Evidence

Question 1

Major Evidence Issues

Answer 1

1. Relevance
2. Foundation / Personal Knowledge / Presentation
3. Form of the Question (or Answer)
4. Character
5. Impeachment by Prior Bad Acts/Convictions
6. Writings—Authentication / Best Evidence Rule / Hearsay
7. Hearsay
8. Hearsay Exclusions / Exceptions
9. Opinion
10. Judicial Notice
11. Proposition 8
12. FRE 403 or CEC 352

Question 2

Evidence - Logical Relevance

Answer 2

Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

Question 3

Evidence - Foundation

Answer 3

Whether witness is shown to have personal knowledge

Question 4

Evidence - Leading Question

Answer 4

Suggests the answer in the question. Generally improper on direct, but permitted:

1. On cross-examination to elicit preliminary or introductory matter
2. Witness is hostile
3. Witness memory loss
4. Witness is immature or weak

Question 5

Evidence - Compound Question

Answer 5

Look for 2 verbs

Question 6

Evidence - Calls for Narrative

Answer 6

Yaddah yaddah yaddah

Question 7

Evidence - Assumes Facts Not in Evidence

Answer 7

Need to keep track of what has been allowed in.

Question 8

Evidence - Non-Responsive Answer

Answer 8

If question calls for yes or no, anything beyond is non-responsive and subject to a motion to strike.

Question 9

Evidence - Present Recollection Refreshed

Answer 9

Witness may use any writing or thing for purpose of refreshing recollection. Cannot read from it (not admissible) and writing must be shown to adverse party for use in cross-examination.

Question 10

Evidence - Prop 8

Answer 10

Relevant evidence shall not be excluded in any criminal proceeding. Case law has held that Proposition 8 essentially applies only to witness impeachment rules, and perhaps rules pertaining to opinion evidence and writings.

Question 11

Evidence - Rule 403 or CEC 352

Answer 11

A court may exclude relevant evidence if its probative value is substantially outweighed by risk of undue prejudice, confusion of issues, misleading the jury, undue delay or waste of time

Question 12

Evidence - Hearsay

Answer 12

An out of court statement offered to prove the truth of the matter asserted. Statements that would otherwise constitute hearsay may be used for non-hearsay purposes, such as the effect on the listener, the giving of a warning, or consciousness.

Question 13

Evidence - Hearsay Exclusions - Prior Inconsistent Statement

Answer 13

Statement admissible for truth only if made under oath at a prior proceeding or deposition and witness is now subject to cross-examination (if not, can be used only to impeach). In California, need not be made under oath.

Question 14

Evidence - Hearsay Exclusions - Prior Consistent Statement

Answer 14

May be offered to rebut an attack on witness’ credibility if made before motive to lie arose.

Question 15

Evidence - Hearsay Exclusions - Prior Statement of Identification

Answer 15

Statement is one of identification made after perceiving the person.

• In California:
  
  • (1) ID must have been made while memory was fresh and
  • (2) witness must confirm it in court.

Question 16

Evidence - Hearsay Exclusions - Admission by Party Opponent

Answer 16

Statement made by a party and offered by an opponent—need not be against speaker’s interest.

Question 17

Evidence - Hearsay Exclusions - Adoptive Admission

Answer 17

Party expressly or impliedly adopts or acquiesces to the statement of another.

Question 18

Evidence - Hearsay Exclusions - Vicarious Admissions

Answer 18

1. Spokesman: Statement of person authorized by party to speak on its behalf.
2. Agent: Statement by agent concerning any matter within the scope of agency made while employment relationship exists.
   
   • In California, in respondeat superior civil cases, statement of employee is admissible against employer if employee’s conduct is basis for employer’s liability.
3. Co-Conspirator: Statement of one conspirator made in furtherance of conspiracy to commit crime or civil wrong, made during the conspiracy.

Question 19

Evidence - Hearsay Exceptions (UNAVAILABLE)

Answer 19

1. Former Testimony
2. Statement Against Interest
3. Dying Declaration
4. Statement of Personal or Family HIstory (Federal Only)
5. Statement Offered Against Party Procuring Defendant’s Unavailability
6. Past Physical Condition/State of Mind (CA Only)
7. Statement Describing Infliction or Threat of Physical Injury (CA Only)

Question 20

Evidence - Hearsay Exceptions (UNAVAILABLE) - Former Testimony

Answer 20

Testimony under oath in earlier proceeding or deposition by now-unavailable witness, offered against party (or privy in civil case) who had opportunity and motive to cross-examine witness.

In California civil cases, can be offered against non-privy if interest was similar.

