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CA Bar Exam > Evidence > Flashcards

Evidence Flashcards

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1
Q

What is logical relevance?

A

FRE: evidence is relevant if it tends to make more or less likely a fact in evidence than without the evidence.

CEC: relevant if material to a disputed fact.

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2
Q

What is Proposition 8 and what does it apply to? Are there any exceptions?

A

Proposition 8 applies to CA criminal cases, and makes all relevant evidence admissible. However, there are exceptions such as:

  1. Rape shield laws
  2. Protection of media sources
  3. Hearsay
  4. Legal relevance
  5. Exclusionary rules
  6. Privileges
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3
Q

What legal relevance?

A

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion or issues, misleading a jury, or wasting time.

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4
Q

What are the public policy exclusions?

A
  1. Subsequent remedial measures (unless to show ownership/control)
  2. Liability Insurance (unless to show ownership/control. Note: does NOT cover statements of fault regarding insurance)
  3. Offers to pay medical expenses.
  4. Settlement offers (must be AFTER claim arose)
  5. Plea bargains (though may come in under Prop 8, depending on prejudice)

CA ONLY: Expressions of Sympathy in CIVIL cases for death or suffering

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5
Q

Objections to Form of Questions:

A

NUCALA:

  1. Narrative (“so, what happened?”)
  2. Unresponsive
  3. Compound question
  4. Argumentative
  5. Leading
  6. Assumes Facts Not In Evidence
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6
Q

What is the process for present recollection refreshed, and is it admissible in evidence? What’s the CA distinction?

A
  1. Establish witness doesn’t remember answer, but identifies something that will refresh memory.
  2. Have witness review document silently, ask if it refreshes their recollection, and have them answer the question.
  3. Witness must then testify to refreshed memory.

In CA, the document must be produced.

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7
Q

Is lay opinion admissible?

A

Yes, if based on witness perception and helpful to trier of fact.

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8
Q

Expert opinion requirements. CEC vs. FRE

A
  1. Specialized knowledge that will assist trier of fact.
  2. Qualified as expert.
  3. Testimony based on sufficient facts/data.
  4. Based on reliable methods:
    FRE-Daubert
    CEC - Frye (except for medical and non scientific testimony)
  5. Applied reliably to facts of case.
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9
Q

What is Daubert standard?

A
  1. Peer reviewed and published
  2. Tested
  3. Low error rate
  4. Reasonable acceptance
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10
Q

What is the Frye standard?

A

Generally accepted in relevant scientific community.

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11
Q

What are the types of privileges?

A

1.Attorney-client
2.Doctor-patient (not in fed common law)
3.Therapist-patient (CA also includes social worker)
4.5th Amendment self-incrimination
5.Marital:
A. Spousal immunity
B. Confidential communications

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12
Q

What are CEC-only privileges?

A
  1. Counselor-victim (sex assault/domestic violence)
  2. Clergy
  3. News reporters (don’t need to reveal sources)
  4. Doctor-patient
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13
Q

Who holds the attorney-client privilege? How long does it last?

A

The client, though the lawyer may assert it on the client’s behalf.

Fed: after death
CEC: until estate is distributed

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14
Q

What are the exceptions to attorney-client privilege?

A
  1. communication used in FURTHERANCE of CRIME or FRAUD.
  2. dispute with lawyer
  3. Two or more parties consult on matter, and it’s used by one against the other
  4. CEC: disclosure necessary to PREVENT crime likely to result in death or bodily injury.
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15
Q

When does doctor-patient privilege apply (in CA) and what are the exceptions?

A

If communications for purpose of medical diagnosis and treatment.

Exceptions:

  1. If patient puts physical condition at issue.
  2. Doc’s assistance was sought to aid wrongdoing.
  3. Dispute between doctor and patient.
  4. Info doc is required to report.
  5. Commitment, competency, license revocation proceedings.
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16
Q

What are the exceptions for therapist-client privilege in CA?

A

Same as doctor-patient but also:

  1. Patient danger to self or others
  2. Court-appointed
  3. Patient is minor and possible crime victim.
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17
Q

What is spousal immunity? Who holds the privilege?

A

One spouse cannot be compelled to testify against other spouse. WITNESS spouse holds privilege (thus, a spouse can testify if they want to).

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18
Q

In what kinds of cases does spousal immunity apply?

A

Fed: criminal ONLY
CEC: Both

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19
Q

When does spousal immunity apply and what does it cover? Exceptions? What is the effect on hearsay?

A

Only applies if spouses are STILL MARRIED, but it covers info learned BEFORE and DURING marriage.

Doesn’t apply in actions between spouses or cases involving crimes against testifying spouse/spouse’s children.

Hearsay: Makes spouse UNAVAILABLE.

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20
Q

What is marital confidential communications privilege? What is the duration? Who holds the privilege? Exceptions? Hearsay effect?

A

One spouse may not disclose confidential communications of the other made during marriage.

Duration: SURVIVES marriage, but only covers statements made DURING marriage.

