Evidence

Question 1

Relevance

Answer 1

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

Address Probative Value and Materiality.

Question 2

Evidence Checklist

Answer 2

1. Relevance
2. Foundation/Personal Knowledge/Presentation
3. Form of the Question (or Answer)
4. Character
5. Impeachment by Prior Bad Acts/Convictions
6. Hearsay
7. Hearsay Exclusions/Exceptions
8. Opinion
9. Judicial Notice
10. Prop 8 - only if otherwise excluded
11. FRE 403/CEC 352 - rarely

Question 3

CA 352 / Fed Rule 403

Answer 3

Court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will:

a. necessitate undue consumption of time; or
b. create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury

Ex. where witness is also defendant and is impeached with prior bad acts, potential for jury confusion as to whether evidence is used for permissible impeachment or for impermissible character purposes.

Question 4

Undue Prejudice

Answer 4

Undue tendency to suggest decision on an improper basis, commonly, through not necessarily, an emotional one. (c.f. factual)

Question 5

Character Evidence

Answer 5

Use of prior conduct to infer a trait, and then use of that trait to suggest or infer that the trait makes it more likely that a party engaged in particular conduct at issue in the case

1. Specific Instances of Conduct
2. Opinion Evidence - testimony by someone who knows D well and can say that in her opinion, D is X type of person
3. Reputation Evidence - testimony by someone who knows D’s reputation in D’s local community well and who can say under oath that D has a reputation for X.

Relevance - trait makes it more likely that a party committed particular conduct at issue in current case.

Question 6

Character Evidence Admissibility

Answer 6

Inadmissible to prove conduct.

Exceptions:

FRE: Claim is criminal charge or civil claim based on sexual assault or child molestation. D’s prior bad acts of sexual assault or child molestation are admissible to prove conduct in current case

CA: same on criminal charge BUT CA does NOT have exception for civil actions based on sexual assault or child molestation is inadmissible to prove propensity. CA does allow similar acts to prove propensity in domestic violence and child abuse cases

Character evidence is admissible where character is in issue by virtue of the case:

• civil - reputation in defamation case, negligent entrustment, child custody
• criminal - entrapment defense

Question 7

Mercy Rule

Answer 7

1. Criminal D must introduce rep/op evidence of his good character
2. Then prosecution has opportunity to rebut such evidence with:
   a. relevant rep/op evidence of the accused’s bad character or
   b. inquiring character witness’ knowledge of specific acts of D inconsistent with character trait to impeach witness’ credibility so long as prosecutor has good faith belief that the conduct occurred.

Federal and CA

Question 8

Character Evidence - Sexual Misconduct Cases (Federal)

Answer 8

Generally permits evidence of specific instances of conduct in the form of similar crimes in sexual assault and child molestation cases

and

similar acts in civil cases involving sexual assault and child molestation

subject to advance notification to D by prosecutor

Question 9

Character Evidence - Sexual Misconduct Cases (CA)

Answer 9

Permits evidence of D’s commission of various sexual offenses, whether or not D was acquitted, to be used as evidence in a criminal action in which D is accused of another sexual offense, subject to advance notification to D, and subject to determination under E.C. 352 that prejudicial effect of the evidence does not outweigh probative value

Question 10

Character Evidence of Victim (CA)

Answer 10

Applies only to criminal trials.

Permits D to introduce all types of character evidence of a victim

Prosecution can rebut with all three types of victim “good” character evidence, but if victim character trait introduced by D is violence, Prosecution can ALSO introduce all three types of character evidence of D for violence.

If D opens door by offering evidence of VIOLENCE, prosecution may offer evidence that victim was peaceable or that D also had such a character or trait for violence

Question 11

Character Evidence of Victim (FED)

Answer 11

D may first offer opinion/reputation evidence of victim’s relevant character trait.

Prosecution can rebut with opinion/reputation evidence of victim’s relevant character trait and D’s relevant character trait.

