Evidence

Question 1

Relevance

Relevance

Answer 1

• To be admissible, evidence must be both logically and legally relevant. Relevant evidence is admissible unless another rule provides otherwise.
• Evidence is logically relevant if it has any tendency to prove or disprove a material fact. (In CA, the material fact must be in dispute).
• Evidence is legally relevant if its probative value is not substantially outweighed by a danger of unfair prejudice, confusing the issues, or wasting time.

Question 2

Relevance

California Proposition 8

Answer 2

Under California Proposition 8 (Prop 8), all relevant evidence is admissible in a criminal trial, subject to a few special exemptions.

“Here, this is a criminal case, so despite any objections discussed below, evidence still may be admissible under Prop 8. / But this is a civil case, so Prop 8 does not apply.”

Question 3

Policy Exclusion

Subsequent Remedial Measures

Answer 3

• Because of public policy, evidence of subsequent remedial measures is not admissible to show culpability or negligence.
• (In addition, under the FRE, in a PL action, evidence of safety measures is not admissible to show a defective in a product)

May be admissible to show ownership/control; or to rebut a claim that the precaution was not feasible; impeachment.

Question 4

Policy Exclusion

Evidence of Liability Insurance

Answer 4

Because of public policy, evidence of liability insurance is not admissible to prove culpability (that a person acted negligently or wrongfully).

May be admissible for another purpose, such as proving ownership, impeachment.

Question 5

Policy Exclusion

Offers to Pay Medical Bills

Answer 5

• Because of public policy, evidence of offering to pay medical expenses is not admissible to prove liability for injury.
• (Under the FRE, any related statements made during an offer to pay medical expenses are admissible. (But not under the CEC).)

Question 6

Policy Exclusion

Offers to Settle

Answer 6

Because of public policy, offers to compromise and statements made during settlement negotiations are not admissible to:
(a) prove the claim’s validity or amount, or
(b) impeach by prior inconsistent statement.

Question 7

Physical & Documentary Evidence

Authentication of Evidence (General Rule)

Answer 7

All evidence, other than testimony, must be authenticated before being admitted, i.e., a party must prove that the item is what the party purports it to be.

Question 8

Physical & Documentary Evidence

Authentication of Evidence (Physical Evidence)

Answer 8

Physical evidence may be authenticated through:
(a) W testimony, or
(b) a substantially unbroken chain of custody.

Question 9

Physical & Documentary Evidence

Authentication of Evidence (Voice Recordings)

Answer 9

Voice recordings may be authenticated by anyone who has heard the person speak (firsthand or electronically).

Question 10

Physical & Documentary Evidence

Best Evidence Rule

Answer 10

• To prove the contents of the writing, a party must provide the original document (or reliable duplicate/photocopy).
• Under the FRE, handwritten duplicates are not admissible. In CA, handwritten duplicates are admissible.
• In CA, this rule is called the Secondary Evidence Rule. The SER is an exception to Prop 8.

Question 11

Character Evidence

Character Evidence (General Rule)

Answer 11

• Generally, character evidence is not admissible to show propensity (that a person acted in conformity with a character trait on a particular occasion).
• However, character evidence is admissible:
  (a) for non-propensity purposes, or
  (b) when the character is “at issue” (e.g. defamation, child custody cases).

Character rules can overlap with impeachment rules when a witness is on the stand. If the purpose for the character evidence is to prove that a W is untruthful -> impeachment rules, if it is for any other purpose -> character evidence rule.

Question 12

Character Evidence

Character Evidence (Criminal Case)

Answer 12

• In criminal cases, a D may introduce evidence of their own good character or the V’s bad character. Only if a D “opens the door” and presents evidence of the D’s or the V’s character, the prosecution may offer evidence of the D’s character for that character trait.
• Only if a D “opens the door” and presents evidence of the V’s (bad) character, the prosecution may offer evidence of the V’s good character.
• Limits on prosecution from offering CE is an exception to Prop 8.

Question 13

Character Evidence

Methods of Proving Character (Criminal Cases)

Answer 13

• Where character evidence is allowable, only reputation and opinion evidence are allowed on both direct and cross.
• Specific acts may be asked about on cross, but no extrinsic evidence is permitted.
• In CA, all forms of evidence are admissible on both direct and cross to prove the V’s character.

