Evidence Essay

Question 1

What is the paragraph you need to start every evidence essay that asks for the CA evidence rules to be applied? What is the added sentence you need to include if civil?

Answer 1

• Under Proposition 8 of the California Constitution (hereafter Prop 8), any evidence that is** relevant** may be admitted in a criminal case. However, Prop 8 makes an exception for balancing under California Evidence Code (hereafter CEC) 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury.
• If civil add: This case is civil, so Prop. 8 will not be applied to this case.

Question 2

What are the possible objections related to the form of the question and answer?

Answer 2

• leading question - not allowed on direct, but allowed on cross
• compound question
• assuming facts not in evidence
• calls for narrative
• answer provides info not asked for

Question 3

Logical Relevance

Answer 3

Evidence is relevant if it has any tendency to make a fact (CA: dispute fact) more or less probable than it would be without the evidence and the fact is of consequence in determining the action.

Question 4

Legal Relevance

Answer 4

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice (CA: confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence).

Question 5

Character Evidence

Answer 5

• Character evidence is generally not admissible
  *

Question 6

Character evidence - civil case

Answer 6

• Rule: Character evidence is generally inadmissible to prove the person acted in accordance with the character on a particular occasion.
• EXCEPTION: claim of sexual misconduct –> evidence of defendnat’s past sexual misconduct or child molestation admissible
• EXCEPTION: plead self defense in battery –> evidence of victim’s propensity for violence
• EXCEPTION: character is an essential element of claim or defense (defamation, negligent hiring, negligent entrustment, child-custody)

FRE 404(a)(1)

Question 7

Character evidence - criminal case - character of D

Answer 7

• Prosecutor is not permitted to introduce evidence of a defendant’s bad character to prove that the defendant has a propensity to commit crimes and therefore is likely to have committed the crime in question.
• D can introduce reputation or opinion evidence of pertinent trait –> prosecutor can 1) call witness to rebut D’s claim of good character via reputation or opinion OR 2) cross examine character witness with questions about specific acts from the past (but must accept the witnesses answer, no extrinsic evidence)

Question 8

Character evidence - criminal case - character of victim

Answer 8

• D may bring reputation or opinion evidence of pertinent trait of victim (usually homoicide or assault cases where self defense raised by D)
• –> opens the door to:
  1. prosecutor offering reputation or opinion evidence to re victim
  2. prosecutor offering reputation or opinion evidence re same trait in D

Question 9

Prior acts - when are they admissible?

Answer 9

Evidence of a D’s past crimes or bad acts can be introduced for non-propensity uses: motive, intent, absence of mistake, identity, common plan, etc. (MIMIC).

Question 10

habit evidence

Answer 10

• habit evidence: a person’s particular routine (i.e. semi-automatic) reaction to a specific set of circumstances
• evidence of a person’s habit is admissible to prove the person acted in accordance with the habit on a particular occasion.

Question 11

Authentication

Answer 11

All tangible evidence must be authenticated with sufficient evidence to support a finding that the thing is what its proponent claims it is (i.e. item must be genuine)
* physical objects: personal knowledge, distinctive characteristics, chain of custody
* documentary evidence: stipulation, eyewitness testimony, handwriting verification, ancient documents (20+ years old)
* oral statements: voice ID, telephone conversations

Question 12

Best Evidence Rule

Answer 12

• Rule: Must produce original or reliable duplicate to prove contents of document relied on by witness or whose contents are at issue
• Exceptions:
• 1) original unavailable - not bc of party’s fault
• 2) admission by party - opposing party’s testimony, deposition, or written statement
• 3) public record: certified copy, copy + comparison testimony, or other evidence if above is not readily obtainable

CA: Secondary Evidence Rule: Under the Secondary Evidence Rule, an original document (or a reliable duplicate) must be introduced to prove the contents of the document when the contents of the document are at issue. California allows both duplicates and other written evidence of the content of the original.