Question 21

Evidence - Hearsay Exceptions (UNAVAILABLE) - Statement Against Interest

Answer 21

Statement contrary to person’s pecuniary or proprietary interest, or would subject them to criminal/civil liability.

In California, also includes statements against social interest.

Question 22

Evidence - Hearsay Exceptions (UNAVAILABLE) - Dying Declaration

Answer 22

In civil actions and homicide cases, statement made by declarant who believes death is imminent and concerns cause of death.

In California, admissible in any case (some authority requires declarant to die).

Question 23

Evidence - Hearsay Exceptions (UNAVAILABLE) - Statement of Personal or Family History

Answer 23

(Federal Only): Statement about declarant’s or another’s birth, adoption, etc.

Question 24

Evidence - Hearsay Exceptions (UNAVAILABLE) - Statement Offered Against Party Procuring Defendant’s Unavailability

Answer 24

Statement of declarant offered against party who procured unavailability in any case.

In California, case must be serious felony (declarant killed or kidnapped) and statement must be recorded by law enforcement.

Question 25

Evidence - Hearsay Exceptions (UNAVAILABLE) - Past Physical Condition / State of Mind

Answer 25

(California Only): Statement of declarant’s past physical or mental condition (including intention) admissible to prove a condition in issue.

Question 26

Evidence - Hearsay Exceptions (UNAVAILABLE) - Statement Describing Infliction or Threat of Physical Injury

Answer 26

Describes, narrates or explains infliction or threat of physical injury if made contemporaneously, circumstances are trustworthy, and it is in writing, recorded or made to law enforcement or medical personnel.

Question 27

Hearsay Exceptions - Present Sense Impression vs. Contemporaneous Statement

Answer 27

1. Present Sense Impression (Federal): Statement describing or explaining an event or condition made while declarant perceiving it or immediately after
2. Contemporaneous Statement (California): Statement offered to explain, qualify or make understandable declarant’s conduct, made while declarant was engaged in such conduct

Question 28

Hearsay Exceptions - Excited Utterance vs. Spontaneous Statements

Answer 28

1. Excited Utterance (Federal)
2. Spontaneous Statement (California): Statement made while under stress of excitement of a startling event, offered to explain or describe the event

Question 29

Hearsay Exceptions - Present Physical or Mental Condition

Answer 29

Statement of Declarant’s then-existing physical or mental condition or state of mind (even if not made to physician).

Question 30

Hearsay Exceptions - Past Physical or Mental Condition

Answer 30

• (Federal Only): Statement of a past physical or mental condition if made for purposes of medical diagnosis or treatment.
• In California, admissible only if victim of child abuse or neglect under 12 to medical personnel for treatment.

Question 31

Hearsay Exceptions - Business Records (and Absence)

Answer 31

Made at or near time of event, by one with knowledge, as part of regularly conducted activity, where it is regular practice to make such records

Question 32

Hearsay Exceptions - Past Recorded Recollection

Answer 32

Writing made or adopted by witness who cannot now remember facts, made while facts were fresh in mind—read into evidence.

Question 33

Hearsay Exceptions - Official and Public Records (and Absence)

Answer 33

• Describes activities or policies of office, or describes matter observed pursuant to duty imposed by law (but not police criminal investigations), or contains factual findings resulting from investigation made pursuant to authority granted by law (unless untrustworthy).
• In California, may include police observations in criminal cases.

Question 34

Hearsay Exceptions - Records of Vital Statistics

Answer 34

Records made to police officer pursuant to requirements of law.

Question 35

Hearsay Exceptions - Property Records

Answer 35

Deeds and Mortgages

Question 36

Hearsay Exceptions - Ancient Documents

Answer 36

Documents at least 20 years old in federal cases and 30 years old in California

Question 37

Hearsay Exceptions - Learned Treatises

Answer 37

• Statements from authoritative works, if called to attention of expert witness and established by reliable authority (can also be used for impeachment).
• In California, applies only to facts of general notoriety and interest (history and science).

Question 38

Hearsay Exceptions - Family Records

Answer 38

Statements found in family Bible, jewelry, tombstones, etc.

Question 39

Hearsay Exceptions - Market Reports

Answer 39

Relied on by public or persons in occupation.

Question 40

Hearsay Exceptions - Judgments of Conviction

Answer 40

Felonies admissible in both criminal and civil cases to prove essential fact.

In California, also misdemeanors.

Question 41

Character Evidence - Generally

Answer 41

Use of a trait to suggest the trait makes it more likely a party engaged in the particular conduct at issue in the case.

