Evidence

Question 1

Logical relevance rule

Answer 1

Evidence is logically relevant if it tends to be material to a disputed fact.

Question 2

Legal relevance (balancing test)

Answer 2

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or wasting time. (FRE 403; CEC 352)

Question 3

CA Prop 8 (always list at top under Preliminary matters heading if prompted for CEC)

Answer 3

• If case is criminal: i. 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 case is civil: This case is civil so Prop. 8 will not be applied to the evidence.

Question 4

Public policy exclusions

Answer 4

• Subsequent remedial measures
• Liability insurance
• Offers to pay medical expenses
• Settlement offers
• Offer to plead guilty
• Expressions of sympathy (CEC)

**None of these are admissible to prove culpable conduct

*Purpose for all of these is to encourage behaviors for greater good of society

Question 5

Personal knowledge of witness rule (competency)

Answer 5

Witness must have personal knowledge of the matter about which he is to testify and must declare that he will testify truthfully.

Question 6

Objections to form of questioning

Answer 6

• Narrative (what happened?)
• Unresponsive (witness answer is unresponsive or constitutes an answer to a question other than the one that was asked, or goes beyond the scope of the original question, it is considered nonresponsive and should not be admitted into evidence.)
• Compound (two q’s in one)
• Argumentative (q is combative)
• Leading (q phrased to suggest answer, isn’t it true?)
• Assumes facts not in evidence (when did you make your will? when no evidence witness made a will)

Question 7

Present recollection refreshed rule

Answer 7

Allows any item to be used to refresh a witness’ memory. Once shown the item, the witness must then testify entirely from his refreshed memory (witness cannot read from the refreshing document).

Question 8

Opinion testimony: Lay opinion

Answer 8

A lay opinion is admissible if it is based on the perception of the witness, it is helpful to the trier of fact, and NOT based on specialized or technical knowledge (witness must be qualified as expert before giving opinion of that nature).

**(e.g., estimating driving speed, value of property, identity of person, physical condition, familiarity of handwriting, etc.)

Question 9

Opinion testimony: expert testimony

Answer 9

*Shorthand rule: Admissible if relevant and reliable.

Admissible if all are met:
(1) specialized knowledge will help trier of fact in understanding evidence
(2) witness is qualified as an expert by knowledge, skill, experience, training or education
(3) testimony based on sufficient facts or data
(4) testimony is product of reliable principles and methods.

**Daubert and Kelly not applied if expert testimony is NOT scientific.

FRE: Daubert std of reliability requires substance of expert’s testimony be
- Peer reviewed, published in sci journals, tested, known for low error rate, subject to reasonable level of acceptance

CEC: Kelly/Frye std of reliability requires
- Proponent must prove sci theory/technique has been generally accepted as valid and reliable in relevant sci field

(5) witness applied principles reliably to facts of case.

Question 10

Atty-client privilege

Answer 10

C has a right not to disclose any confidential communication between A and C that was for purpose of facilitating legal services.
- C is holder
- Last until death (FRE) or execution of estate (CEC)
- Exceptions: crime fraud (comm used to further crime fraud), dispute with lawyer, reas. nec. to prevent SBH/death

Question 11

Dr(physician)-patient privilege

Answer 11

No fed priv. Under CEC, doctor-patient privilege applies only to communications made to medical personnel for the purpose of medical diagnosis and treatment.
- Patient is holder.
- Exceptions: P puts his physical condition at issue, Dr’s assistance sought to aid wrongdoing, dispute between D and P

Question 12

Psychotherapist-patient and social worker-client

Answer 12

There is a federal psychotherapist-patient privilege for confidential communications. Under CEC, there is a licensed psychotherapist-patient or social worker-client privilege for confidential communications.

• CEC exceptions: P puts his mental condition at issue, services sought to aid wrongdoing, dispute between P/S and patient, P danger to himself

Question 13

Self-incrimination

Answer 13

5A provides that no person shall be compelled to be a witness against himself

Question 14

Marital privileges (2 types)

Answer 14

• Spousal immunity
• Marital confidential communications

Question 15

Spousal immunity privilege (testimony)

Answer 15

Spouse of a crim. D may not be called as a witness or compelled to testify against her spouse in any criminal proceeding. CA says spousal immunity rule applies to ANY kind of proceeding, not just crim.

