Evidence - CA and Federal (Main Deck)*

Question 2

WHAT ARE THE 5 STEPS TO APPROACHING AN EVIDENCE PROBLEM?

Answer 2

STEP 1: RELEVANCE (Is the evidence relevant?)

STEP 2: FOUNDATION (Has a proper foundation been established?)

STEP 3: PRESENTATION (Has the evidence been properly presented?)

STEP 4: OBJECTIONS (Should the evidence be excluded due to astatute or policy reason?)

STEP 5: OVERCOMING OBJECTIONS (Is there a way to admit the evidence?)

Question 3

PRELIMINARY ISSUE:

TYPES OF EVIDENCE

(Define)

Answer 3

Real Evidence: Real evidence is physical evidence that includes:

1) Documentary evidence,
2) Tangible physical evidence, AND
3) Demonstrative evidence.

Testimonial Evidence: Testimonial evidence is evidence in the form of testimony from a witness.

Question 4

PRELIMINARY ISSUE:

WHAT ARE THE 3 STANDARDS OF PROOF BY WHICH EVIDENCE CAN BE PROVED?

Answer 4

1) Preponderance of the evidence
2) Clear and convincing evidence
3) Beyond a reasonable doubt

Question 5

PRELIMINARY ISSUE:

PREPONDERANCE OF THE EVIDENCE

(State the Rule)

Answer 5

Rule: The party who bears the burden of proof by a preponderance of the evidence must demonstrate that a fact is more probably than not true.

Note: This is the standard of proof generally used in civil cases.

Question 6

PRELIMINARY ISSUE:

CLEAR & CONVINCING EVIDENCE

(State the Rule)

Answer 6

Rule: The party who bears the burden of proof by clear and convincing evidence must demonstrate that there is a high probability that the fact is true.

Note: This is the standard of proof in certain civil and criminal issues (e.g.. malice in a constitutional defamation action, insanity under the federal statutory standard).

Question 7

PRELIMINARY ISSUE:

BEYOND A REASONABLE DOUBT

(Define & State the Rule)

Answer 7

Definition: Proof beyond a reasonable doubt is proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it.

Rule: In a criminal case, the prosecution must prove a defendant’s guilt beyond a reasonable doubt.

Question 8

PRELIMINARY ISSUE:

WHAT LEVEL OF PROOF IS REQUIRED IN CALIFORNIA?

Answer 8

Rule: In California, the level of proof required is a preponderance of the evidence unless the applicable statute states otherwise.

Exception: In criminal trials, the prosecution must prove every element of a criminal charge beyond a reasonable doubt.

Question 9

STEP 1 -

RELEVANCE:

FEDERAL:

RELEVANT EVIDENCE

(Define)

Answer 9

Definition: Relevant evidence is evidence having any tendency to make a fact of consequence more or less probable than it would be without the evidence.

Question 10

CALIFORNIA:

RELEVANT EVIDENCE

(Define)

Answer 10

Definition: In California, relevant evidence is evidence having any tendency to make a fact of consequence and in dispute more or less probable than it would be without the evidence.

Question 11

CALIFORNIA:

RELEVANT EVIDENCE IN CRIMINAL TRIALS

(State the Rule)

Answer 11

Rule: In California, the general rule is that all relevant evidence is admissible in criminal cases except:

1) Hearsay,
2) Privileged communications (e.g., attorney-client, spousal),
3) Evidence that would violate a person’s constitutional rights if admitted,
4) Opinion evidence, reputation evidence, evidence of specific conduct, or evidence of the victim’s clothing to prove a victim consented in a sexual assault trial, AND
5) Evidence deemed by the court to be more prejudicial than probative.

Question 12

JUDICIAL NOTICE OF FACT

(State the Rule)

Answer 12

Rule: A judge may take judicial notice of adjudicative facts that are:

1) Generally known within the territorial jurisdiction of the court, AND
2) Capable of accurate and ready determination by relying upon sources whose accuracy cannot be reasonably questioned.

Note:

1) A judge cannot take notice of a fact that may be readily apparent to her but not to an average member of the community.
2) Underthe Federal Rules, a judge in a criminal trial must instruct the jury that it may or may not accept the judicially noticed fact as conclusive.
3) Under the California Code, a judge in a criminal trial may instruct the jury to accept as conclusively proven the judicially noticed fact.

Question 13

JUDICIAL NOTICE OF LAW

(State the Rule)

Answer 13

Rule 1: A judge must take judicial notice of constitutional, federal or state law.

Rule 2: A judge may take judicial notice of foreign or municipal law.

Question 14

STEP 2 -

PROPER FOUNDATION:

AUTHENTICATION OF PHYSICAL EVIDENCE

(State the Rule)

Answer 14

Rule: To be admissible, real evidence must be authenticated by:

1) Testimony of a witness with knowledge of the evidence, OR
2) Establishing an unbroken chain of custody over the evidence.

Question 15

FEDERAL:

AUTHENTICATION OF WRITINGS

(State the Rule)

Answer 15

Rule: Before a writing may be admitted into evidence, a foundation must be laid demonstrating that the writing is what it purports to be.

A proper foundation may be laid by:

1) Admission by the party responsible for the writing,
2) Testimony of a witness with knowledge of the writing, OR
3) Circumstantial evidence that the writing is what it purports to be.

Note: A writing includes all written, audio or visual recordings of communications or representations made by a person.

Question 16

CALIFORNIA:

AUTHENTICATION OF WRITINGS

(State the Rule)

Answer 16

Rule: In addition to the methods provided for in the FRE, California also allows authentication by:

1) Action of an adverse party demonstrating the authenticity of the writing (e.g., the party’s reliance on the writing), OR
2) Proof that the writing states matters which only the purported writer would know.

Question 17

CALIFORNIA:

AUTHENTICATION OF ALTERED DOCUMENTS

(State the Rule)

Answer 17

Rule: If a document appears to have been altered or a party contends that the document has been altered, the proponent of the writing bears the burden of demonstrating that the alteration:

1) Did not change the meaning or language ofthe instrument,
2) Was made by another person without the proponent’s concurrence,
3) Was made with the consent of the parties affected by it, OR
4) Was properly or innocently made

Note: Upon such an accounting for the alteration ofthe document, the writing may be admitted into evidence.

Question 18

REPLY LETTER DOCTRINE

(State the Rule)

Answer 18

Rule: A document will be presumed authentic if it can be demonstrated that the document was drafted in response to a prior communication.

Question 19

FEDERAL:

ANCIENT DOCUMENT RULE

(State the Rule)

Answer 19

Rule: A document will be presumed authentic if the document is:

1) 20 years old or older (30 years under the common law),
2) In such condition as to create no suspicion as to its authenticity, AND
3) Found in a place one would expect to find such a document.

Note: The Ancient Document Rule applies to written documents as well as electronic documents and data compilations.

Question 20

CALIFORNIA:

ANCIENT DOCUMENT RULE

(State the Rule)

Answer 20

Rule: In California, a document is presumed authentic if the document is:

1) 30 years old or older,
2) In such condition as to create no suspicion as to its authenticity,
3) Found in a place one would expect to find such a document, AND
4) Has been acted upon as authentic by persons having an interest in the matter.

Note: A document in existence for 30 years or more can also be authenticated by comparing it to a writing treated as genuine by persons with an interest in the matter.

Question 21

SELF-AUTHENTICATING DOCUMENTS

(State the Rule)

Answer 21

Rule: Self-authenticating documents are presumed authentic. Self-authenticating documents include:

1) Domestic public documents under seal,
2) Domestic public documents with an official signature,
3) Certified foreign and domestic public documents,
4) Official publications issued by a public authority,
5) Newspapers and periodicals,
6) Trade inscriptions and labels,
7) Notarized documents,
8) Commercial paper,
9) Certified domestic or foreign records of regularly conducted activity,
10) Documents pronounced presumptively genuine by an Act of Congress.

Question 22

ADMISSIBILITY OF DEMONSTRATIVE EVIDENCE

(State the Rule)

Answer 22

Rule: Properly authenticated demonstrative evidence is admissible for explanatory purposes but will not be admitted into evidence.

Exception: Demonstrative evidence may be admitted into evidence if the reproduction is nearly identical to the original evidence.

Question 23

AUTHENTICATION OF SCIENTIFIC EVIDENCE

(State the Rule)

Answer 23

Rule: Scientific tests or experiments can be authenticated by establishing:

1) The test is generally recognized and accepted by scientists in the field,
2) The test was conducted by a qualified person, AND
3) The equipment used for the test was functioning properly.

Question 24

AUTHENTICATION OF PHOTOGRAPHS TAKEN FROM UNATTENDED CAMERAS

(State the Rule)

Answer 24

Rule: If a photograph or video is taken from an unattended camera, the photograph or video must be authenticated by:

1) Testimony as to the proper functioning ofthe equipment, AND
2) Testimony to demonstrate a proper chain of custody of the film or videotape.