Question 14

Character Evidence

Prior Bad Acts

Answer 14

• Evidence of prior bad acts or crimes is not admissible to show propensity.
• However, it may be admissible for some other purpose, such as to show: intent, preparation, identity, knowledge, absence of mistake or accident, motive, opportunity, or plan.

I PIK A MOP

Question 15

Impeachment

Prior Inconsistent Statements

Answer 15

• Prior inconsistent statements are admissible to impeach a W’s credibility.
• Extrinsic evidence is admissible only if:
  (1) the W is given an opportunity to explain or deny, and
  (2) the adverse party is given an opportunity to examine the W about it.

The limitation on extrinsic evidence is not applicable to statements by a party opponent.

Question 16

Impeachment

Prior Convictions (FRE)

Answer 16

Under the FRE,
* Prior felony or misdemeanor convictions involving dishonesty are always admissible to impeach a W, and the judge has no discretion to exclude it unless it is more than 10 years old.
* Felonies not involving dishonesty are admissible to impeach, subject to the court’s balancing.
* Misdemeanors not involving dishonesty are not admissible to impeach.

Question 17

Impeachment

Prior Convictions (CEC)

Answer 17

In CA,
* Felony convictions involving moral turpitude are admissible to impeach, subject to the court’s balancing.
* Misdemeanors involving moral turpitude are admissible in a criminal case.
* Moral turpitude includes crimes involving lying, violence, sex crime, and extreme recklessness.

Question 18

Impeachment

Specific Acts (“Bad Acts”)

Answer 18

• Under the FRE, W’s specific acts (prior bad acts) that are probative of truthfulness are admissible on cross by questioning him, but extrinsic evidence is never admissible.
• In CA, prior bad acts are only admissible in criminal cases under Prop 8 if the acts involve moral turpitude (extrinsic evidence is permitted).

Question 19

Witness Examination

Lay Witness

Answer 19

• A lay W may only testify to matters of personal knowledge.
• A lay W’s opinion is admissible only if it is:
  (1) rationally based on the W’s perception, and
  (2) helpful to the factfinder.

Question 20

Witness Examination

Expert Witness

Answer 20

Expert testimoby is permitted when:
1. the W is qualified as an expert,
2. the testimony is helpful to the factfinder,
3. the testimony is based on sufficient facts or data,
4. the testimony is based on reliable principles and methods, and
5. the expert has reasonably applied the principles and methods to the facts to the case.

Question 21

Witness Examination

Refreshing Recollection

Answer 21

Refreshing a W’s memory using any item (including a document) is permitted when the W is unable to recall the matter while testifying.

Item自体をadmitはしないので、Hearsayではない。cf. Past Recollection Recorded

Question 22

Judicial Notice

Judicial Notice

Answer 22

• A court may take judicial notice of indisputable facts that are:
  (a) commonly known in the community, or
  (b) can be verified based on unquestionable source.
• Under the FRE, judicial notice is conclusive in civil cases. In criminal cases the jury may or may not accept it as conclusive.
• In CA, judicial notice is conclusive in both civil and criminal cases.

Question 23

Objections to the form of the question

Assumes Facts Not in Evidence

Answer 23

A question that assumes facts not in evidence is not permitted.

Question 24

Objections to the form of the question

Leading Question

Answer 24

• A leading question is one that suggests an answer to the W.
• Leading questions are permitted on cross, but not on direct.

Question 25

# Objections to the form of the question (answer) Non-Responsive Answer

Answer 25

A non-responsive answer provides more information than the question asked for and is not permitted.

Question 26

# Objections to the form of the question (answer) Speculation

Answer 26

A W may only testify to personal knowledge and cannot speculate.

Question 27

# Hearsay Hearsay Definition

Answer 27

* Hearsay is: 1. an out-of-court statement, 2. that is offered to prove the truth of the matter asserted. * Hearsay is only admissible if it falls under an exception. * Hearsay is an exception to Prop 8.

