Evidence

Question 0

What Are the Restrictions on Holding a Reporter in Contempt of a Court Order to Testify?

Answer 0

An order of contempt of court against a reporter will not be issued if the reporter refuses to divulge information given to her in confidence and in furtherance of her role as public reporter.

Question 1

When are Prior Inconsistent Statements Admissible?

Answer 1

May be used to impeach a witness and are not considered hearsay. Extrinsic evidence of a PIS is admissible only when it addresses a central issue of the case.

Witness must be given a chance to explain or deny the inconsistent statement.

Question 2

What is the Domestic Violence Counselor Privilege?

Answer 2

In CA, conversations that domestic violence counselors have with clients are privileged if they contain statements relating to the consultation or otherwise contain information that would be detrimental to the client if disclosed.

Question 3

When are Statement of A Party Opponent Admissible?

Answer 3

They are not hearsay, so they are admissible so long as they are relevant.

In CA, an employee statement is only admissible on an employer’s behalf if the employer would be liable for the employee’s conduct in the instance.

Question 4

What is Relevance?

Answer 4

Tends to make an issue in the case more or less probable.

Question 5

What is CA Proposition 8?

Answer 5

All relevant evidence is admissible in a criminal case even if objectionable under the CA Evidence Code, and will be admitted based on CEC 352 (FRE 403) balancing.

Evidence must still be excluded on Constitutional grounds; bases of hearsay; bases of privilege; character evidence with no exception; secondary evidence (?); balancing prejudice and probative value

Question 6

What is a Declaration of Past Physical or Mental Condition?

Answer 6

An exception to the hearsay rules.

Declarant must be unavailable and the statement may be admitted to prove the declarant’s condition if her condition is at issue. There is no need for actual medical treatment.

This exception is valid in CA only.

Question 7

What is a Statement Describing Infliction or Threat of Abuse?

Answer 7

An exception to the hearsay rules.

Declarant is:

1) unavailable;
2) statement is made at or near the time of injury or threat;
3) statement describes or explains the injury or threat in recording to police or other professional; and
4) the circumstances indicate trustworthiness.

In CA only

Question 8

What are the Requirements of the Public Records Exception the Hearsay Rule?

Answer 8

The record must:

1) describe the activity or policy of a public office;

and 2) is observed pursuant to legal duty

or 3) contains results from an investigation enacted under legal authority.

In CA:

1) within scope of duty,
2) at or near the place it was recorded,

and 3) circumstances indicate trustworthiness.

Question 9

What are the Requirements of the Business Records Exception to the Hearsay Rule?

Answer 9

Document must be:

1) Observed in the regular course of business, contemporaneously recorded;
2) business regularly keeps the record; and
3) contents consist of info observed by employees or fits into another exception

In CA: Business records with a simple opinion are not required to be certified by a custodian of record.

Question 10

What are the Requirements for the Statement for Medical Treatment Exception to the Hearsay Rule?

Answer 10

FRE: Statement to medical professional concerning present or past symptoms or cause of condition for purposes of treatment.

CA: only admissible for statements of minor describing child abuse.

Question 11

What Are the Requirements of the Then-Existing Physical or Mental Condition Exception to the Hearsay Rule?

Answer 11

A

1) contemporaneous statement;
2) concerning declarant’s condition; or
3) state of mind (including intent).

Does not include statements of memory or belief about past condition.

Question 12

What Are the Requirements of the Present Sense Impression Exception to the Hearsay Rule?

Answer 12

Statement 1) describing event or condition 2) made while or soon after the declarant perceived it.

CA: only statements related to the declarant’s conduct are admissible.

Question 13

What Are the Requirements of the Excited Utterance Exception to the Hearsay Rule?

Answer 13

Statement 1) concerning a startling event that was 2) made by the declarant while under the stress of the event.

Question 14

What Are the Requirements for the Dying Declaration Exception to the Hearsay Rule?

Answer 14

Declarant is unavailable, statement describes cause or circumstances of death by one who believes they are about to die.

CA: declarant must actually die for the statement to be admissible.