Question 25

AUTHENTICATION OF ORAL STATEMENTS

(State the Rule)

Answer 25

Rule: Authentication of oral statements requires:

1) Lay testimony of a person familiar with the voice ofthe speaker, OR
2) Circumstantial evidence that a person was indeed the alleged speaker (e.g., the person speaking knew facts only the alleged speaker would know).

Question 26

FEDERAL: BEST EVIDENCE RULE (State the Rule)

Answer 26

**Rule**: The Best Evidence Rule requires that a party seeking to prove the contents of a writing, recording or photograph: 1) Produce the original writing, recording or photograph, OR 2) Account for the absence ofthe original and establish that the proponent ofthe evidence is not at fault. **Note:** 1) Upon accounting for the absence of the original, the proponent may admit secondary evidence proving the contents ofthe writing, recording or photograph. 2) Exact copies generally carry the same weight as the original unless the authenticity ofthe copy is in question. 3) The Best Evidence Rule does not require the originals be produced for: a) Certified public records, b) Summaries of writings, recordings, or photographs if the originals are of such a large quantity that they cannot be easily examined in court.

Question 27

CALIFORNIA: SECONDARY EVIDENCE RULE (State the Rule)

Answer 27

**Rule:** The contents of a writing may be proved by using secondary evidence, unless: 1) A genuine dispute exists concerning material terms of the writing and justice requires exclusion, OR 2) Admission ofthe secondary evidence would be unfair. **Note:** 1) The contents of the writing may always be proven by using the original. 2) The burden is on the opponent of the evidence to raise the issue of authenticity and/or unfairness.

Question 28

CALIFORNIA: SECONDARY EVIDENCE RULE: ADDITIONAL REQUIREMENT IN CRIMINAL CASES (State the Rule)

Answer 28

**Rule:** In criminal cases, secondary evidence ofthe contents of a writing will be excluded if the party seeking to introduce the evidence: 1) Has the original within her possession, custody, or control, AND 2) Failed to make the original reasonably available for inspection before trial. **Note:** This rule does not apply to duplicates (e.g., photocopies) of original writings.

Question 29

CALIFORNIA: SECONDARY EVIDENCE RULE: ORAL TESTIMONY (State the Rule)

Answer 29

**Rule:** In California, oral testimony is not admissible to prove the contents of a writing. **Exception:** Oral testimony may be admitted to prove the contents of a writing if: 1) The proponent does not have possession or control ofthe writing and the original has been lost or destroyed through no fault ofthe proponent, 2) The proponent does not have possession or control of the writing and the original cannot be reasonably obtained or the writing is not related to a controlling issue in the case, OR 3) The writing consists of numerous accounts or other writings of such a large quantity that they cannot be easily examined in court.

Question 30

FEDERAL: COMPETENCY OF WITNESSES (State the Rule)

Answer 30

**Rule:** Under the Federal Rules, a presumption of witness competence exists if the witness: 1) Has personal knowledge of the matter about which she will testify. AND 2) Declares she will testify truthfully. **Note:** There is no requirement that the witness swear upon a religious text or national symbol.

Question 31

CALIFORNIA: COMPETENCY OF WITNESSES (State the Rule)

Answer 31

**Rule:** In California, a witness is competent to testify if: 1) The witness can be understood (either directly or through an interpreter), 2) The witness has personal knowledge of the matter about which she will testify, AND 3) The witness is able to testify truthfully.

Question 32

WHO IS CONSIDERED COMPETENT TO TESTIFY?

Answer 32

**Common law:** Under the common law, certain people were incompetent to serve as witnesses, including infants, atheists, insane people, and felons. **FRE:** Under the Federal Rules of Evidence, all people are presumed competent to testify. However, this presumption may be overcome due to an individual's status: 1) A judge may not testify as a witness in a case over which he is presiding. 2) A juror may not testify as a witness in a case where he is sitting as a juror. **California:** Under the California Evidence Code, a witness is competent to testify if all the requirements of competence are met. **However:** 1) A judge may not testify at a trial over which she is presiding if an objection is timely raised, AND 2) A mediator or arbitrator may not testify at a later proceeding as to facts learned during the mediation or arbitration.

Question 33

DEAD MAN'S ACT | (State the Rule)

Answer 33

**Rule:** Under the common law, an interested party may not testify in a civil suit as to any conversation or transaction that the interested party had with a decedent. **Note:** This rule has been abolished under the Federal Rules and in California.

Question 34

REFRESHING RECOLLECTION | (State the Rule)

Answer 34

**Rule:** Where a witness is unable to recall a matter, any document may be used by the witness to refresh the witness' recollection. However, the witness may not read from the document, and the document cannot be introduced into evidence by the producing party. **Note:** The adverse party may inspect the document, cross-examine the witness about the document and introduce all or part ofthe document into evidence.

Question 35

STEP 3 - PROPER PRESENTATION OF EVIDENCE: LIST 5 COMMON OBJECTIONS TO FORM

Answer 35

1) Calls for a narrative answer (e.g., "What happened the night you were arrested?"), 2) Leading question (e.g., "Isn't it true that..."), 3) Argumentative (e.g., "Tell me, how long you have been a thief and a liar?"), 4) Compound question (e.g., "Were you at the party that night, and did you drink?"), 5) Assumes facts not in evidence (e.g., "Where was your child when you were gallivanting around the city?"; When it has not been established that the witness has a child?").

Question 36

WHEN CAN LEADING QUESTIONS BE USED?

Answer 36

**Rule**: Leading questions may be used: 1) In preliminary matters, 2) With a hostile witness, 3) On cross-examination, 4) When questioning a witness experiencing memory loss, 5) When questioning a child or immature witness.

Question 37

OPINION TESTIMONY BY LAY WITNESSES | (State the Rule)

Answer 37

**Federal:** Generally, opinion testimony by a lay witness is not admissible. **Exception**: However, lay opinion testimony is admissible if: 1) The opinion is rationally based on the perception of the witness, 2) The testimony will help the understanding of the witness' testimony or the determination of a fact in issue, AND 3) The opinion is not based on scientific, technical, or other specialized knowledge. **California**: Opinion testimony by a lay witness is permissible if the testimony: 1) Is rationally based on the perception of the witness, AND 2) Is helpful to a clear understanding of his testimony.

Question 38

OPINION TESTIMONY BY EXPERT WITNESSES (State the Rule)

Answer 38

**Rule:** Opinion testimony by an expert witness is admissible if: 1) Specialized knowledge will assist the trier of fact, 2) The expert is qualified due to knowledge, skill, experience, training, or education, 3) The testimony is based upon sufficient facts or data, 4) The testimony is the product of reliable principles and methods, AND 5) The expert has reliably applied the principles and methods to the facts of the case. **Note:** 1) An expert may render an opinion as to the ultimate issue in the case except the mental state of a defendant at the time ofthe crime. 2) The data an expert bases her opinion upon must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject. 3) The facts or data need not be admissible in evidence for the opinion or inference to be admitted.

Question 39

SCOPE OF CROSS-EXAMINATION | (State the Rule)

Answer 39

**Rule:** Cross-examination is limited to the scope of the testimony given on direct examination. **Note:** The court may, at its discretion, allow inquiry into additional matters.

Question 40

CROSS-EXAMINATION OF EXPERT WITNESSES (State the Rule)

Answer 40

**Rule:** Opposing counsel may use any learned treatise to impeach or question the credibility of a hostile expert witness. **Note:** 1) **Federal:** Under the Learned Treatise exception to hearsay, opposing counsel may also have the relevant portion ofthe learned treatise read into evidence by an opposing counsel's own expert witness. 2) **California:** Under the CEC, only facts of general notoriety contained in authoritative works are admissible as substantive evidence.

Question 41

IMPEACHMENT | (Define)

Answer 41

**Definition:** Impeachment is a tool used to undermine the credibility of a witness.

Question 42

IMPEACHMENT: BOLSTERING PRIOR TO IMPEACHMENT (State the Rule)

Answer 42

**Rule:** Generally, bolstering is not permitted until a witness' credibility has been attacked. **Exception**: Bolstering prior to impeachment may be accomplished through the introduction of: 1) A prior consistent statement of identification, OR 2) Evidence of a timely complaint made by a victim. **Note:** In California, a witness in a criminal trial may be bolstered before she has been impeached.

Question 43

IMPEACHMENT: LIST 6 WAYS TO UNDERMINE THE CREDIBILITY OF A WITNESS

Answer 43

1) Reputation for truth, 2) Prior inconsistent statements, 3) Bias, 4) Sensory defects, 5) Specific acts of deceit, 6) Prior conviction of a crime. **Note:** Use of a witness' religion or lack of religious belief is not a permissible impeachment method.

Question 44

FEDERAL: IMPEACHMENT OF A WITNESS' REPUTATION FOR TRUTH (State the Rule)

Answer 44

**Rule:** The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation testimony, subject to the following limitations: 1) The evidence may refer only to the witness' character for truthfulness or untruthfulness, AND 2) Evidence of truthful character is admissible only after a witness' reputation for truthfulness has been attacked by opinion or reputation evidence.