Question 13

Spousal privilege

Answer 13

• testimony about anything (pre, post, during marriage)
• only can be invoked during marriage (aka with current spouse)
• only in criminal case
• can only be invoked by witness spouse (you cannot prevent your spouse from testifying)

Question 14

confidential marital communications

Answer 14

• applies to communications between spouses made during marriage
• can be invoked forever (during or after marriage)
• can be invoked in any type of case
• either spouse can invoke it - spouse can prevent other spouse from testifying

Question 15

attorney-client privilege

Answer 15

Confidential communications between the client and attorney made for the purposes of representation are privileged. This includes attorney work product - absolute bar on mental impressions, less strict bar against other work product.

Question 16

What are the public policy exclusions (things that cannot be used to prove fault but may be admissible to prove other things like ownership, control, or feasibility)?

Answer 16

• subsequent remedial measures (made after accident)
• settlement offers or negotiations (may be used as a priior inconsistent statement to impeach)
• offers to pay medical expenses (statements made simulataneously with the offer could be admissible)
• liability insurance

Question 17

Witness Competence

Answer 17

A witness must have personal knowledge of a matter in order to testify about it.

Question 18

Lay Opinion

Answer 18

Opinions by lay witnesses are generally inadmissible except when they are (1) rationally based on the witness’s perception, (2) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue, and (3) not based on scientific, technical, or other specialized knowledge.

Question 19

Expert Witness: qualifications

Answer 19

Daubert Test: the expert must:
1. be qualified by knowledge, skill, experience, training, or education
2. base testimony on sufficient **facts or data **
3. base testimony on reliable principles and methods and
4. apply the principles and methods reliably to the facts of the case

Question 20

Expert Witness - when can they offer opinions or conclusions?

Answer 20

an expert witness may offer opinions or conclusions if:
* subject matter is scientific, technical, or other specialized info and
* it will help the trier of fact understand the evidence or determine a fact at issue

generally not permitted to testify about witness’ credibility

Question 21

Present Recollection Refreshed

Answer 21

When a witness is unable to testify bc she can’t remember, you may show the witness any document that might refresh her memory.

Question 22

Past Recollection Recorded

Question 23

Impeachment - bad character for truthfulness/untruthfulness

Answer 23

• opinion/reputation testimony: witness may testify about the opinion or reputation for another witness’s truthfulness
• specific instances of conduct: you can inquire into specific bad acts on cross examination (but extrinsic evidence NOT admissible)
• exception: criminal convictions: evidence of criminal conviction for crime of dishonesty or felony admissible to impeach –> If conviction (or release) is > 10 years old, the evidence is only admissible if the probative value substantially outweighs the prejudicial effect.

Question 24

Impeachment - definition and general categories

Answer 24

General: Impeachment attacks the credibility of a testifying witness (or a hearsay declarant). Ways to impeach:
* bias
* sensory competence
* bad character for truthfulness/untruthfulness
* prior inconsistent statement

Question 25

Impeachment - Prior Inconsistent Statement

Answer 25

Prior inconsistent statement: prior statement that is inconsistent with current testimony is admissible to impeach (extrinsic evidence permitted as long as wtiness is provided a chance to explain)

Question 26

Rehabilitation of a witness

Answer 26

• Once a witness has been impeached
• the other side can introduce rebuttal evidence by re-examining the witness, intorducing another witness for reputation or opinion evidence, or by introducing a prior consistent statement

Question 27

Hearsay

Answer 27

Heasay is an out of court statement offered for its truth and is generally inadmissible.