HOMICIDE CASE - if D claims self-defense and produces evidence victim attacked first, prosecution may introduce opinion and reputation evidence of victim’s peacefulness

Unlike CA:

1. Evidence limited to opinion and reputation evidence - no evidence of specific instances of conduct
2. Prosecution may introduce rebuttal evidence of any relevant character trait of D so long as it is the same character trait as that introduced by D about the victim

Question 12

Rape Shield Laws

Answer 12

Prohibit use of opinion or reputation evidence and evidence of victim’s prior sexual conduct to prove victim’s consent, both in rape and other criminal sexual crimes and in civil cases of sexual harassment, battery, or assault

Exception: Victim’s prior sexual conduct with D is admissible to prove consent

Question 13

Evidence of Specific Acts for non-character purposes

Answer 13

Specific acts of a party are admissible for non-character purpose

1. Context
2. Common Plan or Scheme
3. Identity of Perpetrator
4. Motive
5. Opportunity
6. State of Mind
7. Act Not Performed Innocently or Negligently

Question 14

Context

Answer 14

Prior acts necessary to place the story of the crime on trial in context

Question 15

Common Plan or Scheme

Answer 15

Where crime on trial is part of a larger plan, scheme, or conspiracy

Question 16

Identity of Perpetrator

Answer 16

Perpetrator’s consistent, telltale signal or sign, or committing multiple crimes using an identical method

Question 17

Motive

Answer 17

Evidence of another (prior) bad act to show D had a reason to commit the crime charged

Question 18

Opportunity

Answer 18

Prior acts that show accused had opportunity to commit the crime of which he is being tried

Question 19

State of Mind

Answer 19

Prior bad acts or crimes may be used to show either accused’s or victim’s state of mind

Question 20

Act Not Performed Innocently or Negligently

Answer 20

Prior acts to show that the act was not innocent or negligent and that D had mens rea of intent

Question 21

Evidence of Habit and Custom

Answer 21

May be introduced to prove that on a specified occasion, person conducted himself or herself in conformity with the habit

Habit is a person’s regular practice of responding to a particular kind of situation with a specific type of conduct

1. Regular practice of responding
2. particular kind of situation
3. specific type of conduct

Custom - Business practice

Look for REPEATEDLY, ALWAYS, NEVER.

Question 22

Evidence of Similar Occurrences

Answer 22

Conditions:

1. Evidence used to prove some relevant proposition other than character (such as existence of a dangerous condition, ownership, or knowledge of the dangerous condition); and
2. circumstances of the “similar occurrences” are indeed substantially similar to the occurrence at issue in the case

Question 23

Impeachment of Witnesses

Answer 23

1. Prior inconsistent statements
2. prior bad acts
3. contradiction
4. criminal convictions
5. character for untruthfulness
6. demonstration of impairment
7. bias

Question 24

Prior inconsistent statements (FED)

Answer 24

May always be used to impeach witness for a nonhearsay purpose.

May be used for hearsay purpose (substantive) only if statement was given under oath subject to penalty of perjury at trial, hearing or other proceeding or in a deposition

Question 25

Prior inconsistent statements (CA)

Answer 25

Substantively admissible and admissible for impeachment unless barred by US CN or judge under E.C. 352

Question 26

Impeachment by Contradiction

Answer 26

Uses evidence of the nonexistence of the fact testified by the witnesses, often testified to by others

Question 27

Impeachment by Bias

Answer 27

Witness who has an incentive to benefit from their testimony or has reason to shade their testimony can be impeached with evidence of their bias, incentive, or motive

Question 28

Impeachment with Prior Crimes and Uncharged Offenses (FED)

Answer 28

Witness may be impeached in a civil/criminal case by ANY felony conviction, misdemeanor conviction involving dishonesty or untruthfulness, or prior un-convicted bad acts involving untruthfulness (no extrinsic evidence)

Witness who is also the criminal D can only be impeached by a felony conviction if court determines the probative value outweighs prejudicial effect

Convictions more than ten years from the date of the conviction or the release from confinement for that conviction, whichever later, may not be used unless court determines probative value of conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect

Question 29

Impeachment with Prior Crimes and Uncharged Offenses (CA)

Answer 29

Civil:

Allows felony convictions to impeach a witness’ credibility.

Criminal:

Witness may be impeached in a criminal case by any convictions or prior bad acts involving moral turpitude.