Question 45

CALIFORNIA: IMPEACHMENT OF A WITNESS' REPUTATION FOR TRUTH IN CIVIL CASES (State the Rule)

Answer 45

**Rule:** The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation testimony, subject to these limitations: 1) The evidence may refer only to the witness' character for truthfulness or untruthfulness, 2) Evidence of truthful character is admissible only after a witness' reputation for truthfulness has been attacked by opinion or reputation evidence, AND 3) The evidence may not refer to specific instances of conduct unless they specifically contradict facts testified to by an impeached witness.

Question 46

CALIFORNIA: IMPEACHMENT OR BOLSTERING OF A WITNESS IN CRIMINAL CASES (State the Rule)

Answer 46

**Rule:** The credibility of a witness may be attacked or supported by any form of evidence and at any time if: 1) The evidence is relevant, AND 2) The information provided is more probative than prejudicial. **Note:** In a criminal trial, there is no need for either party to wait for a witness to be attacked before bolstering, and specific instances of conduct will generally be admitted.

Question 47

CALIFORNIA: IMPEACHMENT OF A WITNESS WHO WAS THE VICTIM OF SEXUAL ASSAULT (State the Rule)

Answer 47

**Rule:** Before the credibility of a witness who was the victim of sexual assault or harassment may be attacked in front of a jury: 1) The proffering party must demonstrate the relevance of the evidence, 2) The court must determine that the evidence is relevant, 3) An examination of the witness must be taken outside the presence of the jury, AND 4) The court must rule that the evidence is more probative that prejudicial.

Question 48

IMPEACHMENT: PRIOR INCONSISTENT STATEMENTS (State the Rule)

Answer 48

**Federal:** A witness' prior inconsistent statement is admissible to impeach the witness, but not as substantive evidence unless the prior inconsistent statement was given: 1) Under oath, AND 2) At a prior proceeding or trial. **California**: In California, a witness' prior inconsistent statement is: 1) Admissible, regardless of whether it was made under oath or at a previous hearing, 2) Admissible to impeach the witness, AND 3) Admissible as substantive evidence. **Note:** Extrinsic evidence is admissible to establish the prior inconsistent statement.

Question 49

IMPEACHMENT: BIAS & SENSORY DEFECTS (State the Rule)

Answer 49

**Bias Rule:** Evidence of a witness' bias is admissible to show that the witness has a motive to be untruthful. **Note**: Extrinsic evidence of bias is allowed upon proper foundation. **Sensory Defects Rule:** A witness may be questioned regarding a witness' ability to observe, remember, or relate the evidence about which the witness is being questioned. **Note:** Extrinsic evidence is allowed upon proper foundation to demonstrate a sensory defect.

Question 50

IMPEACHMENT: SPECIFIC ACTS OF DECEIT (State the Rule)

Answer 50

**Rule:** At the discretion of the court, a witness may be impeached regarding specific conduct if: 1) The questions are asked in good faith, AND 2) The conduct concerns the witness' character for truthfulness or untruthfulness.

Question 51

FEDERAL: IMPEACHMENT: PRIOR CONVICTION OF A CRIME (State the Rule)

Answer 51

**Rule:** A witness may be impeached by evidence of a prior conviction if the crime for which the witness was convicted: 1) Involved an act of dishonesty or false statement, OR 2) Was punishable by death or incarceration for more than one year. **Note:** If more than 10 years have passed since the later of the date of conviction or release of the witness from incarceration, the proffering party must give opposing counsel advanced written notice of the party's intent to introduce the prior conviction, and the court must make a finding that the probative value of the conviction substantially outweighs its prejudicial effect.

Question 52

CALIFORNIA: IMPEACHMENT: PRIOR CONVICTION OF A CRIME (State the Rule)

Answer 52

**Rule:** A witness may be impeached by evidence of a prior conviction provided that: 1) The crime for which the witness was convicted was a felony or misdemeanor offense involving moral turpitude, 2) The conviction has not been expunged from the witness' record, 3) The witness has not been pardoned of the offense, AND 4) The trial court determines admission of the prior conviction to be more probative than prejudicial.

Question 53

REHABILITATION OF A WITNESS AFTER IMPEACHMENT (State the Rule)

Answer 53

**Rule**: Rehabilitation of a witness after impeachment may be accomplished by: 1) Asking questions of the witness on redirect (or re-cross) to allow the witness to explain, 2) Calling witnesses to testify as to the impeached witness' reputation for truth, OR 3) Offering a prior consistent statement of the impeached witness if the prior statement was made before the alleged motive for lying arose.

Question 54

STEP 4 - EXCLUSION OF EVIDENCE: LIST 5 TYPES OF EVIDENCE THAT MAY BE EXCLUDED OR RESTRICTED

Answer 54

1) Character evidence, 2) Legally irrelevant evidence, 3) Privileged evidence, 4) Parol evidence, 5) Hearsay.

Question 55

FEDERAL: CHARACTER EVIDENCE IN CIVIL CASES (State the Rule)

Answer 55

**Rule:** Generally, character evidence is inadmissible to prove conduct in conformity with one's character on a particular occasion. **Exception:** Character evidence may be introduced in civil cases when a person's character is essential to establishing an element of the case or defense (e.g., negligent entrustment, libel, defamation). **Note:** Evidence of specific acts of misconduct may be admissible for purposes other than to show conduct in conformity.

Question 56

CALIFORNIA: CHARACTER EVIDENCE IN CIVIL CASES (State the Rule)

Answer 56

**Rule:** Character evidence is inadmissible to prove conduct in conformity with one's character on a particular occasion. **Exception**: Character evidence may be introduced in civil cases to: 1) Contradict a claim of mistake or accident, 2) Show a state of mind (i.e., intent), 3) Show knowledge or plan, 4) Show habit or custom, OR 5) Show prior acts of sexual harassment or assault.

Question 57

CAN EVIDENCE OF A DEFENDANT'S CHARACTER BE INTRODUCED IN A CRIMINAL TRIAL?

Answer 57

**Prosecution:** A prosecutor may not preemptively introduce evidence of a defendant's character to demonstrate that the defendant was likely to have committed the crime. **Defendant:** A defendant may, on his own initiative, introduce evidence of his own good character to demonstrate innocence. **Note:** By introducing character evidence the defendant has opened the door, and the prosecution may present evidence of the defendant's bad character to rebut his claim of good character.

Question 58

HOW MAY A PROSECUTOR RESPOND TO A DEFENDANT'S INTRODUCTION OF EVIDENCE OF HIS OWN GOOD CHARACTER?

Answer 58

**Rule:** The prosecution may rebut the defendant's evidence of good character by: 1) Cross-examining the defendant's witness regarding specific instances of the defendant's bad character, AND/OR a) **Note:** The prosecution may not introduce extrinsic evidence of the defendant's misconduct to rebut the testimony. 2) Calling prosecution witnesses to testify to the defendant's bad reputation or offer opinion testimony of the defendant's bad character, a) **Note:** Prosecutors may not ask about specific conduct of the defendant.

Question 59

CAN EVIDENCE OF A VICTIM'S CHARACTER BE INTRODUCED IN A CRIMINAL TRIAL?

Answer 59

**Rule:** A defendant may introduce evidence of a victim's character only if the evidence is relevant to establishing the defendant's innocence. **Note:** 1) In response, the prosecution may: a) Introduce evidence of the alleged victim's good character, AND b) Introduce evidence of the defendant's bad character for the same trait. 2) In California, a defendant may also introduce evidence of specific acts of the victim to show how the victim acted in the occasion in question.

Question 60

HOW MAY CHARACTER BE PROVEN?

Answer 60

**Rule**: Where evidence of one's character is admissible, proof may be made by: 1) Testimony as to an individual's reputation. OR 2) Testimony in the form of a witness' opinion. **Note:** On cross-examination, inquiry into relevant specific instances of conduct is permissible.

Question 61

FEDERAL: SPECIFIC ACTS OF MISCONDUCT (PRIOR BAD ACTS) (State the Rule)

Answer 61

**Rule:** Evidence of specific acts of misconduct is not admissible to prove conduct in conformity with one's character, but may be admissible to prove: 1) Motive, 2) Opportunity, 3) Intent, 4) Preparation, 5) Plan, 6) Knowledge, 7) Identity, 8) Absence of mistake, AND/OR 9) Absence of accident. **Note:** To admit evidence of misconduct,the party offering the evidence must show: 1) Sufficient evidence exists to support afinding that the bad act occurred, AND 2) The probative value of the evidence isnot substantially outweighed by thedanger of unfair prejudice.

Question 62

CALIFORNIA: SPECIFIC ACTS OF MISCONDUCT (State the Rule)

Answer 62

**Rule:** In addition to the purposes for which specific bad acts can be admitted under the Federal Rules, specific acts of misconduct are also admissible in California to show: 1) Consciousness of guilt, 2) A tendency towards violence.

