Evidence

Question 1

*Relevance

Answer 1

In order for evidence to be admissible in a court of law, evidence must be both logically and legally relevant.

Question 2

*Logical Relevance

Answer 2

“Evidence is relevant if it is material to a disputed fact.”

Question 3

*Legal Relevance

Answer 3

Evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusing issues, misleading jury, undue delay, wasting time or being needlessly cumulative.

Question 4

*California Prop 8

Answer 4

Prop 8 applies to all criminal trials in CA. It is the Victim’s Bill of Rights and provides that all relevant evidence is admissible, subject to balancing, as well as several exceptions. These exceptions include 1) the exclusionary rule; 2) the secondary/best evidence rule; 3) hearsay exclusions; 4) rape shield rules; 5) privilege exclusions; 6) limits on prosecutor offering specific evidence prior to defendant opening the door.

Question 5

*CA 352 Balancing

Answer 5

When there is a substantial likelihood that the evidence is more prejudicial than probative the court must conduct a balancing test when determining admission, where analysis is similar to the analysis required for legal relevance.

Question 6

*Policy Exclusions:

Answer 6

• Evidence of insurance against liability is not admissible to show negligence or ability to pay a substantial judgment.
• Evidence of a settlement offer or offers to compromise are not admissible to prove liability for or invalidity of a claim that is disputed as to validity or amount (In CA, discussions and writing during mediation proceedings also not admissible).
• Offers to pay Medical Bills – not admissible to prove liability, even if there is no disputed claim. Under the FRE, related statements of fact are admissible, in CA, they are not.
• Subsequent remedial measures are inadmissible to prove liability but may be used to show ownership or control if disputed (FRE Only – can’t be admitted to prove defective design in a strict products liability case).

Question 7

Withdrawal of Pleas

Answer 7

A withdrawal of a guilty plea is inadmissible.

Question 8

Competence and Personal Knowledge

Answer 8

Non-expert witnesses must be competent and have personal knowledge of a matter to testify about the matter. Witnesses cannot be physically or mentally impaired and cannot be too young to understand the oath and the need to testify truthfully. Competence is presumed in the CA evidence code.

Question 9

*Authentication

Answer 9

A party must prove the item it seeks to admit is actually what the party purports it to be. Evidence can authenticated via witness testimony or evidence of holding in a substantially unbroken chain of custody.

Question 10

Vocal Recognition

Answer 10

A voice may be identiied by the opinion o anyone who has heard the voice at any time, even the same day or during curent trial proceedings

Question 11

Signature Recognition

Answer 11

A jury can verify the authenticity off fa signature with an appropriate example to compare.

Question 12

*Best Evidence Rule

Answer 12

A party must provide the original document when testifying to contents of a writing. A photocopy is an acceptable substitute. Oral testimony is allowable only after showing original is not available for some reason other than misconduct. In CA called the Secondary Evidence Rule. CA accepts duplicates and hand-written evidence of the contents of an original document.

Question 13

Character Evidence

Answer 13

Evidence of a person’s character is not admissible to show propensity, but may be admissible for other purposes, such as when character is at issue (defamation, etc), or for impeachment purposes.

Question 14

Defendant’s Character

Answer 14

In criminal cases, a defendant has a right to provide evidence of their own character, but once they do, they have “opened the door” to cross examination regarding character by the prosecution

Question 15

Victim’s Character

Answer 15

A defendant may provide evidence of the victim’s character to prove the defendant’s innocense, except in cases which involve rape. Prosecution may counter this by showing victim’s good character for the same trait, or the defendant’s bad character for the same trait. This applies only to violent traits in CA.

