Evidence

Question 1

Forum

Answer 1

CA (Prop 8 - all relevant evidence admissible) or Federal / Civil or Criminal

Question 2

Sequence of Evidence

Answer 2

determines applicable objections

a. Plaintiff / Prosecution, Defendant
b. Direct, Cross, etc.

Question 3

If question of counsel is in quotes, consider objections to form of question or to answer

Answer 3

“CL CANS” - 1) calls for narrative, 2) leading, 3) compound, 4) assumes facts not in evidence, 5) non-responsive, 6) speculation

Question 4

Purpose

Answer 4

What is the purpose for introducing the evidence?

(1) Logical Relevance
(2) Legal Relevance
(3) Character Evidence

Question 5

Logical Relevance

Answer 5

tends to prove or disprove a fact of consequence in the action

note: CA - disputed fact of consequence

Question 6

Legal Relevance

Answer 6

probative value of the evidence is not substantially outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative facts

Question 7

Legal Relevance (public policy exclusions)

Answer 7

liability insurance; subsequent remedial measures; settlement offers; payment or offer to pay medical expenses; guilty pleas; expressions of sympathy (CA - civil only)

Question 8

Character Evidence

Answer 8

offered to prove element of case (substantively) or impeach?

Question 9

Character Evidence (civil case)

Answer 9

generally inadmissible to prove negligence, fault, or person’s conduct on a given occasion. BUT, admissible if character is in issue, for impeachment, or to show habit

Question 10

Character Evidence (criminal case)

Answer 10

admissible for “MIMIC” (Motive, Intent, Mistake, Identity, Common scheme) or for impeachment. But, evidence of ∆’s character to show propensity is inadmissible by P unless and until ∆ “opens door” by presenting evidence of his good character to show innocence

i. If ∆ opens door, P may present evidence of ∆’s character to rebut;
ii. CA DV and Elder Abuse Exception - Evidence ∆ previously assaulted V admissible

Question 11

Character Evidence (victim’s bad character)

Answer 11

admissible when relevant to show ∆’s innocence

i. Criminal Rape - V’s sex behavior admissible to prove someone other than ∆ is source of physical evidence. Specific instances of sexual behavior between V and accused admissible by prosecution for any reason and by ∆ to show consent
ii. Civil Rape - V’s sex behavior admissible if not excluded by rules or probative value substantially outweighs harm. V’s reputation admissible only if in controversy

Question 12

Presentation

Answer 12

How is evidence being presented?

(1) Testimonial;
(2) Document;
(3) Judicial Notice;
(4) Burdens of Proof;
(5) Presumptions

Question 13

Testimonial

Answer 13

Witness must be reliable – competency (age/mental) and personal knowledge

Question 14

Opinion (Expert)

Answer 14

Must be qualified

Question 15

Opinion (Expert - FED test)

Answer 15

Daubert/Kumho - 1) publication/peer review, 2) error rate, 3) results tested and can retest, 4) reasonable level of acceptance

Question 16

Opinion (Expert - CA test)

Answer 16

Kelley/Frye - opinion must be based on principles generally accepted by experts in the field

Question 17

Opinion (Lay)

Answer 17

generally inadmissible UNLESS 1) rationally based on perception, 2) helpful to understanding, 3) not based on specialized knowledge

Question 18

Impeachment

Answer 18

(1) Character for truth or veracity; (2) Prior Inconsistent Statements; (3) Bias/Motive; (4) Refresh Recollection; or (5) Recorded Recollection

Question 19

Impeachment (character for truth / veracity)

Answer 19

Prior felony conviction/crime involving truth (no foundation required)

a. Fed - felonies/misdos involving false statement admissible, if older than 10 years inadmissible unless probative value outweighs prejudice
b. CA - felonies (no misdos) involving “moral turpitude” ok, no ten year requirement, but court must balance

Question 20

Impeachment (prior inconsistent statement)

Answer 20

need opportunity to explain

Question 21

Impeachment (bias / motive)

Answer 21

challenge witness’s bias or motive in testifying

Question 22

Impeachment (refresh recollection)

Answer 22

use anything, show opposing counsel, opposing counsel can admit

Question 23

Impeachment (recorded recollection)

Answer 23

read writing into evidence (needs proper foundation)

Question 24

Document Reliability

Answer 24

Authentication and Best Evidence Rule

Question 25

Authentication

Answer 25

the writing is what the proponent claims it is; only enough evidence to support a jury finding of genuineness is required

Question 26

Best Evidence Rule (FRE); Secondary Evidence Rule (CA)

Answer 26

in proving contents of writing, original writing itself must be produced or shown to be unavailable, unless writing refers to collateral matter