Question 63

EVIDENCE OF SIMILAR ACTS IN SEXUAL ASSAULT CASES (State the Rule)

Answer 63

**Federal:** In a criminal or civil case in which the defendants accused of sexual assault, evidence of the defendant's prior acts of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant. **California:** Evidence of the defendant's prior acts of sexual assault may be admitted for any purpose other than to show defendant's propensity to commit the crime.

Question 64

HABIT EVIDENCE | (State the Rule)

Answer 64

**Rule:** Evidence of a person's habit or routine practice is relevant and admissible to prove that a person's conduct on a particular occasion was in conformity with the habit or routine practice. **Note:** This rule applies to both people and organizations.

Question 65

LEGALLY IRRELEVANT EVIDENCE | (Define & State the Rule)

Answer 65

**Definition**: Legally irrelevant evidence is otherwise relevant evidence that is excluded for reasons of public policy. **Rule 1**: Although relevant, evidence will be excluded if the court determines its probative value is substantially outweighed by the danger of: 1) Unfair prejudice, 2) Confusion of the issues, 3) Misleading the jury, 4) Undue delay, 5) Waste of time, OR 6) Needless presentation of cumulative evidence. **Rule 2**: Although relevant, evidence must be excluded if it falls within a statutorily defined category.

Question 66

FEDERAL: LIST 7 FORMS OF STATUTORILY DEFINED LEGALLY IRRELEVANT EVIDENCE

Answer 66

1) Subsequent remedial measures, 2) Compromise and offers to compromise, 3) Offers to pay medical expenses, 4) Pleas and plea discussions, 5) Liability insurance, 6) Victim's past sexual behavior (in sexual assault cases), 7) Victim's sexual reputation (in sexual assault cases).

Question 67

CALIFORNIA: LIST 2 ADDITIONAL FORMS OF LEGALLY IRRELEVANT EVIDENCE

Answer 67

**Rule:** California recognizes two additional forms of legally irrelevant evidence: 1) Mediation records, 2) Medical committee and quality assurance records.

Question 68

LEGALLY IRRELEVANT EVIDENCE: SUBSEQUENT REMEDIAL MEASURES (State the Rule)

Answer 68

**Rule:** Evidence of subsequent remedial measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. **Exception:** Evidence of subsequent remedial measures will not be excluded when the evidence is offered for another purpose, such as: 1) Proving ownership or control, 2) Demonstrating the feasibility of precautionary measures, OR 3) To impeach a witness. **Note:** This rule does not apply to strict products liability cases in California.

Question 69

LEGALLY IRRELEVANT EVIDENCE: COMPROMISE & OFFERS TO COMPROMISE (State the Rule)

Answer 69

**Rule:** Compromises and offers to compromise are not admissible to prove liability for, or the invalidity of, a claim. **Note:** Evidence of conduct or statements made in connection with compromise negotiations is also not admissible.

Question 70

LEGALLY IRRELEVANT EVIDENCE: OFFERS TO PAY MEDICAL EXPENSES (State the Rule)

Answer 70

**Rule:** Evidence of paying, offering to pay or promising to pay medical expenses is not admissible to prove liability for an injury. **Federal:** Admissions of fact made in connection with offers to pay medical expenses are admissible as relevant evidence. **California:** Admissions of fact made in connection with offers to pay medical expenses are not admissible.

Question 71

LEGALLY IRRELEVANT EVIDENCE: PLEAS & PLEA DISCUSSIONS (State the Rule)

Answer 71

**Federal:** Withdrawn guilty pleas, pleas of no contest, offers to plead guilty, and statements made in connection with such plea discussions are not admissible. **Exception:** Statements made in connection with plea discussions are admissible: 1) For impeachment purposes, AND/OR 2) In subsequent prosecutions for perjury. **California:** Withdrawn guilty pleas, pleasof no contest, offers to plead guilty, andstatements made in connection with suchplea discussions are not admissible incivil proceedings but are admissible incriminal proceedings.

Question 72

LEGALLY IRRELEVANT EVIDENCE: LIABILITY INSURANCE (State the Rule)

Answer 72

**Rule:** Evidence that a person was or was not insured against liability is not admissible to demonstrate the person acted negligently or wrongfully. **Note:** Evidence of liability insurance will not be excluded when offered for another purpose, such as to prove: 1) Agency, ownership, or control. OR 2) The bias or prejudice of a witness.

Question 73

LEGALLY IRRELEVANT EVIDENCE: VICTIM'S PAST SEXUAL BEHAVIOR (State the Rule)

Answer 73

**Rule**: Generally, evidence of a victim's past sexual behavior is not admissible to prove: 1) That a victim engaged in sexual behavior, OR 2) The victim's sexual predisposition or proclivities. **Criminal Exception:** A victim's past sexual behavior is admissible in a criminal case to show: 1) That a person other than the accused was the source of semen, injury, or other physical evidence, AND/OR 2) Consent on the part of the victim (e.g., evidence of prior consensual sexual acts between the victim and the accused). **Civil Exception:** A victim's past sexual behavior is admissible in a civil case if its probative value substantially outweighs the danger of harm to the victim.

Question 74

LEGALLY IRRELEVANT EVIDENCE: VICTIM'S SEXUAL REPUTATION (State the Rule)

Answer 74

**Rule:** Evidence of a victim's sexual reputation is generally not admissible. **Exception:** In a civil case, a victim's reputation will be admissible only if the victim's sexual reputation has been placed in controversy by the victim.

Question 75

CALIFORNIA: LEGALLY IRRELEVANT EVIDENCE: MEDIATION RECORDS (State the Rule)

Answer 75

**Rule:** Admissions or statements made in connection with a mediation are not admissible. **Note:** The policy reason behind this rule is to encourage the use of mediation to resolve legal disputes.

Question 76

CALIFORNIA: LEGALLY IRRELEVANT EVIDENCE: MEDICAL COMMITTEE & QUALITY ASSURANCE RECORDS (State the Rule)

Answer 76

**Rule:** Statements or records made in connection with a hospital medical committee, peer review body or quality assurance committee are not admissible **Note:** The policy reason behind this is to encourage the medical profession to improve the quality of service and to reduce the occurrence of preventable deaths or injury to patients.

Question 77

LIST 6 PRIVILEGES THAT ALLOW FOR THE EXCLUSION OF EVIDENCE

Answer 77

1) Attorney-Client, 2) Physician-Patient, 3) Psychotherapist-Patient, 4) Husband-Wife, 5) Religious, Journalist, Accountant, 6) Self-incrimination.

Question 78

CALIFORNIA: LIST 4 ADDITIONAL PRIVILEGES THAT ALLOW FOR THE EXCLUSION OF EVIDENCE

Answer 78

1) Victim-Counselor, 2) Official Information, 3) Vote Secrecy, 4) Trade Secrets.

Question 79

ATTORNEY-CLIENT PRIVILEGE | (State the Rule)

Answer 79

**Rule:** Under the attorney-client privilege, communications between an attorney and her client are privileged from disclosure if: 1) The communication was confidential, AND 2) The communication took place between the attorney and the client or the client's representatives. **Exception:** The privilege may not protect attorney-client communications if: 1) The communication was in furtherance of a crime or fraud, 2) A dispute arises between the attorney and client, OR 3) A dispute arises between joint clients. **Note:** 1) The client (not the attorney) holds the privilege. 2) In California, the client may prevent an unauthorized eavesdropper from disclosing a privileged communication.

Question 80

ATTORNEY WORK-PRODUCT | (State the Rule)

Answer 80

**Rule**: Attorney work-product is not protected by the attorney-client privilege. However, under the Federal Rules of Civil Procedure, attorney work-product is not subject to discovery by an opposing party except in cases of extreme necessity.

Question 81

PHYSICIAN-PATIENT PRIVILEGE | (State the Rule)

Answer 81

**Rule**: Under the physician-patient privilege, communications between a doctor and his client are privileged from disclosure if the communication: 1) Was made in confidentiality, 2) Concerned the patient's treatment, AND 3) Was necessary for treatment. **Exception**: The privilege will not protect physician-patient communications if: 1) The patient puts her treatment or physical condition in issue, 2) The communication was made in furtherance of a crime or fraud, 3) The action is a malpractice suit against the physician, OR 4) The dispute is in a federal court located in a state that does not recognize the physician-patient privilege. **Note:** The patient (not the physician) is the holder of the privilege.

Question 82

PSYCHOTHERAPIST-PATIENT PRIVILEGE | (State the Rule)

Answer 82

**Rule:** Under the psychotherapist-patient privilege, communications between a psychotherapist and a patient are privileged from disclosure if the communication: 1) Was confidential, AND 2) Concerned the course of the patient's treatment. **Exception:** The privilege will not protect psychotherapist-patient communications if: 1) The patient puts his treatment orphysical condition in issue, 2) The communication was made infurtherance of a crime or fraud, OR 3) The action is a malpractice suitagainst the psychotherapist. **Note:** The patient (not the psychotherapist) is the holder of the privilege.

