Evidence

Question 1

Evidence - Exam Outline

Answer 1

1. Relevance
2. Foundation/Personal Knowledge/Presentation (if applicable)
3. Form of the Question (or Answer) (if applicable)
4. Character and Specific Acts for Non-Character Purposes (if applicable)
5. Impeachment by Prior Bad Acts/Convictions (if applicable)
6. Writings—Authentication/Best Evidence Rule/Hearsay (if applicable)
7. Hearsay (if applicable)
8. Hearsay Exclusions/Exceptions (if applicable)
9. Opinion (if applicable)
10. Judicial Notice (if applicable)
11. Proposition 8 (if criminal case and only if applicable)
12. FRE 403 or Evidence Code 352 (if applicable)

Question 2

Relevance - Definition

Answer 2

“Relevant evidence” means evidence tending to make the existence of any fact of consequence to the determination of the action more or less probable than it would be without the evidence.

Question 3

Character Evidence - Civil Cases

Answer 3

Character evidence is only admissible in civil cases where the character trait itself is directly in issue - such as reputation in a defamation case, or cases of negligent entrustment.

Question 4

Character Evidence - Proposition 8

Answer 4

Proposition 8 does not apply to change the character evidence rules.

Question 5

Character Evidence - Mercy Rule

Answer 5

Under the Mercy Rule in both Federal and CA courts, relevant character evidence must first be offered by the criminal defendant, in the form of opinion or reputation.

Once the defendant has introduced character evidence, then the prosecution can offer evidence of the defendant’s same bad character.

Question 6

Victim Character Evidence - Federal

Answer 6

The Federal rules limit victim character evidence to opinion and reputation.

If the defendant offers evidence of the victim’s character, the prosecution can then offer evidence of both the victim’s good character and the defendant’s same bad character trait.

In a homicide prosecution where the defendant introduces evidence that plaintiff attacked first, the prosecution may then introduce evidence of the victim’s peaceful character.

Question 7

Victim Character Evidence - CA

Answer 7

The California Evidence Code allows defendants to attack a victim’s character with all three forms of character evidence: opinion, reputation, and specific acts.

The defendant may introduce all three types of character evidence of a victim, but if he does, the prosecution may introduce all three types of good character of the victim.

If the defendant introduces evidence of the victim’s violent character, the prosecutor can then introduce all three character evidence types of the defendant’s character.

A self-defense claim is not considered an attack on the victim’s character, so the prosecution cannot offer character evidence of the victim’s peaceful or non-violent nature unless the defendant has introduced evidence of the victim’s violent nature.

Question 8

Character Evidence - Specific Acts Generally

Answer 8

Evidence of specific acts is not permitted to prove character

Question 9

Character Evidence - Specific Acts Exceptions

Answer 9

Evidence of specific acts is permitted:

1. to prove character in sexual assault or misconduct cases, or
2. on cross-examination to impeach a witness’ credibility.

Question 10

Character Evidence - Non-Character Purposes

Answer 10

Evidence of specific acts is permitted for non-character purposes, such as to prove:

1. a common plan or scheme,
2. identity,
3. motive,
4. opportunity, or
5. state of mind

Question 11

Habit and Organizational Routine - Generally

Answer 11

Evidence of a person’s habit or an organization’s routine is admissible to prove that the person or organization acted in accordance with the habit or routine on a particular occasion.

Question 12

Public Policy Exclusions - Generally

Answer 12

Most policy exclusions only apply to civil cases, and are generally inadmissible to prove fault or liability.

Question 13

Policy Exclusion - Subsequent Remedial Measures

Answer 13

The FRE prohibit the admission of subsequent remedial measures to prove negligence, fault, or damages, in both negligence and product liability cases. However, such evidence is admissible when offered for another purpose, such as proving ownership, control, feasibility of precautionary measures or design, or impeachment.

In CA, evidence of subsequent remedial efforts or precautions is admissible in cases of products liability to show that the product was defective and thus defendant was liable (not just to show the feasibility of an alternative design).

