Evidence

Question 1

Relevance

Answer 1

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

Question 2

Prop 8 (CA)

Answer 2

relevant evidence shall not be excluded in any criminal proceeding for impeachment issues but does not apply to character, hearsay, privileges, or 352 issues

Question 3

FRE403/CRE 352

Answer 3

evidence will be inadmissible if its probative value is outweighed by undue prejudice such as the possibility that the jury will decide the case on emotion rather than fact or the potential for jury confusion

Question 4

Personal Knowledge

Answer 4

testimony is only valid if the witness has been able to perceive what he is testifying to

Question 5

Leading Questions

Answer 5

suggest the answer in the question and only permitted on direct of an adverse or hostile witness OR on cross

Question 6

Compound Question

Answer 6

either has two verbs in the question or two independent clauses

Question 7

Calls for a Narrative

Answer 7

impermissible form of questioning that asks witness to relate a story rather than specific facts, such as “tell us what happened next”. But allowed if asking witness to recall what was discussed in a particular convo

Question 8

Argumentative Questioning

Answer 8

asks the witness to resolve an apparent contradiction in their testimony

Question 9

Assumes Facts Not in Evidence

Answer 9

asking a question regarding a specific detail that there has been no previous mention of

Question 10

Non-responsive Answer

Answer 10

when a question asks for a a yes or no answer, anything beyond that is non-responsive & likely to subject to a motion to strike

Question 11

Character Evidence

Answer 11

the use of prior conduct to infer a trait & then the use of that trait to suggest or infer that the trait makes it more likely that the party engaged in particular conduct at issue — character evidence is not admissible

Question 12

Where Character Trait Itself is in Issue (civil case)

Answer 12

evidence of opinion, reputation, specific conduct is admissible including prior acts of sexual assault. HOWEVER, prior acts of sexual assault not admissible in CA

Question 13

Where Character Trait Itself is in Issue (crim case)

Answer 13

evidence of opinion, reputation, and specific conduct is admissible including prior acts of sexual assault (for both FRE & CA). Plus in CA, prior acts of domestic/ child abuse also allowed

Question 14

Mercy Rule

Answer 14

when relevant evidence is first offered by the criminal △ in the form of opinion or reputation evidence, the prosecution can then offer only relevant opinion or reputation evidence of the △’s same bad character trait

Question 15

Mercy Rule on X

Answer 15

the prosecution can ask the character witness about specific acts by the △ that are inconsistent with the character character trait the witness testified to only to impeach the character witness

Question 16

Victim Character Evidence (FRE)

Answer 16

if the △ first offers evidence of the victim’s character trait, it is limited to opinion & reputation evidence only, and prosecution can then offer evidence of vic’s good character traits & △’s same bad character trait

Question 17

Victim Character Evidence (CA)

Answer 17

If the △ offers evidence of the victims character trait, allowed in the form of opinion, reputation, or specific conduct, prosecution can then offer evidence of vic’s good character traits & can only offer △’s same bad character trait if △ says vic has a violent character trait

Question 18

Evidence of Specific Acts for Character Purposes

Answer 18

not allowed to prove character EXCEPT: 1) where character trait is in issue in civil/crim case 2) on cross to impeach a character witness’s credibility 3) in CA: evidence of vic’s character & △’s character in response to such evidence of vic’s violent behavior

Question 19

Evidence of Specific Acts for Non-Character Purposes

Answer 19

specific acts of a party are permitted for non-character purposes such as: MIAMI KOP Motive Intent Absence of Mistake Identity Knowledge Opportunity Plan & Preparation

Question 20

Habit & Custom Evidence

Answer 20

habit evidence is admissible to show that a party likely acted in conformity w/ the habit. Requires a repeated same response to the same stimulus. Custom refers to a business practice

Question 21

Subsequent Remedial Measures

Answer 21

subsequent remedial measures taken after an accident or similar incident are inadmissible to prove fault, negligence, or damages in both negligence & products liability cases.

