EVIDENCE

Question 1

Objections to Form of Questions

Answer 1

Here, the question is objectionable as a ___.

1. Assumes Facts not in Evidence
2. Argumentative
3. Calls for Narrative - Question was too open ended
4. Compound Question
5. Leading Question
   
   • A leading question is objectionable if it suggests the answer desired. Leading questions are permissible where questioning a hostile witness or adverse party, used to elicit preliminary or introductory matters, or where a witness has memory loss and needs assistance in responding.
6. Speculation – attorney may not ask a witness to speculate the meaning of a fact. Testimony must be based on the witness’s Personal Knowledge
7. Nonresponsive answer - A W’s statement may be stricken as nonresponsive if it goes beyond the scope of the question.
   
   • Question could have been answered by “yes” or “no.”

Question 2

CA Constitution Prop 8

Answer 2

Applies to all criminal cases. All relevant evidence is admissible except for certain exclusionary rules such as privileges (spousal, martial communication, attorney- client), hearsay, and allows the court discretion to apply CEC 352 balancing.

Question 3

Logical Relevance

Answer 3

Evidence is logically relevant if it tends to make any fact of consequence more or less probable.
CA - disputed fact of consequence.

Question 4

Legal Relevance

Answer 4

Evidence is legally relevant if its probative value is not substantially outweighed by the risk of unfair prejudice.

Question 5

Policy Based Exclusionary Rules - Liability Insurance

Answer 5

Cannot be used to prove culpable conduct or ability to pay. Admissible:

1) to prove ownership or control;
2) as part of an admission of liability; or
3) to impeach.

Question 6

Policy Based Exclusionary Rules - Offer to Pay Medical Expenses

Answer 6

Inadmissible to prove fault, but admissions of fact accompanying offers are admissible.

Question 7

Policy Based Exclusionary Rules - Settlement Offers / Negotiations

Answer 7

Settlement, offers to settle, pleas, pleas later withdrawn and related statements are inadmissible to prove fault (includes collateral statements - i.e. offers to pay medical bills). There must be a claim filed or threatened. Admissible for all other purposes.

CA - includes discussions during mediation.

Question 8

Policy Based Exclusionary Rules - Subsequent remedial measures/Repairs

Answer 8

Inadmissible to prove negligence, culpable conduct or a defect in a product or its design. Admissible to:

1) prove ownership or control;
2) rebut a claim that the precaution was not feasible; or
3) prove that the opposing party has destroyed evidence

CA - admissible to prove defective design

Question 9

Policy Based Exclusionary Rules - Expressions of Sympathy

Answer 9

In civil actions, expressions of sympathy for injury or death are inadmissible, but related statements of fault are admissible.

Question 10

Similar Occurrences - Habit

Answer 10

Evidence of a person’s specific frequently repeated conduct is admissible to prove that the person acted in accordance with the habit on a particular occassion.

Question 11

Character Evidence

Answer 11

Evidence offered to show that a person acted in conformity with that character on a particular occassion is generally inadmissible.

Question 12

Character - Criminal Case

D’s Character

Answer 12

Prosecution cannot be the first to offer evidence of D’s character to show that D was likely to have committed the crime that he was charged.

Unless the case involves:

• FRE – sexual abuse, child abuse, child molestation.
• CA – FRE + domestic violence, elder abuse.

If D puts his credibility at issue by taking the stand, the Prosecution may impeach D’s character for truthfulness.

If D offers evidence of his own good character for a pertinent trait by reputation/opinion (not specific instances of conduct unless character is an essential element of the charge), Prosecution can rebut by:

• Calling qualified witnesses to testify to D’s bad reputation or give their opinions about D’s character
• Cross-examining the D’s character witness about D’s bad reputation
  • FRE ONLY - IMPEACH by Specific instances of D’s misconduct
    
    • whether W has heard of, or knows of, specific instances of misconduct by the defendant.
    • Limited to inquiry of the witness, no extrinsic evidence of the misconduct.

Question 13

Specific Acts of Defendant’s Misconduct

Answer 13

However, specific acts of defendant’s misconduct are admissible if the acts are relevant to some issue other than defendant’s character or disposition to commit a crime, such as Motive, Intent, absense of Mistake, Identity, or Common scheme (MIMIC).

