Answer 48

Admissible as statement of party opponent; express or implied adoption of another’s statement. Silent adoption counts when i) person understood ; ii) person had opportunity to respond; iii) a reasonable person would have denied.

Question 49

Vicarious Statements

Answer 49

Admissible as statement of party opponent. Employee: if within the scope of and during the course of relationship Authorized speaker: if authorized Co-conspirator: if during and in furtherance of conspiracy

Question 50

Declarant-witness's prior statements

Answer 50

Admissible nonhearsay. Declarant-witness must TESTIFY at present trial and be SUBJECT TO CROSS. Includes prior inconsisten statements, prior consistent statements, prior statements of ID

Question 51

Prior inconsistent statement

Answer 51

Admissible if made under penalty of perjury (former trial), and declarant-witness testifies at present trial and is subject to cross.

Question 52

Prior consistent statement

Answer 52

Admissible (even if not made under oath) to rebut express or implied charge of fabrication or rehab credibility. Declarant witness must testify and be subject to cross.

Question 53

Previous statement of ID

Answer 53

Admissible if declarant-witness testifies at present trial and is subject to cross.

Question 54

Hearsay exception categories

Answer 54

Declarant unavailable Declarant availability unimportant

Question 55

Declarant Unavailable Hearsay Exceptions

Answer 55

Fred Died So Isn't So Freely Forthcoming Former testimony Dying declaration Statement against Interest Statement of Family history Forfeiture against wrongdoing

Question 56

Former Testimony Hearsay Exception

Answer 56

Testimony given as witness if party against whom testimony is offered had opportunity and similar motive to develop testimony by examination. Admissible if declarant unavailable

Question 57

Dying declaration hearsay exception

Answer 57

i) Declarant believes death is imminent ii) Statement pertains to cause or circumstances of death Only applies in homicide and civil cases. CA DISTINCTION: admissible in all proceedings, and declarant must have actually died. Admissible if declarant unavailable.

Question 58

Statement against interest

Answer 58

i) Against declarant’s interest at time it was made ii) Would not have been made by reasonable person unless believed it to be true Admissible if declarant unavailable

Question 59

Statement of family history

Answer 59

Concerning the declarant’s birth, adoption, marriage, divorce etc. Admissible if declarant unavailable

Question 60

Forfeiture against wrongdoing

Answer 60

Party who wrongfully caused declarant's unavailability FOR THAT PURPOSE can't object to their statements as hearsay

Question 61

Declarant Availability Doesn't Matter Hearsay Exceptions

Answer 61

Present sense impression excited utterance statement of condition medical diagnosis recorded recollection Buinsesss records public records

Question 62

Present sense impression

Answer 62

Statement describing or explaining an event made while or immediately after declarant perceived it CA distinction: contemporaneous statement = Statement offered to explain conduct of declarant while declarant was engaged in conduct

Question 63

Excited utterance

Answer 63

Made about a startling event while declarant is under stress or excitement it caused CA DISTINCTION: spontaneous statement = i) Purporst to narrate event perceived by declarant and ii) Made spontaneously while declarant under stress of excitement

Question 64

Medical diagnosis hearsay exception

Answer 64

Past or present symptoms, made for medical diagnosis or treatment CA DISTINCTION: only applies to statements of children under 12 describing abuse or neglect

Question 65

REcorded recollection

Answer 65

FACK Fresh at time accurate can't recall now knew about it then

Question 66

Business records hearsay exception

Answer 66

i) Record kept in course of regularly conducted business ii) Making of record was regular practice iii) Record was made at or near the time by someone with knowledge

Question 67

Public records hearsay exception

Answer 67

i) Sets out activities of office or agency; OR ii) Observation of person under duty to report; OR iii) Factual findings of legal investigation in civil case or AGAINST GOVERNMENT in criminal case

Question 68

REsidual hearsay exception

Answer 68

A hearsay statement may be admissible if the statement is supported by sufficient guarantees of trustworthiness and it’s more probative than any other obtainable evidence. CA has no catchall provision

Question 69

Confrontatino Clause

Answer 69

in order the admit an out-of-court testimonial statement of a declarant against a D: i) Declarant must be unavailable and ii) D must have had a prior opportunity to cross.

Question 70

Due process & hearsay

Answer 70

right to fair trial may prevent application of hearsay rules where unduly restrictive