Holder: BOTH spouses hold and can prevent other spouse from disclosing.

Exceptions: actions between spouses or crimes against testifying spouse or spouse’s children

Hearsay effect: Unavailable

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21
Q

What are the 3 forms of character evidence?

A

Reputation, opinion, specific acts

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22
Q

What is the general rule for character evidence?

A

Character evidence is generally not admissible to prove conduct in conformity therewith.

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23
Q

When is character evidence admissible in CIVIL cases?

A

If character is at issue (wrongful death, defamation, negligent entrustment).

Fed: Character evidence of sexual behavior of DEFENDANT admissible.
CAC: Sexual behavior still not admissible against D

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24
Q

If character evidence is admitted, what forms of testimony are allowed in CIVIL cases?

A

Generally only reputation and opinion.

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25
Q

If character evidence is permitted in criminal cases, what must the character trait always be?

A

PERTINENT to the case.

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26
Q

What is the general rule regarding DEFENDANT’s character in CRIMINAL cases?

A

Only the Defendant can “open the door” to character evidence, but once opened, the prosecution can rebut.

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27
Q

What’s the exception in sexual assault/child molestation cases regarding character evidence?

A

In BOTH FRE and CEC, prosecution can “open the door” to offer character evidence of defendant.

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28
Q

Under both rules, what happens in criminal case where Defendant offers character evidence against victim?

A

FRE: Prosecution can offer same character trait against D (not just rehabilitate victim)

CEC: Prosecution can only attack Defendant with same trait if he offered evidence of VIOLENT character against victim.

29
Q

In CA, what is the rule in domestic violence/elder abuse cases?

A

Prosecution can open door with other acts of domestic violence or elder abuse.

30
Q

If a defendant testifies, does he put his character for truthfulness at issue?

A

Yes.

31
Q

What is the general rule for victim’s character? Exceptions?

A

Only D can open the door, but once opened, prosecution can rebut.

Exceptions:

Rape shield laws generally disallow character evidence of sexual conduct of victim (rep/op evidence ALWAYS disallowed, specific acts only for 3rd party semen source or consensual sex with D)

32
Q

What forms of character evidence are permitted to show D’s character on direct? On cross?

A

Direct: reputation and opinion, NO specific acts

Cross:
FRE- All 3 (but no extrinsic evidence for specific acts! Prosecution is stuck with answer)
CEC- Only reputation and opinion

33
Q

What form of character evidence is permitted for VICTIM’s character on direct? On cross?

A

Direct:

  1. FRE-reputation and opinion only
  2. CEC - All 3

Cross: All 3

34
Q

In sexual assault cases, what forms of character evidence are admissible against victim?

A

Only specific acts to show (1) third party is source of semen, (2) prior acts of consensual sex.

35
Q

In CIVIL and CRIMINAL cases, when might character evidence be admissible for some other purpose?

A 
MIMIC
Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme
36
Q

What is the general rule of impeachment?

A

Witness’s credibility may be impeached on CROSS-EXAMINATION, or, with proper foundation, EXTRINSIC EVIDENCE.

Either party may impeach.

37
Q

What are the 5 ways to impeach?

A
  1. Character for truthfulness
  2. Prior Inconsistent Statement
  3. Bias
  4. Sensory/mental defect
  5. Contradiction by another witness (unless on collateral matter)
38
Q

What forms of character evidence may be used to impeach for truthfulness? Exceptions?

A

Reputation and opinion only (can’t ask about specific acts that led to opinion/reputation)

FRE: Specific bad acts that relate to truthfulness can be asked on cross, but NO extrinsic evidence (stuck with answer).

CA: Rules depend on whether civil or criminal.

  1. Civil - no cross of bad acts, and no extrinsic evidence.
  2. Criminal - Prop 8 permits cross AND extrinsic evidence of bad acts (subject to balancing test)
39
Q

Truthfulness - criminal convictions

In Fed court, what crimes are always admissible?

A

Crimen falsi (felony or misdemeanor). Judge may NOT exclude (even under balancing test), unless conviction is more than 10 years old.

40
Q

How are felony convictions treated (fed vs. CA)?

A

Fed: balancing test used
CA: Only admissible if (1) not expunged, (2) one of “moral turpitude”, and (3) balancing test

41
Q

How are misdemeanor convictions treated (Fed vs. CA)?

A

Fed: Misdemeanors which are not crimen falsi are not admissible.
CA:
1. Civil - not admissible
2. Criminal - only if moral turpitude

42
Q

What’s the rule with regard to rehabilitating a witness?

A

Must meet the attack.

  1. Good character can be shown to rebut untruthfulness
  2. Prior consistent statement can be used to rebut fabrication
43
Q

Is bolstering a witness’s credibility permitted?

A

FRE: Nope. Must be attacked first.
CEC: Yes, either side may bolster.

45
Q

What are some non hearsay purposes?

A
  1. Effect on listener
  2. Declarant’s state of mind
  3. Independent legal significance (words of defamation, words establishing contract, solicitation)
46
Q

What is multiple hearsay and what’s the rule?

