Evidence

Question 1

Evidence - RELEVANCE

Answer 1

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

Question 2

Evidence - FORM OF QUESTION OBJECTIONS

Answer 2

• Leading: suggests the answer in the body of the question; okay on cross or hostile/adverse Ws
• Compound: asks 2+ things in same question
• Calls for Narrative: does not give opposing party notice of potentially inadmissible material
• Assumes Facts Not in Evidence

Question 3

Evidence - NON-RESPONSIVE

Answer 3

W does not answer the question or goes beyond its scope.

Non-responsive portion(s) are subject to a motion to strike

Question 4

Evidence - CHARACTER EVIDENCE

Answer 4

The use of prior conduct to infer a character trait and then the use of that trait to suggest later conduct in conformity with it.

Question 5

Evidence - Character - SEXUAL MISCONDUCT EXCEPTIONS

Answer 5

CRIM: In sexual assault cases (or CA elder/dependent/child abuse or DV cases), PBAs of sexual assault are admissible to prove character of sexual predation.

CIVIL: In FED ONLY civil cases for claims based on sexual assault or child molestation, PBAs of sexual assault or child molestation are admissible to prove conduct.

Question 6

Evidence - NON-CHARACTER PURPOSES

Answer 6

• Common plan or scheme
• Opportunity
• Motive
• Mens Rea (acts not perf’d innocently or negligently)
• Identity of Perpetrator
• Context
• State of Mind of declarant or ∆

Question 7

Evidence - MERCY RULE

Answer 7

In CRIM cases, ∆ may first offer opinion or reputation evidence of his relevant good character trait.

Prosecution may then:

• rebut with op/rep of ∆’s relevant bad character AND
• inquire into ∆’s character W’s knowledge of ∆’s specific acts inconsistent with that trait

Question 8

Evidence - VICTIM CHARACTER EVIDENCE

Answer 8

FRE:

• ∆ may first offer op/rep of V’s relevant character trait and prosecution may then rebut with op/rep of V’s good and ∆’s bad relevant traits.
• In HOMICIDE cases, if ∆ claims self-defense and produces evidence V attacked first, prosecution may introduce op/rep of V’s peacefulness.

CEC:

• ∆ can introduce all 3 types of V’s relevant character and prosecution can rebut w/ all 3 of V’s good character.
• If the trait is VIOLENCE, prosecution can also introduce all 3 types of ∆’s violence.

Question 9

Evidence - RAPE SHIELD LAW

Answer 9

In all CRIM and in CA civil cases, character evidence of a sexual assault V is inadmissible to prove consent UNLESS it is:

1) prior sexual conduct with ∆ or
2) a CA civil claim for loss of consortium

Question 10

Evidence - HABIT and CUSTOM

Answer 10

The regular practice of responding to a specific situation with specific conduct

Admissible to show that, on a particular occasion, a person/entity conducted him/itself in conformity with the habit/custom.

Question 11

Evidence - SIMILAR OCCURRENCES

Answer 11

1) Must be used to prove some relevant proposition other than character
2) Circumstances must be substantially similar to the occurrence at issue.

Question 12

Evidence - POLICY EXCLUSION LIST

Answer 12

1) Subsequent Remedial Measures
2) Offers of Compromise
3) Offers to Pay Medical Expenses
4) Benevolent Gestures
5) Liability Insurance
6) Plea Offers/Withdrawn Pleas

Question 13

Evidence - SUBSEQUENT REMEDIAL MEASURES

Answer 13

FRE: inadmissible to prove negligence, culpable conduct, or product defect

CEC: inadmissible to prove negligence or carelessness

Question 14

Evidence - OFFER OF COMPROMISE

Answer 14

CIVIL ONLY

• Requires a dispute as to liability and/or damages
• ENTIRE statement, including any admission in connection, will be excluded

Question 15

Evidence - OFFERS TO PAY MEDICAL EXPENSES

Answer 15

FRE: only offer itself is inadmissible

CEC: offers, humanitarian gestures, and connected admissions are ALL inadmissible to prove fault

Question 16

Evidence - BENEVOLENT GESTURES

Answer 16

CEC ONLY

Only gesture itself, not any admissions in connection, will be excluded

Question 17

Evidence - LIABILITY INSURANCE

Answer 17

Inadmissible to prove negligence or other wrongdoing

Question 18

Evidence - PLEA OFFERS/WITHDRAWN PLEAS

Answer 18

FRE: inadmissible if made to prosecuting atty only

CEC: inadmissible if made to prosecutor OR non-transporting law enforcement as part of bona fide plea negotiations

Question 19

Evidence - PRIOR INCONSISTENT STATEMENT

Answer 19

Can be proven extrinsically ONLY if W is given an opportunity to explain or deny them OR hasn’t been excused.