Question 16

Method of admission

Answer 16

FRE - When character evidence is admissible, it can be proven by opinion or reputation testimony, or, if done during cross, specific acts.
CA - The defendant’s character can only be proven by opinion or reputation. The victim’s character can be proven by opinion, reputation or specific acts

Question 17

404(b) Prior Bad Acts

Answer 17

Evidence of any other crime, wrong, or act is not admissible to prove a perston’s character in order to show that on a particular occasion, a person behaved in accordance with that character. However, the evidence may be admissible for other purposes, such as proving motive, opportunity, intent, preparation, planning, knowlege, identity, absence of mistake, or lack of accident (MOPPIKIAL)

Question 18

Prior Convictions

Answer 18

Felony or misdemeanor convictions involving dishonesty are always available to impeach. Felonies not for dishonesty have a 10-year limit from the latter of convition or release from confinement. Requires probative value/prejuicial evvect determination, an proper notice.
CA- Admission requires CEC 352 balancing for moral turpitue crimes, and misemeanors are admissible under Prop 8

Question 19

Prior Inconsistent Statement

Answer 19

These statements are admissible to imeach. Extrinsic evidence is admissible only if relevant to a material issue, and proper foundation is laid.
CA - A prior inconsistent statement is amissible as non-hearsy when oered only to imeach a witness, and wehther or not under oath

Question 20

Witness Competence

Answer 20

FRE - All witnesses are assumed to be competent.
CA - All witnesses must unerstand that they have a duty to tell the truth

Question 21

*Lay Witness

Answer 21

A lay witness is any person that is not an expert. They must take an oath to tell the truth, and have capacity to perceive, recall and communicate. They may offer an opinion if it is rationally based on the witness’ perception and it is helpful to the jury. Lay witness testimony cannot be based on specialized or scientific knowledge.

Question 22

*Expert Witnesses

Answer 22

Expert testimony is appropriate only when the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact. The witness must believe the opinion, which must be supported by fact and based on reliable principles.

Question 23

Expert witnesses In CA, Kelley/Frye Standard

Answer 23

The opinion must be based on principles generally accepted by experts in the field

Question 24

Expert witnesses In CA, Daubert/Kumho Standard

Answer 24

Reliability is determined by publication, peer review, error rate, results are tested and have an ability to retest, and reasonable level of acceptance in the community.

Question 25

Consulting Expert Witnesses

Answer 25

These experts are retained by a party, but not expected to testify. They have a higher standard to meet in order to subpoena and are only discoverable upon a showing of exceptional circumstances under which it would be impractical to the other party to obtain facts by other means.

Question 26

Non-expert testimony

Answer 26

The judge will determine if the witness has sufficient knowledge, not the jury.

Question 27

Witnesses

Answer 27

If a party asks that observing witnesses be excluded when other witnesses testify, the judge MUST comply

Question 28

Limitations on Cross Examination

Answer 28

Courts may allow inuiry into aditional matters on cross that weren't adddresse don direct

Question 29

Hypnosis

Answer 29

CA - Witnesses who have been hypnotized to refresh recollection are disqualified, except in criminal cases, where they were hypnotized by police using proceures that protect against suggestion

Question 30

Experts in Criminal Cases

Answer 30

An expert is prohibite from testifying to a criminally accused's mens rea

Question 31

*Hearsay

Answer 31

An out of court statement that is offered to prove the truth of the matter asserted. Only admissible if it falls under an exception.

Question 32

*Multiple Levels of Hearsay

Answer 32

Hearsay within hearsay, where each level must fall within an exception in order to be admissible.

Question 33

*Non-Hearsay Statements

Answer 33

If a statement is offered to prove something other than the truth of the matter asserted, it is non-hearsay and is admissible. Common non-hearsay statements include: (1) verbal acts of independent legal significance; (2) statements offered to show the effect on the listener; (3) a prior inconsistent statement used to impeach; and (4) circumstantial evidence of the speaker’s state of mind (these show belief, attitude, knowledge or mental state).

Question 34

Declarant is Unavailable

Answer 34

A declarant is deemed unavailable if they refuse to testify due to privilege, if they are unable to recall or testify from memory, if they are sick or dead, or if they cannot be called to testify after reasonable effort, or if declarant suffers total memory loss or refuses to testify out of fear.

Question 35

Statement Against Interest

Answer 35

A statement made against one's penal, proprietary, or pecuniary interest when uttered, and would not have been made by a reaonsable person unless they believe it to be true. Applies when decalarant is unavailable and has no motive to lie.