Question 83

CALIFORNIA: WHEN ARE BOTH THE PHYSICIAN-PATIENT & PSYCHOTHERAPIST-PATIENT PRIVILEGES UNAVAILABLE?

Answer 83

**Rule:** Neither the physician-patient nor the psychotherapist-patient privileges apply when: 1) A patient puts her treatment or physical condition at issue, 2) A physician or psychotherapist is required by law to report an incident (e.g., child abuse), 3) The action is a malpractice suit between the parties, OR 4) The hearing is for the purpose of determining competency.

Question 84

CALIFORNIA: WHEN IS THE PHYSICIAN-PATIENT PRIVILEGE UNAVAILABLE?

Answer 84

**Rule**: The physician-patient privilege does not apply: 1) In criminal proceedings, 2) In commitment proceedings, OR 3) In license or permit revocation proceedings.

Question 85

CALIFORNIA: WHEN IS THE PSYCHOTHERAPIST-PATIENT PRIVILEGE UNAVAILABLE?

Answer 85

**Rule**: The psychotherapist-patient privilege does not apply when: 1) The psychotherapist was appointed by the court to examine the patient. 2) The patient is dangerous and disclosure is required to prevent harm. OR 3) The patient is under 16 and disclosure is in the best interest of the patient.

Question 86

FEDERAL: SPOUSAL PRIVILEGE (State the Rule)

Answer 86

**Rule:** A legally married spouse cannot be compelled to testify in any criminal proceeding against the other spouse about any confidential communication made before or during the marriage. **Note:** 1) The rule applies in all criminal proceedings, including grand jury proceedings. 2) The testifying spouse may choose to waive the privilege over the non-testifying spouse's objections. 3) The privilege does not apply in family law cases or in prosecutions for criminal activity involving the family (e.g., child abuse). 4) The privilege expires upon divorce of the spouses.

Question 87

CALIFORNIA: SPOUSAL PRIVILEGE (State the Rule)

Answer 87

**Rule**: A legally married spouse cannot be compelled to testify about any matter in any proceeding against the other spouse. **Exception**: The privilege does not apply: 1) In family law cases or criminal activity involving the family (e.g.. child abuse), 2) If the testifying spouse chooses to waive the privilege (even over the non-testifying spouse's objections). OR 3) After divorce of the spouses.

Question 88

MARITAL COMMUNICATION PRIVILEGE | (State the Rule)

Answer 88

**Rule:** A communication between spouses is privileged from disclosure if the communication is: 1) Confidential, AND 2) Made during the marital relationship. **Note:** 1) The privilege does not apply to communications made before or after marriage. 2) The privilege applies in both civil and criminal cases. 3) Both spouses hold the privilege, andeither may prevent the other fromdisclosing a communication. 4) The privilege does not apply in familylaw cases or in prosecutions forcriminal activity involving the family (e.g.,child abuse). 5) Confidential communications made during marriage remain privileged even after divorce.

Question 89

CALIFORNIA: LIMITATION OF THE MARITAL COMMUNICATION PRIVILEGE IN CRIMINAL MATTERS (State the Rule)

Answer 89

**Rule:** The marital communication privilege is not available in California if the communication was made to facilitate the commission of a crime or a fraud. **Note:** This limitation does not apply if the communication was only incidental to the commission of a crime.

Question 90

CALIFORNIA: DO THE SPOUSAL & MARITAL COMMUNICATION PRIVILEGES APPLY TO DOMESTIC PARTNERS?

Answer 90

**Rule:** The spousal and marital communication privileges do not apply to domestic partnerships under the CEC.

Question 91

RELIGIOUS, JOURNALIST, ACCOUNTANT PRIVILEGES (State the Rule)

Answer 91

**Rule:** Various states recognize the existence of a privilege in confidential communications between: 1) Priest-Penitent 2) Journalist-Source 3) Accountant-Client **Note:** 1) The Federal Rules of Evidence do not recognize these privileges. 2) Due to the absence of a federal shield law for reporters, journalists do not have a privilege under federal law to protect their sources when subpoenaed to testify. 3) California recognizes a priest- penitent and journalist privilege, but does not recognize an accountant-client privilege.

Question 92

CALIFORNIA: CLERGY-PENITENT PRIVILEGE (State the Rule)

Answer 92

**Rule**: A communication between a penitent and a member of the clergy will be privileged if: 1) The communication was confidential, 2) The clergy member is accustomed to hearing such communications, AND 3) The clergy member's organization imposes a duty to keep such communications confidential. **Note**: 1) Both the clergy member and the penitent hold the privilege and may claim or waive it. 2) There is no affirmative duty on clergy members to invoke the privilege (unlike lawyers, physicians and psychotherapists). 3) A penitent, but not a clergy member, may prevent an unauthorized eavesdropper from disclosing a penitential communication.

Question 93

CALIFORNIA: JOURNALIST'S PRIVILEGE (Define & State the Rule)

Answer 93

**Definition:** The so-called journalist's privilege is not a privilege but an immunity from contempt. **Rule:** A journalist may not be cited with contempt for refusing to disclose information obtained while employed as a journalist. **Note:** 1) There is no requirement that the information be obtained in confidence. 2) If the nondisclosure of information would deprive a defendant of the right to a fair trial in a criminal case, the court may require the disclosure of the information.

Question 94

PRIVILEGE AGAINST SELF-INCRIMINATION | (State the Rule)

Answer 94

**Rule:** The 5th Amendment protects a person from being compelled to testify against herself in any civil or criminal proceeding.

Question 95

EFFECT OF A GRANT OF IMMUNITY ON A PERSON'S PRIVILEGE AGAINST SELF-INCRIMINATION (State the Rule)

Answer 95

**Rule**: The prosecution in a criminal case may grant immunity to a witness invoking the privilege against self- incrimination. Once granted immunity, a witness may not refuse to testify by asserting the privilege.

Question 96

CALIFORNIA: CRIMINAL DEFENDANT'S PRIVILEGE AGAINST BEING CALLED TO TESTIFY (State the Rule)

Answer 96

**Rule:** A defendant in a criminal case has the privilege not to be called as a witness to testify. **Note:** This rule does not extend to civil proceedings, commitment proceedings or sexually violent predator proceedings.

Question 97

CALIFORNIA: GRIFFIN ERROR (Define & State the Rule)

Answer 97

**Definition:** If a defendant does not testify in a criminal matter, the prosecution may not comment on the decision, and the court may not instruct the jury to consider the defendant's decision not to testify. A violation of this rule is called a Griffin Error. **Rule:** If a Griffin Error occurs, the conviction will be reversed unless the state can demonstrate beyond a reasonable doubt that the instruction or the comment did not contribute to the conviction.

Question 98

CALIFORNIA: VICTIM-COUNSELOR PRIVILEGE (State the Rule)

Answer 98

**Rule:** A communication between a counselor and a victim of sexual abuse, domestic violence or human trafficking will be privileged if: 1) The communication was confidential, AND 2) The communication was made in the course of counseling. **Note:** 1) The victim is the holder of the privilege. 2) The counselor has an affirmative dutyto invoke the privilege. 3) A court may compel disclosure if thecourt determines that the confidential communication contains evidence of a crime of sexual abuse, domestic violence or human trafficking, and the probative value of the evidence outweighs the harm caused to the victim by disclosure. 4) The court may compel disclosure over the objection of the victim. 5) The court may compel disclosure in cases where the victim is not a party to the case.

Question 99

CALIFORNIA: OFFICIAL INFORMATION PRIVILEGE (Define & State the Rule)

Answer 99

**Definition:** Official information is information acquired in confidence by a public official in the course of his official duty. **Rule:** A public entity has the privilege to refuse to disclose official information and to prevent another from disclosing official information if: 1) The privilege is claimed by a person authorized to do so, AND 2) Disclosure is forbidden by law or is against the public interest. **Note:** 1) If the privilege is invoked in a civil trial, the court will balance the need for confidentiality against the need for disclosure. 2) If the privilege is invoked in a criminal trial, the court will balance the need for confidentially against the possibility that disclosure of the information will exonerate the defendant.

Question 100

CALIFORNIA: DISCLOSURE OF PEACE OFFICER RECORDS (PITCHESS MOTIONS) (State the Rule)

Answer 100

**Rule:** A party seeking discovery or disclosure of the personnel records of a peace officer must: 1) Identify the proceeding for which the information is sought, 2) Identify the party seeking discovery, 3) Identify the officer whose records are sought, 4) Identify the agency with possession of the records, 5) Describe the records or information sought, AND 6) Submit an affidavit showing goodcause for disclosure of the information.

Question 101

CALIFORNIA: VOTE SECRECY PRIVILEGE (State the Rule)

Answer 101

**Rule**: A person has a privilege to refuse to disclose her vote at a public election where voting is by secret ballot unless the person voted illegally or the information has already been disclosed.