Question 14

Policy Exclusion - Offers of Compromise

Answer 14

Compromise offers, as well as any conduct or statements made during compromise negotiations, are not admissible to prove or disprove the validity or amount of a disputed claim, nor may they be admitted for impeachment by prior inconsistent statement or contradiction.

If the claim is not disputed as to its validity or amount (e.g., a party admits to both), then a statement made in connection with an offer to settle for a lesser amount is admissible.

Question 15

Policy Exclusion - Offers to Pay Medical Expenses

Answer 15

Under the FRE, only the offer to pay medical expenses is excluded—any admissions of fact made during the offer to pay medical expenses are admissible.

In CA, admissions of fact made during offers to pay medical expenses, or other humanitarian offers (such as an offer to pay funeral expenses), are excluded.

CA also excludes benevolent gestures (“I’m sorry for your loss”), but does not exclude admissions of fact that accompany them.

Question 16

Policy Exclusion - Liability Insurance

Answer 16

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. However, such evidence may be admissible for another purpose, such as to prove agency, ownership, or control, or to prove a witness’s bias or prejudice.

Question 17

Policy Exclusion - Pleas

Answer 17

Under the FRE, offers of pleas are inadmissible in all cases.

In California pleas are admissible only to impeach the party if they testify inconsistently with the plea.

Question 18

Hearsay - Defined

Answer 18

Hearsay is an out of court statement that is offered to prove the truth of the matter asserted.

If a statement is hearsay, and no exception to the rule is applicable, the evidence must be excluded upon appropriate objection to its admission.

Question 19

Hearsay - Exam Approach

Answer 19

If you get a hearsay issue:

1. Define hearsay, and discuss whether the statement was out of court.
2. Discuss whether the statement is being used to prove its truth or for another non-hearsay purpose such as effect on the hearer or verbal acts, the giving of a warning, or consciousness.

Question 20

Hearsay - Federal Exclusions

Answer 20

The FRE provides an exception to the hearsay rule for:

1. Admissions of Party Opponents
2. Prior Statements of Witnesses

Prior statements of witnesses include prior inconsistent and consistent statements, and prior identification of a person after perceiving them.

Question 21

Hearsay - CA Exceptions

Answer 21

California has no exclusions or exemptions—only exceptions.

1. Admissions
2. Vicarious Admissions
3. Prior Inconsistent Statements
4. Present Sense Impressions/Contemporaneous Statements
5. Statement for the Purpose of Diagnosis or Treatment

Question 22

Hearsay - Vicarious Admissions, FRE vs. CEC

Answer 22

The FRE allows admissions by an employee to be used against the employer if made while the employee is still employed and if the statements concern a matter within the employee’s course and scope of employment.

Under the CEC, an employee’s admissions are held to be admissions against the employer when the liability of an employer is based wholly or in part on the liability of an employee, under the principle of respondeat superior.

Question 23

Hearsay - Prior Inconsistent Statements, FRE vs. CEC

Answer 23

Under the FRE, prior inconsistent statements made under oath may be admissible to impeach the declarant’s credibility and as substantive evidence.

Under the CEC, the statement is admissible for substantive purposes regardless of whether it was made under oath

Question 24

Hearsay - Present Sense Impressions/Contemporaneous Statements, FRE vs. CEC

Answer 24

Under the FRE, a present sense impression is a statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it, and is not excluded as hearsay.

Under the CEC, a statement offered to explain, qualify, or make understandable some conduct of the declarant, made while the declarant was engaged in such conduct, is admissible as a contemporaneous statement.

Question 25

Hearsay - Statements for the Purpose of Diagnosis or Treatment, FRE vs. CEC

Answer 25

Under the FRE, a statement describing medical history or past or present symptoms is not hearsay if it is made for medical diagnosis or treatment.

Under the CEC, there is no specific exception for these statements. However, some statements could still be admissible under the exception for then-existing state of mind.