• Witness spouse is holder (can choose to testify but may not be compelled)
• Duration: applies to testimony re: events that occurred before and during marriage. BUT can only be asserted during valid marriage
• Exception: doesn’t apply in actions between spouses or in cases involving crimes against testifying spouse or either spouse’s children.
• NOTE: spouse who chooses to testify where that person’s spouse is a party cannot later invoke privilege to not testify unless married person was erroneously compelled to testify.

Question 16

Marital confidential communications

Answer 16

A communication made between spouses while married is privileged. This privilege applies in criminal and civil proceedings.
- Holder: Both spouses can assert the privilege and one spouse may prevent the other from testifying.
- Duration: privilege survives marriage but only covers statements made during marriage.
- Exception: does not apply in actions between the spouses or in cases involving crimes against the testifying spouse or either spouse’s children.

*CA: privilege may be asserted to prevent ANYONE from testifying about a conf. spouse. comm., including eavesdroppers

Question 17

CEC only privileges

Answer 17

• Counselor-victim privilege for confidential communications between a counselor and victim of SA or DV.
• Clergy-penitent privilege for penitential communications.
• News reporters immune from contempt of court for refusal to disclose sources.

Question 18

3 forms of character evidence to prove someone’s character

Answer 18

• Reputation
• Opinion
• Specific acts

Question 19

CE in Civil court: character evidence rule

Answer 19

Character evidence is generally inadmissible to prove conduct in conformity with that character trait on a particular occasion.

Question 20

CE in Civil court: character at issue exception

Answer 20

Character evidence IS admissible where character is “at issue” and is an essential element of the case. (e.g., defamation bc person’s character matters when assessing reputational damage)

Question 21

CE in Civil court: FRE exception sexual assault or child molestation

Answer 21

Character evidence can be admitted in cases based on SA, DV, or child molestation (CEC does NOT have this exception).

Question 22

CE in Civil court: rape shield provisions (generally disallow evidence of V’s past sex conduct)

Answer 22

• FRE: P must put her reputation in issue for reputation evidence to be admitted. Reputation, opinion and specific acts may be admitted if the probative value substantially outweighs the danger of unfair prejudice (higher standard than typical balancing test).
• CEC: D cannot offer evidence of P’s prior sexual conduct unless to prove prior sexual conduct with D.

Question 23

CE crim. court rule

Answer 23

Where character evidence is admissible, the character trait must always be pertinent to the case, but rules of admission differ depending on whose character it is.

Question 24

CE crim. court, D’s character general rule

Answer 24

Only D can “open the door” to evidence of a pertinent character trait (reputation or opinion evidence), but once opened, the prosecution may:
- Call a witness to rebut D’s claim of good character (R or O)
- Cross exam the D’s character witness (R, O OR SA)

*Prosecution can ask about specific bad acts but cannot introduce extrinsic evidence to prove it

Question 25

CE crim. court, D’s character general rule exceptions

Answer 25

• FRE only: If D offers evidence of V’s character, prosecution can offer evidence that D has the same character trait (e.g., violent).
• CEC only: When D offers evidence of V’s violent character, V can offer evidence of D’s violent character.
• CEC only: evidence of D’s prior commission of elder abuse, SA or DV (including child molestation) is admissible in a criminal case in which D is accused of committing similar act.

Question 26

CE crim. court, V’s character general rule for FRE and CA

Answer 26

*FRE: Only D can “open the door” to evidence of V’s pertinent character trait (reputation or opinion evidence), but once opened, the prosecution may:
- Introduce rebuttal evidence of V’s character (R or O) OR
- Attack D’s character for same trait

*CA: crim. D may introduce evidence of V’s character when it is relevant to the defense asserted. Unlike in federal court, evidence of specific acts, in addition to opinion and reputation evidence, may be used in California for this purpose.

Question 27

CE crim court V’s character FRE only exception: V first aggressor

Answer 27

If D claims or offers evidence that V was first aggressor, then prosecution can offer reputation or opinion evidence only for V’s peacefulness.

