Evidence

Question 1

Hearsay in General

Answer 1

Hearsay is an

(1) out of court statement
(2) used to prove the truth of the matter asserted.

Question 2

Party-Opponent Admission

BY PARTY - AGAINST PARTY

Answer 2

Any statement

(1) made by a party in the suit, or party’s representative (corporation)
(2) offered as evidence against the party that declared the statement.

FRE - Excluded from definition of hearsay
CA - Defined as an exception to hearsay

Question 3

Prior Identification

Answer 3

Requires opportunity to cross-examine the declarant

Question 4

Vicarious Admissions

Answer 4

FRE
(1) Admission by employee
+ (2) Made while employee still working for employer
+ (3) Concerning a matter w/in course and scope of employee’s employment.

CA
(1) Liability must be based solely on employee (respondeat superior)
+ (2) employee is declarant
+ (3) statement would ordinarily be considered an admission of the employee.

[Notice no course or scope of employment requirement!]

Question 5

Prior Inconsistent Statements

Answer 5

FRE
Admissible only if given under oath at prior proceedings or deposition.

CA
Admissible for their contents AND for impeachment, unless barred under CEC Section 352 probative-value-undue-prejudice balancing.

Question 6

Present Sense Impressions (or Contemporaneous Statements)

Answer 6

FRE
(1) Statement made by declarant
+ (2) explaining or describing event
+ (3) while event occurs OR immediately after.

CA (Contemporaneous Statement)

(1) Statement offered by declarant to
(2) Explain, qualify, or make understandable declarant’s conduct and
(3) Made while declarant engaged in the conduct

[Important key here is cannot describe anyone else’s conduct!]

Question 7

Admissions in General

Answer 7

FRE - Admissions are permissible non-hearsay
CA - Admissions are exceptions to hearsay rule.

Admissions of party opponents
Vicarious Admissions

Question 8

Statement for the Purpose of Diagnosis or Treatment

(THEN-EXISTING STATE OF MIND OR PHYSICAL SENSATION)

(PAST STATE OF MIND OR PHYSICAL SENSATION)

(UNAVAILABLE DECLARANT - CA)
(ABUSED OR NEGLECTED MINOR - CA)

Answer 8

(A) Statements of Then-Existing State of Mind or Physical Sensation (e.g., “doctor, my back hurts right now”)

FRE: Allowed, if made for the purpose of diagnosis or treatment.

CA: Allowed, if:

(i) the state of mind or sensation is itself at issue,
(ii) evidence is not offered to prove any fact other than the state of mind or sensation.

(B) Statements of Past State of Mind or Physical Sensation (e.g., “doctor, my back hurt last week”)

FRE: Allowed, if made for the purpose of diagnosis or treatment.

CA: Allowed, only if:

(i) declarant is unavailable, and
(ii) statement offered only prove fact of the state of mind or physical sensation.

OR

(i) Declarant is alleged victim of child abuse or neglect
(ii) who made statement under age of 12
(iii) for the purpose of treatment or diagnosis.

Question 9

Hearsay Exceptions for Unavailable Witnesses

(FORMER TESTIMONY)

(DYING DECLARATIONS)

(STATEMENTS AGAINST INTEREST)

Answer 9

(A) Former Testimony

(1) Civil case
(2) testimony under oath

FRE:

(3) party against whom offered had predecessor in interest
(4) predecessor in interest had opportunity to cross
(5) predecessor in interest had similar motive to cross.

CA:

(3) party against whom offered had predecessor with similar interest and motive
(4) predecessor had opportunity to cross.

• If deposition is from same case:
  (3) deponent unavailable at trial OR lives more than 150 miles from courthouse.
• Predecessor in interest (high standard, two different victims in plane crash are not predecessors in interest) or equivalent could be the same party, if present in both.
• **

(B) Dying Declarations

FRE:

(1) Civil or HOMICIDE case
(2) Declarant believed death was imminent, and
(3) statement must concern cause or circumstance of impending death

CA:

(1) All cases
(2) Declarant is dead
(3) Statement concerned what killed declarant.

(C) Statements Against Interest

Admissible if, at time made, against

(a) against financial interest of declarant,
(b) would have subjected declarant to criminal liability, or

CA:
(c) against declarant’s social interest because it risks making declarant object of “hatred, ridicule, or social disgrace in the community”

Question 10

Hearsay Exception for Comments

Answer 10

(A) Present Sense Impression
See discussion above.

(B) Excited Utterances (referred to as “spontaneous statements” in CA)
Any statement made while under stress of startling event

(C) Present State of Mind, Physical, or Mental Conditions
Admissible to show the state of mind or condition.
(i) Statements describing memory or belief are not admissible to prove fact remembered or believed.

(D) Past State of Mind, Physical, or Mental Condition
Only allowed for medical-related purposes, see above.

