Evidence Cards

Question 1

CA: Proposition 8

Answer 1

Under Prop 8 of the California constitution, all relevant evidence is admissible during a criminal trial, unless it is subject to an exclusion such as hearsay or privilege.

Question 2

Logical Relevance

Answer 2

For any evidence to be admissible, it must be logically relevant. Evidence is logically relevant when it makes the existence of any fact of consequence more or less likely to be true. In California, the fact of consequence must also be in dispute.

Question 3

Legal Relevance

Answer 3

Evidence is legally relevant when the probative value of the evidence exceeds the risk of undue prejudice, confusing the jury, or unnecessary delay.

Question 4

Witness Competency

Answer 4

In order for witnesses to testify as to a certain topic, they must have personal knowledge of the facts they are speaking to, and a present recollection of the events. They must also take an oath to tell the truth and be able to present their testimony in a way that is helpful to the trier of fact.

Question 5

Hearsay

Answer 5

Is an out of court statement offered for the truth of the matter asserted. Hearsay is generally not admissible.

Question 6

Opposing Party Admission

Answer 6

An opposing parties statement is an exclusion from the hearsay rule. It exists when the opposing party has offered the statement out of court, and it is an admission of a relevant fact.

Question 7

Statement against Interest

Answer 7

Is an exception to the hearsay rule that allows a statement to be admitted when the defendant makes such statement that is against their proprietary, pecuniary, penal, or social interest, and they are aware it is against their interest when offered. Is only allowed when the declarant is unavailable.

Question 8

Unavailable Declarant.

Answer 8

A declarant is unavailable when they are dead or sick, when they refuse to testify, or when they assert a privilege, among other reasons.

Question 9

Prior Statements

Answer 9

Made by individuals that are unavailable to testify sometimes qualify as an exception to the hearsay rule. However, the FRE requires that the prior statement be made under oath in some previous proceeding.

Question 10

Attorney/Client Privilege

Answer 10

Prevents the disclosure of any confidential information obtained from the attoreny from their client for the purpose of furthering representation. The privilege is held by the client, and only the client can choose to waive it. In CA, the privilege lasts until the client’s will has been probated after their death.

Question 11

Character Evidence

Answer 11

Is evidence that tends to establish a particular trait of one party. Character evidence may take the form of reputation testimony about the party’s reputation in the community, the testifying witness’s opinion of the party’s character, or prior acts of the party. Generally, character evidence is inadmissible. In criminal cases, character evidence of the defendant is not admissible unless the defendant first “opens the door.”

Question 12

Hearsay within Hearsay

Answer 12

Where there are multiple levels of hearsay, each level must be admissible under an exception in order for the entire statement to be admissible.

Question 13

Character Evidence Exceptions

Answer 13

There are several exceptions to the general rule against character evidence. 1) establishing motive; 2) establishing the identity of a party; 3) establishing lack of mistake; 4) establishing intent; or 5) demonstrating a common plan or scheme.

Question 14

Character Evidence CA Exception

Answer 14

In domestic violence cases, the prosecution may present evidence of opinion, reputation, and specific bad acts testimony to show a defendants character for domestic violence.

Question 15

Work Product Doctrine

Answer 15

Prevents materials generally prepared in anticipation of litigation. In CA, applies solely to materials prepared by the attorney in anticipation of litigation. Materials prepared in anticipation of litigation that are comprised of the attorney’s mental impressions, notes, or opinions, are absolutely protected and are not discoverable.

Question 16

Liability Insurrance

Answer 16

Evidence of liability insurance is not admissibel to prove guilt or ability to pay.

Question 17

Habit Evidence

Answer 17

Are a party’s actions that always occur with respect to certain stimulus. Habit evidence may be introduced to show that a party acted in conformity with that habit.

Question 18

Impeachment

Answer 18

Although character evidence may be inadmissible for substantive purposes, it may be used to impeach a party or witness. Bias may always be raised to impeach a party to a suit.

Question 19

Leadng Questions

Answer 19

Are questions that contain the answer. It is improper to ask a leading question in direct examination unless the witness is hostile to the client.

Question 20

Compound

Answer 20

When questioning a witness, a lawyer may only ask one question at a time. A question that seeks to have multiple questions answered at once is not allowed.

Question 21

Nonresponsive

Answer 21

A witness must respond to the question asked. A response that does not answer the question can be stricken, and the witness will be instructed to answer the question.

Question 22

Subsequent Remedial Measures

Answer 22

As public policy, generally evidence of subsequent remedial measures are not permitted, except to show ownership or where the defendant has claimed that there was no way to make something more safe.

Question 23

Present Sense Impression (CA: Contemporaneous Statement)

Answer 23

Occurs when a speaker is describing events he is witnessing after they occur. This is broader than the federal rule, which permits a description shortly after the events occur. Such a statement is admissible as an exception to the hearsay rule.

Question 24

Excited Utterance (CA: Spontaneous Statement)

Answer 24

Is a statement made while a person is under the stress of an exciting event. Such a statement is admissible as an exception to the hearsay rule.