Except in CA: allowed to show defective product & thus liability

FRE: only allowed to prove: 1) ownership, 2) control, or 3) feasibility of precautionary measures/design (if in controversy or for impeachment)

Question 22

Offers of Compromise

Answer 22

evidence of offers of compromise will be inadmissible to prove fault so long as there is an actual dispute (look for conditional language) as to liability or damages prior to making the offer.

Entire statement & any admissions made w/ the offer will be excluded

Question 23

Offers to Pay Medical Expenses

Answer 23

offer is excluded but any admissions made w/ the offer are admissible

Question 24

Offers to Pay Medical Expenses/ Humanitarian Offers/ Benevolent Gestures CA

Answer 24

offers to pay med expenses & humanitarian offers (e.g., offer to pay funeral) are excluded along w/ any admissions.

However, for benevolent gestures. The b.g. (e.g., I’m sorry for your loss) is excluded but any accompanying admissions are not excluded.

Question 25

**Liability Insurance**

Answer 25

**FRE**: evidence of liability insurance is not admissible to prove fault or liability BUT allowed to prove ownership/control. absence of is inadmissible **CA**: absence of liability insurance is only inadmissible if opponent argues rule 352 (probative value outweighed by undue prejudice)

Question 26

**Pleas**

Answer 26

**FRE**: offers of pleas/ withdrawn pleas made to a prosecutor are inadmissible **CA**: offers of pleas/ withdrawn pleas are admissible to impeach the party if they testify inconsistently w/ the plea. Plea offer may be made to a non-transporting police officer, if accused reasonably believed officer had the authority to convey the offer

Question 27

**Hearsay**

Answer 27

An out of court statement offered to prove the truth of the matter asserted

Question 28

**Statement by Opposing Party (FRE)/Admission (CA)**

Answer 28

statement _made by_ & _offered against_ the opposing party, that if true, proves an aspect of the opponent's case. Considered not hearsay under FRE, exception in CA **adoptive**: where a party would be expected to object if not true unless made to party by law enforcement **authorized**: statement made by person authorized by the party to make a statement on the subject (look for authority) **vicarious**: admission by EE on a matter w/in scope & course of employment

Question 29

**Co-Conspirator Admission**

Answer 29

co-conspirator admission is admissible against opposing party so long as made in the course of & in furtherance of the conspiracy (FRE=nonhearsay; CA= exception)

Question 30

**Prior Consistent Statement**

Answer 30

first require an attack on witness' credibility by bias, interest, or prior inconsistent statement & must be made before prior inconsistent statement, bias, or interest arose (FRE=not hearsay; CA= exception)

Question 31

**Prior Inconsistent Statement**

Answer 31

**FRE**: always admissible to impeach but _admissible for truth only if given under oath in prior proceeding_/depo. _not hearsay_ **CA**: admissible to impeach & admissible for truth UNLESS barred by constitution under rule 352 (probative value outweighed by undue burden) whether or not made under oath in prior proceeding. _hearsay exception_ **Both**: Extrinsic evidence only allowed if witness is given opportunity to explain/deny the statement

Question 32

**Prior Statement of Identification**

Answer 32

allows statements made by witness identifying the △/perp immediately after perceiving them so long as subject to cross FRE= not hearsay & admissible in all cases CA= exception only admissible in criminal cases

Question 33

exception doesn't require unavailability **Statement for Purpose of Diagnoses or Treatment (FRE only)**

Answer 33

statements made describing _pain, cause of pain, medical history, & past/ present symptoms_ are admissible if pertinent to diagnosis or treatment FRE: exception that doesn't require unavailability CA: not applicable

Question 34

exception doesn't require unavailability **Present Sense Impression (FRE)/ Contemporaneous Statement (CA)**

Answer 34

**FRE Present Sense Impression** : statement made by declarant explaining or describing an event while the event occurs or immediately thereafter **CA Contemporaneous Statement** : limited to statement made by declarant to explain, qualify, or make understandable his own conduct & made while declarant was engaged in such conduct