Question 42

Character Evidence - Non-Character Purposes

Answer 42

Includes motive, intent, absence of mistake (or accident), identity, knowledge, opportunity, preparation or plan

Question 43

Character Evidence - Civil Cases

Answer 43

• Only admissible where character trait is in issue (reputation in defamation case).
• In federal cases, evidence of prior sexual assault or child molestation is admissible where case arises out of sexual assault or child molestation.

Question 44

Character Evidence - Federal Rules

Answer 44

• Generally, character evidence is first offered by defendant in form of reputation or opinion evidence. On cross, party may offer reputation, opinion or specific acts evidence to impeach witness’ credibility.
  
  • Homicide & Self Defense: In a homicide case where defendant claims self-defense, prosecution may introduce evidence of victim’s peaceable nature by reputation or opinion to rebut defendant’s evidence the victim was aggressor.
  • Defendant Offers Evidence of Victim’s Bad Character: If defendant first offers evidence of victim’s bad character by reputation or opinion, prosecution can offer evidence of victim’s good character or defendant’s same character by reputation, opinion or specific acts.
  • Prior Sexual Assault or Child Molestation: In criminal or civil case, evidence of prior sexual assault or child molestation is admissible in such cases.
  • Rape Cases: Defendant may introduce specific act evidence only to prove someone other than defendant was source of semen or injury, to prove prior acts of consensual sex, or to avoid violation of defendant’s constitutional rights

Question 45

Character Evidence - California Rules

Answer 45

• California Rules: Generally, character evidence first offered by defendant in the form of reputation or opinion. On cross, one may offer only reputation and opinion (different from federal).
  
  • Defendant Offers Evidence of Victim’s Violent Character: If defendant first offers evidence of victim’s character for violence by reputation, opinion or specific acts, the prosecution can offer evidence of defendant’s character for violence or victim’s character for peacefulness by reputation, opinion or specific acts.
  • Prior Sexual Assault or Child Molestation: In criminal cases, evidence of a prior sexual assault or child molestation is admissible in such cases (and in domestic violence and elder abuse cases).

Question 46

Habit or Custom Evidence

Answer 46

Habit evidence requires repeated same response to the same stimulus. Custom refers to a practice. Both are admissible to show the party likely acted in conformity with the habit or custom.

Question 47

Impeachment of Witnesses - Federal

Answer 47

1. Specific Instances of Conduct and Prior Bad Acts: A witness may be impeached by prior bad acts involving untruthfulness in questions on cross, but extrinsic evidence cannot be used. Subject to a Rule 403 balancing.
2. Felony Convictions: A witness may be impeached by felony convictions involving dishonesty or false statements, and court has no discretion to balance unless conviction is more than 10 years old. Other felony convictions are admissible subject to Rule 403.
   
   • Criminal Defendant: If criminal defendant is impeached, conviction is inadmissible unless probative value outweighs unfair prejudice (strict)
3. Misdemeanor Convictions: A witness may be impeached by misdemeanor convictions involving dishonesty or false statements, and court has no discretion to balance unless conviction is more than 10 years old. Other misdemeanors are inadmissible to impeach.
4. Prior Inconsistent Statements: A witness may be impeached by prior inconsistent statements
5. Evidence of Character for Untruthfulness: Opinion and reputation testimony that bears on a witness’ truthfulness or untruthfulness is always admissible.

Question 48

Impeachment of Witnesses - California

Answer 48

1. Specific Instances of Conduct and Prior Bad Acts: In civil cases, specific instances of conduct and prior bad act evidence that bears on truthfulness is inadmissible through both cross and extrinsic evidence. In criminal cases, Proposition 8 makes acts of moral turpitude admissible by both cross and extrinsic evidence.
2. Felony Convictions: A witness may be impeached by felony convictions involving moral turpitude in criminal cases subject to CEC 352 (on record for defendant). In civil cases, witness may be impeached by all felonies, but only felonies.
3. Misdemeanor Convictions: In civil cases, misdemeanors are inadmissible to impeach. In criminal cases, misdemeanor convictions are admissible if the crime involved moral turpitude subject to CEC 352 (on record for defendant).
4. Proposition 8: Relevant evidence shall not be excluded in criminal case, so any evidence of convictions or bad acts involving moral turpitude is admissible to impeach, subject to CEC 352.
5. Prior Inconsistent Statements: A witness may be impeached by prior inconsistent statements
6. Evidence of Character for Untruthfulness: Opinion and reputation testimony that bears on a witness’ truthfulness or untruthfulness is always admissible.

Question 49

Evidence - Policy Exclusions

Answer 49

1. Subsequent Remedial Measures: Evidence of remedial measures taken after accidence or incident not admissible to prove negligence, fault or damages. May be admissible to show ownership, control, to rebut a claim some precaution was not feasible, to prove destruction of evidence, or for impeachment.
   