Question 25

Business Record

Answer 25

A record made in a business’s regular course of business is admissible as an exception to hearsay. The record must be part of a regularly conducted activity, must be regularly recorded, and must be made at or near the time by a person with knowledge of the items being recorded.

Question 26

Authentication

Answer 26

Nontestimonial evidence must be authenticated. Authentication requires the evidence’s proponent to adduce sufficient evidence for the trier of fact conclude that the nontestimonial evidence is what it purports to be.

Question 27

Co-Conspirator Statement

Answer 27

Statements made by a co-conspirator in futherance of the conspiracy, offered against the opposing party, are exceptions to hearsay. The proponent of the hearsay must show by a preponderance of the evidence that there was a conspiracy between the hearsay declarant and the opposing party and that the statements offered were made in furtherance of that conspiracy.

Question 28

Impeachment by Conviction

Answer 28

Is permissible under certain circumstances. First, a party may introduce evidence of a prior felony conviction for a crime of moral turpitude. Additionally, under Prop 8, the prosecutor may also introduce evidence of a prior misdemeanor conviction for a crime of moral turpitude in a criminal case. Unlike the FRE, CA does not impose a specific time limit to allow for criminal convictions to use for impeachment.

Question 29

Effect on the Listener

Answer 29

Statements offered to show the effect on the listener are classified as non hearsay under the FRE. However, the defendant has a right to request a limiting instruction so that the jury does not use the statement to prove the truth of the matter asserted.

Question 30

Expert Witness Testimony

Answer 30

To qualify as an expert witness, the federal courts use the Daubert standard, which requires that the expert have sufficient expertise and training, rely on commonly used treatises and materials relied on in the field, and that the expert’s opinion is based on such knowledge.

Question 31

Lay Witness Testimony

Answer 31

In order for a witnesses testimony to qualify as lay witness opinion testimony, it must be: 1) helpful to the jury, 2) be reasonably ascertainable based on the perception of a layperson, and 3) not based on any scientific or specialized knowledge.

Question 32

Prior Inconsistent Statement

Answer 32

A witness can be impeached based on prior inconsistent statements, however, the witness must be available and they must be given a chance to explain the statement.

Question 33

Confrontation Clause

Answer 33

Is a federal Constitutional requirement which requires all criminal defendants the opportunity to confront witnesses against them. It applies only to the admission of testimonial evidence. Testimonial evidence is generally determined under the “primary purpose” test, in which a statement is adjudged testimonial if the primary purpose of the statement is to assist law enforcement or give testimony.

Question 34

CA Exclusive: Past Threat of Harm

Answer 34

CA provides a hearsay exception which permits the admission of a statement describing past physical harm or threat of physical harm by a declarant who is unavailable. The statement must be: 1) at or near the time the harm/threat occurred; 2) with circumstances suggesting reliability; and 3) be made to a police or medical professional, written, or recorded.

Question 35

CA Exclusive: Statement of Past Physical Condition

Answer 35

CA also permits a hearsay exception when a declarant is making a statement describing a past physical condition, if it is at issue in the case. The statement need not be made for medical assistance; however, the declarant must be unavailable.

Question 36

Best Evidence Rule (CA: Secondary Evidence Rule)

Answer 36

Requires that when a document is admitted to prove its contents, an original must be provided. This includes duplicates or written copies.

Question 37

Dying Declaration

Answer 37

Is a statement made by a declarant while he thought he was imminently dying and describing the conditions or circumstances of his death. The declarant must be unavailable, and in California the declarant must have actually died and it can be used in either civil or criminal cases.

Question 38

Present State of Mind

Answer 38

A statement describing a person’s present state of mind are admissible as hearsay exceptions regardless of the declarant’s availability.

Question 39

Spousal Communication Privilege

Answer 39

Protects all confidential communications between spouses that are made in the course of an existing marriage and in reliance on the intimacy of the marriage. Belongs to both spouses and may be claimed by either to prevent the other spouse from testifying. Exists regardless of divorce, so long as the communication itself was made during a period when the marriage existed.

Question 40

Spousal Testimonial Privilege

Answer 40

Allows the testifying witness spouse to refuse to testify against the other spouse in a criminal action. The privilege only belongs to the witness spouse. In CA, the privilege applies to both criminal and civil cases.

Question 41

Past Recollection Recorded

Answer 41

A record that is on a matter 1) testifying witness once had personal knowledge of byut now cannot recalled well enough, 2) was made or adopted by W when the matter was fresh in memory, and 3) accurately reflects W’s knowledge

Question 42

Present Recollection Revived

Answer 42

Testifying witness can refresh memory by looking at any document. The document is not a hearsay problem since the document itself is not evidence that is being admitted in.

Question 43

Admission of Fault

Answer 43

Admissions of fault alone are admissible in court. However, if the admission is tied to a settlement or medical payment offer, it may vary.

Question 44

Offer to Pay Medical Expenses

Answer 44

Under the FRE, offers to pay medical expenses tied to admissions of fault are inadmissible to the extent that the offer itself is stricken while the admission is admissible. Under CA, admissions of fault made in conjunction with an offer to pay medical expenses are entirely inadmissible.