EVIDENCE

Question 1

Relevance (Logical & Legal Relevance)

Answer 1

To be admissible, evidence must be relevant. Evidence must be both logically AND legally relevant.

Logical Relevance: Evidence is LOGICALLY relevant if: (1) it has any tendency to make a fact more or less probable than it would be without the evidence; AND (2) the fact is of consequence in determining the action (in CA the fact of consequence must be in dispute).

Evidence is LEGALLY relevant if it’s NOT excluded: (1) on other policy grounds; AND (2) under FRE 403/CEC 352.

Under FRE 403/CEC 352, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of: (a) unfair prejudice; (b) confusing the issues; (c) misleading the jury; (d) undue delay; (e) wasting time; OR (f) being needlessly cumulative.

Question 2

California Proposition 8

Answer 2

Under Proposition 8 of the California Constitution, all relevant evidence is ADMISSIBLE in a criminal trial.

In addition, Proposition 8 does not affect the following:

(1) exclusionary rules based upon the U.S. Constitution;
(2) the secondary/best evidence rule;
(3) hearsay exclusions;
(4) privilege exclusions;
(5) evidence barred under rape-shield statutes;
(6) limits on prosecution from offering specific character evidence (prior to defendant “opening the door”).

However, such evidence is still subject to CEC 352 balancing (whether the probative value is substantially outweighed by the risk of unfair prejudice, confusion of issues, misleading to the jury, or being needlessly cumulative).

Question 3

Authentication of Evidence Physical and Documentary Evidence–General Rule

Answer 3

All evidence MUST be authenticated before being admitted into evidence. A party must prove that the item it seeks to admit is actually what the party purports it to be, UNLESS the parties stipulate otherwise.

Question 4

Authentication of Evidence–Physical Evidence

Answer 4

Physical evidence may be authenticated through:

(a) witness testimony; OR
(b) by evidence that shows it has been held in a substantially unbroken chain of custody.

Question 5

Best Evidence Rule

Answer 5

• Under the Best Evidence Rule, a party must provide the original document (or a reliable duplicate) when a witness (a) testifies to the contents of a writing; OR (b) testifies to knowledge gained solely from a writing.
• Under the FRE, handwritten duplicates are NOT admissible. In CA, handwritten duplicates ARE admissible.

Question 6

Character Evidence–In General

Answer 6

Generally, evidence of a person’s character is NOT admissible to show propensity (that on a particular occasion the person acted in conformity with the character trait). HOWEVER, character evidence is generally admissible for any non-propensity purpose, such as when character is an ultimate issue in a case (i.e. defamation) or to impeach.

• Notwithstanding the above, character evidence may be offered as circumstantial evidence to prove propensity in certain limited circumstances (see other cards).

Question 7

Character Evidence–Defendant’s Character in Criminal Cases (General Rule)

Answer 7

In criminal cases, a defendant may always introduce evidence of his own character. The prosecution is NOT allowed to present evidence of the defendant’s character to prove propensity UNLESS the defendant first presents evidence of his own character (the defendant “opens the door”).

▪ In CA, the prosecution can initiate a showing of defendant’s acts of domestic violence or elder abuse.

Question 8

Character Evidence–Victim’s Character in Criminal Case

Answer 8

Except in cases involving rape, a defendant may offer evidence of the victim’s character to prove the defendant’s innocence. If the defendant presents such evidence, the prosecution may present evidence of the: (a) victim’s good character for the same trait; or (b) defendant’s same bad character trait (in CA it is limited only to violent character trait).

Question 9

Character Evidence–Homicide Case

Answer 9

Under the FRE, in a Homicide Case the prosecution may offer evidence of the victim’s character for peacefulness ONLY IF the defendant claims the victim was the aggressor (self-defense). In CA, no such rule exists.

Question 10

Character Evidence–Sex-Offense Cases

Answer 10

For Sex-Offense Cases involving alleged sexual misconduct, evidence offered to prove a victim’s sexual behavior or predisposition is generally NOT admissible. However, certain exceptions to this rule exist.

In a criminal case, the court may admit: (a) evidence of specific instances of a victim’s sexual behavior if offered to prove that the defendant was not involved in the sex crime; (b) evidence of sexual relations between the defendant and victim if offered (i) by the defendant to prove consent, or (ii) by the prosecutor for any reason; and (c) evidence whose exclusion would violate the defendant’s constitutional rights.

Question 11

Character Evidence–Civil Cases

Answer 11

Character evidence CANNOT be introduced in a civil case to prove propensity, unless the exception for sex-offense cases applies (child molsetation and sexual assault).

In CA Civil Cases, there is no exception for sex-offense cases.