• Prior bad acts are generally inadmissible as substantive evidence unless relevant to show MIMIC.

Here, the specific act is independently relevant to prove…

Question 14

Character - Criminal Case

Victim’s Character

Answer 14

Prosecution cannot be the first to offer evidence of V’s character to prove conduct. However, once D opens the door by introducing V’s bad character, P can rebut with evidence of:

• V’s GOOD character for ANY pertinent trait
• D’s BAD character for the SAME trait
• CA – (Narrow) V can only introduce D’s character for VIOLENCE by reputation/opinion

FRE Homicide Case – if D offers evidence that victim attacked first, P can offer evidence of V’s character for PEACEFULNESS to rebut self-defense claim.

Question 15

Character Evidence - Civil Case

Answer 15

Character evidence is inadmissible to prove that a person acted in conformity with that character on a particular occasion unless:

1. Character is at issue by virtue of the case
   
   • Defamation, negligent entrustment, child custody, loss of consortium
   • Sexual assault/child molestation - The prior act need not have involved the same victim.
   • Prosecution may offer reputation, opinion, & specific instances
2. Evidence is offered to show D’s habit

Question 16

Testimonial Evidence - Competency

Answer 16

To be competent, the witness must have personal knowledge of the matters to which she is to testify. The witness must have observed the matter and have a present recollection of her observation.

Question 17

Authentication of Oral Statements

Answer 17

Oral statements must be authenticated in cases where the identity of the speaker is important.

Voice ID - A voice, whether heard firsthand or through a device, may be identified by anyone who has heard the voice at any time (Ex. became familiar with voice for sole purpose of testifying).

Phone Convos - may be authenticated by one of the parties to the call who testifies to one of the following:

1. He recognized the other party’s voice;
2. Speaker had knowledge of certain facts that only a particular person would have; or
3. Speaker identified himself, together with the usual accuracy of the telephone directory and transmission system.

Question 18

Authentication of Physical Evidence

Answer 18

All items of physical evidence (ex. photos, guns,) must be authenticated by proving the evidence is what the proponent claims it to be.

Evidence may be authenticated by:

1) Testimony by a witness that she recognizes the object to be what it claims to be (first hand knowledge of familiarity – officer can identify gun is the one she found b/c she can note the serial #)
2) Proponent must show a substantially unbroken chain of possession for evidence that can be easily tampered with or is non-unique (drugs, guns).

• Little breaks in chain OK
• If the object’s condition is significant, it must be shown to be in substantially the same condition at trial

Question 19

Authentication of Photographs

Answer 19

Photos are admissible if identified by a witness who is familiar with the scene or object that is depicted, that the potrayal is a correct representation.

Question 20

Authentication of Documentary Evidence

Answer 20

All items of physical evidence (ex. photos, guns,) must be authenticated by proving the evidence is what the proponent claims it to be. Evidence may be authenticated by:

1) Cutodian or other qualified witness certifies in writing that the record meets the requirements of a business record exception.

2) Admissions – evidence that the party against whom it is offered has admitted its authenticity or acted upon it as authentic
3) Eyewitness testimony – one who sees it executed or hear it acknowledged. Witness need not be a subscribing witness
4) Handwriting verification – evidence of the genuineness of the handwriting of the maker by:

• Opinion of a nonexpert with personal knowledge of the writer’s handwriting; or
  
  • nonexpert cannot become familiar with the handwriting merely for purposes of testifying
• Opinion of an expert who has compared the writing samples of the maker’s handwriting
• Determined by the jury through comparison of samples (incl. fingerprints, blood, hair, clothing fibers).
• Evidence that the writing was written in response to a communication sent to the alleged writer

Question 21

Self-Authenticating Documents

Answer 21

Authentication is not required for the following:

Domestic public documents bearing a seal
Similar official foreign public documents
Trade inscriptions (CA – not self authenticating)
Certified copies of public records
Acknowledged documents
Newspapers and periodicals
Commercial paper and related documents
Certified business records

Question 22

Best Evidence Rule

Answer 22

When a party seeks to prove the contents of a writing, the original writing must be produced if the terms of the writing are material. An duplicate of the original, such as a photocopy/handwritten copy, is permitted so long as no genuine question of authenticity is raised. Oral testimony regarding the writing’s contents is only permitted if it is proven that the original is unavailable.

