Evidence

Question 1

Outline the issues on evidence Q and the mnemonics

Answer 1

• relevance (logical +legal)
• prop 8
• public policy exception (SOLsymp)
• Witness testimony (competence, lay v. expert, FULCANS objections, MAPSS privileges, Hearsay exceptions
• impeachment (prior IS, bad acts, convictions)
• character (habit of opening the door MIMIC)
• Documents (relevance, authentication, best evidence rule, summaries)
• judicial notice

Question 2

What is hearsay

Answer 2

Hearsay is an out of court statement offered to prove the truth of the matter asserted. It is inadmissible unless an exception or exemption applies

Question 3

What are the public policy exceptions and for what purposes are they OK to admit?

Answer 3

SOL symp
- subsequent remedial measures, liability insurance, offers for plea deal, settlements, or medical expenses

NOT admissible to prove culpable conduct, but OK to prove ownership, impeachment, or as part of admission of guilt

Question 4

Threshold issue for witness testimony

Answer 4

competence: based on first hand knowledge and testified truthfully

Question 5

steps for testimony analysis

Answer 5

1. competence (personal knowledge)
2. objections? FULCANS
3. expert v. law testimony
4. Privileges? MAPSS
5. Hearsay

Question 6

Prop 8 CHOPSUR

Answer 6

Constitutional limits
Hearsay and exceptions
Open the door
Privilege
Secondary evidence rule
Unfair prejudice (legal relevance analysis)
Rape shield statute

Question 7

MAPSS privilege

Answer 7

Marital communications
Attorney client
Psychiatrist/patient
Spousal testimonial
Self incrimination

Question 8

Character evidence OK when using for what purpose?

Answer 8

MIMIC

Motive
Intent
Mistake
Identity
Common plan

Question 9

Spousal testimonial privilege

Answer 9

A spouse cannot be compelled to testify against another spouse while married. Witness holds privilege

Question 10

Marital communications privilege

Answer 10

confidential communications made during the marriage regardless of whether or not they are still married are privileged. Both spouses hold this privilege

Question 11

What is a leading question and when are they allowed?

Answer 11

Leading question is phrased to be suggestive of a desired answer.

OK on cross,
OR on direct if: 1) hostile (antagonistic, unwilling), 2) opposing, 3) child, 4) background information (“You’re licensed, right?”), or 5) refresh recollection

Question 12

witness competent

Answer 12

must have personal knowledge

Question 13

logical relevance standard

Answer 13

if it tends to prove or disprove a material fact

Question 14

unresponsive objection

Answer 14

an answer that is unresponsive or does not answer the question being posed is not permitted.

Question 15

party admission exception (three kinds)

Answer 15

statement made by a party and being offered against him. Can be adoptive (by omission), vicarious (employee made during the course of business), or coconspirator statement (but look at confrontation issue

Question 16

Excited utterance hearsay exception

Answer 16

statement made by declarant relating to a startling event while still under the stress or excitement caused by the event

Question 17

statement against interest hearsay exception

Answer 17

statement of a declarant that is against her penal or financial interest when made, must be unavailable

Question 18

dying declaration exception

Answer 18

statement made by declarant when they believe that death is imminent concerning the circumstances of his impending death. declarant must actually be dead.

Question 19

medical treatment hearsay exception

Answer 19

statement of declarant’s then existing physical condition is admissible to show the physical condition. CA narrow – if made for medical treatment, must be minor describing child abuse

Question 20

contemporaneous statement hearsay exception

Answer 20

a statement made by declarant explaining the conduct of declarant while declarant was engaged in that conduct

Question 21

hearsay document exceptions (PRR, BR, PR, LT)

Answer 21

-past recollection recorded
-business records (records a business event, regular practice to record, made by person with knowledge, near the time of the matter indicated)
-public records (record describes activity of public office, describes matters observed pursuant to duty imposed by law (like police report)
-learned treatise

Question 22

lay opinion admissible if

Answer 22

rationally based on the witness’s perceptions and is HELPFUL to the trier of fact

Question 23

expert opinion admissible if

Answer 23

QHOP
Qualified expert
Helpful to jury
opinion based on facts or data
Based on principles and methods generally accepted

Question 24

authentication

Answer 24

proof that the document is what the proponent claims to be. e.g. handwritten note card, witness must testify that he knew that the person in fact wrote the card

Question 25

Best evidence / secondary evidence rule. What does it apply to?

Answer 25

the original document must be produced to prove its contents. Duplicates or machine copies OK unless genuineness is in question.

only applies to writings, recordings, photographs

Question 26

prior bad acts ok when…

Answer 26

about truthfulness and used to impeach

AND

in Crim cases when D opens the door, pba OK only on cross under FRE, OK on direct in CA

Question 27

what is judicial notice, and what is its effect in crim/civil cases?

Answer 27

court’s recognition of a fact if the fact is generally. known and not subject to dispute. In Crim cases, jury can evaluate. In civil cases, a fact is legally proven is judicial notice

Question 28

when are prior convictions admissible?

Answer 28

Any crimes of dishonesty OK unless older than 10 years

Otherwise:
Threshold Legal relevance test

FRE: felonies OK to impeach witness
[CA] only felonies and misdemeanors if moral turpitude

Question 29

When can character evidence be used?

Answer 29

in criminal cases, D must open the door to character evidence.

BUT always OK to show MIMIC (incl preparation, knowledge, opportunity)

Question 30

Which hearsay exceptions require unavailability of declarant?

Answer 30

(Dying Individuals Find Facts Proving Facts)

1. Statements against interest (pecuniary, penal, proprietary, [CA] social) when made.
2. Former testimony: Testimony that is now offered against a former party, had an opportunity to x-exam W at prior/preliminary
   hearing (including deposition but not grand jury) + similar motive to develop W’s testimony
3. Dying declarations made under genuine belief of impending death (FRE: homicide or civil actions only. CA: all civil or criminal cases)
   b. [CA] Declarant must actually be dead + statement concerns what did cause the death
4. Pedigree/family: Statements concerning personal or family relationship closely associated with W
5. Forfeiture by wrongdoing:
   a. [CA] Applicable only where declarant was killed or kidnapped by person statement is
   offered against. Requires C&C evidence (more than standard FRE preponderance)
6. [CA] Past physical or mental condition (including statement of intention) at issue if it is at issue
7. [CA] Threat of physical harm: Statement that describes or explains infliction or threat of physical
   injury on declarant is admissible if 1) made at or near time of infliction or threat, 2) circumstances
   indicate trustworthiness, 3) in writing, recorded

Question 31

statement against interest

Answer 31

a statement made by an unavailable declarant that is against her penal or financial interest, CA: can be social interest.

Question 32

independent legal significance hearsay exemption

Answer 32

a statement that itself has independent legal significance (like a email that is the basis of a defamation claim) is not hearsay.