Question 102

CALIFORNIA: TRADE SECRETS PRIVILEGE (State the Rule)

Answer 102

**Rule**: The owner of a trade secret has the privilege to refuse to disclose the secret and to prevent another from disclosing it. **Note:** 1) There is no affirmative duty for a person privy-to a trade secret to invoke the privilege. 2) This privilege is not applicable in criminal proceedings where application of the privilege would result in an injustice.

Question 103

PAROL EVIDENCE RULE | (State the Rule)

Answer 103

**Rule:** A writing intended by the parties to be the final embodiment of their agreement cannot be modified by evidence in the form of prior or contemporaneous writings or agreements that adds to, subtracts from, modifies, or contradicts the writing. **Exception:** Parol evidence is admissible to: 1) Demonstrate a need for reformation of a contract, 2) Clarify incomplete or ambiguous terms, 3) Challenge the validity of a contract, AND/OR 4) Demonstrate that a condition has not been satisfied. **Note:** The Parol Evidence Rule does not prohibit introduction of evidence of subsequent agreements or modifications.

Question 104

HEARSAY | (Define)

Answer 104

**Definition**: Hearsay is an oral, written or non-verbal out-of-court statement that is offered to prove the truth of the matter asserted.

Question 105

CALIFORNIA**:** IN WHAT TYPES OF HEARINGS WILL THE HEARSAY RULE NOT APPLY?

Answer 105

**Rule:** In California, the hearsay rule does not apply in: 1) Preliminary examinations, 2) Probation violation hearings, 3) Small claims hearings.

Question 106

WHAT IS THE 5-STEP APPROACH TO ANALYZING A HEARSAY QUESTION?

Answer 106

**Step 1:** Determine if the proffered evidence is an out-of-court statement. **Step 2:** Determine who the declarant is. **Step 3:** Determine what the purpose of the statement is. **Step 4**: Determine whether the evidence is statutory non-hearsay (Federal). **Step 5**: If the proffered evidence is hearsay, determine whether the evidence may fall within an exception to the rule.

Question 107

STATEMENT | (Define)

Answer 107

**Definition:** A statement is: 1) An oral or written assertion, OR 2) Nonverbal conduct, if it is intended as an assertion, **Note:** Non-assertive non-verbal conduct is not hearsay.

Question 108

DECLARANT | (Define)

Answer 108

**Definition:** A declarant is the person who made the statement. **Note:** The declarant must be human (i.e., not an animal or machine).

Question 109

WHY IS THE PURPOSE OF THE STATEMENT IMPORTANT TO THE DETERMINATION OF WHETHER A STATEMENT IS HEARSAY?

Answer 109

**Rule:** The purpose for which the statement is offered determines whether an out-of-court statement will be deemed hearsay: 1) Out-of-court statements offered to prove the truth of the matter asserted are hearsay. 2) Out-of-court statements offered for a purpose other than to prove the truth of the matter asserted are not hearsay. **Note:** A statement offered to prove the truth of the matter asserted is one that is offered to establish as fact the assertion made or implied in the statement.

Question 110

LIST 4 COMMON OUT-OF-COURT STATEMENTS THAT ARE NOT OFFERED FOR THE TRUTH OF THE MATTER ASSERTED

Answer 110

1) Words of operative fact, 2) Verbal acts, 3) State of mind, 4) Statements to impeach or rehabilitate.

Question 111

WORDS OF OPERATIVE FACT | (State the Rule)

Answer 111

**Rule**: The hearsay rule does not apply to statements offered merely to show that the statements were made and carried some legal significance or force (e.g., words noting agreement in an oral contract).

Question 112

VERBAL ACTS | (State the Rule)

Answer 112

**Rule**: The hearsay rule does not apply to statements offered to show that the statement had some effect on the hearer or reader.

Question 113

STATE OF MIND | (State the Rule)

Answer 113

**Rule**: The hearsay rule does not apply to statements offered to show the declarant's state of mind at the time of the statement.

Question 114

STATEMENTS INTENDED TO IMPEACH OR REHABILITATE (State the Rule)

Answer 114

**Rule**: The hearsay rule does not apply to statements offered to impeach or rehabilitate a witness' credibility.

Question 115

STEP 5 - ADMISSIBLE EVIDENCE: FEDERAL: LIST THE 7 CATEGORIES OF STATUTORILY DEFINED NON-HEARSAY STATEMENTS

Answer 115

1) Admissions by a party opponent, 2) Adoptive admissions, 3) Vicarious admissions, 4) Co-conspirator admissions, 5) Prior sworn inconsistent statements, 6) Prior consistent statements, 7) Prior statements of identification.

Question 116

CALIFORNIA: DOES CALIFORNIA PROVIDE FOR STATUTORY NON-HEARSAY?

Answer 116

**Rule:** The California Evidence Code does not provide for statutory non-hearsay. Under the CEC, an out-of-court statement offered to prove the truth of the matter asserted will either be hearsay or it will fall within a hearsay exception. **Note:** Statements that are termed "statutory non-hearsay' under the Federal Rules are called "hearsay exceptions" under the California Code. However, the same substantive rules generally apply.

Question 117

FEDERAL - NON-HEARSAY: (CALIFORNIA - HEARSAY EXCEPTION) ADMISSION BY A PARTY OPPONENT (State the Rule)

Answer 117

**Rule:** A statement is admissible as non-hearsay (Federal) or as an exception to hearsay (California) if the statement is offered against the party who made the statement. **Note:** The admission need not have been against the party's interest when made.

Question 118

FEDERAL - NON-HEARSAY: (CALIFORNIA - HEARSAY EXCEPTION) ADOPTIVE ADMISSION (State the Rule)

Answer 118

**Rule:** A statement is admissible as non- hearsay (Federal) or as an exception to hearsay (California) if the statement: 1) Was made by a party that has manifested an adoption or belief in its truth, AND 2) Is offered against that party. **Note:** Silence may be an adoptive admission where: 1) The party heard and understood the statement, 2) A reasonable person would have responded to the statement, AND 3) The party was capable of responding but did not respond.

Question 119

FEDERAL - NON-HEARSAY: (CALIFORNIA - HEARSAY EXCEPTION) VICARIOUS ADMISSION (State the Rule)

Answer 119

**Rule:** A statement is admissible as non- hearsay (Federal) or as an exception to hearsay (California) if the statement: 1) Is offered against a party. 2) Was made by the party's agent or servant. 3) Concerns a matter within the scope of the agency or employment. AND 4) Was made during the existence of the relationship.

Question 120

FEDERAL - NON-HEARSAY: (CALIFORNIA - HEARSAY EXCEPTION) CO-CONSPIRATOR ADMISSION (State the Rule)

Answer 120

**Federal:** A statement is admissible as non-hearsay if the statement: 1) Is offered against a party to a conspiracy, 2) Was made by a co-conspirator of that party, AND 3) Was made during the course and in furtherance of the conspiracy. **California:** A statement is admissible as an exception to hearsay if the statement: 1) Is offered against a party to a conspiracy, 2) Was made by a co-conspirator of that party, 3) Was made during the course and in furtherance of the conspiracy, AND 4) Was made prior to or during the time the party was participating in the conspiracy.

Question 121

FEDERAL - NON-HEARSAY: (CALIFORNIA - HEARSAY EXCEPTION) PRIOR INCONSISTENT STATEMENTS (State the Rule)

Answer 121

**Federal:** A declarant's prior inconsistent statement is admissible as non-hearsay if: 1) The declarant makes a statement at the current trial that is inconsistent with the declarant's prior testimony, AND 2) The prior statement was given under oath subject to the penalty of perjury at a hearing or deposition. **California:** A declarant's prior inconsistent statement is admissible as an exception to hearsay if: 1) The declarant makes a statement at the current trial that is inconsistent with the declarant's prior testimony, AND 2) The declarant is given the opportunity to explain the inconsistency at trial. **Note:** A court may admit a prior inconsistent statement of a witness who is not given the opportunity to explain the inconsistency if the interests of justice require.

Question 122

FEDERAL - NON-HEARSAY: (CALIFORNIA - HEARSAY EXCEPTION) PRIOR CONSISTENT STATEMENTS (State the Rule)

Answer 122

**Federal:** A declarant's prior consistent statement is admissible as non-hearsay if the prior statement is: 1) Consistent with the declarant's testimony, AND 2) Offered to rebut an express or implied charge that the declarant's testimony is a fabrication or influenced by bias. **California**: A declarant's prior consistent statement is admissible as an exception to hearsay if the evidence is offered after: 1) A prior inconsistent statement has been admitted for the purpose ofattacking the witness' credibility, OR a) **Note:** The prior consistentstatement must have been madebefore the inconsistent statement to be admissible. 2) An express or implied charge that thedeclarant's testimony is a fabrication orinfluenced by bias. a) **Note:** The prior consistentstatement must have been made before the alleged bias or motive for fabrication arose.