A

If an out-of-court statement quotes/paraphrases another out-of-court statement. Each statement must be supported by an exception.

47
Q

What are the party opponent exemptions (CA calls “exception”)?

A
  1. Party admission (any statement)
  2. Adoptive admission - can be silent adoption if reasonable person would have spoken up (unless protected by 5th amend)
  3. Vicarious admission (Spokesperson/Employee/Agent)
  4. Co-conspirator admission (confrontation clause applies)
48
Q

For vicarious admission of an employee, what is the CA distinction?

A

Only admitted in cases alleging negligent conduct of employee.

49
Q

What are the hearsay exceptions for statements made around the time of an incident?

A
  1. Medical diagnosis/treatment
  2. Statement of then-existing mental, emotional, physical condition
  3. Present sense impression
  4. Excited utterance
50
Q

What is the rule for medical diagnosis exception? Do third party statements apply? Does the cause of the condition count? What is the CA distinction?

A

Must be made for purpose of diagnosis or treatment. Third party statements can be admitted if used to obtain treatment. The cause of condition may be admitted, but NOT statements of fault (e.g., Kerry caused me to cut my ear open).

CA: This exception ONLY applies to child abuse victims.

51
Q

What is present sense impression and what is CA distinction?

A

Statement describing event/condition while declarant was observing event/condition, or immediately thereafter.

CA: Only applies to declarant’s OWN conduct while engaged in that conduct.

52
Q

What is excited utterance?

A

Statement relating to startling event and made while declarant under stress of the excitement of the event.

53
Q

What are the prior statements of AVAILABLE witnesses permitted under hearsay?

A

Prior inconsistent statement (made under oath)
Prior consistent statement (no need for oath, can be used SUBSTANTIVELY to rebut fabrication)
Prior identification of person (substantively admissible).

54
Q

What are the documentary hearsay exceptions?

A
  1. Past recollection recorded
  2. Business record
  3. Public records
  4. Learned writings/treatises
55
Q

What does past recollection recorded exception require?

A
  1. Firsthand knowledge by witness
  2. Fresh in memory when record was made
  3. Witness now doesn’t remember
  4. Record was accurate when written

NOTE: record will be read to the jury

56
Q

What is the business record exception? CA exceptions?

A

Record kept in course of regular business.

  1. Agency records of own activities
  2. Investigative reports (NOTE: FRE doesn’t allow police reports in criminal cases, but CEC does)

CA: does not allow opinions or diagnoses.

57
Q

What is learned writings/treaties exception (CA vs. FRE)

A

FRE: Admissible if established by expert as reliable authority
CEC: admissible for facts fo general notoriety

58
Q

What are the exceptions that require a declarant to be UNAVAILABLE?

A
  1. Former testimony
  2. Dying Declaration
  3. Declaration against interest
  4. Forfeiture by wrongdoing
59
Q

When is a witness unavailable?

A
  1. Privileged from testifying
  2. Death or illness
  3. Reasonable means can’t procure witness
  4. Witness refuses (CA requires out of fear)
  5. Witness can’t remember (CA requires total memory loss)
60
Q

With former testimony, who must have been present at former hearing/depo?

A

FRE: allows predecessor in interest
CEC: allows anyone with similar interest

61
Q

When is depo testimony admissible in CA?

A
  1. Same civil action

2. Witness unavailable or lives 150 miles from courthouse

62
Q

What is dying declaration, in what cases is it admissible, and what is CA distinction?

A

statement made by declarant believing his death was imminent.
FRE- only in HOMICIDE cases (criminal and civil)
CA- any cases, but declarant must actually be dead

Also, CA - “OJ exception” - statements of physical abuse to cops/medical around time of abuse is admissible

63
Q

What is declaration against interest?

A

If, at time statement was made, it was against pecuniary or penal interest, it is admissible.

CA: Also against SOCIAL interest.

64
Q

What is forfeiture by wrongdoing?

A

Hearsay exception will apply if witness unavailable due to witness tampering by party.

65
Q

What is the catch-all exception?

A

Hearsay statement may be admissible if trustworthy, material, probative, and notice is given to other side.

66
Q

What is the rule with authentication?

A

All evidence, other than testimony, must be authenticated, unless self-authenticating.

67
Q

What kind of documents are self-authenticating?

A

Certified copies of public records, official publications, newspapers

68
Q

What is the best evidence rule and what is it called in CA?

A

To prove contents of writing, the original must be produced. CA calls this “secondary evidence rule.” Duplicates are admissible unless authenticity of original is disputed.

Does not apply if fact to be proved exists independently from writing (witness has personal knowledge), if writings are voluminous, or if writing is collateral.

69
Q

What is hearsay?

A

Hearsay is out-of-court statement offered for the truth of the matter asserted.

70
Q

When looking at a document, what issues should be analyzed?

A
  1. Relevance (logical and legal)
  2. Authentication
  3. BER/secondary evidence rule
  4. Hearsay/exceptions

CA Bar Exam (11 decks)

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