Question 36

Former Testimony Exception

Answer 36

Testimony given as a witness at a trial or hearing is now offered against a party who had an opportunity to develop that testimony by direct, cross, or redirect examination. The witness must be unavailable.

Question 37

*Dying Declaration

Answer 37

In homicide or civil case, statement of declarant made while declarant believed they were dying, made about the cause or circumstances of their death. The declarant must be unavailable, but does not need to be dead. In CA, can be used in any criminal or civil case and the declarant must be dead.

Question 38

Past Recollection Recorded

Answer 38

A recollection the wittness once had personal knwoledge of but cannot recall well enough to testify to. The writing mst have been made while the matter was still fresh in the witness' memory and it must accurately reelct the witness' knoweldge. Admissible whether or not declarant is unavailable.

Question 39

Present Recollection Refreshed

Answer 39

A witness may review a writing, or any other thing, to refresh their memory. The witness may review the item but may not read it directly into the record. The adverse party is allowed to insepct the item and use it for cross examination.

Question 40

Adoptive Admission

Answer 40

An adoptive admission may occur if a defendant remains silent after hearing or becoming aware of a statement, whereas a reasonable person would have denied making such a statement.

Question 41

Statement of Party Opponent

Answer 41

A prior out of court statement made by a party to the current litigation that is used against that party is not hearsay. The statement doesn't have to be against the interest at the time of declaring, only contrary to the declarant's present interest. CA - it is hearsay, but still admissible.

Question 42

Vicarious Admissions

Answer 42

A vicarious admission is a statement made by an authorized represenative of a party opponent about another person or organization. This is non-hearsay.

Question 43

Police Sketches

Answer 43

A police sketch is an out of court statement of an unavailable wittness, and is inadmissible as hearsay unless the teller (not artist) is unavailable to testify.

Question 44

Prior Statements of Identification

Answer 44

Statements of the declarant's prior identification are non-hearsay, however the declarant must be present forr testimony and cross in court.

Question 45

*Excited Utterance/CA-Spontaneous Statement

Answer 45

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of the excitement. These are admissible whether or not the declarant is available.

Question 46

*Present Sense Impression/CA-Contemporaneous statement

Answer 46

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. In CA, only qualifies if explaining conduct of declarant made while declarant was engaged in such conduct. These are admissible whether or not the declarant is available.

Question 47

Absence of a Record Regularly Recorded

Answer 47

Evidence that a matter is not included in a record is admissible if the purpose is to prove the matter did not occur or eist and the record was typically recorded for such matter. These are admissible whether or not the declarant is available.

Question 48

Learned Treatise Hearsay Exception

Answer 48

Information from learned teatises may be admissible if brough to the attention of the expert witness upon cross or relied upon during testimony, and it is established as reliable. Statements may be read into evidence and need not be made by the expert. The jury is not allowed to bring the treatises int othe jury room because they may read wrong passages or be confused by technical material. These are admissible whether or not witness is available.

Question 49

*Business Records

Answer 49

An admissible business record is a record 1) made at or near the time of occurrents, or from information transmitted from someone with knowledge; 2) kept in the course of a regularly conducted activity of a business; 3) making that record was a regular practice; and 4) all the above are shown by testimony of the custodian. May be inadmissible if the opponent can show its preparation indicates a lack of trustworthiness. In CA no opinions or diagnosis, and party introducing has the burden to h dad u so show trustworthiness. CA does not admit police records as business records but allows them as official records. These are admissible whether or not the declarant is available.

Question 50

Public records

Answer 50

These records are admissible if 1) they set out the office activities; 2) about a matter observed while under a legal duty to report (except in criminal case a matter observed by police); OR 3) shows factual findings of a legal investigation. These are admissible whether or not the declarant is available. In CA, made by a public employee in the scope of duty, at or near the time of the act and with no indication of untrustworthiness.

Question 51

Ancient Documents

Answer 51

An ancient document is admissible if it is more than 20 years old, is regular on its face with no signs of obvious alteration and is found in a place of natural custody, or in a place hwere it would be expected to be found. These are admissible whether or not declarant is available. CA - the document must be 30 years or older.