BER Applies When: (1) writing is a legally operative or dispositive instrument [i.e. writing itself creates rights and obligations like a deed or mortgage; or (2) Witness is testifying to facts the she learned solely from reading the writing.

BER DOES NOT Apply where the fact to be proved has an existence independent of any writing.

Question 23

BER Does NOT Apply

Answer 23

Summaries of Voluminous Records – voluminous records can be presented through a summary or a chart, provided the original records are admissible and available for inspection.
Certified Copies of Public Records – The rule does not apply to copies of records that are certified as correct or testified to as correct.
Collateral Documents – The rule does not apply where the writing is of minor importance to the matter in controversy.

Question 24

Refresh Recollection

Answer 24

A witness may use any writing or thing for the purpose of refreshing recollection. Witnesses must be shown whatever is attempting to refresh their recollection in order to see if the item is successful in helping them recall. Witness may not read from the writing or rely on it when testifying

Question 25

Lay Opinion

Answer 25

Admissible if:

1) Opinion is rationally based on the witness’ perception;
2) Helpful to a clear understanding of his testimony or to the determination of a fact in issue; AND
3) Not based on scientific, technical, or other specialized knowledge (CA – allows testimony based on specialized knowledge)

• General appearance or condition of a person
• State of emotion of a person
• Matters involving sense recognition
• Voice or handwriting identification
• Speed of a moving object
• Value of his services
• Rational or irrational nature of another’s conduct
• Intoxication of another

Question 26

NON-HEARSAY LIST

Answer 26

Not offered for their truth:
• Admission by Party Opponent
• Verbal acts or legally operative facts
• Effect on listener or reader
• Statements that prove motive or intent
• Declarant’s state of mind
• Prior inconsistent statement
• Prior consistent statement
• Prior statement of identification of a person

Question 27

Non-Hearsay - Admission by Party Opponent

Answer 27

A statement made by a party offered against that party is not hearsay.

Question 28

Non-Hearsay - Adoptive Admission

Answer 28

Expressly or impliedly adopting the statement of another.

Silence/Conduct treated as an admission if:

• party heard and understood the statement;
• party was capable of denying the statement;
• reasonable person would have denied the statement

Exception - silence in the face of police presence/custody is never considered an admission.

Question 29

Non-Hearsay - Vicarious Admission

Answer 29

A statement made by a party or someone whose statement can be attributed to that party offered against that party is admissible if made by:

1) authorized spokesperson or agent;
2) principal-agent if made within scope of employment; or
3) adopted by party

CA - employee’s statement is only admissible if employer is liable for employee’s accompanying conduct (i.e. employee’s negligence is basis for employer’s liability)

Question 30

Non-Hearsay - Admission by Co-conspirator

Answer 30

Admissions of one co-conspirator are admissible against co-conspirators if it was made to a third party in furtherance of and during the existence of the conspiracy.

Question 31

6th Amendment Confrontation Clause

Answer 31

A hearsay statement will not be admitted even if it falls under one of the hearsay exceptions if: 1) declarant is unavailable; 2) it is being offered against a defendant in a criminal case; 3) it is testimonial in nature; and 4) defendant did not have an opportunity to cross examine the statement before trial

D forfeits his right of confrontation if he committed a wrongful act intended to keep the witness from testifying

CA - no counterpart

Question 32

Testimonial Evidence

Answer 32

“Testimonial” means:

• Grand jury testimony is testimonial
• Statement made during police interrogation is Testimonial if the main purpose of the questioning is to establish facts that may be relevant to a later criminal prosecution
  • Non-testimonial if the main purpose of the questioning is to enable police assistance to meet an on going emergency.
• Documents:
  
  • Police reports = testimonial
  • Business records = not testimonial

Question 33

Non-Hearsay - Effect on Listener / Reader

Answer 33

Statement is not offered to prove the truth of the matter asserted when offered to show the effect it had on the listener/reader. Witness can testify as to what the declarant said in order to show the listener acted in a certain way in response to the statement.