Question 28

Assertive conduct

Answer 28

• only assertive conduct brred by hearsay rule
• assertive conduct: laughing, crying, gestures

Question 29

Non-hearsay use

Answer 29

• verbal acts or legally operative facts: statement offered to prove that the statement was made (e.g. acceptance of a contract)
• effect on the listener
• statement of mind - show insanity, knowledge about something

Question 30

non-hearsay

Answer 30

• testifying witness AND (prior inconsistent + made under penalty of perjury, prior consistent + rebut charge of fabrication/rehab witness (also admissible for truth), witness’ prior ID)
• admission of a party opponent (adoptive, vicarious, or co-conspirator during an in furtherance of a conspiracy)

Question 31

hearsay exceptions: declarant unavailable

Answer 31

• unavailable = privilege, refuse, no memoy, dead, ill, absent + can’t be subpoenaed
• former testimony (under oath + party had opportunity to cross examine)
• dying declaration (believes dying, believes death imminent, and relates to cause or circumstances of death + used in homocide case or civil case)
• statement against interest
• statement of personal/family history
• forfeiture by misconduct

Question 32

hearsay exceptions (declarant could still be available)

Answer 32

• present sense impression
• excited utterance
• state of mind
• statement for medical diagnosis
• past recollection recorded
• business records
• public records
• learned treatises
• judgment of previous conviction
• reputation

Question 33

present sense impressions

Answer 33

hearsay exception that applies to statements
* that describe an event or condition AND
* were made while or immediately after the declarant perceived it.

CA: Contemporaneous Statement: A contemporaneous statement is a statement offered to explain, qualify, or make understandable conduct of the declarant made while the declarant was engaged in such conduct.

Question 34

learned treatise

Answer 34

Exception to hearsay for statements in a learned treatise, periodical, or pamphlet when:
1. the statements are called to the attention of or relied on by an expert witness during examination AND
2. the publication is established as a reasonably reliable authority by a party’s expert or judicial notice

Question 35

Excited Utterance

Answer 35

Statements relating to a startling event or condition while the declarant is still under the stress of excitement caused by the event.

CA: Spontaneous Statement: A spontaneous statement is a statement that purports to narrate, describe, or explain an act, condition, or event perceived by the declarant and was made spontaneously while under the stress of excitement of such perception.

Question 36

State of mind

Answer 36

• Statement of a declarant’s then-existing physical, mental, or emotional condition is admissible to prove the existence of that condition.
• A statement f intent can be used to prove action in conformity with that intent

Question 37

Statements made for the purposes of medical diagnosis or treatment

Answer 37

• Describe a declarant’s medical history or past or present symptoms, or even the cause of an injury, if pertinent to treatment or diagnosis
• need not be made directly to a doctor/nurse/etc.
• statement need not necessarily be made by the patient
• who caused injury not pertinent to medical treatment

Question 38

Past recollection recorded

Answer 38

When a witness had inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if:
* record concerns matter about witness once had knowledge
* record was prepared or adopted by the witness whent eh matter was fresh
* record accurately reflects the witness’s knowledge and
* witness testified he has insufficient memory of the event to testify fuly and accurately (even after consulting the writing while on the stand)

the adversary may introduce the document to the jury (aka into evidence)

Question 39

business records

Answer 39

business records admissible if
* made at or near the time of the event it records
* by a person with knowledge of the event and under a duty to report it and
* as part of the regular practice of the business to make that kind of record

NOT admissible if prepared in anticipation of litigation

Question 40

public records

Answer 40

• public records: records of public agencies (activities, observations, factual findings)
• may be excluded if the circumstances indicate a lack of trustworthiness
• police reports being used against criminal D - can only be introduced to show the activities, not what observed or concluded

Question 41

Judgment of previous conviction

Answer 41

admissible to prove any fact that was essential to the judgment

Question 42

reputation

Answer 42

reputation or character of a person is admissible even though hearsay if allowed under character evidence rule

Question 42

Constitutional Limitations to the Hearsay Rule: Confrontation Clause

Answer 42

In a criminal trial, the Confrontation Clause of the Sixth Amendment requires that, in order to admit an out-of-court testimonial statement of a declarant (i.e., hearsay) against a defendant (i) the declarant must be unavailable and (ii) the defendant must have had a prior opportunity to cross-examine the declarant.

Testimonial = made with the primary purpose of ascertaining past criminal conduct (versus meet needs of ongoing emergency etc.)