Question 26

Hearsay - Exceptions that Require Unavailability

Answer 26

The following exceptions are available only if the declarant is unavailable:

1. Former testimony,
2. Statements against interest,
3. Dying declarations

Question 27

Hearsay - Former Testimony, FRE vs. CEC

Answer 27

Testimony that was given as a witness at a trial, hearing, or lawful deposition is not excluded as hearsay if the party against whom the testimony is being offered (or, in a civil case, a party’s predecessor-in-interest) had an opportunity and similar motive to develop the testimony by direct or cross-examination.

In CA civil cases, such evidence may also be offered against a non-party if the party who cross-examined the witness had a similar interest and motive as the party against whom the statement is offered.

Question 28

Hearsay - Dying Declaration, FRE vs. CEC

Answer 28

A statement qualifies as a “dying declaration” if:

i) The declarant believes death is imminent; and
ii) The statement pertains to the cause or circumstances of the death believed to be imminent.

Although the declarant must be unavailable, the declarant need not have actually died. This exception applies only in homicide prosecutions and civil cases.

Under the CEC, dying declarations are admissible in all criminal and civil proceedings. The declarant need not be unavailable—only “dying.”

Question 29

Hearsay - Statements Against Interest, FRE vs. CEC

Answer 29

A statement qualifies as a “statement against interest” if it is contrary to the person’s pecuniary or proprietary interest, or would expose them to criminal or civil liability.

In CA, the statement must also be against their social interest.

A statement against interest must be disserving of the declarant’s interest—not someone else’s.

Question 30

Hearsay - Crime Victim Complaints (CA Only)

Answer 30

A statement qualifies as a “crime victim complaint” if:

1. the declarant is unavailable, and
2. the statements involve a threat or injury,
3. made shortly after the threat or injury,
4. in writing, or recorded, or made to law enforcement, medical personnel, or domestic abuse shelters or similar agencies.

Question 31

Hearsay - Present Recollection Refreshed

Answer 31

A witness may examine any item, such as a writing or photograph, to “refresh” the witness’s present recollection.

The witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself (e.g., the witness cannot read from the refreshing document).

When the item used to refresh a witness’s recollection is a writing, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence.

Question 32

Hearsay - Excited Utterance

Answer 32

A statement made about a startling event or condition, while the declarant is under the stress of excitement that it caused, is not excluded as hearsay.

The event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant in the event (i.e., the declarant can be a bystander).

Question 33

Hearsay - State of Mind

Answer 33

A statement of the declarant’s then-existing state of mind or emotional, sensory, or physical condition is not excluded as hearsay.

Question 34

Hearsay - Past Recorded Recollection

Answer 34

A record is not excluded as hearsay if:

i) The record is on a matter that the witness once knew about;
ii) The record was made or adopted by the witness when the matter was fresh in the witness’s memory;
iii) The record accurately reflects the witness’s knowledge; and
iv) The witness states that they cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand.

Question 35

Hearsay - Business Records

Answer 35

A record of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if:

i) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling;
ii) The making of the record was a regular practice of that activity; and
iii) The record was made at or near the time by (or from information transmitted by) someone with knowledge.

Question 36

Impeachment of Witnesses - Federal

Answer 36

Impeaching a witness on their credibility, other than impeaching a character witness, involves the use of:

1. Prior inconsistent statements;
2. Bias; or
3. Prior bad acts or convictions.

Under the FRE, a witness may be impeached with any felonies committed within the prior 10 years, or misdemeanors involving dishonesty.

A witness may only be impeached with prior unconvicted bad acts involving untruthfulness, but no extrinsic evidence of the prior bad act is admissible.

Question 37

Impeachment of Witnesses - CA

Answer 37

California only permits the impeachment of a witness’ credibility through felony convictions (in criminal cases, only those involving moral turpitude).

Limitations on impeachment of witnesses no longer apply in California criminal cases under Proposition 8, so almost any evidence of convictions or prior bad acts involving moral turpitude is admissible, including extrinsic evidence of bad acts, subject only to CEC 352—which would limit such evidence to evidence probative of truthfulness.

Moreover, where a witness—particularly a party-witness—is impeached with prior bad acts, there is a potential for jury confusion as to the purpose of the evidence, so this is one time when you would use a CEC 352 analysis.

