Evidence

Question 1

Logical Relevance

Answer 1

Evidence is relevant if it tends to make the existence of any fact of consequence to the outcome of the action more probable than it would be without the evidence.

Question 2

Legal Relevance

Answer 2

Evidence is legally relevant if the evidence prejudicial value is outweighed by probative value and does not violate public policy

Question 3

Objections to Form of Questions (NU CALF)

Answer 3

1. Narrative
2. Unresponsive
3. Compound
4. Argumentative
5. Leading
6. Facts: Assumes Facts not in evidence

Question 4

Policy Exclusions under Legal Relevance

Answer 4

1. Liability Insurance
2. Subsequent Remedial Conduct
3. Settlement Offers
4. Payment or offer to pay medical expenses
5. Guilty Please

Question 5

Character Evidence

Answer 5

may be offered as substantive, rather than impeachment, evidence to (1) prove character when it is the ultimate issue in the case or (2) serve as circumstantial evidence of how a person probably acted.

Question 6

Issues for which prior acts of misconduct are admissible (MIMIC)

Answer 6

MOTIVE
INTENT
MISTAKE (OR ABSENCE OF) 
IDENTITY
COMMON PLAN OR SCHEME

Question 7

Specific Acts of Misconduct

Answer 7

Evidence of a person’s specific acts of misconduct is inadmissible if offered solely to establish a criminal disposition or bad character.

Question 8

Judicial Notice

Answer 8

Courts take judicial notice of indisputable facts that are either matters of common knowledge in the community or capable of verification by resort to easily accessible sources of unquestionable accuracy.

Question 9

Ways to Impeach a Witness

Answer 9

1. Character Evidence
2. Bias, Motive
3. Defects in memory, perception or knowledge
4. Inconsistent Statements

Question 10

Ways to Authenticate a Document

Answer 10

1. Testimony of a witness that she recognizes the object as what the proponent claims it to be or
2. Evidence that the object has been held in a substantially unbroken chain in possession.

Question 11

Authentication

Answer 11

The object must be identified as what the proponent claims it to be.

Question 12

Ancient Documents

Answer 12

A document may be authenticated by evidence that it:

1. is at least 20 years old (30 in CA)
2. is in such condition as to be free from suspicion as to the authenticity; and
3. was found in a place where such a writing would likely be kept.

Question 13

Best Evidence Rule

Answer 13

To prove the terms of the writing, the original writing must be produced if the terms of the writing are material. Secondary evidence of the writing is admissible only if the original is unavailable.

Question 14

Kelly Frye Standard for Expert Opinion

Answer 14

The Kelly/Frye standard requires that:

i. The proponent must prove that the underlying scientific theory and the instruments it uses,
ii. It has been generally accepted as valid and reliable in the relevant scientific field.
iii. Exception: The standard does not apply to medical and nonscientific testimony.

Question 15

Daubert Standard for Expert Opinion

Answer 15

The Daubert/Kumho standard requires:

i. Peer reviewed and published in scientific journals,
ii. Tested and subject to retesting
iii. Low error rate, and
iv. Reasonable level of acceptance.

Question 16

Attorney Client Privilege

Answer 16

communications between an attorney and client, made during professional consultation, are privileged from disclosure. Disclosures are made before the attorney accepts or declines the case are covered by privilege.

Question 17

Physician Patient Privilege

Answer 17

Confidential communications between a patient and his physician are privileged, provided that:

1. a professional relationship exists;
2. the information is acquired while attending the patient in the course of treatment; and
3. the information is necessary for treatment.

Question 18

Spousal Immunity

Answer 18

When the spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution. Privilege lasts only during the marriage.

Question 19

Privilege for Confidential Marital Communications

Answer 19

In any civil or criminal case, confidential communications between a husband and wife during a valid marriage are privileged. For this privilege to apply the marital relationship must exist when the communication was made.

Question 20

Hearsay Exemptions

Answer 20

1. Prior Statements
2. Admissions
   are exemptions therefore not Hearsay

Question 21

Prior Inconsistent Statement

Answer 21

The prior statement is inconsistent with the declarant’s in court testimony and was given under oath at a prior proceeding

Question 22

Hearsay Exceptions

Answer 22

1. Unavailability
2. Former Testimony
3. Statements against interest
4. Dying Declarations
5. Statements of Personal and Family History
6. Statements offered against Party procuring Declarant’s unavailability
7. Present State of Mind
8. Excited Utterances
9. Present Sense Impressions
10. Statements of Past or Present Mental or Physical Condition for Medical Treatment
11. Business Record Exception
12. Past Recorded Recollection

Question 23

Prior Consistent Statement

Answer 23

The prior statement is consistent with the declarant’s in court testimony and is offered to rebut a charge that the witness is lying or exaggerating because of some motive or the prior statement is one of identification of a person made after perceiving him.

Question 24

Present State of Mind

Answer 24

Hearsay Exception -

A statement of a declarant’s then-existing state of mind, emotion, sensation or physical condition is admissible.

Question 25

Excited Utterances

Answer 25

Hearsay Exception-
An out of court statement relating to a startling event, made while under the stress of the excitement from the event is admissible.