A statement that is relevant simply because someone heard it or read it is not hearsay. Hearing something can show knowledge, put someone on notice, can give someone a motive, or make someone’s belief reasonable.

Question 34

Non-Hearsay - Verbal Acts / Legally Operative Facts

Answer 34

Words with independent legal significance such as words of contract or defamatory words; words of offer, repudiation or cancellation of contracts; words that have the effect of making a gift or a bribe; words that are themselves an act of perjury or a criminal misrepresentation or a defamation.

Question 35

Non-Hearsay - Prior Inconsistent Statement Given Under Oath

Answer 35

Statement given under oath at a prior trial, deposition, or proceeding by a witness currently testifying.

Admissible to impeach and substantive evidence.

Question 36

Non-Hearsay - Prior Consistent Statement

Answer 36

Admissible to rebut a charge that the witness is lying or exaggerating because of some motive or improper influence. Statement must have been made before any motive to lie or exaggerate arose.

Question 37

Non-Hearsay - Prior Statement of Identification

Answer 37

A witness’s prior statement identifying a person as someone he perceived earlier is not hearsay. Photo IDs are included in this rule. Declarant must be available to testify and subject to cross.

Question 38

Non-Hearsay - Declarant’s State of Mind

Answer 38

A declarant’s statement of what he believes is admissible to show what he was thinking, not to show that his belief was true. (i.e. statements demonstrating insanity; lies that demonstrate a consciousness of guilt; demonstrate knowledge or lack thereof).

Statements are not offered to prove the truth of the matters but only that declarant believed them to be true.

Question 39

Hearsay

Answer 39

An out of court statement being offered to prove the truth of the matter asserted. Hearsay is generally inadmissible unless an exception or exemption applies.

A statement includes someone’s oral assertion, written assertion, or nonverbal conduct intended to be an assertion.

Question 40

Multiple Hearsay

Answer 40

When there are multiple layers of hearsay, each layer of hearsay must come within an exception to be admissible.

        First Level –

        Second Level –

Question 41

Dying Declaration

Answer 41

FRE - Admissible in a civil or homicide case if:

1. Declarant is unavailable
2. Believed death was imminent
3. Statement concerns what declarant believed to be the cause or circumstances **of the death **
   
   • Must have actual knowledge of the circumstance/cause, not mere suspicion.

CA – Admissible in ANY proceeding if:

1. Declarant must be dead
2. Believed death was imminent
3. Statement must concern what killed him

Question 42

Statement Against Interest

Answer 42

A statement by a now-unavailable declarant may be admissible if it was against that person’s pecuniary, proprietary, or penal interest when made. Declarant must have been aware that the statement is against her interest and have no motive to misrepresent.

FRE - Criminal case – statement against the declarant’s penal interest offered to exonerate Defendant must be supported by corroborating circumstances clearly indicating the trustworthiness of the statement.

• CA – no requirement

CA – includes social interest.

Question 43

Business Records

Answer 43

A record of an event is admissible if it was (1) made in the regular course of business; (2) Entrant has duty to make the entry; (3) Made at or near the time of the recorded event; and (4) Matters are within the PK of the entrant or the transmitter who has a duty to transmit to entrant; and (5) Record is trustworthy.
CA – if business record includes opinions or diagnoses, courts will admit simple, but not complex opinions or diagnoses

FRE - does not permit expert opinion to be admitted when it is embedded within a business record. The expert’s statement is admissible only if the expert is properly qualified and takes the stand in court, subjected to cross examination.

AUTHENTICATION:

• Live testimony – Call a knowledgeable witness (a custodian of records) who can testify to the 5 elements required to meet the exception.
• Affidavit – Submit a written certification under oath attesting to elements required to meet the exception.

Question 44

Public Records

Answer 44

Admissible

• To the extent they set forth the activities of that agency; and are
• Matters observed pursuant to a duty imposed by law;
• Civil actions – the record may include factual findings/conclusionsby public employees from anofficial investigation (i.e. police report).
• Crim cases (FRE) – no statements in police reports admissible
  
  • CA – does not automatically exclude records regarding police observation in criminal cases
• Statements contained in public records must meet separate hearsay exception

Question 45

Absence of Public Record

Answer 45

Absence of Public Records is admissible if the Certification is prepared by a public employee and
indicates on its face that a diligent search of the records was conducted.