Judgments of convictions are hearsay but under prop 8, any evidence, including extrinsic evidence of bad acts are admissible if probative of truthfulness.

CA hearsay exception only permit evidence of felony and misdemeanor convictions.

Prior bad acts may be proved by extrinsic evidence if witness denies them on the stand

Question 30

Impeachment by Character/Reputation for truthfulness/untruthfulness

Answer 30

Witness credibility may be attacked by opinion or reputation evidence of character for truthfulness.

If witness’ credibility is attacked, may be supported by opinion or reputation evidence of character for truthfulness

Question 31

Policy Exclusions

Answer 31

Civil cases only.

1. Offers of compromise
2. offers to pay medical expenses
3. subsequent remedial measures (FRE) / Humanitarian Offers (CA)
4. evidence of liability insurance
5. evidence of offers of pleas

Question 32

Offers of Compromise

Answer 32

If there is an actual dispute as to liability or damages, then offers of compromise is inadmissible to show fault.

Entire statement is excluded including admissions made with the offer of compromise or settlement negotiations.

Question 33

Offers to Pay Medical Expenses (FED)

Answer 33

Prohibits admissibility of offers to pay hospital or medical bills but other offers and admissions are admissible.

Question 34

Offers to Pay Medical Expenses/Humanitarian Offers (CA)

Answer 34

Excludes offers and admissions made in connection with offers to pay medical expenses. (narrower)

Excludes admission in a civil case of statements, writings, and benevolent gestures expressing sympathy relating to the pain, suffering, or death of a person involved in an accident and made to the person or their family.

Question 35

Subsequent Remedial Measures (FED)

Answer 35

Not admissible to prove negligence, culpable conduct, or defect in a product.

May be used for another purpose such as proving ownership, control, or feasibility of precautionary measures if controverted, or impeachment

Question 36

Subsequent Remedial Measures (CA)

Answer 36

Limited to negligence and carelessness.

Does not include marketing, design, or distribution of a defective product.

Evidence may be admissible in cases of product liability in CA state courts to show product was defective and thus D was liable and not just feasibility of an alternative design

Question 37

Liability Insurance

Answer 37

Inadmissible to prove liability or fault

Admissible to prove ownership or control

Absence of insurance explicitly inadmissible to prove wrongdoing or negligence

Cf. CA - absence of insurance admissible if permitted by EC 352.

Question 38

Pleas (CA)

Answer 38

Evidence of offers of pleas and withdrawn pleas inadmissible in all cases

Statements may be used to impeach accused if a party testifies inconsistently with the plea

Question 39

Pleas (FED)

Answer 39

Prohibits admissibility of plea offers made to US attorney prosecutors.

Statements not permitted to impeach the accused.

Question 40

Hearsay

Answer 40

1. Statement or assertion
2. Made by person other than while testifying at trial
3. Offered to prove truth of matter asserted

Analysis:

1. Define
2. Discuss whether statement was an out of court statement
3. discuss whether it is being used to prove its truth
4. if its hearsay, is there an exception or exclusion

Question 41

Use of statements for non-hearsay purposes

Answer 41

1. Proof declarant is alive or conscious
2. proof of why a particular course of action is taken
3. effect on the hearer or reader
4. proof of notice to a party
5. verbal acts - words of legal significance
6. Circumstantial proof of declarant’s state of mind

Question 42

Conduct Hearsay (FED)

Answer 42

Opponent of evidence has burden of showing actor intended his conduct as an assertion

Question 43

Conduct Hearsay (CA)

Answer 43

Proponent of the evidence has burden of showing that conduct was not intended as an assertion

Question 44

Confrontation Clause

Answer 44

When prosecution offers testimonial statements against accused for a hearsay purpose, out of court declarant must be produced for cross-examination under oath, or the prosecution must demonstrate unavailability AND that accused had a prior opportunity to cross-examine the declarant

Question 45

Testimonial statements

Answer 45

Involves questioning of declarant by government officers and raises fairness concerns.

Do not include business records, statements in furtherance of a conspiracy, or many other traditional hearsay exceptions.