Question 15

What Are the Requirements for the Statement Against Interest Exception to the Hearsay Rule?

Answer 15

1) Declarant is unavailable;
2) statement was against financial or penal interest when made.

In a criminal case, statements against penal interest offered to exculpate must be supported by corroborating circumstances.

CA: includes statements against social interests.

Question 16

What is Required to Admit a Declarant’s Former Testimony as an Exception to the Hearsay Rule?

Answer 16

1) Declarant is unavailable;
2) opposing party had opportunity or similar motive to cross examine (or, in civil only: opposing party is successor in interest to party with opportunity to cross).

CA: successor/predecessor in interest status not required in order to admit testimony.

Unavailability is assumed where residence more than 100 miles away.

Question 17

What Facts are Subject to Judicial Notice?

Answer 17

Matter of common knowledge within territorial jurisdiction, the matters are capable of verification by resort to unquestionable sources.

Up to the jury to accept or reject in criminal cases.

Question 18

What is Required to Admit Voluminous Documents or Summaries?

Answer 18

Admissible if originals are available for inspection.

Question 19

What is the Standard for General Admissibility?

Answer 19

Offered to prove a fact of consequence, that makes the fact more or less probable.

CA: fact must be in dispute.

Question 20

What is Required to Admit an Ancient Document under the Exception to the Hearsay Rule?

Answer 20

Authenticity may be inferred where the document is at least 20 years old, is facially free of suspicion, and the document is found where one would expect to find it.

CA: 30 years.

Question 21

What is Required to Authenticate Evidence?

Answer 21

Party seeking to introduce evidence must provide a foundation for a reasonable juror to conclude that the item is what it claims to be.

Question 22

How May Prior Consistent Statements Be Used at Trial?

Answer 22

May be used to rehabilitate only if the opposing party impeaches the witness’s credibility with a motive to lie and the statement was made before the motive to lie arose.

Question 23

How May a Witness’s Character for Truthfulness Be Put at Issue?

Answer 23

May be proved after attack by reputation or opinion testimony.

Question 24

When Are Convictions Admissible?

Answer 24

FRE: Any crime involving a false statement is admissible. Other felonies may be admitted to impeach but are subject to 403. Convictions within 10 years of trial may be admitted to impeach but are subject to 403.

CA: All felonies of moral turpitude are admissible subject to balancing. Other felonies are inadmissible. Prop 8 may allow a judge to admit a misdemeanor of moral turpitude under the CEC 352 balancing test.

Question 25

What is Required to Admit a Learned Treatise?

Answer 25

A treatise used by experts in aid of testimony is admissible to prove anything stated therein if it is an accepted authority among professionals in the field.

One expert in the case must establish that they rely on the text, or the court must take judicial notice.

CA: only admissible to show matters of general notoriety and the text itself is admissible to the jury as evidence.

Question 26

What is Required to Admit an Expert Opinion?

Answer 26

FRE:

1) expert is qualified;
2) opinion has reasonable degree of certainty;
3) based on proper foundation; and
4) opinion is based on reliable principles reliably applied.

CA: same but reliable principles must be generally accepted.

Question 27

What are the Limitations on Opinion Testimony?

Answer 27

Must be rationally based on witness perception and is helpful to the jury.

CA: can be based on specialized knowledge (e.g. treating physician) and is subject to judge’s discretion.

Individual may testify regarding any opinions formed on the basis of facts independently acquired and informed by his or her training, skill, and experience, including opinions regarding causation and the standard of care. (Schreiber)

Question 28

Past Recollection Recorded

Answer 28

Writing may be read to the jury if the witness had personal knowledge, now forgets, the writing was made when the witness’s memory was fresh, was made or adopted by the witness, and the witness testifies that the writing is accurate.

Question 29

Present Recollection Recorded

Answer 29

Witness may be shown any thing that may refresh his memory on the question, the opposing party may inspect, use on cross and enter into evidence.

Question 30

What are the Different Objections to Form?