Question 46

Present Sense Impression / Contemporaneous Statement

Answer 46

FRE - A statement that describes an event declarant perceived and is made while the event is occurring, or immediately thereafter.

CA – statement declarant makes to explain, qualify, or make understandable declarant’s conduct made while he is engaged in that conduct.

Question 47

Excited Utterance / Spontaneous Statement

Answer 47

Statement that describes an exciting or startling event that is made while the person is still under the stress of excitement from the event and made before declarant had time to reflect upon it.

Question 48

Hearsay Exception - State of Mind

Answer 48

A statement directly concerning declarant’s state of mind, emotion, sensation, or physical condition is admissible to show his intent that an action should be taken or was carried out. It is not necessary that the declarant intends to take the action himself, but only that he intends that it be done by someone. Must be contemporaneous, not of memory or belief about a previous condition.

Question 49

Impeachment - Prior Inconsistent Statement

Answer 49

Admissible to prove that the witness has on another occasion made statements inconsistent with his present testimony by cross-x or EE.

Extrinsic evidence – to prove statement by extrinsic evidence, proper foundation must be laid and statement must be relevant to some issue in the case (cannot be collateral matter)

Foundation – EE can be introduced to prove prior inconsistent statement only if witness is given an opportunity to explain or deny the statement at some point during trial.

Exception – PIS by hearsay declarants may be used to impeach despite the lack of foundation

Effect – PIS is admissible impeachment purposes only.

• Statement made under oath at a prior proceeding is admissible as non-hearsay and may be admitted as substantive evidence of the facts stated
• CA - ANY PIS may be used as substantive evidence whether or not it was made under oath

Question 50

Impeachment - Bias or Interest

Answer 50

Evidence that a witness is biased or has an interest in the outcome of a suit is admissible to show that the witness has a motive to lie.

Foundation – witness must first be asked on cross about the facts showing bias or interest before EE is allowed. If W admits those facts, it is within court’s discretion to allow EE as further evidence of bias. However, EE must not show that the bias is justified.

Question 51

Impeachment - Convictions

Answer 51

FRE – Witness may be impeached by any crime involving dishonesty (perjury, fraud, forgery), felony/misdemeanor requiring an act of dishonesty or false statement.

• Felony not involving dishonesty – Witness may be impeached by felonies that do not involve dishonesty, but the court has discretion to exclude it if:
  
  • Witness is a criminal defendant – prosecution has not shown that the conviction’s probative value outweighs its prejudicial effect; or
  • All other witnesses – court determines that the conviction’s probative value is substantially outweighed by prejudicial effect
  • Conviction or release from prison (whichever is later) must be within 10 years of trial to be admissible; if more than 10 years – subject to balancing probative value vs. prejudice.

CA - ANY FELONY convictions for moral turpitude (lying, violence, theft, sexual misconduct, or extreme recklessness) are admissible if:

• The conviction has not been expunged, nor pardoned; and
• court has discretion under CEC 352 to prohibit use of conviction if its probative value is substantially outweighed by prejudicial effect.

Question 52

Impeachment - Prior Bad Acts

Answer 52

FRE - A witness may be interrogated on cross-x about any prior specific immoral, vicious, or criminal act to help show that the witness is untrustworthy, but counsel must make inquiry in good faith.

• Counsel cannot ask about the consequences of the bad act (i.e. can ask whether he embezzled money, not whether he was arrested/fired for embezzlement)
• EE not permitted.
  
  • If the witness denies the act, the cross-examiner cannot refute the answer by calling other witnesses or producing other evidence.

CA

• civil case - prior bad acts inadmissible
• criminal case - allows cross-x and EE.

Question 53

Impeachment - Character for Truthfulness

Answer 53

Both reputation and opinion evidence are allowed to attack or support a witness’ character for truthfulness. Attacked witness may give his own opinion as to his character for truthfulness

Question 54

Impeachment - Sensory Deficiencies

Answer 54

Witness may be impeached by showing on cross or by EE that his faculties of perception and recollection were so impaired that it is doubtful that he could have perceived the facts.

