Evidence

Question 1

FRE does not apply to

Answer 1

-preliminary questions of fact regarding admissibility
-Grand jury proceedings
-criminal proceedings for issuance of warrants, extradition, bail, sentencing, probation

Question 2

Judicial Notice

Answer 2

adjudicative facts: subject to judicial notice if the fact is not subject to reasonable dispute because the fact is generally known or can be accurately and readily determined from reliable sources
civil case: must accept noticed fact as conclusive
criminal case: jury may(FRE)/MUST(CA) accept judically noticed fact as conclusive

Question 3

Scope of cross examination

Answer 3

generally limited to subject matter of direct examination and witness credibility

Question 4

Leading questions

Answer 4

suggest the answer in the question.
Not permitted in direct unless hostile witness, needed to develop witness testimony,
generally allowed in cross

Question 5

Improper Questions

Answer 5

leading on direct
calls for conlcusion/opinion
Argumentative
lack of foundation
assumes facts not in evidence
repetitive
compound

[loaferc]

Question 6

Burden of proof

Answer 6

production: msut produce legally sufficient evidence for each element of a claim
persuasion:
civil: preponderance of the evidence
criminl: beyond a reasonable doubt

Question 7

Desctruction of evidence

Answer 7

generally raises a rebuttable presumption that the evidence would be unfavorable if the other party establishes the destruction was intentional, the evidence is relevant, and the alleged victim acted with due diligence

Question 8

PROP 8

Answer 8

California’s constitution was amended to provide that in criminal cases, relevant evidence shall not be excluded unless an exception for hearsay or privilege applies.

Question 9

Logical relevance

Answer 9

Evidence must be relevant to be admitted. Evidence is relevant if it has any tendancy to make a material fact more or less probable.
CA: evidence is relevant if it has any tendancy to make a material disputed fact more or less probable

Question 10

Legal relevance

Answer 10

Relevant evidence should be excluded if the probative value is outweighed by unfair prejudice, confusion of the issues, misleading the jury, cumulative evidence.

Question 11

Curative Admission

Answer 11

Otherwise inadmissible evidence may be admissible to rebut previously admitted inadmissible evidence if there is unfair prejudice

Question 12

Subsequent remedial measures

Answer 12

Inadmissible to prove liability, fault or defective product
admissible to impeach, show feasibility if in dispute, or prove ownership if in dispute
CA: can be used to show product liability

Question 13

Compromise offers/settlement negotiations

Answer 13

Inadmissible to provie liability or amount of a disputed claim or to impeach
only admissible to show bias

Question 14

Offers to pay medical expenses

Answer 14

the offer itself is inadmissible to show liability, but accompanying statements and conduct are admissible
CA: the accompanying statements are not admissible

Question 15

Plea negotiations

Answer 15

No contest and withdrawn guilty pleas are inadmissble, as well as other statements unless another statement is admitted by the defendant and fairness requires more

Question 16

Liability Insurance

Answer 16

whether or not one has insurance is inadmissible to show liability, but it is admissible to show agency, ownership, or bias
CA: lack of liability insurance is admissible but having insurance is not

Question 17

Sexual conduct/rape shield

Answer 17

evidence of sexual behavior of the victim is generally inadmissible except
criminal case: to prove consent or another party is source of evidence
civil case: probative value substantially outweighs unfair prejduce
Conduct of the defendant is admissible in sexual assault and child molestation cases

Question 18

Character evidence in Civil case

Answer 18

Generally inadmissible to prove a person acted in accordance with that character or trait
Civil cases: admissible only when character is an essential element of a claim or defense
FRE (Not CA): admissible to show previous sexual assault/molestation in current sexual assault/molestation case

Question 19

Character evidence in criminal case

Answer 19

D’s character:
by prosectution: not permitted to introduce D’s bad character for propensity reasons, but can introduce if D opens the door
Defense can introduce pertinent character traits as being inconsistent, but must be reputation/opinion
Victims character
by defense: D can attack victims pertinent character trait with reputation/opinion evidence (specific acts in CA too)
by prosecution: can rebut when D has introduce evidence of victim’s bad character, including self defense (self defense does not count for this in CA)