Question 12

Character Evidence–Methods of Proving DEFENDANT’S Character

Answer 12

o Under the FRE, when character evidence is
admissible, it may be proven in the following ways: (1) on direct examination by opinion testimony or testimony of reputation in the community; OR (2) on cross examination of the character witness by opinion, reputation, or specific acts.

o In CA, the DEFENDANTS’s character may only be proven by opinion or reputation.

Question 13

Character Evidence–Methods of Proving VICTIM’S Character

Answer 13

A VICTIM’s character may be proven by opinion, reputation, or specific acts.

Question 14

Prior Bad Acts

Answer 14

Evidence of prior bad acts (crimes, wrongs, or acts) is NOT admissible to show propensity (that on a particular occasion the person acted in conformity with a character trait).

• However, evidence of prior bad acts may be admissible for other relevant non-propensity purposes, such as proving Motive, Identity, Absence of Mistake or Accident, Intent, a Common Plan or Scheme, Opportunity, or Preparation. (MIMIC)

Question 15

Lay Witness Testimony–In General

Answer 15

A lay witness is any person who gives testimony in a case that is NOT called as an expert. A lay witness’s testimony is admissible if he is competent to testify.
To be competent, the witness must: (1) take an oath to tell the truth; AND (2) have the capacity to perceive, recall, and communicate. Additionally, a witness may only testify to matters of which he has personal knowledge.

o Under the FRE, competency is presumed except for the presiding judge and jurors.
o In CA, in addition to the above competency factors, the witness must also understand the legal duty to tell the truth. Also, the presiding judge and jurors may testify if there is no objection.

Question 16

Lay Witness Testimony–Opinion Testimony

Answer 16

A lay witness may only offer an opinion if it is:

(1) rationally based on the witness’s perception; AND
(2) helpful to clearly understand the witness’s testimony or to determine a fact in issue (legal conclusions are not helpful).

Additionally, under the FRE, the opinion cannot based on scientific, technical, or other specialized knowledge.

Question 17

Expert Witness Testimony

Answer 17

• Expert testimony is permitted when:

(1) the witness is qualified as an expert;
(2) the opinion is helpful to the jury (if an average jury could not figure the issue out for themselves);
(3) the witness believes in the opinion to a reasonable degree of certainty;
(4) the opinion is supported by sufficient facts or data (i.e. documentary evidence, personal knowledge, examination); AND
(5) the opinion is based on reliable principles and methods that were reliably applied.

• Under the FRE Daubert/Kumho standard, reliability is based on a methodology’s: (1) publication/peer review; (2) error rate; (3) testability; AND (4) whether it is generally accepted in the field.
• Under CA’s Kelley/Frye standard, reliability is based on whether a methodology is generally accepted in the field.

Question 18

Hearsay–Definition

Answer 18

Hearsay is (1) an out-of-court statement, (2) that is offered to prove the truth of the matter asserted. Hearsay is ONLY admissible if it falls under an exception. A “statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion. However, if the act DOES NOT assert or communicate anything (i.e. crying), it is not deemed a statement for hearsay purposes.

Question 19

Hearsay–Multiple Hearsay

Answer 19

When evidence contains hearsay within hearsay (multiple or double hearsay), each level of hearsay must fall within an exception to be admissible.

Question 20

Hearsay–Out of Court Statement Offered for Purpose Other Than Truth

Answer 20

If an out-of-court statement is offered to prove something other than the truth of the statement, it is non-hearsay and is ADMISSIBLE.

Common non-hearsay statements include:

(1) verbal acts of independent legal significance (i.e. a contract was formed);
(2) statements offered to show the effect on the listener;
(3) a prior inconsistent statement used to impeach; and
(4) circumstantial evidence of the speaker’s state of mind.

Question 21

Hearsay Exclusion: Statements by a Party Opponent

Answer 21

A statement/admission by a party opponent is NOT hearsay and is ADMISSIBLE. Under the FRE, statements by a party opponent are deemed to be non-hearsay.

In CA, such statements are an exception to the hearsay rule.

Question 22

Hearsay Exclusion: Vicarious Admissions

Answer 22

• A vicarious admission is excluded from hearsay under the Statements by a Party Opponent hearsay rule. Vicarious admissions are those made by: (a) an authorized spokesperson; (b) a principal or agent made during/within the scope of the agency relationship; OR (c) co- conspirators.
• In CA, there is no principal agent situation, BUT in respondeat superior civil cases, statements made by an employee are admissible if the employee’s negligent conduct is the basis for the employer’s liability.

Question 23

Hearsay Exception: When is a Declarant Unavailable?

Answer 23

• A declarant is deemed unavailable as a witness if he:

(a) is exempted from testifying due to privilege;
(b) refuses to testify despite a court order to do so [does not apply in CA];
(c) testifies that he does not remember the subject matter;
(d) cannot be present to testify because of death or illness; OR (e) is beyond the reach of a court’s subpoena, and his attendance cannot be procured by reasonable means.

The unavailability of the declarant must not have been caused by either party.