Question 35

exception doesn't require unavailability **Excited Utterance (FRE)/ Spontaneous Statement (CA)**

Answer 35

statements relating to an objectively startling event & made while under the stress of excitement it caused

Question 36

exception doesn't require unavailability **Statement of then existing mental, emotional, or physical condition (FRE)/** **State of Mind (CA)**

Answer 36

statement of how the declarant was feeling or of plan or intent

Question 37

exception that doesn't require unavailability **Past Recollection Recorded**

Answer 37

requires that 1) witness have no memory of the matter, 2) the memo was made when witness' memory was fresh & accurately reflected their knowledge; & 3) writing may only be read into evidence not introduced as an exhibit

Question 38

doesn't require unavailability **Business Records Exception**

Answer 38

1. must be made as part of regularly conducted business activity, 2. @ or near the time of the event, 3. by a person w/ knowledge, AND 4. the time & mode of preparation suggest trustworthiness NOTE: consider **absence of business records** when they are expected to exist \*If they incorporate someone else's statement look out for multiple hearsay\*

Question 39

doesn't require unavailability **Official Records**

Answer 39

made by govt EE's w/ a duty to make such records & property records **CA**: includes _judgments of conviction_ as long as they are considered official records (NOTE: if they incorporate someone else's statement, watch out for multiple hearsay)

Question 40

exception doesn't require unavailability **Learned Treatise**

Answer 40

1. includes any scholarly publication, 2. can be introduced through any expert who considers it authoritative or used it in forming their opinion, AND 3. can be used to impeach a witness simply by calling it to their attention CA: medical treatises are not included

Question 41

**Unavailable Declarants**

Answer 41

1. exempted/ precluded from testifying bc of privilege 2. dead or unavailable bc of illness 3. absent from hearing & beyond ct's process to compel 4. absent from hearing despite proponent's reasonable efforts to compel 5. refuse to testify despite court order

Question 42

requires unavailability **Former Testimony**

Answer 42

**requires unavailability** 1. applies to _former testimony made under oath_ 2. if the _party against whom it is offered_ (or predecessor in interest in civil case) had an _opportunity_ & similar _motive to cross examine_ the witness **CA**: may also be offered against non-party

Question 43

requires unavailability **Dying Declaration**

Answer 43

**FRE**: statement made by declarant who believes their death is imminent & must be concerning cause/circumstances of their death. Has to be unavailable & only applies to civil & homicide cases **CA**: applicable in all cases & declarant doesn't have to be unavailable just has to be dying

Question 44

requires unavailability **Statement Against Interest**

Answer 44

statement must be contrary to person's pecuniary (financial) or proprietary interest OR would tend to subject them to criminal or civil liability **CA**: includes statements against social interests

Question 45

requires unavailability **Crime Victim Complaints (CA)**

Answer 45

**require unavailability** 1. statements involve a threat or injury 2. made shortly after threat or injury 3. are in writing, recorded, or made to law enforcement, domestic abuse shelters, medical personnel, or similar agencies

Question 46

**Impeachment**

Answer 46

impeachment of a witness can be done by 1. **prior inconsistent statements** (opportunity to explain/deny not required to introduce statement impeaching a hearsay declarant) 2. **bias** (extrinsic evidence admissible if given opportunity to explain or deny OR not excused) 3. **opinion or reputation as to truthfulness** 4. **prior bad acts** involving untruthfulness (not in CA civil case; allowed in crim case through prop 8) 5. **convictions**

Question 47

**Impeachment by Convictions**

Answer 47

**FRE**: * may be impeached w/ **felonies** _commited w/in last 10 yrs_ BUT if W is a criminal △, then may only be impeached if probative value outweighs prejudicial effect. * may be impeached w/ misdemeanors involving dishonesty/untruthfulness **CA**: * only allows impeachment in felony convictions involving moral turpitude * not allowed in CA civil cases & allowed in crim cases through prop 8