FRE: always admissible to impeach; only admissible for truth if made under oath

CEC: always admissible for both

Question 20

Evidence - W IMPEACHMENT BY CONVICTION/PBA

Answer 20

FRE:

• Any felony if < 10 years have elapsed since later of conviction or release AND if W is the crim ∆, prosecution shows the probative value exceeds the prejudicial effect
• Misdemeanors involving dishonesty
• PBAs involving untruthfulness (but no extrinsic to prove)

CEC:

• CRIM = any felony
• CIV = felonies, misdemeanors, or PBAs involving moral turpitude (extrinsic okay)

Question 21

Evidence - AUTHENTICATION

Answer 21

The proponent of a writing/thing/voice must prove sufficient evidence for a judge to find that it is what it purports to be.

Self-Authentication:
FRE: notarized docs, newspapers, trade labels, certified copies of public records, official publications of public authorities, commercial paper
CEC: only certified copies of public records

Question 22

Evidence - BEST or SECONDARY EVIDENCE RULE

Answer 22

BER (FRE): The contents of a writing must be proved by an original, which includes duplicates

SER (CEC): To prove the contents of a writing, the Code expresses a preference for copies

Question 23

Evidence - HEARSAY

Answer 23

An out of court statement used to prove the truth of the matter asserted.

Question 24

Evidence - NON-HEARSAY PURPOSES

Answer 24

1) Why a particular course of action is taken
2) Alive or otherwise conscious
3) Verbal acts
4) Effect on hearer/reader
5) Mens rea
6) Notice
7) Circumstantial evidence of declarant’s state of mind

Question 25

Evidence - FRE EXCLUSIONS

Answer 25

ADMISSIONS - if true, proves aspect of opposing party’s case

1) Party Opponent
2) Vicarious - w/in course and scope of employment, while employed
3) Co-conspirator - in course and furtherance
4) Adoptive - reas person would object if untrue
5) Authorized - agency issue

PRIOR W STATEMENTS

1) Inconsistent
2) Consistent - need attack on credibility first and stmt must have been before basis for attack arose
3) Of identification - made immediately after perceiving

Question 26

Evidence - FRE EXEMPTIONS

Answer 26

1) Present Sense Impression
2) Statement for Purpose of Medical Diagnosis or Treatment
3) Former Testimony
4) Dying Declaration
5) Statement Against Interest
6) State of Mind
7) Excited Utterance
8) Business Record
9) Official Record
10) Learned Treatise
11) Commercial List
12) Past Recollection Recorded

Question 27

Evidence - PRESENT SENSE IMPRESSION

Answer 27

• *FRE ONLY**
  1) Explaining or describing an event
  2) While perceiving or immediately after

Question 28

Evidence - STATEMENT FOR PURPOSE OF MEDICAL DIAGNOSIS OR TREATMENT

Answer 28

• *FRE ONLY**
  1) Made for purpose of medical diagnosis or treatment
  2) Describes pain, cause of pain, medical history, or past or present symptoms

Question 29

Evidence - FORMER TESTIMONY

Answer 29

1) Declarant unavailable
2) Gave testimony under oath at prior hearing or depo
3) Offered against _____ who had an opportunity and similar motive to cross-examine
- - CRIM: same party
- - CIVIL FRE: same party or predecessor in interest
- -CIVIL CEC: anyone

Question 30

Evidence - DYING DECLARATION

Answer 30

1) Made while dying
2) With belief death is immediately impending
3) and concerning cause or circumstances of death

FRE - ALSO:

4) declarant unavailable
5) civil action or homicide case only

Question 31

Evidence - STATEMENT AGAINST INTEREST

Answer 31

1) Declarant unavailable
2) At time of making, statement was so contrary to pecuniary or proprietary interest or so tended to subject him to civil or criminal liability that a reasonable person would not make it unless he believed it to be true

CEC: also includes social interest

Question 32

Evidence - STATE OF MIND

Answer 32

1) Then-existing state of mind, including mental, physical, or emotional condition
2) Can be used to establish intent or plan of declarant

Question 33

Evidence - EXCITED UTTERANCE/SPONTANEOUS STATEMENT

Answer 33

EU = FRE; SS = CEC

1) Relates to a startling event
2) Made spontaneously while under the stress of that event

Question 34

Evidence - BUSINESS RECORDS

Answer 34

1) Made in the regular practice of business
2) Made at or neat the time of the event
3) Custodian of records testifies to record’s identity and mode of preparation
4) Sources of information and time and mode of preparation suggest trustworthiness