Question 26

Present Sense Impressions

Answer 26

Hearsay Exception-

Comments made concurrently with the sense of impression of an event that is not necessarily exciting may be admissible.

Question 27

Business Record Exception

Answer 27

Any writing or record made as a memorandum of any act or transaction is admissible if:

1. Entry was made in regular course of business;
2. Personal Knowledge
3. Entry was made at or near the time of transaction
4. Authenticated

Question 28

Public Records and Other Official Writings

Answer 28

Records setting forth the activities of the office or agency are admissible. The writing must have been made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event.

Question 29

Past Recollection Recorded

Answer 29

Hearsay Exception:
if the witness’s memory cannot be revived, a party may introduce a memorandum that the witness made at or near the time of the event. (Writing must be read to the jury)

Question 30

Exceptions to Parol Evidence Rule

Answer 30

Parol evidence is admissible when offered:

1. To Complete an Incomplete or Ambiguous Contract.
2. Reformation of Contract
3. Challenge to Validity of Contract

Question 31

Admissibility for Impeachment

Answer 31

1. Prior Inconsistent Statement
2. Bias, Motive, Interest
3. Crime Involving False Statement
4. Felony Crimes
5. Prior Bad Act
6. Reputation & Opinion for Truthfulness

Question 32

Dying Declaration

Answer 32

A declaration made by the now unavailable declarant, while believing that her death was imminent, is admissible IF it concerns the cause or circumstances of what she believes to be her impeding death. Declarant must have first hand knowledge that the defendant was responsible for death.

Question 33

Admissibility of a Polygraph

Answer 33

Note Legally Relevant:
the probative value of a polygraph test depends on its scientific reliability, and its reliability generally is deemed to be slight because of its significant rate of error. On the other side of the balancing test, the tendency of jurors to give too much weight to a polygraph test makes, the danger of unfair prejudice high.

Question 34

Statement Against Interest Exception

Answer 34

Requires the Declarant to be unavailable as a witness.

Question 35

Habit

Answer 35

Regular response to specific set of circumstances.

Question 36

Competency Requirements

Answer 36

1. Personal knowledge
2. Actually perceived fact
3. Must be testifying from present recollection
4. Must take oath or affirmation

Question 37

Refreshing Recollection with Document

Answer 37

Anything can be used to refresh recollection but cannot be read aloud or shown to the jury; the opponent has the right to inspect it and offer it into evidence.

Question 38

Lay opinion

Answer 38

Admissible if rationally based on the W perceptions and helpful to the trier of fact; cannot be based on science or special knowledge

Question 39

Hearsay

Answer 39

Out of court statement being used to prove the truth of the matter asserted

Question 40

Declarations against Interest

Answer 40

Statement that would subject D to financial or criminal liability

Question 41

Former Testimony Exception

Answer 41

Testimony given in earlier proceeding of deposition by a witness now unavailable is admissible in the current proceeding if:

1. party against who it is offered was also party in the first proceeding and had opportunity to cross examine
2. or in civil case the party in the first case was in privy relationship and had opportunity to cross examine

Question 42

Confrontation Clause

Answer 42

Excludes out of court statement if declarant does not testify at trial, is now unavailable, the statement is testimonial and the D had no chance to cross examine about the statement made.

Question 43

California Prop 8

Answer 43

In a criminal case all relevant evidence is admissible even if objectionable under the California Evidence Code

Question 44

Admissions of Sympathy

Answer 44

CA makes inadmissible in civil actions expressions of sympathy relating to suffering or death of accident victim

Question 45

Exemptions to Proposition 8

DR Mammal Counts SHEEP

Answer 45

1. Defendant Still must open the door to bring in character evidence
2. Rape Shield Laws
3. Member of the Media still can’t be held in contempt for refusing to reveal confidential source
4. Court still has power to exclude evidence if probative value is outweighed by prejudice
5. Secondary evidence rule still applies
6. Hearsay
7. Exclusionary rules based on US constitution still apply
8. Exclusionary rules adopted by the CA legislature still apply
9. Privileges that already existed in 1982 apply

Question 46

Leading Question

Answer 46

One that is framed to suggest the desired answer

Question 47

Expert Opinion Requirements

Answer 47

1. Specialized Knowledge
2. Qualified by knowledge, skill, experience, training or education;
3. testimony must be based on sufficient facts or data;
4. The testimony must be the produce to reliable principles and methods; and
5. the witness must have applied the principles reliably to the facts of the case.

Question 48

Non Hearsay Statements

Answer 48

1. Verbal acts or legally operative facts
2. Statements offered to show their effect on the hearer or reader
3. Statements offered as circumstantial evidence of the declarant’s state of mind

Question 49

Requirements for Silence to be an Admission

Answer 49

1. The party heard and understood the statement
2. the party was physically and mentally capable of denying the statement; and
3. a reasonable person would have denied the accusation

Question 50

Hearsay Exceptions - Unavailability Required

Answer 50

1. Former Testimony
2. Statement Against Interest
3. Dying Declaration
4. Statements offered Against Party Procuring Declarant’s Unavailability