Question 28

CE crim court V’s character, Rape and SA case special rules

Answer 28

Rape shield provisions generally disallow evidence of a rape or SA victim’s past sexual conduct.
- R & O evidence always inadmissible.
- Specific acts admissible only to prove limited issue of prior acts of consensual sex with D or con. required

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

Question 29

Criminal court evidence, specific bad act general rule

Answer 29

Except for the limited cross exam discussed above, the prosecution cannot introduce evidence of specific acts to prove character. However, evidence of prior bad acts may be admissible for another purpose (see below).

Question 30

Other purpose for character evidence allowed in crim and civil cases

Answer 30

(MIMIC)
- Motive to commit crime
- Intent to commit act
- Mistake (evidence that D committed similar misconduct in past negates possibility of mistake)
- Identity of perpetrator (specific pattern of behavior)
- Common plan or scheme

Question 31

Habit and custom rule

Answer 31

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

Question 32

4 ways to impeach (undermine witness’ credibility)

Answer 32

• Character for truthfulness: can be shown by past crimes, R, O and SpA (subject to exceptions above)
• PIS (note: extrinsic evidence, like a report authored by declarant, can be used only if witness who made PIS is given opportunity to deny or explain)
• Bias (self-interest, motive)
• Sensory or mental defect (capacity to observe or remember impaired)

Question 33

(1) Impeaching witness’ character for truthfulness: R, O and SpA

Answer 33

• Reputation and opinion: A witness may testify about the opinion or reputation for another witness’s truthfulness.
• Specific bad acts: Generally, evidence of specific instances of conduct is not admissible. You can inquire into specific bad acts on cross-examination. extrinsic evidence (like through another witness’ testimony) is not admissible.

Question 34

(1) Impeaching witness’ character for truthfulness: impeachiing with criminal conviction

Answer 34

• Crimen falsi (FRE): ALL convictions for crimes involving a false statement or dishonesty are admissible and judge may not exclude under legal balancing unless conviction is more than 10 years old.
• Felony conviction: admissible to impeach, subject to legal balancing test and conviction is less than 10 years old.
• CEC: felony conviction must not have been expunged, involve moral turpitude, and pass balancing test.
• Misdemeanor convictions: can only be used if crimen falsi and under 10 years old. (but not allowed in CEC civil court)

Question 35

Rehabilitating impeached witness

Answer 35

Once a witness has been impeached, the other side can introduce rebuttal evidence by
- reexamining the witness,
- introducing another witness for reputation or opinion evidence, or
- by introducing a prior consistent statement.

Question 36

Hearsay general rule

Answer 36

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

*Talk about whether statement was made out of court, intended as assertive comm., and whether being offered for truth.

Question 37

Nonhearsay purpose rule and examples

Answer 37

An out of court statement may be nonhearsay when it’s not being offered for its truth but some other reason:
- Effect on the listener/reader: listener was put on notice of some information, obtained certain knowledge, had a certain emotion, behaved reasonably or not, etc.
- Declarant’s state of mind: knowledge of facts or mental state (e.g., “I’m Abe Lincoln” is offered not for its truth but that declarant is delusional).
- Independent legal significance: Statement offered to prove that a statement was made. statement that has legal significance aside from its truth (words establishing a contract, words of defamation).

Question 38

Multiple hearsay

Answer 38

Where an out of court statement quotes or paraphrases another out-of-court statement. Each level of hearsay must fall within an exception to be admissible (e.g., police report including witness statement, work order containing observations, surgical report, witness testifying what another person told him a third party said)

Question 39

Hearsay exceptions: admissions

Answer 39

Admissions are excluded from hearsay rule and will be admitted.
- Opposing party’s statement
- Adoptive admission
- Vicarious admission
- Co-conspirator admission

Question 40

Hearsay exceptions: Opposing party’s statement

Answer 40

A statement made by a party is not hearsay if it is being offered by an opposing party (doesn’t have to be against his interest).

Question 41

Hearsay exceptions: Adoptive admission

Answer 41

An adoptive admission is a statement of another person that a party expressly or impliedly adopts as his own. Silence in response to a statement is considered an adoptive admission if:
- Person understood statement,
- Person had ability to deny the statement,
- A reasonable person similarly situated would have denied the statement

Question 42

Hearsay exceptions: Vicarious admission

Answer 42

A statement made by one person may be imputed to another based on the relationship between them.
- Employee or agent: A statement made by a party’s agent or employee constitutes an opposing party’s statement if it was made concerning a matter within the scope of and during the course of the relationship.
- Authorized speaker: A statement about a subject that is made by a person who is authorized by a party to make a statement on the subject constitutes an opposing party’s statement.