Question 52

*Then-existing Mental, Emotional or Physical Condition

Answer 52

A statement of declarant’s then existing state of mind (motive, intent, plan) or emotional sensory or physical condition is an exception to hearsay rule. These are admissible whether or not the declarant is available.

Question 53

Opposing Party's Statement

Answer 53

A statement made by a party to the current litigation is not hearsay if an opposing party offers it. This is non-hearsay.

Question 54

Statement made for Medical Diagnosis or Treatment

Answer 54

Admissible only if the statement relates to medical diagnosis or teatment, medical history, or symptoms and treatment. These are admissible whether or not declarant is available. CA - Only admissible for child abuse/neglect victims under 12 years old

Question 55

Judicial Notice

Answer 55

Undisputed acts may be judicially noticed if they are capable of being accurately and readily determined rom sources whose accuracy cannot be reasonably questioned; or facts generally known within the territorial jurisdiction of the trial court. The court may accept, but in civil cases, jury must accept acts as conclusive, in criminal cases, jury may or may not accept as conclusive CA - Juries must accept as conclusive in both civil and criminal

Question 56

Catch-All Hearsay Exception

Answer 56

If no other hearsay exception applies, it may still be admissible if it provideds some sort of guarantee of reliability. The statement must be essential and there is no other reliable source for the evidence.

Question 57

Confontation Clause

Answer 57

The 6th Amendment confrontation clause appled to the states via the 14th Amendment gives a criminal defendant the right to confront witnesses against him. The use of an out-of-court statement (even if it falls under an exception or exemption) violates the 6th Amendment if the declarant is unavailable for cross at trial and the defendant didn't have an opportunity to cross-examine the declarant before trial.

Question 58

Grand Jury Note

Answer 58

A defendant is not entitled to a lawyer inside the grand jury room, and illegally obtained evidence as well as hearsay is permissible. Witnesses subpoenaed to appear before a grand jury are entitleded to immunity. All privileges, however, are respected at grand juries (spousal, medical, etc). Grand jury is not a trial, they only deliver a "True Bill"

Question 59

Attorney-Client Privilege

Answer 59

A lawwyer shall not reveal any information relating to the representation of a client unless the client gives informed consent, or disclosure is impliedly authorized to carry out the representation. This privlege is held by the client, and can remain after client dies. No privilege if legal services are used to support crime or client sues attorney CA - Privilege does not survive client and is permitted if disclosure is required to prevent substantial bodily harm or death, and/or significant fraud/financial crimes per FRCP.

Question 60

Doctor-Patient Privilege

Answer 60

CA - Applies to confidential communications related to or made while obtaining medical treatment or diagnosis. Does not apply if the physician/psychotherapist believes patient is a danger to himself or others, nor when the doctor is required to report under mandatory reporter laws

Question 61

Spousal Immunity

Answer 61

A person may not be called as a witness to testify against their spouse, relating to any event before and during marriage. This privilege is held by the witness spouse and can be asserted only during marriage.

Question 62

Confidential Marital Communications

Answer 62

This privilege protects all confidential communications made during marriage - must be confidential, cannot be regarding observations, public comments, etc.. This prrivilege is held by both spouses and lasts even after divorce.

Question 63

Common Objections

Answer 63

- Non-responsive - An answer that goes beyond the scope of the question, or does not answer the question, and is subject to strike. - Beyond scope - Cross examination question that goes beyond scope of direct examination and isn't used for impeachment. Typically, it will be permitted within reason. - Calls for Narrative - A question that asks the witness to give an explanation of their own design, is open-ended and will not result in concise testimony. - Calls for Facts Not In Evidence - a foundation has not yet been laid that provides facts needed to answer that question. - Leading Question - A question that provides the answer to the witness. These are preferred in cross examination, but are inappropriate on direct unless the examiner is collecting short biographical info, witness is young child neading coaching to get to reasonable answer, witness is declared hostile, or witness is struggling to remember answer to asked question.