Question 27

Judicial Notice

Answer 27

indisputable, common knowledge, must take JN for federal/state law

Question 28

Judicial Notice (civil)

Answer 28

just must accept (fact is conclusive)

Question 29

Judicial Notice (criminal)

Answer 29

jury may accept, but not required to (prosecution met its burden)

Question 30

Burdens of Proof

Answer 30

preponderance of evidence; clear & convincing evidence; OR beyond a reasonable doubt

Question 31

Presumptions

Answer 31

requires particular inference to be drawn from facts, shifts burden to other party

Question 32

Hearsay (definition)

Answer 32

(1) out of court;
(2) statement;
(3) offered to prove truth of the matter asserted

note: must be made by a human declarant

Question 33

Hearsay (not offered for its truth / NOT hearsay)

Answer 33

Some evidence is not hearsay because it is not being offered for its truth [“VEND”]

(1) Verbal acts or legally operative facts (words of contract; defamation)
(2) Effect on the hearer or reader (e.g., to prove notice in negligence case);
(3) Nonhuman declarations (e.g., by an animal or machine); OR
(4) circumstantial evidence of Declarant’s state of mind

Question 34

Non-hearsay - FED “exemption”, CA “exception”

Answer 34

(1) Prior statements by witness

(2) Admissions

Question 35

Non-hearsay - Prior Statements by Witness

Answer 35

(a) prior inconsistent statement; (b) prior consistent statement; OR c) prior identification

Question 36

Non-hearsay - Admissions

Answer 36

(a) party; (b) vicarious (employer-employee); c) adoptive (tacit / silent); OR (d) co-conspirator statements (remember: 6th Amend Confrontation Clause)

Question 37

Hearsay Exceptions (Unavailable Witness)

Answer 37

1) privilege, 2) refuses, 3) lack of memory, 4) dead/sick 5) absent

i. Declarations against interest / CA allows statements against societal interest
ii. Dying declaration - Fed (civil / homicide) CA (all civil/criminal, declarant must be dead)
iii. Former testimony
iv. CA - O.J. Exception - statement made near or at time of injury or threat

Question 38

Hearsay Exceptions (Reliability)

Answer 38

[unavailability immaterial]

i. Excited utterance (Fed) / Spontaneous Statement (CA)
ii. Present sense impression - Fed broader than CA
iii. Medical condition - Fed (med treatment) CA (minor, child abuse/neglect, unavailable)
iv. State of Mind- then existing state of mind, emotion, sensation, or physical condition

Question 39

Hearsay Exceptions (Documentary)

Answer 39

[unavailability immaterial]

i. Past recollection record
ii. Business Records
iii. Public records

Question 40

Business Records HS Exception (FED)

Answer 40

1) describes activities or policies 2) describes matters observed pursuant to duty imposed by law (no police reports in criminal cases), 3) contains factual findings resulting from investigation made pursuant to authority unless untrustworthy

Question 41

Business Records HS Exception (CA)

Answer 41

admissible if (1) within scope of duties, (2) made at or near time of matters described, and (3) circumstances indicate trustworthiness

Question 42

Hearsay Exceptions (Other)

Answer 42

[unavailability immaterial]

i. Ancient documents - 20 years or older (Fed), 30 years or older (CA)
ii. Learned treatises - established as reliable authority
iii. Catch All - trustworthiness, necessary, notice to adversary (Fed) / Balancing (CA 352)

Question 43

Hearsay Exceptions (categories)

Answer 43

(1) Unavailability; (2) Reliability; (3) Documentary; and (4) Others

Question 44

Privileges

Answer 44

(1) Privileged relationship (professional OR marital);
(2) Confidential communication (not intended to be revealed to third parties;
(3) Holder of privilege and waiver issues;
(4) Exceptions (cannot use attorney’s services to advance crime or fraud, etc.)

Question 45

Professional Privileges

Answer 45

a. Fed - Attorney-Client, pyschotherapist/patient

b. CA - counselor/victim of sex assault, penitent/clergy, no contempt for news reporter

Question 46

Marital Privileges (categories)

Answer 46

(1) Spousal Immunity; and

(2) Confidential Marital Communications

Question 47

Marital Privileges (Spousal Immunity)

Answer 47

Married witness can refuse to testify against spouse about anything. Claimed during marriage only but covers information learned before and during the marriage

i. Fed - criminal cases only
ii. CA - civil and criminal, spouse can invoke privilege and not even be called to stand

Question 48

Marital Privileges (Confidential Communications)

Answer 48

Applies to communications made during marriage and divorce does not terminate (but communications made AFTER divorce are not privileged)