Question 38

Opinion - Lay Witness

Answer 38

A lay witness is generally not permitted to testify as to their opinion. However, lay opinions are admissible with respect to common-sense impressions such as appearance, intoxication, speed of a vehicle, or another’s emotions. To be admissible, the opinion must be:

i) Rationally based on the perception of the witness; and
ii) Helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Question 39

Opinion - Expert Witness

Answer 39

To be admissible, an expert must be:

1. qualified in the subject matter,
2. have a proper factual basis for the testimony, and
3. the testimony must be of help to the fact-finder—which means that the methodology must be generally accepted in the relevant scientific community.

Question 40

Writings - Exam Approach

Answer 40

Anytime you have any writing, you must discuss:

1. Authentication (is the document what it purports to be?);
2. Best evidence rule (or, in California, Secondary Evidence Rule)—if the content of the writing is in issue, the proponent must produce the original (which includes photocopies); and
3. Hearsay

Question 41

Writings - Authentication

Answer 41

Any writing can be authenticated by the author of the document or by a custodian of records.

Under the FRE, some documents are self-authenticating, such as deeds that are notarized, newspapers, official records, and trade labels.

In CA, only certified copies of judgments are self-authenticated. Most other self-authenticating documents under the FRE are presumed authentic in CA, though the presumption can be rebutted.

A voice can be authenticated by anyone who has sufficient familiarity with the person’s voice. It can also be authenticated by making a call to a person who is listed in the telephone directory, and then having that person self-identify on the phone.

Question 42

Best Evidence Rule - Generally

Answer 42

The best evidence rule requires that the original document, or a reliable duplicate, be produced in order to prove the contents of a writing, recording, or document.

Question 43

Secondary Evidence Rule - Generally

Answer 43

The CA rule is effectively the same as the Federal Rule. However, the CEC expresses a preference for the use of copies (rather than testimony) to prove the contents of a writing.

Question 44

Marital Communications Privilege - Generally

Answer 44

The marital communications privilege covers communications between two persons, that are made during the marriage, and are intended to be confidential.

The marital communications privilege applies to all marital confidential communications even after the marriage has ended, and is held by both spouses, so either spouse can prevent the other spouse from testifying to confidential communications made during the marriage.

Any communication between spouses during marriage is presumed confidential.

Question 45

Spousal Privileges - Generally

Answer 45

Another form of marital privilege are the two spousal privileges:

1. The privilege not to be called as a witness against a current spouse; and
2. The privilege not to testify against a current spouse.

The spousal privileges only apply during the marriage itself, and are only held by the testifying spouse. Thus, the other spouse cannot ever prevent a spouse from testifying against them, except when a spouse or former spouse seeks to testify to confidential marital communications.

Question 46

Privileges - Exam Approach

Answer 46

Discuss in this order:

1. Who can claim the privilege?
2. Is the communication confidential or intended to be confidential?
3. Who is included within the privilege?
4. Has the privilege been waived or terminated?

Question 47

Attorney-Client Privilege - Generally

Answer 47

If someone consults with a person whom they reasonably believe to be an attorney, the privilege attaches to communications between them.

Both the client and the attorney are entitled to assert the privilege, although the privilege belongs ultimately to the client—who is the only one who can waive it.

A waiver of the privilege can be intentional or negligent (failure to claim the privilege). In the event of an inadvertent waiver of the privilege through accidental disclosure, the privileged document must be returned and cannot be referred to in any proceeding.

The presence of any person necessary to the accomplishment of the purpose of the representation, or to assist the client in the communication of the information, is permitted, and the privilege still covers them, so the presumption of confidentiality is not overcome.

Question 48

Judicial Notice - Generally

Answer 48

To qualify for judicial notice, the fact must be not subject to reasonable dispute, in that it is:

1. either generally known within court’s territorial jurisdiction or
2. capable of accurate and ready determination by resort to unquestioned accurate sources.

Judicial notice may be taken whether requested or not. If taken, the fact is conclusively established in a civil case, but is only an inference in criminal cases.