Do not include exclusions such as admissions

CA application:

certain items imbued with sufficient formality to qualify as testimonial and thus subject to CC requirements (police investigative reports during an investigation of a completed crime, STEP notices which record info taken when police inform someone he is thought to be associating with a known gang, and Field Info Cards recording officer’s contact in the field with an individual)

Question 46

Exceptions to Hearsay (FRE)

Answer 46

1. Admissions by Party-Opponent
2. Prior Inconsistent/Consistent Statements of witnesses
3. Statements of Identification
4. Prior Recollection Refreshed
5. Present Sense Impression - narrating event
6. Statement for Diagnosis/Treatment

Question 47

Admission

Answer 47

Assertion that, if true, proves an aspect of the opposing party’s case

Question 48

Admissions by Party-Opponent

Answer 48

FED - statements by opposing party are excluded from hearsay

Party making admission need not have personal knowledge and can be based in otherwise impermissible lay opinion

Need not have been against the party’s interest when made but only at the time used in trial.

CA - admissions are exceptions to hearsay.

Question 49

Adoptive Admissions

Answer 49

Silence may be taken as an adoptive admission upon showing that the opposing party heard the admission and if under the circumstances, a reasonable person would have protested if the accusation were untrue.

Fifth amendment prohibits in criminal cases

Question 50

Authorized Admissions

Answer 50

Applies if statement is offered against a party and is a statement by a person authorized by the party to make a statement concerning the subject

authority based on law of agency. (express or implied authority)

Question 51

Vicarious Admissions

Answer 51

Statements by employees that are admitted against employer

Fed - (1) whether the statement is about a matter within the scope of the agency/employment; (2) whether it was made while employee was still employed.

CA - When liability of employer is based in whole or in part on liability of an employee and employee is the declarant, employee’s admissions are held to be admissions against employer as well

No requirement that statement be made within the course and scope of the agency nor while employee is still employed.

Question 52

Co-Conspirator Admissions

Answer 52

Statement offered against a party and is a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

FED - statement is evidence of foundational facts and ultimate facts. Factors: (1) identity of speaker; (2) context in which statement was made; (3) evidence corroborating the contents of the statement in making its determination as to each preliminary question

CA - not admissible evidence of foundation because not yet admissible without the establishment of the proper foundation

Question 53

Statements of Identification (FED)

Answer 53

Admissible if declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is one of identification of a person made after perceiving the person.

Question 54

Statements of Identification (CA)

Answer 54

Limited to criminal trials.

EC requires prosecutor to first have witness testify that he or she made the identification and that it was a true reflection of their opinion at the time.

Question 55

Prior Recollection Refreshed

Answer 55

Anything that refreshes a witness’ recollection.

Once witness uses thing to refresh recollection, opposing counsel entitled to see the thing, use it to cross-examine the witness, and may introduce parts since purpose of writing would primarily be to impeach the witness

Question 56

Unavailability of Declarant

Answer 56

1. exempted or precluded from testifying on grounds of PRIVILEGE
2. dead or unable to testify on account of mental or physical illness
3. absent from hearing and beyond court’s process to compel attendance
4. absent from hearing despite proponent’s reasonable efforts to compel attendance through court’s process
5. refuse to testify despite court order. (FRE only)
6. testifies to lack of memory of the subject matter of the statement

Forfeiture rule - declaration admissible if ‘unavailability’ procured by proponent of the statement

Question 57

Former Testimony due to Unavailability (FED)

Answer 57

Admissible in civil cases if the party against whom it is offered, or their predecessor in interest had an opportunity and similar motive to cross examine the witness

Question 58

Former Testimony due to Unavailability (CA)

Answer 58

Admissible in civil cases if the party against whom it is offered, or their predecessor in interest had an opportunity and similar motive to cross examine the witness.

May also be admissible against a non-party if party who cross-examined witness in prior case had similar interest and motive as the party against whom statement is offered.

Question 59

Dying Declarations (FED)

Answer 59

Statement admissible in all civil proceedings but only in criminal homicide cases.

1. Person must be dying, but he or she need not die - just be unavailable.
2. Statement must concern the cause and circumstances of the impending death, of which declarant must have personal knowledge
3. declarant must believe their death is immediately impending

Question 60

Dying Declarations (CA)

Answer 60

Admissible in all civil and criminal cases.