   • Products Liability (California): Evidence of subsequent remedial measures is admissible in products liability to show product was defective and defendant was liable.
2. Offers of Compromise: Where a party offers to compromise, an entire statement is excluded so long as there is an actual dispute as to liability or damages before offer to compromise or settle was made.
3. Humanitarian Offers/Medical Expenses
   
   • Federal: Evidence of payments or offers to pay medical expenses inadmissible to prove liability for injuries, but admissions made surrounding offers is admissible.
   • California: Both offer and surrounding admissions are inadmissible.
4. Liability Insurance: Evidence of liability insurance is inadmissible to prove negligence or ability to pay, but admissible to prove ownership or control or to impeach. Where admission is so coupled with reference to insurance coverage that the reference cannot be severed without lessening its value as admission, the reference to insurance coverage is admissible.
5. Pleas: Evidence of withdrawn guilty pleas, offers to plea, and related statements is inadmissible.
6. Expressions of Sympathy (California): Expressions of sympathy relating to pain, suffering or death of accident victim are inadmissible in civil cases, but admissible in criminal cases. Accompanying statements of fault are admissible.

Question 50

Evidence - Lay and Expert Opinions

Answer 50

1. Lay Opinions: A lay opinion must be rationally based on a witness’ perception, helpful a clear understanding of his testimony, and in federal cases not based on scientific, technical or other specialized knowledge.
   
   • In California, a lay opinion may be based on such grounds.
2. Expert Opinions: An expert must be:
   
   • Qualified in subject matter
   • Have proper factual basis for testimony
   • Believe his opinion to reasonable degree of certainty, and
   • Testimony must be of some assistance to fact-finder

Methodology: An expert’s methodology must be generally accepted in relevant scientific community and reproducible.

Question 51

Evidence - Authentication

Answer 51

1. Generally: Prior to being admitted, a writing or other physical evidence must be authenticated by someone who can prove the document is what it purports to be.
2. Self-Authenticating: Includes notarized deeds, newspapers, official records, business records (not in CA), and trade labels (not in CA)
3. Letters: If one receives a letter, they can authenticate it if letter is a response to one they sent
4. Voice ID: Voice may be authenticated by anyone with sufficient familiarity of person’s voice, or by making a call to a person listed in phone directory and then asking that person to self-identify.
5. Ancient Documents: Under federal rule, must be 20 years old. In California, must be 30 years old.

Question 52

Evidence - Best and Secondary Evidence Rules

Answer 52

1. Best Evidence Rule (Federal): When evidence is offered to prove material terms of writing, the original writing must be produced. Duplicates are admissible as originals (not including handwritten notes). There is an exception for summaries of voluminous documents.
2. Secondary Evidence Rule (California): Instead of requiring original, secondary evidence rule expresses preference for use of copies. Duplicates and other evidence of contents including handwritten notes are admissible.

Question 53

Evidence - Privileges

Answer 53

1. Generally: In a diversity action, the privilege rules of a state govern. Federal privileges include marital communications, spousal testimonial, attorney-client and psychotherapist or social worker-client. California also recognizes physician-patient and clergy-penitent.
2. Marital Communications: Communications between two persons during marriage, intended to be confidential, remain privileged even after termination of marriage. The privilege is held by both spouses.
3. Spousal Testimonial: The privilege not to be called as a witness or testify against a current spouse. It applies only during marriage and is held only by the testifying spouse.
4. Waiver: There is no waiver if confidential communication is disclosed to person to whom disclosure is reasonably necessary to accomplish purpose of consultation or further interests of holder. Also no waiver in the case of an unknown eavesdropper

Question 54

Evidence - Judicial Notice

Answer 54

1. Not subject to reasonable dispute; and
2. Generally known in court’s jurisdiction, or
3. Capable of accurate or ready determination via unquestioned sources

• Criminal Cases: Under federal rules, in criminal cases judicially noticed facts are only permissive inferences.
  
  • In California, case law prohibits judges in criminal cases from giving conclusive effect to a judicially noticed fact the prosecution must prove.

Question 55

Evidence - Confrontation Clause

Answer 55

Generally: A hearsay statement will not be admitted when:

1. Statement offered against the accused in a criminal case,
2. Declarant is unavailable,
3. Statement was testimonial, and
4. Accused had no opportunity to cross

Non-Testimonial: Ongoing emergency

Testimonial: Primary purpose of interrogation is to establish or prove past events potentially relevant to a later criminal investigation. Examples include affidavits, certificates and other written reports summarizing findings of forensic evidence.