Question 55

Impeachment - Contradictory Facts

Answer 55

EE of facts that contradict a witness’ testimony may be admitted to suggest that a witness’ mistake or lie on one point indicates erroneous or false testimony as to the whole. EE of contradictory facts to impeach are permitted where:

1) W’s testimony on a particular fact is a material issue in the case; 2) the testimony on a particular fact is significant on the issue of credibility; or 3) the witness volunteers testimony about a subject as to which the opposing party would be precluded from offering evidence

Question 56

Impeachment - Collateral Matter

Answer 56

When a witness makes a statement not directly related to the issue in the case, the opposing party is barred from proving the statement untrue by extrinsic evidence of contradictory fact or by a PIS.

Question 57

Impeachment - Hearsay Declarant

Answer 57

The credibility of an unavailable declarant may be attacked by evidence that would be admissible if the declarant had testified as a witness. If the declarant is impeached with evidence of her PIS, the foundational requirement that she must be given opportunity explain or deny her statement does not apply. The party against whom the out of court statement was offered may call the declarant as a witness and cross-examine him about the statement. When the declarant’s credibility is impeached, it may also be rehabilitated.

Question 58

Attorney-Client Privilege

Answer 58

Confidential communications between an attorney and client, made during professional consultation are privileged from disclosure unless waived by the client.

Work Product – documents prepared by an attorney for his own use in a case are not protected by the privilege, but they are not subject to discovery except in cases of necessity.

Question 59

Physician-Patient Privilege

Answer 59

FRE – No privilege
CA – confidential communications between a patient and a licensed physician for the purpose of medical diagnosis or treatment are privileged.

Exceptions:

1) When the patient puts his physical condition in issue
2) Physician’s assistance was sought to aid in commission of a crime or tort
3) Dispute between physician and patient (medical malpractice)
4) Criminal cases
5) Information the physician is required to report to a public office

Question 60

Psychotherapist/Social Worker - Client Privilege

Answer 60

Confidential communications between a psychotherapist/Social Worker and client made to facilitate psychological services are privileged unless waived by the patient.

FRE – same exceptions as attorney-client
CA – FRE + reasonable cause to believe patient is a danger to himself or others and disclosure is necessary to end the danger

Question 61

Spousal Immunity

Answer 61

FRE - A married person may not be compelled to testify against the other spouse in a criminal proceeding (regardless of whether the testimony would involve confidential communications). Only witness spouse may invoke the privilege and spouses must be married at the time of trial for the privilege to apply.

• The privilege covers information learned before and during marriage.

CA – Immunity applies in ANY proceeding.

Question 62

Confidential Martial Communication Privilege

Answer 62

Protects all confidential communications that were made during marriage if made in confidence. Privilege applies in all proceedings, both spouses may invoke and lasts even after divorce.

• Communication is confidential if it was not intended to be disclosed to a third person. All confidential communications are protected despite the presence of an eavesdropper, so long as the person was unaware of the presence of the eavesdropper and took reasonable steps to preserve confidentiality

Exceptions:

• Civil action between spouses
• Criminal prosecution for one spouse charged with a crime against other spouse (DV or child abuse)
• Spouses are co-Ds

Question 63

Expert Testimony

Answer 63

Admissible if:

1) The subject matter is one where scientific, technical or other specialized knowledge would assist the trier of fact determine a fact in issue;
2) Witness is a qualified expert (possesses special knowledge, skill, experience, training, or education).
3) Expert possesses reasonable degree of certainty regarding his opinion (based on sufficient facts)
4) Expert’s opinion must be based on:

• Personal observation;
• Facts made known to the expert at trial; or
• Facts not in evidence that are reasonably relied upon by experts in the particular field

Question 64

Judicial Notice

Answer 64

Courts take judicial notice of facts of common knowledge in the community or capable of verification by undisputed sources. If evidence is required to demonstrate the fact in question, judicial notice is improper.

• Civil case - fact is conclusive
• Criminal Case - Effect of judicial notice in a criminal case satisfies the prosecution’s burden of proof, but the jury may elect whether or not to accept as conclusive the judicially noted fact.

CA - whether requested or not, court MUST take judicial notice in ALL cases of matters generally known within the jurisdiction.