Question 28

# Hearsay Multiple Hearsay

Answer 28

When evidence contains hearsay within hearsay, each level of hearsay must fall within an exception to be admissible. ## Footnote When there is a quoted statement, look for communication words (“said,” “heard,” “told”) within the quoted statement to identify multiple hearsay. For example, if A said to B, “when I saw C last week, I told him the staircase was broken.”

Question 29

# Hearsay Statements Offered for Other Purpose

Answer 29

If an out-of-court statement is offered to prove something other than the truth of the statement, it is non-hearsay and admissible. 1. Effect on listener (the listener was put on notice of some information) 2. Words of independent legal significance (e.g. solicitation, words of defamation, words establishing a K) 3. Prior inconsistent statements (impeachment), 4. State of mind

Question 30

# Hearsay Exclusions (Admissions) **A**merica **V**alues **P**eter-Parker

Answer 30

Adoptive Admission Vicarious Admission Party Admission (Statements by a Party Opponent)

Question 31

# Hearsay Exclusions (Admissions) Adoptive Admission

Answer 31

* If a party adopts a statement made by another, such statement is admissible against the party as non-hearsay. * Adoptive admission can be made by silence if a reasonable person would have denied the statement.

Question 32

# Hearsay Exclusions (Admissions) Vicarious Admission

Answer 32

* Statements by an agent or employee made during the agency or employment are admissible against the principal as non-hearsay. * Statements by one conspirator during the conspiracy are admissible against co-conspirators as non-hearsay.

Question 33

# Hearsay Exclusions (Admissions) Party Admission (Statements by a Party Opponent)

Answer 33

A statement/admission made by a party, offered against that party, is not hearsay. ## Footnote e.g. All statements made in pleadings; an anonymous letter admitting tax liability sent to the IRS in D’s handwriting; D’s guilty plea to DUI.

Question 34

# Hearsay Exceptions - Declarant Unavailable **F**ast **S**ervice **D**elivered

Answer 34

* Former Testimony * Statement Against Interest * Dying Declaration

Question 35

# Declarant Unavailable Declarant Unavailable Requirement

Answer 35

A declarant is deemed unavailable if he: (a) is privileged, (b) refuses to testify despite a court order (CA: refuses to testify out of fear), (c) does not remember the subject matter (CA: total memory loss is required), (d) is dead or sick, or (e) is beyond the reach of the court’s subpoena.

Question 36

# Declarant Unavailable Former Testimony

Answer 36

Former testimony is an exception to the hearsay rule and admissible, if 1. the declarant is unavailable, 2. the testimony is offered against a party who was present in the previous trial, and 3. the party had a similar motive and opportunity to cross examine the W in the previous trial.

Question 37

# Declarant Unavailable Statement Against Interest

Answer 37

* A statement against interest is an exception to the hearsay rule and admissible if: 1. the declarant is unavailable, and 2. it’s a statement against the declarant’s penal, proprietary, or pecuniary interest *when made*. * In CA, statements against one’s *social interests* are also admissible.

Question 38

# Declarant Unavailable Dying Declaration

Answer 38

* A dying declaration is an exception to the hearsay rule and admissible if: 1. the declarant is unavailable, 2. he believed his imminent death, and 3. the statement is about the circumstances or cause of his impending death. * In CA, the declarant must actually be dead.

Question 39

# Hearsay Exceptions - Spontaneous, Excited, or Contemporaneous **M**ulan and **P**ocahontas **S**ave **E**eyore

Answer 39

* Medical Diagnosis/Treatment Statements * Present Sense Impression * State of Mind * Excited Utterance

Question 40

# Spontaneous, Excited, or Contemporaneous Medical Diagnosis/Treatment Statement

Answer 40

A statement describes medical history or symptoms (past or present) is an exception to the hearsay rule and admissible if it is made for medical diagnosis or treatment.

Question 41

# Spontaneous, Excited, or Contemporaneous Present Sense Impression (PSI)

Answer 41

* PSI is an exception to the hearsay rule and admissible. * A PSI is a statement describing an event and made by the declarant; (a) while observing the event, or (b) immediately thereafter. * In CA, this is called a Contemporaneous Statement, and it only applies to statements: 1. explaining the declarant’s own conduct, and 2. made while the declarant was engaged in that conduct.