Does not require declarant of dying declaration to be unavailable.

Question 61

Statements Against Interest

Answer 61

Declarant must be unavailable.

1. Statements contrary to declarant’s pecuniary (financial) or proprietary (ownership) interest, or
2. Tends to subject declarant to civil or criminal liability

CA - declarations against declarant’s social interest and any declarations tending to invalidate the declarant’s claims against others are admissible

Question 62

Excited Utterances (FED)

Answer 62

statement of then-existing emotional, physical, or mental conditions, plan or intent

1. relate to or narrate a startling event or condition, and
2. were made spontaneously while the declarant was under the stress of excitement caused by such event

Excitement can be generated by observing or experiencing an event.

Time lapse does not eliminate the possibility of an excited utterance, key is whether or not person’s reflective powers have returned

Question 63

Spontaneous Statement (CA)

Answer 63

(slightly narrower) - must purport to narrate, describe, or explain an act, condition, or event perceived by declarant.

Question 64

Present Sense Impressions

Answer 64

Federal Only.

Statement describing or explaining an event or condition made while declarant was perceiving the event or condition, or immediately thereafter.

Need not be a startling event as required for an excited utterance

Question 65

Contemporaneous Statements

Answer 65

CA only.

1. Statement made by declarant
2. offered to explain, qualify, or make understandable conduct of the declarant (not emotion); and
3. Was made while declarant was engaged in such conduct

Question 66

Crime Victim Statements of Threats or Abuse

Answer 66

CA exception only.

Statement made at or near time of injury or threat, by unavailable declarant, describing or explaining infliction or threat, in writing or recorded or made to police or medical professional, under trustworthy circumstances

Question 67

Past Recorded Recollection

Answer 67

Statements by witnesses who can no longer recall the substance of their statement, but recorded, or caused the recording of, the statements in writing at a time in the past.

Writing must be made by the witness or someone on their behalf or was adopted by the witness.

Writing must have been made at a time when the event recorded in the writing was fresh in the witness’ mind

Writing must be true and accurate when made

Witness must have no present memory of the contents of the writing

May be read out loud into evidence if admissible but writing itself is not received into evidence

Question 68

Statements of Then-Existing State of Mind

Answer 68

Includes emotions, sensation, or physical conditions (such as intent, plan, motive, design, mental feeling, pain, and bodily health)

Does not include statements of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

Question 69

Statement for Purpose of Diagnosis or Treatment

Answer 69

Federal Rules only.

Statements made for purposes of medical diagnosis or treatment and describing:

• medical history,
• past or present symptoms,
• pain,
• sensations

Admissible as declarant’s then-existing state of mind or as a statement of past physical condition.

Question 70

Business Records

Answer 70

Exception to Hearsay to the extent that their entry reflects that they are prepared by someone with a duty to enter the record accurately.

Elements:

1. writing must be made in the regular practice of the business;
2. writing must be made at or near the time of the act, condition, or event recorded;
3. custodian testifies to the record’s identity and its mode of preparation;
4. sources of info and method and time of preparation were such as to indicate its trustworthiness (excluded if prepared with litigation in mind)

absence of business records may also be admissible

Question 71

Official Records (FED)

Answer 71

1. Records, reports, statements, or data compilations, in any form,
2. of public offices or agencies,
3. with a duty to report,
4. excluding in criminal cases, matters observed by police officers and other law enforcement personnel.

Question 72

Absence of Official Record

Answer 72

Evidence admissible to prove the absence of something within the official record

Question 73

Learned Treatises (FED)

Answer 73

Includes any type of scholarly publication.

May be introduced through any expert who considers it authoritative or uses it in forming their opinion

May also be used to impeach witness simply by calling it to expert’s attention

Admissible statements may be read into evidence but not received as exhibits.