(E) Past Recorded Recollection
(i) Writing made or adopted by witness who can’t now remember
+(iii) made while facts were fresh in mind.

Question 11

Hearsay Exceptions for Records

Answer 11

(A) Business Records
(1) Made at or near time of event;
(2) By person with knowledge,
(3) As part of regularly conducted activity, and
(4 )Regular practice to make such records.
(*) Lack of such records can be used to show absence of a related event.

(B) Official or Public Records

(a) Activities or policies of office,
(b) Matters observed pursuant to duty imposed by law
(c) factual findings resulting from trustworthy investigation made pursuant to authority granted by law
* For criminal cases, FRE limits (c) to use against government.
* *FRE forbids use of police observation in criminal cases.

(C) Property Records + Vital Statistics
(1) Admissible if made by appropriate public official pursuant to requirements of law.

(D) (CA only) Judgments of Convictions
For both felonies and misdemeanors.

Question 12

Character Evidence - Generally

Answer 12

Character evidence is any evidence that tends to suggest a party’s conduct occurred in conformity with their character.

It can be offered by:

(1) evidence of specific acts,
(2) opinion testimony of a witness who knows the person, or
(3) testimony as to the person’s general reputation in the community.

Character evidence is generally not admissible in civil cases to show conduct in conformity therewith.
Exceptions:
(i) When character is itself at issue (defamation), or
(ii) Sexual assault or molestation cases.

Question 13

Character Evidence - MIMIC

Answer 13

Evidence of prior misconduct or crimes is not character evidence, and therefore admissible, when used to establish:

(1) Motivate
(2) Intent
(3) (Lack of) Mistake
(4) Identity
(C) Common scheme or plan

Question 14

Character Evidence - Opinion or Reputation

Answer 14

Generally, character evidence must first be offered by D on the target (D or V) in the form of opinion or reputation evidence.

Exceptions
(1) FRE: Homicide prosecution, claim is self-defense, and evidence is of victim’s peaceable nature.

(2) FRE: D offers evidence of V’s character trait -> Prosecution can offer evidence that D has same trait.
(3) CA: Similar to exception (2), but ONLY if the character trait in question is violent nature.

Question 15

Character Evidence - Specific Acts

Answer 15

FRE: Not permitted, except:

(1) Sexual assault or misconduct cases;
(2) On cross TO IMPEACH CREDIBILITY (still not really using it for character)

CA: Not permitted, except:

(1) Evidence of V’s character for violence;
(2) Rebuttal of V’s character for violence;
(i) V’s peaceableness, or
(ii) D’s violent character.

Question 16

Habit and Custom Evidence

Cues: (“always” or “repeatedly, or reference to a business practice)

Answer 16

Must:

(1) Show repeated same response to same stimulus
(2) Be offered for the purpose of acting in conformity with the habit

Question 17

Policy Exclusions from Evidence

Answer 17

(A) Subsequent Remedial Measures

(1) FRE:
(i) CANNOT be used to prove negligence, fault, or damages in both negligence and product liability cases.
(ii) can be used for other purposes, such as proving ownership, control, feasibility of safety measures or design (if controverted), or impeachment.
(2) CA: CANNOT be used to prove negligence or fault in negligence.
(i) can be used in products liability cases.

(B) Offers of Compromise or Settlement
Entire statement is excluded.

(C) Humanitarian offers or Offers to Pay for Medical Treatment
FRE: Offer excluded, but any side-admissions are admissible.
CA: Offer AND admissions are excluded.

(D) Liability Insurance
Not admissible to prove negligence or ability to pay.

(E) Pleas

Question 18

Impeachment of Witnesses

Answer 18

(A) Prior Inconsistent Statements

(B) Prior Bad Acts Not Resulting in Conviction

(1) FRE
(i) No extrinsic evidence (i.e., something other than testimony provided through witness himself)
(ii) Witness can be asked on cross about misconduct or bad acts that relate to dishonesty, subject to court’s discretion to balance.
(2) CA
(i) Criminal cases only, acts of moral turpitude admissible by cross AND extrinsic evidence.

(C) Prior Convictions

(1) FRE
(i) Convictions for felonies OR misdemeanors involving dishonesty -> admissible, no balancing unless > 10 years old.
(ii) For other felonies -> admissible subject to court’s discretion (i.e., probative value outweighs unfair prejudice).

(2) CA
(i) Felony convictions involving moral terpitude (lying, violence, theft, extreme recklessness, or sexual misconduct) are admissible subject to balancing
(ii) Misdemeanors only allowed in criminal cases if involving moral terpitude, subject to court’s discretion to balance.

(D) Character Evidence of Untruthfulness
Opinion and reputation that bears on witness’ truthfulness or untruthfulness always admissible.

