Evidence

Question 1

Relevance: logical + legal

Answer 1

Logical: Evidence that has ANY tendency to make a fact of consequence more or less probable.

Legal: The court has discretion to exclude logically relevant evidence when its probative value is substantially outweighed by the risk of unfair prejudice, confusion of the issues, waste of time, or its cumulative nature.

Question 2

Habit

Answer 2

A person’s routine and automatic response to a specific set of circumstances. Unlike character evidence (which says something general about a person and conveys a moral judgment), habit evidence describes specific conduct and makes no moral judgment.

Example
––”D is a careful driver” –> general –> character
––”D always stops behind stop sign at particular stop sign” –> specific –> habit

Question 3

What are the categories of relevant evidence that are excluded on public policy grounds? (i.e., specialized relevance)

Answer 3

(1) Liability Insurance
––inadmissible to prove negligence or ability to pay

(2) Subsequent Remedial Measures
––inadmissible to prove negligence/product-SL
––admissible to prove ownership
––admissible to rebut defense of no feasible precaution

(3) Offers to Compromise + Surrounding Statements
––civil: inadmissible to prove liability; if no claim filed or threatened, then admissible; if no dispute re liability or damages, then admissible
––criminal: withdrawn pleas, offers to plea, and surrounding statements are inadmissible

(4) Offers to Pay Medical Expenses
––inadmissible to prove liability; surrounding statements are admissible

Question 4

In what types of civil cases is character evidence admissible to prove conduct?

Answer 4

Where character is in issue

• Defamation
• Negligent hiring
• Negligent entrustment
• Child custody
• Loss of consortium

Question 5

Character Evidence in Criminal Case: Steps of analysis re ∆’s character

Answer 5

∆’s character
(1) doors are closed; ∆ can open door by introducing evidence of his good character to show innocence (i.e., a pertinent trait)
(2) ∆ can do so by calling opinion or reputation W
(3)(a) Prosecution can respond by cross-exam of ∆-W, including asking about SI to attack the direct exam (but not to prove character)
––e.g. ∆ calls C-W who says ∆ is “gentle”; prosecution can ask about whether C-W knows of ∆ kicking his kid
(3)(b) Prosecution could also respond by calling its own witness to testify to ∆’s bad character (for that trait)

Question 6

Character Evidence in Criminal Case: Steps of analysis re V’s character

Answer 6

V’s character

(1) doors are closed
(2) ∆ can introduce evidence of V’s bad character for a relevant trait (like violence, if ∆ claims self-defense)
- Note: in CAL, SI can be used on direct
(2) (b) Prosecution can then respond by introducing evidence of either V’s character for peacefulness or ∆’s character for violence
- Note: in CAL, limited to trait of violence

Homicide Case

• In a homicide case, if ∆ claims self defense and some evidence has been introduced that V was first aggressor, the prosecution can introduce evidence of V’s character for peacefulness
• Note: exception does not exist in CAL

Question 7

Character Evidence in Criminal Case: when can SI be used?

Answer 7

Fed: it can only be used on cross-examination to attack the direct exam. It cannot be used to prove character.

Cal: same, except that in opening the door to V’s character, the ∆ can rely on specific instances

Question 8

Witness testimony–competence: requirements

Answer 8

(1) PK
(2) Present Recollection
(3) Must be able to communicate her perception
(4) Sincerity

Question 9

When is leading the witness OK on direct?

Answer 9

if (a) adverse witness; (b) hostile witness; or (c) witness needs help remembering

Question 10

Recollection Refreshed v. Recorded Recollection

Answer 10

Recollection Refreshed
–W suffers memory lapse on stand; L gives W a document to review (silently); W’s recollection is refreshed –> the document is NOT admitted into evidence and does NOT present a hearsay problem –> opposing counsel can request to view the document and have portions admitted

Recollection Recorded
–W suffers memory lapse on stand; L gives W a document to review (silently); W’s recollection is NOT refreshed –> L can read the document into the record if the foundation requirements are met (but it is NOT admitted as an exhibit)
––Foundation: (1) PK; (2) made or adopted by W; (3) when fresh; (4) accurate

Question 11

Admissibility of Lay Opinion Testimony

Answer 11

(1) rationally based on W’s perception
(2) helpful to trier of fact
(3) not based on scientific or specialized knowledge

Question 12

Can a lay witness give an opinion on the following:
–Intoxication
–Existence of agency relationship
–Speed of car
–Sanity
–Value of property
–Existence of an agreement
–Voice
–Handwriting

Answer 12

–Intoxication [YES]
–Existence of agency relationship [NO]
–Speed of car [YES]
–Sanity [YES]
–Value of property [YES]
–Existence of an agreement [NO]
–Voice [YES]
–Handwriting [YES]

Question 13

Admissibility of Expert Testimony

Answer 13

(1) QUALIFIED (edu; knowledge; skill; experience; training)
(2) CERTAINTY: reasonable probability
(3) RELIABLE
––Daubert + Kumho (FED): (a) peer reviewed; (b) tested; (c) low error rate; (d) generally accepted in the field; (e) controlled standards. Plus (i) logical inconsistencies? (ii) lack of consideration of other evidence? (iii) alternative explanations?
––Frye (CAL): generally accepted in the field by experts
(4) HELPFUL to trier of fact (specialized knowledge is necessary)
(5) FACTUALLY-SUPPORTED (EW must have either (a) PK OR (b) facts made known to him at trial OR (c) facts made known to him outside courtroom which are reasonably relied upon in the field)

Question 14

Impeachment: Criminal Convictions (including CA distinctions)

Answer 14

Step 1: If the crime is more than 10 years old, it is NOT admissible to impeach, unless Reverse 403
Step 2: If the crime is less than 10 years old, and is a crime of deceit, it is automatically admitted
––Note: felony or misdemeanor
Step 3: If the crime is less than 10 years old, and is not a crime of deceit, then to be admissible, it must be a felony
Step 3(a): if criminal ∆-W: admit only if probative > prej
Step 3(b): if W ≠ criminal ∆: 403

CA Distinction: misdemeanor convictions are only admissible in criminal cases; felony convictions must involve moral turpitude (simple assault does NOT cut it)

Question 15

Impeachment: Non-Conviction Misconduct (including CA distinction)

Answer 15

W can be impeached based on non-conviction misconduct that has bearing on truthfulness (e.g., lying on driver’s license application). EE is not allowed (meaning atty has to accept W’s answer).