Question 20

Character for truthfulness/untruthfulness

Answer 20

character evidence of a testifying witness’s reputation for untruthfulness is admissible for impeachment

Question 21

Specific bad acts

Answer 21

not admissible for propensity reasons except past sexual abuse/molestation in current criminal sexual abuse/molestation cases ( civil cases, FRE only)
MIMIC evidence (Motive, intent, absence of mistake, identty, common plan)
but must give notice in writing before trial

Question 22

Habit evidence

Answer 22

a person’s particular routine (semi-automatic) reaction to a specific set of circumstances is admissible to prove the person acted in accordance with the habit on a pticular occasion

Question 23

Prior conviction

Answer 23

any crime involving honesty or moral turpitude (CA only): always relevant
felony by witness: probative value must not be substantially outweighed by prejudice
felony by defendant witness: probative value must outweigh prejudice
more than 10 years (FRE only, not ca): probative value must substantially outweigh unfair prejudice

Question 24

Character for untruthfulness

Answer 24

can inquire on cross exam about specific acts, but extrinsic evidence not allowed if denied
CA: can only be used in criminal cases, extrinsic evidence allowed for collateral matters

Question 25

Witness competence

Answer 25

as long as they can give oath/affirmation to testify truthfully

Question 26

Lay witness

Answer 26

must be based in personal perception and helpful to fact finder
no hypnosis unless knew the info before the hypnosis in civil trial

Question 27

Juror testimony

Answer 27

generally may only testify about extraneous prejudicial information, improper outside influence, mistakes on the verdict form
CA: can provide information on any improproprieties but not how they affected his reasoning

Question 28

Prior inconsistent statements

Answer 28

Unless there is a hearsay exception, only for impeachment
CA: can be used for substantive and impeachment purposes

Question 29

Authentication

Answer 29

sufficient evidence for factfinder to find that the item is genuine and what proponet claims it is
physical objects: by testimony, distinctive characteristics, chain of custody
Documents: stipulation, testimony, handwriting verification
self authentication: certified/public records, periodicals
handwriting: by expert, someone familiar, or factfinder comparing to genuine item
oral statements: testimonial

Question 30

Best Evidence Rule/Secondary evidence rule

Answer 30

applies when trying to prove contents of a writing, photograph, or recording
the original document or a reliable duplicate must be produced
exceptions: lost/destroyed, opposign party refuses to produce, alternative proof for party admission

Question 31

Parol Evidence Rule

Answer 31

bars extrinsic evidence of prior or contemporaneous statements that contradict the written agreement if integrated
exceptions: ambiguities, condition precedent, attack formation, attack enforcement

Question 32

Refresh Recollection

Answer 32

witness may examine any item to refresh witness’s present recollection, but testimony must be on the refreshed recollection, not the item and only the opposing party can admit the item

Question 33

Expert witness testimony

Answer 33

must be offered by expert if based on scientific, technical, or specialized knowledge
Daubert:
expert is qualified,
opinion is based on sufficient facts and data
product of reliable methods
the method was reliably applied
must not testify about criminal defendant’s ultimate mental state
Frye: science is generally accepted and reliable in the relevant scientific field

Question 34

Spousal Immunity

Answer 34

spouses may not be required to testify against each other in a criminal case (or a civil case, CA only)
the witness spouse is the holder and can waive
applies to events before or during the marriage
the privilege terminates upon divorce

Question 35

Marital communications

Answer 35

confidential communications made during marriage are protected in both civil and criminal cases
both spouses hold the privilege
never expires, but only applies to communications made during marriage
CA: can be used to stop an eavesdropper from testifying, crime fraud exception

Question 36

Attorney client privilege

Answer 36

confidential communication between client and lawyer for purpose of obtaining or providing legal advice
privilege exists until client waives or death(CA ONLY)
excpetions: crime/fraud, former co-clients

Question 37

Work product

Answer 37

document prepared in anticipation of litigation is protected unles the praty seeking disclosure has substnatial need and cannot obtain otherwise, but the exception does not apply to mental impressions, etc.