Question 24

Hearsay Exception: Statement Against Interest

Answer 24

• A statement made against one’s own penal, proprietary, or pecuniary interest is an exception to the hearsay rule, and is admissible when the declarant is unavailable.
• In CA, statements against one’s societal interests are also admissible.
• Under the FRE, if a statement against interest is offered in a criminal case, it MUST be supported by corroborating circumstances that clearly indicate its trustworthiness.

Question 25

Hearsay Exception: Excited Utterance / Spontaneous Statement

Answer 25

An excited utterance is an exception to the hearsay rule. An excited utterance is a statement (1) relating to a startling event or condition, (2) made while the declarant was under the stress of excitement that the event/condition caused. There can be a slight delay between the event and the statement.

In CA, this exception is referred to as a Spontaneous Statement.

Question 26

Hearsay Exception: Present Sense Impression

Answer 26

Present sense impression is an exception to the hearsay rule. A present sense impression is a statement describing an event made by the declarant: (a) while observing the event; OR (b) immediately thereafter. A few minutes after the event is within the period contemplated under this hearsay exception.

In CA, this exception is referred to as a Contemporaneous Statement, and it only applies when the statement: (1) is offered to explain, qualify, or make understandable conduct of the declarant; AND (2) was made while the declarant was engaged in such conduct.

Question 27

Hearsay Exception: Business Records

Answer 27

Business records are an exception to the hearsay rule.

Under the FRE, a business record is admissible if it is: (1) a record of events, conditions, opinions, or diagnoses; (2) kept in the regular course of business; (3) made at or near the time of the matter described; (4) made by a person with knowledge of the matter; (5) is the regular practice of the business to make such a record; AND (6) the opponent party does not show that the record was made under circumstances indicating a lack of trustworthiness. The witness who lays the business records foundation DOES NOT need be the author of the record or attest to its accuracy.

In CA, the business record exception DOES NOT include records of opinions or diagnosis (even though courts usually do admit simple opinions and diagnosis). Additionally, the party introducing the business record has the burden of showing that the record was made under circumstances indicating trustworthiness.

Question 28

Hearsay Exception: State of Mind

Answer 28

Statements of the declarant’s then-existing state of mind (i.e. motive, intent, or plan) OR emotional, sensory, or physical condition are an exception to the hearsay rule. However, statements of memory or belief offered to prove a fact remembered/believed is NOT admissible UNLESS it relates to the validity or terms of the declarant’s will.

Question 29

Confrontation Clause (6th Amendment)–In General

Answer 29

• The Sixth Amendment’s Confrontation Clause (as applied to the states via the Fourteenth Amendment) gives a criminal defendant the right to confront witnesses against him. The use of an out-of-court statement (even if it falls within a hearsay exception or exemption) violates a defendant’s Sixth Amendment rights when: (1) the statement is “testimonial”; (2) the declarant is unavailable to be cross- examined at trial; AND (3) the defendant did not have an opportunity to cross-examine the declarant before trial. This prohibition is subject to some exceptions such as dying declarations and wrongdoing by the defendant.
• Courts have held that the following statements are testimonial in nature: (a) statements made to grand juries (and in other similar situations); and (b) statements made to the police whose primary purpose (when viewed objectively) is to collect testimony to be used at a later trial. HOWEVER, statements made to the police where the primary purpose of the questioning was to assist the police in an ongoing emergency are NOT considered testimonial.

Question 30

Confrontation Clause (6th Amendment)–Primary Purpose Test (if it’s not obvious whether statement is testimonial)

Answer 30

When determining whether a statement is testimonial, consider the primary purpose of the conversation, and whether there is some intent to preserve for trial what is being said. For example, where the primary purpose of a police interrogation is to gather evidence, any statements made are testimonial. However, where the primary purpose of a police interrogation is to assist in an ongoing emergency, any statements made are NOT testimonial.

Question 31

Attorney-Client Privilege–In General

Answer 31

• The attorney-client privilege protects confidential communications between an attorney and client from disclosure if: (1) the communication was confidential (it was not knowingly made in front of third-parties); AND (2) the communication was made to facilitate legal services. Such communications remain privileged even after the client dies. When the client is a corporation, only communications between the attorney and high-level employees are protected.

The privilege DOES NOT apply when: (a) legal services are sought to further a crime or fraud; (b) there is litigation related to a breach of duty between the attorney and client; OR (c) joint clients are later involved in civil litigation.

• In CA, privilege DOES NOT survive the client. In addition to the above exceptions, the privilege DOES NOT apply if the attorney reasonably believes disclosure is necessary to prevent a crime that is likely to result in substantial bodily harm or death.

Question 32

Attorney-Client Privilege–Waiver

Answer 32

The client holds the privilege and may waive it at any time, including by disclosure to a third party.

However, privilege is NOT waived through inadvertent disclosure to a third party.