CA distinction: cannot impeach a witness based on non-conviction misconduct in a civil case; but, can in a criminal case if the misconduct rises to the level of moral turpitude

Question 16

Hearsay: Elements of Business Record Exception

Answer 16

(1) record of events/opinion/diagnosis/condition
(2) kept in ordinary course
(3) made at/near time of described events
(4) by person with PK
(5) regular practice to make record
(6) authentication
(7) opponent does not show evidence of untrustworthiness

Question 17

What are the key hearsay exceptions that require declarant to be unavailable

Answer 17

(1) Dying Declaration
––made while belief death was imminent; statement concerns cause or circumstances of impending death
––homicide or civil case only
––declarant need not die
(2) Statement Against Interest
––against pecuniary/penal/proprietary when made
––RP would only hav made statement if true
––criminal case: corroborating evidence req.
(3) Former Testimony [under oath]
––sufficient similarity of parties and issues [criminal: same party; civil: predecessor in interest] [concerns the party AGAINST whom the testimony is offered]
––opportunity to cross

Question 18

When is a declarant unavailable?

Answer 18

• Privilege
• Refusal to testify
• Dead
• Illness
• Memory failure
• Absent and proponent cannot procure

Question 19

What are the major CA distinctions for the FRE hearsay exemptions?

Answer 19

First, the FRE “exemptions” are considered “exceptions” in CAL

• PIS: even if not made under oath, it is admissible substantively
• PID: additional requirements that ID was made while events were fresh + W confirms this

Question 20

What are the major CA distinctions for the FRE hearsay exceptions that require unavailability? How is “unavailability” defined differently? What exceptions are unique to CA?

Answer 20

First, CA does NOT recognize a general refusal to testify as grounds for unavailability

Second, CA recognizes two exceptions that FRE does not…
(1) Past Physical/Mental Condition if @ issue
––Note: FRE exceptions (which don’t require unavailability) are limited to present physical/mental (except for statements for medical diagnosis/treatment)
(2) Statement Describing Infliction/Threat of Injury
––The “OJ Exception”
––(1) time; (2) trustworthy; (3) writing, recorded, or made to law enforcement
––Watch for CC issue

Distinctions

• Former Testimony: for civil cases, don’t have to show predecessor in interest, but rather merely a similar interest
• SAI: if criminal case, corroborating circumstances are NOT required; statements against social interest count
• DD: declarant MUST die; admissible in ANY case; statement MUST concern cause of death (not merely the surrounding circumstances)

Question 21

What are the major CA distinctions for the FRE hearsay exceptions that do not require unavailability?

Answer 21

• Excited Utterance: its called a “Spontaneous Statement”
• Present Sense Impression: narrower–only works for statement made by declarant that describes his conduct which is made while the declarant is engaged in that conduct
• Statements made for Diagnosis or Treatment: MUCH narrower–only admissible if made by child abuse/neglect victim under 12 to medical personnel
• Public Records: police reports are NOT automatically excluded when used in criminal case against ∆; factual findings of investigation CAN be used BY the gov’t
• Learned Treatise: MUCH narrower–only applies if facts are of general notoriety

Question 22

Authentication (generally) + burden of proof

Answer 22

Proponent must prove that the evidence is what he claims it to be. The burden of proof is low, and merely requires proof sufficient to support a jury finding.

Question 23

Best Evidence Rule

Answer 23

Where evidence is being offered to prove the contents of a writing, the original is required
––two key situations: (i) the case turns on the contents of a legal instrument; (ii) W’s knowledge is obtained from the writing
––exception: voluminous documents

“Original”: duplicates OK if carbon copy or photocopy
––Exception: duplicate is not admissible if genuine question as to authenticity of the original

Question 24

Does federal law recognize doctor-patient privilege? clergy-penitent?

Answer 24

• Doctor-patient: NO

- Clergy-penitent: YES

Question 25

In diversity suit, what privilege law applies

Answer 25

STATE privilege law

Question 26

Doctor-patient privilege: elements

Answer 26

(1) professional RELATIONSHIP
(2) info. acquired DURING course of treatment
(3) info. was NECESSARY for treatment

Question 27

What facts are appropriate for judicial notice?

Answer 27

(a) generally known within jx

(b) capable of verification by resort to trustworthy source

Question 28

Does the court have discretion to take judicial notice of facts sue spent?

Answer 28

Yes

Question 29

If the court takes judicial notice of a fact in a civil case, what impact on jury? criminal case?

Answer 29

In civil case, jury must accept as conclusive

In criminal case, jury MAY, BUT IS NOT required to accept

Question 30

Are misdemeanor convictions admissible to impeach?

Answer 30

FED: Yes, but only if it is a crime of deceit.

CAL: Yes, but only in criminal cases + crime of deceit + crime of moral turpitude