CA - no medical treatises, no impeachment

Question 74

Commercial Lists (FED)

Answer 74

Facts that can be proved through lists and tabulations that are generally used and relied upon as accurate by the public including tabulations, lists, directories, market quotations, or other published compilations

Question 75

Commercial Lists (CA)

Answer 75

Lists and tabulations must be generally used and relied upon as accurate by the public or by persons in particular occupation

Does not include market quotations

Question 76

Hearsay Analysis

Answer 76

1. Relevance
2. Hearsay?
3. Exception to Hearsay?

Question 77

Written Material Evidence Analysis

Answer 77

1. Authentication
2. Best Evidence Rule
3. Hearsay

Question 78

Authentication

Answer 78

Process of introducing sufficient evidence from which the tier of fact could conclude that the writing is what its proponent says it is

Applies to things as well as writings

Question 79

Types of Authentication

Answer 79

1. Testimony of witness with knowledge that a matter is what it is claimed to be
2. Nonexpert opinion on handwriting based upon familiarity not acquired for purposes of the litigation;
3. comparison by trier of fact or by expert witnesses with specimens which have been authenticated;
4. identification of a voice;
5. telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business; and
6. evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, is from the public office where items of this nature are kept.

Question 80

Self-Authentication (FED)

Answer 80

Trade labels, certified copies of public records, official documents under seal, notarized documents, newspapers and periodicals, and commercial paper require no independent authentication.

Question 81

Self-Authentication (CA)

Answer 81

No provision for self-authentication at all except for certified copies of public records such as judgments.

Question 82

Best Evidence Rule

Answer 82

Fed

Requires contents of a writing (what it says) to be PROVED BY THE ORIGINAL of the writing and not by what someone recounts that it says (multiple hearsay)

Duplicate is a counterpart produced by the same impression as the original and will be considered an original

Question 83

Secondary Evidence Rule

Answer 83

CA

Instead of requiring an original, Code retains preference for the use of copies (rather than testimony) to prove contents of a writing unless:

a. Proponent does not have a copy and original was destroyed without proponent’s fraudulent intent;
b. proponent does not have the original and either:

i. writing or a copy are not reasonably procurable by process; OR
ii. writing is not closely related to controlling issues; or

c. writing is a summary of voluminous books or records

Question 84

Opinion

Answer 84

Non-exact assessment as the result of a deduction from an observation that cannot be independently verified by repeatable observation

Question 85

Lay Opinion

Answer 85

Lay witnesses can give opinions that:

• Estimate quantity, value, weight, measure, time, distance, and velocity
• Describe emotions such as anger, fear, excitement, love, hatred, sorrow, and joy
• Describe character traits such as truthfulness and mendacity (tendency to lie)
• Describe appearances, such as age, manner of walking, type of beard, and hair type
• Relate whether others appeared to be sick, well, intoxicated, or irrational

Must be rationally based on the witness’ perception and helpful to understanding the witness’ testimony

Question 86

Expert Opinion

Answer 86

1. Qualified - Expert is qualified to testify if he or she has special knowledge, skill, experience, training, or education sufficient to qualify him/her as expert on the subject to which testimony relates
2. Proper Basis - Expert may base his opinion on info or data of the type ordinarily and normally relied upon by experts in the field to which the expert belongs - do not need personal knowledge or perception.
3. Testimony must be of help to the fact-finder - methodology must be generally accepted in relevant scientific community. data and methodology relied upon must be reproducible and regarded as scientifically valid

Could be based on inadmissible hearsay. however, expert in CA cannot testify to case-specific hearsay absent an independent hearsay exception or independent proof of the case-specific evidence

Question 87

Judicial Notice

Answer 87

Facts not subject to reasonable dispute and

(a) generally known within the court’s territorial jurisdiction; OR
(b) capable of accurate and ready determination by resort to unquestionably accurate sources.

Must be a fact and not a legal conclusion

When judge takes judicial notice of a fact, the party with the burden of proving that fact is relieved of the obligation of introducing evidence establishing the fact.

Operates as a conclusive presumption in a civil case, but only treated as an inference in a criminal case.

Question 88

Privilege

Answer 88

1. Exempts certain persons from duty to give evidence (spousal privilege, or accused testifying for prosecution);
2. Exempts witness from providing certain kinds of testimony (testifying against a spouse or self-incrimination);
3. Protects information communicated in confidence in the context of an enumerated professional or personal relationship (attorney-client, physician-patient, spouse-spouse, etc.)