Question 35

Evidence - OFFICIAL RECORDS

Answer 35

Made by a gov’t employee with a legal duty to make such records

Question 36

Evidence - LEARNED TREATISES

Answer 36

1) Publications on a subject of history, medicine (FRE only), or other science or art

2)
FRE: established as reliable by testimony or admission of an expert or judicial notice
CEC: can only be used to cross if: (1) expert referred, considered, or relied on, (2) admitted into ev, or (3) established as reliable by any expert

Question 37

Evidence - COMMERCIAL LISTS

Answer 37

Lists and tabulations generally used and relied upon by the public

CEC: or persons in a particular occupation

Question 38

Evidence - PAST RECOLLECTION RECORDED

Answer 38

Where W has no memory and nothing refreshes, if he testifies that when he made the recording, it was fresh in his memory and accurate, the recording can be read into the record.

Question 39

Evidence - CEC EXCEPTION LIST

Answer 39

1) Admissions (vicarious - employer liability based on VL and EE makes own admission)
2) Prior W Statements
3) Contemporaneous Statements
4) Spontaneous Statements
5) State of Mind
6) Former Testimony
7) Dying Declarations
8) Statement Against Interest
9) Crime Victim Statements
10) Business Records
11) Official Records
12) Learned Treatises
13) Commercial Lists
14) Convictions
15) Past Recollection Recorded

Question 40

Evidence - CONTEMPORANEOUS STATEMENTS

Answer 40

CEC ONLY

1) Offered to explain, qualify, or make understandable the conduct of declarant
AND
2) made while engaged in such conduct

Question 41

Evidence - CRIME VICTIM STATEMENT OF THREAT OR ABUSE

Answer 41

• *CEC ONLY**
  1) Declarant unavailable
  2) Statement describes or explains a threat or infliction of injury,
  3) was made at or near the time of the threat or injury, and
  4) was written, recorded, or made to law enforcement or medical personnel under trustworthy circumstances

Question 42

Evidence - PRESENT RECOLLECTION RECORDED

Answer 42

• NON-HS CONCEPT*
• W doesn’t remember
• would looking refresh?
• show opposing counsel
• let W read to self
• W testifies from memory (as refreshed)

Question 43

Evidence - LAY TESTIMONY

Answer 43

Must be

1) rationally based on W’s perception and
2) helpful to the jury’s understanding of the testimony

Question 44

Evidence - EXPERT TESTIMONY

Answer 44

1) Qualified in the subject matter - special knowledge, skill, experience, training, or education
2) Proper factual basis
- - from own observation
- - presented at trial or by hypo, or
- - supplied out of ct and of a type reasonably relied upon by experts in the field

Question 45

Evidence - JUDICIAL NOTICE

Answer 45

On request of party or sua sponte, ct can take JN of a fact not subject to reasonable dispute in that it is either:

1) generally known in the ct’s territorial jx OR
2) capable of accurate and ready determination by resort to an unquestionably accurate source

Question 46

Evidence - PROP 8

Answer 46

In CALIFORNIA, relevant evidence shall not be excluded in any CRIMINAL proceeding

BUT, does not apply to:

1) privileges
2) hearsay
3) §352
4) character evidence

Question 47

Evidence - CONFRONTATION CLAUSE

Answer 47

When prosecution offers TESTIMONIAL statements against ∆ for HS purposes, the declarant must be produced for cross-examination under oath OR prosecutor must demonstrate his unavailability AND that ∆ had a prior opportunity to cross.

Testimonial = solicited by law enforcement with an eye toward use at trial

Question 48

Evidence - MARITAL COMMUNICATIONS PRIVILEGE

Answer 48

• Protects communications between spouses during a valid marriage and intended to be confidential
• Survives end of marriage
• Held by BOTH spouses

Question 49

Evidence - SPOUSAL PRIVILEGES

Answer 49

1) Not to be called by a party adverse to current spouse
2) Not to testify against current spouse in any proceeding

• Terminates at end of marriage
• Potentially testifying spouse is only holder

Question 50

Evidence - PROFESSIONAL COMMUNICATIONS PRIVILEGES

Answer 50

1) Made in course of relationship
2) Intended to be confidential

Waived by disclosure to 3rd person OTHER than one whose presence is reasonably necessary to:

1) accomplish the purpose of the consultation OR
2) further interest of client

Question 51

Evidence - 403/§352

Answer 51

A court has discretion to exclude otherwise admissible evidence if its probative value is substantially outweighed by the possibility of undue prejudice, delay, or jury confusion