Question 123

FEDERAL - NON-HEARSAY: (CALIFORNIA - HEARSAY EXCEPTION) PRIOR STATEMENTS OF IDENTIFICATIONS (State the Rule)

Answer 123

**Federal:** A statement is admissible as non-hearsay if the statement is one of identification of a person made after perceiving the person. **California**: A statement is admissible as an exception to hearsay if: 1) The statement is one of identification of a person engaged in a crime or other activity, 2) The statement was made at a time when the event was fresh in the witness' memory, 3) The statement would have been admissible by the declarant/witness while testifying, AND 4) The declarant/witness testifies in court that she made the identification and it was a true reflection of her opinion at the time.

Question 124

LIST 19 EXCEPTIONS TO THE HEARSAY RULE (DECLARANT'S UNAVAILABILITY IMMATERIAL)

Answer 124

1) Present sense impression 2) Excited utterance 3) Present state of mind 4) Past recollection recorded 5) Business records 6) Absence of business records 7) Public records 8) Absence of public records 9) Records of vital statistics 10) Statement for purposes of medical diagnosis or treatment 11) Documents affecting property interests 12) Family records 13) Ancient documents 14) Market reports 15) Learned treatises 16) Reputation of character 17) Reputation statements 18) Prior convictions 19) Catch-all exception

Question 125

HEARSAY EXCEPTION: PRESENT SENSE IMPRESSION (State the Rule)

Answer 125

**Federal:** A statement is admissible as an exception to the hearsay rule if the statement: 1) Describes or explains an event or condition, AND 2) Was made while the declarant was perceiving the event, or immediately thereafter. **California**: A statement is admissible as an exception to the hearsay rule if the statement: 1) Is offered to explain, qualify, or make understandable conduct of the declarant, AND 2) Was made while the declarant was engaged in such conduct.

Question 126

HEARSAY EXCEPTION: EXCITED UTTERANCE (State the Rule)

Answer 126

**Rule:** A statement is admissible as an exception to the hearsay rule if the statement: 1) Relates to a startling event or condition, AND 2) Was made while the declarant was under the stress of excitement caused by the event or condition.

Question 127

HEARSAY EXCEPTION: PRESENT STATE OF MIND (State the Rule)

Answer 127

**Rule:** A statement is admissible as an exception to the hearsay rule if the statement regarded the declarant's then-existing state of mind, emotion, sensation, or physical condition. **Note:** California also allows for admission of statements about a declarant's past physical or mental state if: 1) The declarant is unavailable, 2) The declarant's physical or mental state is in issue, AND 3) The statement is offered to prove the declarant's physical or mental state.

Question 128

HEARSAY EXCEPTION: PAST RECOLLECTION RECORDED (State the Rule)

Answer 128

**Rule:** A statement is admissible as an exception to the hearsay rule if: 1) The statement is contained in a record that concerns a matter about which a witness once had knowledge, 2) The witness now has insufficient recollection to testify accurately, AND 3) The record is shown to have been made or adopted by the witness when the matter was still fresh in the witness' memory. **Note:** If admitted, the memorandum orrecord may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Question 129

HEARSAY EXCEPTION: BUSINESS RECORDS (State the Rule)

Answer 129

**Rule:** A statement is admissible as an exception to the hearsay rule if: 1) The statement is a record of acts (i.e., events, conditions, opinions, or diagnoses), 2) The record was made at or near the time of the acts, 3) The record was made by a person with knowledge of the acts, 4) The record was made in the course of a regularly conducted business activity, AND 5) It was the regular practice of that business activity to make such records. **Note**: 1) The testimony of a custodian is sufficient to demonstrate the above elements. 2) The business record exception covers institutions, associations, professions, and all other occupations, whether or not conducted for profit.

Question 130

HEARSAY EXCEPTION: ABSENCE OF BUSINESS RECORDS (State the Rule)

Answer 130

**Rule:** Evidence that a matter is absent from a business record is admissible as an exception to the hearsay rule if the matter was of a kind that was regularly recorded in the course of business.

Question 131

HEARSAY EXCEPTION: PUBLIC RECORDS (State the Rule)

Answer 131

**Rule:** A statement is admissible as an exception to the hearsay rule if the statement is a public record or report that relates: 1) The activities of a government office or agency, 2) Matters observed pursuant to a duty imposed by law, OR 3) Factual findings resulting from an investigation made pursuant to authority granted by law. **Note**: Matters observed by police officersfor use in a criminal proceeding do not fallwithin the public records exception.

Question 132

HEARSAY EXCEPTION: ABSENCE OF PUBLIC RECORDS (State the Rule)

Answer 132

**Rule:** Evidence that a matter is absent from a public record is admissible as an exception to the hearsay rule if the matter was of a kind that was regularly recorded by a public office or agency. **Note:** The absence of a record regarding a matter may be offered to prove the nonoccurrence or nonexistence of the matter.

Question 133

HEARSAY EXCEPTION: RECORDS OF VITAL STATISTICS (State the Rule)

Answer 133

**Rule:** A statement is admissible as an exception to the hearsay rule if the statement is a record or compilation of births, deaths, or marriages. **Note:** The record or compilation must have been made available to a public office pursuant to the requirements of law.

Question 134

HEARSAY EXCEPTION: STATEMENT FOR PURPOSES OF MEDICAL TREATMENT OR DIAGNOSIS (State the Rule)

Answer 134

**Federal:** A statement is admissible as an exception to the hearsay rule if the statement was made for purposes of medical diagnosis or treatment. **Note:** This exception can be used to demonstrate medical history, symptoms, orthe possible cause of medical problems. **California:** A statement by a child under the age of 12 is admissible as an exception to the hearsay rule if the statement was made for purposes of medical diagnosis or treatment and the child is a victim of child abuse or neglect. **Note:** California does not provide a counterpart to the FRE's medical treatment/diagnosis exception for adults, children 12 or older, or children under 12 who are not victims of child abuse or neglect.

Question 135

HEARSAY EXCEPTION: DOCUMENTS AFFECTING PROPERTY INTERESTS (State the Rule)

Answer 135

**Rule:** A statement is admissible as an exception to the hearsay rule if: 1) The statement is a record, or a statement within a record, affecting an interest in property, AND 2) The record was publicly recorded. **Note**: This exception can be used to demonstrate: 1) The content of the document, AND/OR 2) The execution and delivery of the document.

Question 136

HEARSAY EXCEPTION: FAMILY RECORDS (State the Rule)

Answer 136

**Rule:** A statement is admissible as an exception to the hearsay rule if the statement is a statement of fact concerning personal or family history contained in family heirlooms. **Note:** Heirlooms include Bibles genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, and tombstones.

Question 137

FEDERAL: HEARSAY EXCEPTION: ANCIENT DOCUMENTS (State the Rule)

Answer 137

**Rule**: A statement is admissible as an exception to the hearsay rule if: 1) The statement is contained in a document that has been in existence 20 years or more, AND 2) The authenticity of the document is established.

Question 138

CALIFORNIA: HEARSAY EXCEPTION: ANCIENT DOCUMENTS (State the Rule)

Answer 138

**Rule**: A statement is admissible as an exception to the hearsay rule if: 1) The statement originates from a document in existence 30 years or more, AND 2) The writing has been treated as valid by those with an interest in the matter.

Question 139

HEARSAY EXCEPTION: MARKET REPORTS (State the Rule)

Answer 139

**Rule**: A statement is admissible as an exception to the hearsay rule if the statement is a market quotation, report or other published compilation that is generally used and relied upon by the public.

Question 140

HEARSAY EXCEPTION: LEARNED TREATISES (State the Rule)

Answer 140

**Federal:** A statement within a learned treatise is admissible as an exception to the hearsay rule if: 1) The treatise is called to the attention of an expert witness or relied upon by an expert witness, AND 2) The reliability of the treatise is established (e.g., through testimony of other experts or judicial notice). **California:** A statement contained within an historical work, a book of science or art, or a published map or chart is admissible as an exception to the hearsay rule if: 1) The work was made by an objective person (i.e., a person with no interest in the present dispute between the parties), AND 2) The statement is offered to prove facts of general notoriety and interest. **Note:** If admitted, the statements may be read into evidence but may not be received as exhibits.

Question 141

HEARSAY EXCEPTION: REPUTATION OF CHARACTER (State the Rule)

Answer 141

**Rule:** A statement is admissible as an exception to the hearsay rule if the statement regards a person's character among that person's associates or in the community as a whole.

Question 142

HEARSAY EXCEPTION: REPUTATION STATEMENTS (State the Rule)

Answer 142

**Rule:** A statement regarding a person's reputation among family or associates or in the community is admissible as an exception to the hearsay rule if the reputation statement regards a person's personal or family history. **Note:** The topics on which a reputation statement may be admitted as an exception to the hearsay rule include a person's: 1) Birth, 2) Adoption, 3) Marriage, 4) Divorce, 5) Death, 6) Legitimacy, 7) Relationship by blood, adoption, or marriage, 8) Ancestry.