Answer 30

Narrative, non-responsive, outside scope of direct, assumes facts not in evidence, argumentative, compound, vague and ambiguous.

Question 31

When are Leading Questions Allowed?

Answer 31

On cross or against a hostile witness.

Are impermissible on direct exam unless for introductory matters or a youthful, forgetful, or hostile witness.

Question 32

What is the Dead Man’s Statute

Answer 32

A law stating that an interested party is not competent to testify in a suit against an estate about a transaction or conversation they had with the decedent.

Question 33

May Hypnotized Witness Testify at Trial?

Answer 33

Testimony of a hypnotized witness to refresh her recollection is inadmissible unless in a criminal case and the witness is hypnotized by an officer and in a proper and accepted manner.

Question 34

What are the Requirements for Witness Competence?

Answer 34

Witness must have

1) personal knowledge;
2) present recollection;
3) he ability to communicate; and
4) be sworn under oath.

CA: Witness must understand oath.

Question 35

What are the Evidentiary Limits Imposed By the Rape Shield?

Answer 35

Defendant in a sexual misconduct case may not introduce evidence of a victim’s prior sexual conduct unless:

1) to prove consent by evidence of victim’s history with defendant; or
2) show that someone other than the defendant was the source of physical evidence.

Question 36

When Is Character Evidence of a Defendant Admissible?

Answer 36

Inadmissible unless for motive, intent, modus operandi, identity, plan, opportunity. (MIMIC Exceptions)

CA: admissible in case of domestic violence or elder abuse.

Question 37

When May Character Evidence Be Admitted in a Civil Case?

Answer 37

Inadmissible to prove conduct in conformity ther with unless character is at issue, such as in:

defamation, negligent entrust meant, child custody, loss of consortium.

CA: character evidence is not admissible to prove sexual assault or child molestation. (?)

Question 38

What is Habit Evidence?

Answer 38

Evidence of:

1) specific, frequently repeated conduct;
2) that is relevant to prove that a person acted in the same way on the occasion in question.

Question 39

Are Settlement Talks Admissible As Evidence?

Answer 39

Communications made with an attempt to settle proceedings are inadmissible to prove guilt.

CA: includes mediation sessions, but must have a real dispute in any situation.

Question 40

Are Offers to Pay Medical Expenses Admissible as Evidence?

Answer 40

They are inadmissible to prove liability

BUT

related statements are admissible because they are not direct settlement offers.

Question 41

What is the Rule 403 Balancing Test?

Answer 41

Inadmissible if judge determines that probative value is substantially outweighed by

1) danger of unfair prejudice,
2) confusion of the issues, or
3) waste of time.

Question 42

Are Subsequent Remedial Measures Admissible as Evidence?

Answer 42

FRE: Cannot be used to prove culpability or that a product had a defective design,

BUT

can be used to rebut a claim that there was no other way to design the product.

CA: admissible to show defective design.

Question 43

Is the Existence of Liability Insurance Admissible as Evidence?

Answer 43

It is inadmissible to prove culpability or ability to pay.

Question 44

Is Evidence of a Victim’s Character Admissible at Trial?

Answer 44

Admissible by defendant to prove bad character trait of victim.

Opinion and reputation are permitted on direct examination, and specific instances of conduct are also permitted on cross.

CA: opinion, reputation and specific instances of conduct are admissible on direct or on cross.

Question 45

Statements made for Physical or Medical Treatment

Answer 45

Past statements of a physical or mental condition made for the purpose of treatment are exceptions from the hearsay rules.

CA: these statements are only admissible in the case of a child under age 12 in an abuse or neglect trial making the statement to a medical professional for treatment.

Question 46

What is the Spousal Testimonial Privilege?

Answer 46

A spouse may not be compelled to testify against his spouse against his wishes. Privilege must be asserted by the testifying spouse.

Question 47

What is the Spousal Communications Privilege?

Answer 47

Communications

1) made between spouses
2) with the expectation that they will remain confidential

are privileged unless the party seeking to introduce the statement can satisfy the burden of showing the couple made no attempt to keep the information private.