Question 42

# Spontaneous, Excited, or Contemporaneous State of Mind

Answer 42

* Statements of the declarant's then-existing: (a) state of mind (i.e. intent, motive, plan), or (b) emotional, sensory, or physical condition are an exception to the hearsay rule and admissible. * This does not apply to statements of memory or belief. ## Footnote e.g. "I am leaving later today to visit relatives in a distant state." (future intent); "I feel nauseated, because my husband poisoned me." (The first part of the statement was a statement of a then-existing physical condition, the second part of the statement was the declarant's belief about the reason for that condition).

Question 43

# Spontaneous, Excited, or Contemporaneous Excited Utterance

Answer 43

* An excited utterance is an exception to the hearsay rule and admissible. * An excited utterance is a statement made while the declarant was under the stress of excitement of a startling event.

Question 44

# Hearsay Exceptions - Document **P**ast **P**ublic **B**usiness

Answer 44

* **P**ast Recollection Recorded * **P**ublic Records * **B**usiness Records

Question 45

# Document Past Recollection Recorded

Answer 45

A past recollection recorded is an exception to the hearsay rule and admissible and its contents will be read to the jury if: 1. the W had personal knowledge of the events at one time, 2. the record was made or adopted by the W while the events were still fresh, and 3. the W can no longer remember the event.

Question 46

# Document Public Records

Answer 46

The following public records are admissible under the hearsay exception: 1. agency's record of its own activities, 2. observations in accordance with duties by law (except police reports in criminal cases), and 3. factual findings from a legally authorized investigation (only in civil cases).

Question 47

# Document Business Records

Answer 47

* A business record is an exception to the hearsay rule and admissible if: 1. it is made by a person with knowledge of the matter, 2. it is the regular practice of the business to make such a record, and 3. it is timely made. * In CA, the exception does not include records of opinions or diagnosis.

Question 48

# Hearsay Exceptions - Catch-All Catch-All Exception

Answer 48

* Under the FRE, a hearsay statement not covered by any exception may be admissible if it is: 1. trustworthy, 2. offered to prove a material fact, 3. more probative on the point than other evidence, and 4. notice is given to the opposing side. * CA does not have a catch-all hearsay exception.

Question 49

# Confrontation Clause Confrontation Clause (6th Amendment)

Answer 49

* The Confrontation Clause (6th Amend) gives a criminal D the right to confront Ws against him. * The use of an out-of-court statement violates the 6th Amend when: 1. the statement is testimonial, and 2. the declarant is unavailable for cross-examination. ## Footnote Testimonial: Statements made to grand juries or police whose primary purpose is to collect testimony to be used at a later trial, affidavit/report with forensic lab results.

Question 50

# Privileges Privilege & Eavesdroppers

Answer 50

Unknown eavesdroppers DO NOT destroy privilege. However, known or anticipated eavesdroppers WILL destroy privilege.

Question 51

# Privileges Attorney-Client Privilege

Answer 51

* *Confidential* communications between an attorney and client made to facilitate legal services are protected from disclosure. * The privilege does not apply when: (a) the legal services are sought to further a crime or fraud, (b) there is litigation between the attorney and client, or (c) jointly represented clients are subsequently involved in a civil litigation against each other. * The client holds the privilege, and only the client can waive it.

Question 52

# Privileges Attorney Work Product Doctrine

Answer 52

* The attorney work product doctrine protects materials prepared by an attorney or his agents in anticipation of litigation. * They are not discoverable unless there is substantial need and inability to obtain the materials through other means. * Work products that include an attorney's mental impressions, notes, or opinions are absolutely protected and are not discoverable.

Question 53

# Privileges Confidential Marital Communications

Answer 53

* Communications between spouses are privileged if: 1. made during a marriage, and 2. were intended to be confidential. * Both spouses hold the privilege. * The privilege applies even after divorce.

Question 54

# Privileges Spousal Immunity

Answer 54

* A witness-spouse may refuse to testify against his or her spouse (FRE: in a criminal case; CA: in both civil and criminal cases). * The privilege ends after divorce. *Privilege exclusions are exceptions to Prop 8.*