Evidence

Question 1

Opposing Party Statement

Answer 1

A statement made by an opposing party is admissible if it is (1) made by the party, (2) offered against that party, and (3) includes personal statements, adoptive admissions, authorized statements, statements by agents or employees, or statements by co-conspirators made during and in furtherance of the conspiracy. Such statements are classified as non-hearsay under the FRE and an exception to hearsay under the CEC.

Question 2

Prior Consistent Statement

Answer 2

Under FRE 801(d)(1)(B) and CEC 1236, a prior consistent statement is admissible to:

Rebut a charge of recent fabrication or improper influence or motive, or
Rehabilitate credibility if attacked on another ground.

The statement must precede the alleged fabrication, influence, or motive. It is admissible as substantive evidence under both FRE and CEC.

Question 3

Residual Exception

Answer 3

Under FRE 807, a hearsay statement not covered by other exceptions is admissible if it is trustworthy, material, more probative than alternatives, and serves the interests of justice. The proponent must give advance notice. California does not recognize a residual hearsay exception.

Question 4

Public Record

Answer 4

Under FRE 803(8) and CEC 1280, public records are admissible if they record public office activities, matters observed under a legal duty, or factual findings from an authorized investigation. They are inadmissible if untrustworthy or, in criminal cases, used against a defendant to prove law enforcement observations.

Question 5

Business Records

Answer 5

Under FRE 801(d)(1)(A) and CEC 1235, a prior inconsistent statement is admissible to impeach a witness’s credibility. If made under oath in a prior proceeding or deposition, it is also admissible as substantive evidence under FRE. In California, such statements are admissible for both impeachment and substantive purposes, regardless of being under oath.

Question 6

Past Recollection Recorded

Answer 6

Under FRE 803(5) and CEC 1237, a record is admissible if the witness once knew the matter, made or adopted the record when fresh, the record is accurate, and the witness cannot recall fully even after reviewing it. It may be read into evidence but admitted as an exhibit only if offered by the opposing party.

Question 7

Medical Diagnosis/Treatment

Answer 7

Under the Model Rules, a statement made for the purpose of medical diagnosis or treatment describing medical history, symptoms, or the cause of the condition is admissible if reasonably pertinent to diagnosis or treatment (FRE 803(4)).

In California, such statements are only admissible if made by a child under 12 describing child abuse or neglect (CEC 1253).

Question 8

State of Mind

Answer 8

Under the Model Rules and California, a statement of the declarant’s then-existing state of mind, emotion, sensation, or physical condition is admissible if offered to prove the declarant’s state at that time or to explain future actions. Statements of memory or belief are inadmissible when offered to prove the truth of the matter remembered or believed, except in cases involving wills (FRE 803(3); CEC 1250)

Question 9

Excited Utterance

Answer 9

Under the Model Rules and California, an excited utterance is admissible if it is a statement made while the declarant was under the stress or excitement caused by a startling event or condition, and the statement relates to that event or condition (FRE 803(2); CEC 1240).

Question 10

Present Sense Impression

Answer 10

Under the Model Rules and California, a present sense impression is admissible if it is a statement describing or explaining an event or condition made while the declarant was perceiving it or immediately thereafter. California refers to this as a “contemporaneous statement” (FRE 803(1); CEC 1241).

Question 11

Statement Offered Against Party Who Caused Declarant’s Unavailability

Answer 11

Under the Model Rules and California, a statement is admissible if the declarant is unavailable due to the wrongdoing of the party against whom the statement is offered, and the party engaged in the wrongdoing with the intent to cause the declarant’s unavailability as a witness (FRE 804(b)(6); CEC 1390).

Question 12

Personal or Family History

Answer 12

Under the Model Rules and California, statements concerning personal or family history, such as those regarding birth, marriage, divorce, ancestry, or similar matters, are admissible if the declarant is unavailable and the statements relate to their own history or that of a close relative (FRE 804(b)(4); CEC 1310).

Question 13

Statements Against Interest

Answer 13

Under the Model Rules and California, a statement against interest is admissible if the declarant is unavailable and the statement was so contrary to the declarant’s own pecuniary, proprietary, or penal interest that a reasonable person would not have made it unless true. California also includes statements that expose the declarant to social disgrace (FRE 804(b)(3); CEC 1230).

Question 14

Dying Declaration

Answer 14

Under the Model Rules and California, a dying declaration is admissible if the declarant, while believing death was imminent, made a statement about its cause or circumstances. California allows dying declarations in all cases, while the Model Rules limit them to civil cases and homicide prosecutions (FRE 804(b)(2); CEC 1242).