Question 48

**Confrontation Clause**

Answer 48

when prosecution offers *testimonial statements* against accused in crim case for a hearsay purpose, the out of court declarant must be produced for cross examination under oath OR prosecution must demonstrate unavailability & that accused had a prior opportunity to cross declarant testimonial statement= questioning by govt officers w/ an eye towards use at trial as opposed to during emergency

Question 49

**Bruton Doctrine** **(confrontation clause issue)**

Answer 49

when there is a joint trial w/ multiple △'s, confessions of a co△ cannot be used against the non-confessing co△even if it implicates him confession must be testimonial in nature

Question 50

**Present Recollection Refreshed**

Answer 50

a procedure, NOT a hearsay issue ## Footnote when a witness fails to recall something, any written thing can be used to refresh their memory but witness can't read from it anything used to refresh memory **while on the stand**, m**ust be shown to opposing party** & they can use it to cross examine witness. if **used before trial**, **only** entitled to production i**f court decides** justice requires it

Question 51

**Authentication**

Answer 51

can be authenticated by any method that constitutes sufficient evidence proving it is what it purports to be such as: * author of doc & custodian of records * questioned document examiner * some receives a letter can authenticate it if its in response to one they sent * Voice can be authenticated by someone who has sufficient familiarity with the person's voice Under **FRE**: 1) notorized deeds, 2) newspapers, 3) official records, & 4) trade labels are self authenticating CA only certified copies of judgments are self authenticating & 1-4 presumed to be self authentic

Question 52

**Best Evidence Rule (FRE)/ Secondary Evidence Rule (CA)**

Answer 52

**FRE**: if content of the writing is in issue, proponent must produce the OG, which includes photocopies, to prove the contents of the doc **CA**: expresses a preference for the use of copies rather than testimony unless writing is a true summary, OG/copy destroyed, proponent doesn't have control of OG/copy & can't reasonably procure it

Question 53

**Waiver of Privilege**

Answer 53

## Footnote can be 1) conscious – by holder 2) negligent – by failing to claim in any proceeding in which holder has legal standing 3) by disclosure to third person

Question 54

**Spousal Privilege**

Answer 54

Privilege not to be called as a witness by a party adverse to current spouse & not to testify against a current spouse APPLICABLE DURING MARRIAGE ONLY & ONLY HELD BY TESTIFYING SPOUSE

Question 55

**Marital Communications Privilege**

Answer 55

communications between 2 persons that are made during marriage are intended to be confidential. Applies to all marital communications even after marriage has ended. Held by both so either spouse can prevent the other from testifying to confidential info but not from testifying in general

Question 56

**Attorney Client Privilege**

Answer 56

if someone consults w/ someone who they reasonably believe to be an attorney, privilege attaches to communications between them. Can be asserted by attny or client but only client can waive it.

Question 57

**Crime Fraud Exception**

Answer 57

any privileged communication made in order to enable a client, patient, spouse to commit a crime or fraud is w/in crime fraud exception & subsequently lost

Question 58

**Lay Opinion**

Answer 58

based on reasonable perception & whether it can help the fact finder understand the testimony. It can cover manner, behavior, etc. Witness must show adequate foundation of personal knowledge

Question 59

**Expert Opinion**

Answer 59

expert must be qualified in the subject matter, testimony must be of help to the fact finder, & methodology must be generally accepted in the relevant field

Question 60

**Judicial Notice**

Answer 60

method of establishing facts w/out necessity of a jury deciding them. Fact must not be subject to reasonable dispute in that its either 1) generally known w/in courts territorial jx (e.g. boiling water is hot, capital of a state) OR 2) capable of accurate & ready determination by resort to unquestioned accurate sources **crim case**: raises **inference** (jury may but not required to accept) **civil case**: **conclusive presumption**

Question 61

**Vicarious Admission**