Question 19

Present Recollection Refreshed

Answer 19

Not hearsay, but requires:

(1) Witness fail to recall,
(2) uses any writing to refresh memory,
(3) does not read from the writing,
(4) writing is shown to opposing party, which it can use to cross the witness.

Question 20

Lay and Expert Opinion

Answer 20

(A) Is it the type of thing lay opinion can cover?

(B) Lay opinion is OK when:
(1) Evidence rationally based on W’s perception;
(2) opinion is helpful to clear understanding of his testimony.
CA:
(3) Not based on scientific, technical, or other specialized knowledge.

(C) Expert opinion OK when:

    (1) Subject matter appropriate for expert testimony and helpful to jury;
    (2) Witness qualified as expert
    (3) Witness believes in opinion to reasonable degree of certainty, and
    (4) Opinion is reliable and supported by proper factual basis

    FRE: (4) assessed under Daubert standard

                 (a) Publication / peer review;
                 (b) Low error rate
                 (c) Results testable w/ ability to retest
                 (d) Reasonable level of acceptance among scientists

   CA: (4) assessed under Kelley-Frye standard
                 "Scientific opinion is based on principles that are generally accepted in the relevant scientific field."

Question 21

Writings - Authentication

Answer 21

Writing (or voice) can be authenticated in the following ways:

(1) Author of document or custodian of records
(2) A questioned document examiner can determine authenticity
(3) Recipient can authenticate letter if received in response to letter they sent
(4) Voices can be authenticated by anyone who has sufficient familiarity with the voice
(5) Voices can also be authenticated by making a call to person listed in phone directory, and having person self-identify (self-identification alone not enough)
(6) Self-authentication
(i) Notarized deeds
(ii) Newspapers
(iii) Official records
FRE:
(iv) Trade inscriptions and business records

CA excludes trade inscriptions and business records.

Question 22

Writings - Best Evidence (Secondary Evidence) Rule

Answer 22

Evidence offered to prove the actual contents of the writing.

FRE: Original or mechanical duplicate required
CA: Original, mechanical duplicate, or handwritten notes.

Exceptions
Offeror does not have possession or control of a copy of the writing
(1) original is lost or destroyed w/o fraudulent intent of offeror
(2) does not have possession or control of original, and either:
(a) Neither original nor copy reasonably procurable by use of court’s process or other available means, or
(b) Writing not closely related to controlling issues and inexpedient to require products, or
(3) writing is a true summary.

Question 23

Privileges

Answer 23

(1) Attorney-client
Attaches whenever a person consults with a person they reasonably believe to be an attorney.
(i) Both attorney and client can raise
(ii) Eavesdropping doesn’t overcome intent to have communications confidential
(iii) Privilege can extend to any person necessary to achieve purpose of representation, or assist in communication of information between attorney and client (i.e., interpreters, firm staff)
(iv) Waiver
(a) Only client can waive privilege
(b) Waiver must be intentional
(c) Inadvertent waiver through accidental disclosure does not count
(1) If it happens, privileged document must be returned and can’t be referred to in any proceeding.

(2) Physician-patient
Attaches whenever a person consults with a person they reasonably believe to be a doctor.
(i) Presence of necessary staff, like nurse or medical technician, does not destroy privilege

(3) Marital communications
Any communication between spouses intended to be confidential
(i) Held by both spouses
(ii) Continues after marriage ends

(4) Spousal Privilege
Privilege not to testify against and not be called as a witness against a current spouse.
(i) Held by the testifying spouse
(ii) Only apply DURING marriage

Question 24

Judicial Notice

Answer 24

FRE:

(1) Fact must not be subject to reasonable dispute, and
(2) Either generally known w/in court’s territorial jurisdiction or capable of accurate and ready determination by resort to unquestioned accurate resources.

Question 25

Proposition 8

Answer 25

(1) Applies only to criminal cases
(2) Provides that relevant evidence shall not be excluded in any criminal proceeding
(3) Subject to probative value against risk of undue prejudice
(3) Does not apply to:
(i) Character evidence
(ii) Evidence barred by California’s rape-shield statute
(iii) Evidence barred by Secondary Evidence rule
(iv) Evidence barred by privilege rules
(v) Evidence barred by hearsay

Question 26

Section 352 Balancing

Answer 26

Weighs probative value against:

(1) Danger of junfair prejudice
(2) Undue delay
(3) Misleading the jury
(4) Confusion of issues
(5) Waste of time

Evidence can be inadmissible if probative value outweighed by above factors.

Question 27

Problems with Questioning

Answer 27

(1) Leading Question (suggests answer in question)
OK on cross

(2) Compound Question (two verbs?)
(3) Question Calls for Narrative (tell us what happened)
(4) Question Assumes Facts Not in Evidence

(5) Non-responsive Answer
If Q calls for “yes” or “no”, anything beyond is non-responsive and subject to motion to strike.