Question 43

Hearsay exceptions: Co-conspirator admission

Answer 43

A statement made by a co-conspirator during and in furtherance of the conspiracy is admissible as an opposing party’s statement against other co-conspirators.

Question 44

Hearsay exceptions: medical diagnosis or treatment statements

Answer 44

A statement describing medical history or past or present symptoms is excluded as hearsay if it is made for medical diagnosis or treatment.

Question 45

Hearsay exception: statement of then-existing mental, emotional, physical condition

Answer 45

admissible to show the condition or state of mind (does not apply to statement of memory or belief)

*NOTE: A statement of present intent, motive, or plan can be used to prove conduct in conformity with that state of mind. (gonna go divide the money up tonight with my boys)

Question 46

Hearsay exception: present sense impression

Answer 46

A statement is admissible if
(1) describing or explaining an event or condition and
(2) made while declarant was perceiving the event or condition or immediately thereafter.

Question 47

Hearsay exception: Contemporaneous statement (CEC)

Answer 47

applies to a statement (1) explaining declarant’s own conduct and (2) made while declarant engaged in that conduct (narrower than FRE).

Question 48

Hearsay exception: Excited utterance (FRE) / Spontaneous statement (CEC)

Answer 48

A statement is admissible if
(1) relating to a startling event or condition and
(2) made while the declarant was still under the stress of excitement caused by the event or condition.

Question 49

Hearsay exceptions, Witness must be available: PIS

Answer 49

• FRE: A PIS is substantively admissible if (1) the PIS was made under oath and (2) the declarant is subject to cross-exam concerning the PIS.
• CEC: Covers ALL PIS, need not be made under oath

Question 50

Hearsay exceptions, Witness must be available: PCS

Answer 50

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

Question 51

Hearsay exceptions, Witness must be available: Prior ID

Answer 51

• FRE: A prior out of court identification of a person, made after perceiving the person, is substantively admissible if the declarant testifies at trial.
• CEC: witness must also testify that events were fresh at the time of ID and witness believed ID was accurate.

Question 52

Document hearsay exceptions: Past recollection recorded

Answer 52

If a witness cannot testify from memory, a party may introduce a record if:
- Firsthand knowledge,
- Record was made or adopted by W when matter was fresh in W’s memory
- Witness recollection impaired now
- Record accurate at time made

*Effect: Doc may be read to the jury and can be admitted only if offered by adverse party

Question 53

Document hearsay exceptions: Business record

Answer 53

A record of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if record:
- kept in the course of a regularly conducted business activity,
- was a regular practice of that activity; and
- was made at or near the time by (or from information transmitted by) someone with knowledge.

*Record may be authenticated by custodian of record or other qualified witness or is self-authenticating if properly certified.

Question 54

Document hearsay exceptions: Public records and reports

Answer 54

A hearsay exception applies to a record or statement of a public office or agency that sets out:
- The activities of the office or agency;
- An observation of a person under a duty to report the observation (except for an observation of a law enforcement officer offered in a criminal case by the prosecution); or
- Factual findings of an investigation, when offered in a civil case or against the government in a criminal case.

*CA’s public records exception allows certified copies of judgments of conviction.

Question 55

Document hearsay exceptions: Learned writings and commercial publications

Answer 55

• FRE: Admissible if called to the attention of an expert witness/ witness relied on it during testimony and established as reliable authority.
• CEC: admissible only for facts of general notoriety and interest.

Question 56

Declarant unavailability situations

Answer 56

For some hearsay exceptions, witness must be unavailable, which can be established by:
- privilege
- death or illness
- can’t procure witness by reasonable means
- witness refuses to testify despite court order
- witness unable to remember

Question 57

5 hearsay exceptions requiring witness unavailability

Answer 57

• Former testimony
• Dying declaration
• CEC ONLY: Threat of infliction of injury (OJ exception)
• Declaration against interest
• Forfeiture by wrongdoing

Question 58

Hearsay exception (witness unavailable): Former testimony

Answer 58

Former testimony admissible where
(1) declarant is unavailable,
(2) the party against whom the testimony is now offered had, during the earlier hearing or deposition, an opportunity to examine that person and
(3) a similar motive to develop the testimony.

