Evidence

Question 1

RELEVANCE

Answer 1

Logical relevance = All evidence must be logically relevant
- FRE: Evidence is relevant if it has any tendency to prove or disprove a material fact
- CEC: Evidence if relevant if it tends to be material to a disputed fact (same result)

Legal relevance: A balancing test is used to determine legal relevance. Otherwise 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)

Cali Prop. 8 (other card)

Question 2

California Proposition 8:

Answer 2

Under Proposition 8 of the California Constitution (hereafter Prop. 8), any evidence that is relevant may be admitted in a criminal case, subject to a few exemptions: [CRM B SHEEP]

Defendant still must “open the door” to bring in evidence of his own (Character before the prosecution can do so.

*Rape shield laws still limit evidence of a victim’s character.

Member of *Media still can’t be held in contempt for refusing to reveal a confidential news source, etc.

Court still has the power to exclude evidence using the legal relevance *Balancing test if the probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or wasting time. (CEC 352 still applies.)

• Secondary evidence rule still applies.

*Hearsay may still not be admitted, unless subject to an exception.

*Exclusionary rules based on the U.S. Constitution still apply (e.g., Miranda, Confrontation Clause, etc.).

*Exclusionary rules that were adopted by the California legislature with a 2/3 vote after 1982 still apply.

*Privileges that already existed in 1982 still apply (e.g., attorney-client, professional, and both marital privileges).

Question 3

Public policy exclusions

Answer 3

• Subsequent remedial measures
• Liability insurance
• Offers to pay medical expenses (ABA only: statement of fault in connection admissible)
• Settlement offers (CEC: mediation too)
• ABA-only: Offer to plead guilty
• CEC-only: expressions of sympathy (statement of fault in connection admissible)

Question 4

Direct examination:

Answer 4

Leading questions are not permitted unless the witness is “hostile.” A leading question is one that is framed to suggest the desired answer.

Question 5

Cross examination:

Answer 5

Leading questions are usually permitted, and X-exam is limited to the subject matter of the direct examination.

Question 6

Competence to testify:

Answer 6

Personal knowledge & truthful testimony

Question 7

Role of judge re: witnesses

Answer 7

The trial judge may call witnesses and may ask questions of any witness.

ABA: Judge cannot be witness

CEC: judge can testify if no party objects (same for a juror).

Question 8

Form of question objections

Answer 8

NUCALF

Narrative (too broad)
Unresponsive (witness’ answer - motion to strike can be made by either party under CEC)
Compound Q
Argumentative
Leading Q (on direct)
Assumes Facts not in evidence