Question 89

Waiver of Privilege

Answer 89

1. Conscious waiver
2. Negligent waiver - holder fails to claim privilege in any proceeding in which holder has legal standing and opportunity to claim the privilege
3. Waiver by disclosure to third person UNLESS: (a) communication is reasonably necessary to accomplish purpose of consultation; OR (b) communication reasonably necessary to further interests of the holder (i.e. interpreter)
4. Eavesdropper rule - holder can prevent eavesdropper from disclosing
5. Inadvertent waiver - accidental disclosure, privileged documents must be returned and cannot be referred to in the proceeding

Question 90

Scope of Attorney-Client Privilege

Answer 90

1. Attorney and client have right to refuse to disclose content of communications
2. Attorney and client have right to prevent others from disclosing content of the communications
3. Not protected:

==i. no privilege if purpose of communication is to enable client to commit a crime or fraud
==ii. subject matter of the communication, as opposed to the communication, is not privileged
==iii. info which others furnish to client and client then gives to lawyer is not protected
==iv. Tangible items that client gives to lawyer, such as reports, goods, photographs, murder weapon, and the like, are not protected

Question 91

Confidential Communications

Answer 91

1. Must be between attorney and client.
2. Must be made in the course of an attorney/client relationship; and
3. Must be transmitted in confidence

Question 92

Marital Communications Privilege

Answer 92

Person, whether or not a party, has privilege to refuse to disclose, and to prevent others from disclosing, a communication that was made in confidence between that person and his or her spouse

Question 93

Spousal Privileges

Answer 93

1. Married person has privilege not to be called as a witness by the adverse party where the other spouse is a party.
2. Married person has privilege not to testify against a spouse in any proceeding, whether or not the spouse is a party

Question 94

Prop 8

Answer 94

Relevant evidence shall not be excluded in any criminal proceeding EXCEPT:

1. Privileged
2. Hearsay
3. E.C. 352
4. Character Evidence

Likely only applies to Witness Impeachment rules and impeachment with illegally obtained evidence in violation of 4th, 5th, and 6th amendments

Question 95

Form of the Question/Answer

Answer 95

1. Leading - suggests answer in the question, only permitted on cross and on direct of adverse witness
2. Compound Question - either has two verbs in same question or two independent clauses
3. Calls for Narrative - what happened next…
4. Assumes Facts not in Evidence
5. Argumentative - asks witness to resolve an apparent contradiction in their testimony
6. Non-Responsive Answer - yes/no questions subject to motion to strike anything more than yes/no

Improper questions subject to objections
improper answers subject to motion to strike

Question 96

Specific Acts - Character Purposes Exceptions

Answer 96

1. Where character is in issue (civil and criminal cases)
2. On cross-examination of character witness to impeach character witness’ standard for evaluating character trait
3. (CA only) Evidence of victim’s character and evidence of D’s character for violence (if D first introduced character of victim for violence)

Question 97

Character Evidence Issues

Answer 97

1. To prove party possessed a particular kind of trait and thus likely committed a particular act;
2. Non-character purpose, such as proof of motive, opportunity, intent, common scheme or plan, absence of mistake, lack of an asserted defense, etc.;
3. Who is first seeking to introduce? (prosecution or defense);
4. Is the type of character evidence, if otherwise admissible, permissible (opinion or reputation on cross, specific acts to impeach credibility).

Question 98

Exceptions to Hearsay - CA

Answer 98

1. Admissions by Party-Opponent
2. Prior Inconsistent/Consistent Statements of witnesses
3. Statements of Identification
4. Prior Recollection Refreshed
5. Contemporaneous Statement
6. Diagnosis/Treatment - then existing physical condition admissible; past only if unavailable, actually an issue, and not for any other purpose; exception for child abuse

Question 99

Non-Unavailability Exceptions

Answer 99

1. Present sense impressions (FRE)
2. Excited Utterance (CA - spontaneous statement)
3. Statement of then existing mental, emotional, or physical condition
4. Past recorded recollection
5. Business Record
6. Official Records
7. Convictions (CA)

Question 100

Foundation

Answer 100

Whether witness is shown to have personal knowledge

Question 101

Types of Admissions

Answer 101

1. Vicarious
2. Authorized
3. Adoptive
4. Co-Conspirator