Question 59

Hearsay exception (witness unavailable): Dying declaration

Answer 59

Dying declaration is admissible where a statement is
(1) made by a declarant,
(2) while believing his death was imminent,
(3) concerning the cause or circumstances of his impending death and
(4) declarant is now unavailable.

*FRE: only allowed in civ and homicide cases, need not be dead
*CEC: applies to all cases and D must be dead

Question 60

Hearsay exception (witness unavailable): CEC ONLY threat of infliction of injury

Answer 60

A statement that describes the infliction or threat of physical injury upon the declarant that was made at or near the time of the infliction or threat is not excluded as hearsay if:
(1) Declarant unavailable;
(2) Statement made within 5 years of case filing;
(3) Statement made under circumstances that indicate its trustworthiness;
(4) Statement was made in writing, electronically recorded or made to a healthcare official or law enforcement official.

Question 61

Hearsay exception (witness unavailable): Declaration against interest

Answer 61

A declaration against interest is admissible if
(1) the declarant is now unavailable and,
(2) at the time it was made, it was against the declarant’s (financial or penal) interest that a reasonable person would not have made it unless he believed it to be true.

*FRE: if offered to exculpate accused, must have corroborating evidence.
*CEC: includes a statement against one’s social interest/social ridicule (like having an affair)
*CC may keep statement out

Question 62

Hearsay exception (witness unavailable): Forfeiture by wrongdoing

Answer 62

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

Question 63

Residual catchall excpetion

Answer 63

if trustworthy, is regarding a material fact, is more probative than other evidence and notice is given to opposing side.

Question 64

Documentary evidence and relevance rule

Answer 64

All documentary evidence must be relevant to be admissible.

Question 65

Authentication rule

Answer 65

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 its proponent claims it is.

Question 66

Methods of authentication for real evidence/ physical objects

Answer 66

Can be authenticated by:
- testimony of personal knowledge of the object,
- testimony of its distinctive characteristics,
- testimony of item’s chain of custody if it can easily tampered (blood sample)

Question 67

Demonstrative evidence

Answer 67

Allowed if it passes legal balancing

Question 68

Writings and recordings can be authenticated by

Answer 68

• Stipulation
• Testimony of an eyewitness
• Voice identification (voice can be ID’d by any person who heard it at any time)
• Circumstantial evidence
• Handwriting verification (by expert/trier of fact comparing writing with another that is genuine OR nonexpert with personal knowledge and familiarity NOT bc of current litigation)

Question 69

Authenticating ancient documents

Answer 69

A document or data compilation, including data stored electronically, is considered authentic if it is
(i) at least 20 years old, (30 for CEC)
(ii) in a condition unlikely to create suspicion as to its authenticity, and
(iii) found in a place where it would likely be if it were authentic.

Question 70

Authenticating public records

Answer 70

by evidence that the document was recorded or filed in a public office as authorized by law or that the document is from the office where items of that kind are kept.

Question 71

Self-authenticating documents

Answer 71

certified copies of public records, official publications, newspapers, periodicals, business record certified by custodian of records (required to give other party written notice before introducing)

Question 72

BER (FRE) / Secondary evidence rule (CEC)

Answer 72

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:
- (1) the contents of the document are at issue or
- (2) a witness is relying on the contents of the document when testifying.

*If original or photocopy not available, oral testimony permissible
*BER doesn’t apply when fact to be proved exists independently of writing (witness can testify from personal knowledge)

Question 73

Judicial notice

Answer 73

The court can take judicial notice of facts not subject to reasonable dispute because they are either generally known in the jurisdiction or capable of accurate and ready determination by a reliable source.

Question 74

Instructions and judicial discretion

Answer 74

• FRE: A party must request judicial notice to compel judicial notice. If not requested, the court has discretion to take judicial notice. Judicial notice can occur at any time.
• FRE Civil: jury must accept the judicially noticed fact
• FRE Criminal: jury may accept the judicially noticed fact
• CEC: whether requested or not, court must take judicial notice of matters generally known within jx.

Question 75

ANY TIME evidence is brought in about one of the parties that is a specific bad act or that paints them in a bad light (i.e., D is offering witness testimony that witness caught P steal something – specific bad act),

Answer 75

you NEED TO TALK ABOUT CHARACTER EVIDENCE.