Question 15

Former Testimony

Answer 15

Under the Model Rules and California, former testimony is admissible if the declarant is unavailable, the testimony was given under oath in a prior proceeding or deposition, and the party against whom it is offered had an opportunity and similar motive to cross-examine the declarant (FRE 804(b)(1); CEC 1291).

Question 16

Confrontation Clause

Answer 16

Under the Model Rules and in California, testimonial hearsay is inadmissible unless the declarant is unavailable, and the defendant had a prior opportunity to cross-examine

Question 17

Hearsay

Answer 17

Under the Model Rules and in California, hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is generally inadmissible unless it falls under a recognized exception.

Question 18

Authentication

Answer 18

Under the Model Rules and in California, evidence must be supported by sufficient proof to show it is what it claims to be, typically through witness testimony, distinctive characteristics, or chain of custody.

Question 19

Prior Inconsistent Statements

Answer 19

Under the Model Rules and California, a prior inconsistent statement is admissible to impeach a witness’s credibility. If the statement was made under oath in a prior proceeding or deposition, it is also admissible as substantive evidence (FRE 801(d)(1)(A)).

In California, prior inconsistent statements are admissible for both impeachment and substantive purposes, regardless of whether they were made under oath (CEC 1235).

Question 20

Logical Relevance

Answer 20

Evidence is logically relevant if it has any tendency to make a material fact more or less probable than it would be without the evidence.

In California, the fact of consequence must also be in dispute.

Question 21

Legal Relevance

Answer 21

Evidence is legally relevant if its probative value is not substantially outweighed by the risk of unfair prejudice, confusing the issues, misleading the jury , or wasting time.

Question 22

Evidence Relevance

Answer 22

Evidence is admissible if it is both Logically and Legally relevant.

Question 23

Lawyer’s Opinion

Answer 23

Under the Model Rules, lawyers may not assert personal opinions on a client’s guilt or innocence or knowingly make false statements (MR 3.4(e), MR 3.3(a)).

California permits genuine personal opinions if legally supportable but prohibits knowingly false statements (CRPC 3.4(e), CRPC 3.3(a)).

Question 24

Duty of Candor

Answer 24

Model Rules: A lawyer must not knowingly make false statements, fail to correct false evidence, or fail to disclose adverse controlling authority (MR 3.3).

California Rules: A lawyer must not knowingly make or use false statements or evidence and must correct false evidence if introduced (CRPC 3.3).

Question 25

False Testimony

Answer 25

Under the Model Rules, lawyers must not knowingly present false evidence and must take remedial measures if false evidence is introduced (MR 3.3(a)(3)).

In California, similarly, lawyers are prohibited from presenting false evidence and must address any false testimony presented (CRPC 3.3(a)(3)).

Question 26

Best Evidence Rule

Answer 26

The best evidence rule (FRE 1002; CEC 1521) requires the original writing to prove its content unless an exception applies, such as the original being lost or unavailable without bad faith (FRE 1004; CEC 1521(b)).

Question 27

Expert Testimony

Answer 27

Expert testimony is admissible if (1) the expert is qualified, (2) the testimony will assist the trier of fact, (3) it is based on sufficient facts or data, (4) it is the product of reliable principles and methods, and (5) the expert reliably applied those principles to the facts (FRE 702; CEC 801-802).

Question 28

Expert Testimony Test

Answer 28

Daubert Standard (FRE): Expert testimony is admissible if it is based on reliable principles and methods, tested, peer-reviewed, has a known error rate, includes standards, and is generally accepted in the relevant scientific community (FRE 702).

Kelly-Frye Standard (CEC): Novel scientific evidence is admissible if the technique is generally accepted as reliable in the relevant scientific community and correctly applied to the case.

Question 29

Learned Treatises

Answer 29

(FRE): A statement from a learned treatise is admissible for its truth if it is relied on by an expert during direct examination or brought to the expert’s attention on cross-examination and established as a reliable authority (FRE 803(18)). It may be read into evidence but not received as an exhibit.

(CEC): A learned treatise may be used only to impeach an expert’s testimony if established as a reliable authority (CEC 721(b)). It is not admissible as substantive evidence.

Question 30

California Prop 8

Answer 30

Under California law, Proposition 8 (Cal. Const. art. I, § 28(f)(2)) makes all relevant evidence admissible in criminal cases, subject to certain exceptions (e.g., hearsay, privilege, Evidence Code § 352).