Question 38

Physician-patient privilege

Answer 38

no federal one
statement must be made to a licensed physican to get treatment or diagnosis, limited to civil cases

Question 39

psychotherapist patient privilege

Answer 39

patient holds the privilege, but doesn exist if patient’s mental condition is at issue, statemetn is result of state ordered exam.
CA: no privilege if patient is danger to himself others or if less than 16 and a victim

Question 40

Hearsay

Answer 40

Hearsay is an out of court statement offered for the truth of the matter asserted.
a statement can be oral, written, or assertive conduct

Question 41

Non hearsay

Answer 41

prior statements: must be present and available to testify
Inconsistent: made under penalty of perjury for impeachment and substantive purposes (CA doesn’t require oath)
consistent: for rebutall only, must be made before Declarant had reason to fabricate (CA: also substantive use)
Prior identification
Opposing party statements

Question 42

Unavailable Declarant Hearsay exceptions

Answer 42

Former testimony
dying declaration
statement agsint interest
statement of personal/family history
statement against party that caused declarant’s unavailability

Question 43

Unavailable

Answer 43

not found, dead, not competent, lack of memory (FRE), refuse to testify (CA requires contempt of court),

Question 44

Former testimony

Answer 44

unavailable,
requires if the opposing party had an oppurtunity and a simila rmotive to develop testimony

Question 45

dying declaration

Answer 45

unavailable
declarant believes death is imminent
statement pertains to cause of death
need not die (FRE) died (CA)
applies to only homicides and civil cases (FRE) applies to all cases (CA)

Question 46

Statement against interest

Answer 46

a statement was against a declarant’s proprietary/pecuinary interest and a reasonable person would not have made the statement unless it was true
California includes statments that subject the person to moral condemnation/hatred

Question 47

Present sense impression (FRE)

Answer 47

statement explaininf or describing an event made while or immediatley after perception

Question 48

Conemporaneous statment (CA)

Answer 48

statement offered to explain or make understandable the declarant’s current conduct

Question 49

Excited utterance

Answer 49

statemetn about startling event or condition while declarant is under teh stress that it caused
called spontaneous statement in CA

Question 50

Statment of mental, emotional, or physical condition

Answer 50

statemetn of then existing state of mind (present intent, motive, plan) or emotional , sensory, or physical conditions (but not the cause)
CA: explicit trustworthiness condition, also will allow past state of mind if unavailable

Question 51

Statement made fo rmedical diagnosis/treatment

Answer 51

describing medical history or past or present symptoms is not excluded as hearsay if it is made for medical treatment , statements about cause are okay, may be made by close relative,
CA only applies for minors under 12 describing abuse/neglect

Question 52

Recorded Recollection

Answer 52

if the witness is not able to testify because they do not remember and refreshment is not enough, the record can be admitted if
it was a matter that the witness once knew
the record was made when it was fresh in the witness’s memory
accuratley reflects the witness’s knowledge
and the witness states they cannot recall after consulting the record

Question 53

Business records

Answer 53

the record must be kept in the course of regularly conducted business,
the making of the record was a regular occurance
record was made at or near the time by someon with knoewldge
CA: does not require that the record was a regular part of pratice
must indicate trustworthiness

Question 54

Public records

Answer 54

not admissible against a criminal defendant
statement of public office/agency about the agency’s activities or findings from an investigation

Question 55

Learned treatises

Answer 55

a statement a treatise is not excluded if the expert witness relief on the statment and the publication si a reliable authority
CA: only allows historical works, books of science/art, published maps

Question 56

Judgment of a previous conviction

Answer 56

final judgment must be entered after trial, the conviction was punishable by death or imprisonment for >1 year, evidence offered to prove anny fact essential to sustain judgment
CA: any felony conviction admisible in any civil action

Question 57

Confrontation clause

Answer 57

To admit a testimonial statemet against a criminal defendant, the defendant msut have had an opportunity to confront and cross examine the declarant
a testimonial statment is one made for purposes of litigation, emergency statments to police or interrogation are not testimonial

Question 58

Co conspirator admission

Answer 58

Under the CEC, 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.