Question 143

HEARSAY EXCEPTION: PRIOR CONVICTIONS (State the Rule)

Answer 143

**Federal:** Evidence of a final judgment from a felony criminal conviction is admissible as an exception to the hearsay rule in subsequent civil or criminal actions. This rule does not apply to misdemeanor convictions, civil judgments, withdrawn pleas, or no-contest pleas. **California:** Evidence of a final judgment from a felony conviction or from a no-contest plea to a felony charge is admissible in subsequent criminal actions only. However, a felony or misdemeanor conviction may be admitted to impeach a witness in a criminal trial.

Question 144

HEARSAY EXCEPTION: CATCH-ALL EXCEPTION (State the Rule)

Answer 144

**Federal:** A statement is admissible as an exception to the hearsay rule if the statement is: 1) Offered as evidence of a material fact, 2) More probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts, AND 3) The interests of justice will best be served by admission of the statement into evidence. **California:** The CEC does not provide a catch-all exception.

Question 145

LIST 5 EXCEPTIONS TO THE HEARSAY RULE (DECLARANT UNAVAILABLE)

Answer 145

1) Former testimony, 2) Statement under belief of impending death (i.e., dying declaration), 3) Statement against interest, 4) Statement of personal or family history, 5) Forfeiture by wrongdoing.

Question 146

WHEN IS A DECLARANT UNAVAILABLE FOR HEARSAY PURPOSES?

Answer 146

**Federal**: A declarant is unavailable if the declarant: 1) Is exempted from testifying due to a privilege, 2) Is unable to testify because of death or physical or mental illness, 3) Is absent despite a proponent's reasonable attempts to procure her appearance, 4) Refuses to testify despite a court order, OR 5) Testifies to a lack of memory on the subject. **California**: A declarant is unavailable if the declarant: 1) Is exempted from testifying due to a privilege, 2) Is unable to testify because of death or physical or mental illness, 3) Is absent despite the proponent's exercise of reasonable diligence to procure the declarant's appearance, 4) Is absent and the court is unable to compel attendance, OR 5) Is disqualified from testifying.

Question 147

HEARSAY EXCEPTION: FORMER TESTIMONY (State the Rule)

Answer 147

**Rule:** A statement by a now-unavailable declarant is admissible as an exception to the hearsay rule if: 1) The statement was made under oath at a prior hearing, 2) The hearing involved the same subject matter, 3) The party against whom the testimony is being offered (or a predecessor in interest) was present at the prior proceeding, AND 4) The party or a predecessor in interest had an opportunity and similar motive to develop the testimony of the now-unavailable declarant.

Question 148

FEDERAL: HEARSAY EXCEPTION: DYING DECLARATION (State the Rule)

Answer 148

**Rule:** Under the Federal Rules, a statement by a now-unavailable declarant is admissible as an exception to the hearsay rule if the statement: 1) Is introduced in a homicide or civil proceeding, 2) Was made by a declarant while believing that her death was imminent, AND 3) Concerns the cause or circumstances of what the declarant believed to be impending death. **Note:** Under the FRE, the declarant need not die, only be unavailable for trial. The CEC requires that the declarant actually die.

Question 149

HEARSAY EXCEPTION: STATEMENT AGAINST INTEREST (State the Rule)

Answer 149

**Rule:** A statement by a now-unavailable declarant is admissible as an exception to the hearsay rule if at the time the statement was made: 1) The statement was contrary to the declarant's pecuniary, proprietary or penal interest, AND 2) A reasonable person in the declarant's position would not have made the statement unless he believed it to be true. **Note:** In addition to pecuniary, proprietary, and penal interests, California also recognizes statements as being against one's interest that: 1) Tend to render invalid a claim by the declarant against another, AND 2) Create a risk of making the declarant the object of hatred, ridicule, or social disgrace in the community.

Question 150

HEARSAY EXCEPTION: STATEMENT OF PERSONAL OR FAMILY HISTORY (State the Rule)

Answer 150

**Rule:** A statement by a now-unavailable declarant is admissible as an exception to the hearsay rule if the statement: 1) Concerns the declarant's personal or family history, OR 2) Concerns the personal or family history of another person if the declarant was: a) Related to the person by blood, adoption, or marriage, OR b) Intimately associated with the other's family. **Note:** This rule applies to statements regarding the birth, death, adoption, marriage, divorce, legitimacy, relationship by marriage, ancestry, death or other similar fact of personal or family history of the declarant or a person close to the declarant.

Question 151

HEARSAY EXCEPTION: FORFEITURE BY WRONGDOING (State the Rule)

Answer 151

**Federal:** A statement by a now-unavailable declarant is admissible as an exception to the hearsay rule if the statement is offered against a party that engaged or acquiesced in wrongdoing that intentionally procured the unavailability of the declarant as a witness. **California:** A statement by a now- unavailable declarant is admissible as an exception to the hearsay rule in a criminal proceeding charging a serious felony if: 1) There is clear and convincingevidence that the party against whom the statement is offered intentionally killed or kidnapped the declarant, 2) The declarant's statement iscontained in a tape recording by apeace officer or in a writing signed bythe declarant and prepared by a peace officer, 3) The statement is free from influenceof threat or coercion, 4) The statement is relevant to the issues to be tried, AND 5) The statement is corroborated by other evidence that connects the wrongdoer party with the commission of the serious felony with which the party is charged.

Question 152

CALIFORNIA: LIST 3 ADDITIONAL EXCEPTIONS TO THE HEARSAY RULE THAT APPLY IF THE DECLARANT IS UNAVAILABLE

Answer 152

1) Statements of children to law enforcement officers in abuse cases, 2) Statements of children to medical professionals in abuse cases, 3) Statements of physical abuse.

Question 153

CALIFORNIA: STATEMENTS OF CHILDREN TO LAW ENFORCEMENT IN SEXUAL OR PHYSICAL ABUSE CASES (State the Rule)

Answer 153

**Rule:** A statement by a child to a law enforcement officer in a sexual or physical abuse case is admissible as an exception to the hearsay rule if: 1) The child was under the age of 12 at the time of the statement, 2) The statement was recorded in the report of a law enforcement or child welfare officer, 3) The statement was made prior to the defendant's confession, 4) There is no reason to believe that the statement was false, AND 5) The child is now unavailable to testify or refuses to do so.

Question 154

CALIFORNIA: STATEMENTS OF CHILDREN TO MEDICAL PROFESSIONALS IN SEXUAL OR PHYSICAL ABUSE CASES (State the Rule)

Answer 154

**Rule:** A statement by a child to a medical professional in a sexual or physical abuse case is admissible as an exception to the hearsay rule if: 1) The child was under the age of 12 at the time of the statement, 2) The statement was made for the purposes of medical treatment or diagnosis, 3) The statement concerned the circumstances of child abuse or neglect, 4) There is no reason to believe that thestatement was false, AND 5) The child is now unavailable to testifyor refuses to do so.

Question 155

CALIFORNIA: STATEMENTS OF PHYSICAL ABUSE (State the Rule)

Answer 155

**Rule:** Any statement regarding the infliction or threat of physical injury to the declarant is admissible as an exception to the hearsay rule if: 1) The declarant is unavailable, 2) The statement was made at or near the time of the threat or infliction of physical injury, 3) The statement was recorded in the report of a law enforcement officer, AND 4) The statement was made under circumstances that indicate the statement's truthfulness.

Question 156

CALIFORNIA: LIST 2 ADDITIONAL EXCEPTIONS TO THE HEARSAY RULE THAT APPLY IF THE DECLARANT IS DECEASED

Answer 156

1) Dying declaration, 2) Sworn statements regarding gang-related crimes. **Note:** For either of these hearsay exceptions to apply, the declarant must actually have died.

Question 157

CALIFORNIA: DYING DECLARATION (State the Rule)

Answer 157

**Rule**: A statement by a decedent is admissible as an exception to the hearsay rule if the statement: 1) Was made by a declarant while believing that her death was imminent, 2) Concerned the cause or circumstances of her impending death, AND 3) Was made upon her personal knowledge. **Note:** 1) Under the California Code, the witness must have actually died, not simply be unavailable for trial as under the FRE. 2) A dying declaration may be used in all civil and criminal cases in California.

Question 158

CALIFORNIA: SWORN STATEMENTS REGARDING GANG-RELATED CRIMES (State the Rule)

Answer 158

**Rule:** A decedent's statement is admissible as an exception to the hearsay rule if: 1) The statement concerns acts within the personal knowledge of the declarant, 2) The statement concerns gang-related activity, 3) A verbatim transcript of the statement exists, 4) The statement was made under oath at a hearing or under penalty of perjury, 5) The declarant's death resulted from something other than natural causes, AND 6) There is no reason to believe that the statement is untrue.

Question 159

HEARSAY WITHIN HEARSAY | (Define & State the Rule)

Answer 159

**Definition:** A hearsay statement contained within another hearsay statement is double hearsay. **Rule:** Each layer of hearsay must be overcome (i.e., each individual hearsay statement must meet the requirements for an exception or statutory non-hearsay) for the entire statement to be admissible.