Evidence (FRE + CEC)

Question 1

[EVIDENCE] • 5 • 6th Amendment • Confrontation Clause •

Answer 1

Under the Sixth Amendments Confrontation Clause, a hearsay statement will NOT be admitted when (1) the statement is offered against the accused in a criminal case; (2) the declarant is unavailable; (3) the statement was testimonial in nature, and (4) the accused had no opportunity to cross-examine the declarant’s testimonial statement prior to trial.

NOTE:

• Testimonial = Where the primary purpose of interrogation is to establish or prove past events potentially relevant to a later criminal investigation.
  
  • Examples: Affidavits, certificates, _and_ other written reports summarizing findings of forensic evidence.
• IF** statements are given during an **ONGOING EMERGENCY, then NON-Testimonial.
  
  • Example: Witness gives police officer information about crime.
    
    • ​If crime = still occurring (or criminal not yet captured), then non-testimonial
      
      • Otherwise, it is testimonial.

Question 2

[EVIDENCE] • 14 • Relevance • •

Answer 2

Only relevant evidence is admissible. An item of evidence is relevant if it makes a material issue more or less likely than it would be without the evidence.

NOTE: In CA, issue is only material if it is in dispute.

Question 3

[EVIDENCE] • 2 • Evidence Excluded on Policy Grounds • Evidence of Liability Insurance •

Answer 3

Evidence of liability insurance is NOT admissible to prove culpability , but is admissible to show ownership and control.

Question 4

[EVIDENCE] • 2 • Evidence Excluded on Policy Grounds • Offers to Pay Medical Bills •

Answer 4

Offers to pay medical bills are NOT admissible to prove negligence. Under the Federal Rules of Evidence (FRE), any related statements or factual admissions are admissible. In CA, related statements are NOT admissible.

Question 5

[EVIDENCE] • 2 • Evidence Excluded on Policy Grounds • Offers to Settle •

Answer 5

Offers to settle claims are NOT admissible to prove culpability UNLESS no claim is filed/threatened OR there is no dispute as to liability. CA also excludes statements made during mediation proceedings.

Question 6

[EVIDENCE] • 1 • Evidence Excluded on Policy Grounds • Statements of Sympathy •

Answer 6

In CA ONLY, a defendants statements of sympathy made to the person or the persons family are NOT admissible as evidence of an admission of liability. Any accompanying statements of fault are admissible. This rule only applies to civil cases.

Question 7

[EVIDENCE] • 1 • Evidence Excluded on Policy Grounds • Subsequent Remedial Measures •

Answer 7

Evidence of subsequent remedial measures is NOT admissible to show liability or negligence. However, such evidence is admissible to rebut a defense of impossibility. Under the FRE subsequent remedial measures are also NOT admissible in strict liability cases.

Question 8

[EVIDENCE] • 2 • Evidence Excluded Due to Unfair Prejudice • Unfairly Prejudicial Evidence (403 and 352) •

Answer 8

Under the FRE Rule 403 and CA Evidence Code 352, relevant evidence should be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, waste of time, it is confusing/misleading the jury, or it is cumulative evidence.

Question 9

[EVIDENCE] • 4 • CA Prop 8 • •

Answer 9

Pursuant to Proposition 8, relevant evidence shall not be excluded in any criminal proceeding. Case law has held, however, that Proposition 8 does not affect existing statutory rules relating to privilege, hearsay, section 352, or character evidence. It DOES**, however, affect **witness impeachment rules and perhaps some rules pertaining to opinion evidence and writings.

Question 10

[EVIDENCE] • 1 • Burden of Proof • Criminal Trials •

Answer 10

In criminal trials, the burden of proof lies with the prosecution, who must prove that the defendant committed each element of the crime beyond a reasonable doubt.

Question 11

[EVIDENCE] • 6 • Authentication of Evidence • •

Answer 11

All evidence must be authenticated before being admitted. That is, the party must prove that the item it seeks to admit is actually what the party purports it to be.

Question 12

[EVIDENCE] • 5 • Authentication of Evidence • Physical Evidence •

Answer 12

Physical evidence may be authenticated through witness testimony OR evidence that the object has been held in a substantially unbroken chain of custody.

Question 13

[EVIDENCE] • 2 • Authentication of Evidence • Voice Recordings •

Answer 13

Voice recordings may be authenticated by anyone who has heard the person speak at any time, either first hand or electronically, and who has identified the person as the speaker.

Question 14

[EVIDENCE] • 7 • Best Evidence Rule & Secondary Evidence Rule • •

Answer 14

Under the FRE’s Best Evidence Rule, a party must provide the original document, or a reliable duplicate, when a witness: (1) testifies to the contents of a writing; OR (2) testifies to knowledge gained solely from a writing. Handwritten duplicates are NOT admissible.

However, under CA’s Secondary Evidence Rule, use of copies is preferred. Duplicates and other evidence of contents, including handwritten notes, are admissible.

Question 15

[EVIDENCE] • 7 • Witness Testimony • Lay Witness •

Answer 15

A witnesss testimony is admissible if he is competent to testify. Competency is determined by the witnesss perception, memory, and communication AND the witness taking an oath to tell the truth. Additionally, a witness may only testify to matters of which he has personal knowledge. A lay witness may offer an opinion IF the opinion is rationally based on the witnesss perception AND it is helpful to the jury (legal conclusions are not helpful). Under the FRE, all witnesses are competent to testify except for judges and jurors. In CA, in addition to the above competency factors, the witness must also understand the legal duty to tell the truth. Witnesses are disqualified if they were hypnotized before trial to help refresh recollection in a criminal case UNLESS specific procedures are followed to ensure reliability. Also, judges and jurors may testify if there is no objection.

Question 16

[EVIDENCE] • 3 • Witness Testimony • Expert Witness •

Answer 16

Expert testimony is permitted when (1) the witness is qualified as an expert; (2) the opinion is helpful to the jury (an average jury could not figure the issue out for themselves); (3) the witness believes in the opinion to a reasonable degree of certainty ; (4) the opinion is supported by a proper factual basis (i.e. admitted evidence, personal knowledge, inadmissible evidence that is reasonably relied on, etc.); AND (5) the opinion is based on reliable principles that were reliably applied.

Under the FRE Daubert/Kumho standard , reliability is based on a methodologys (1) publication/peer review; (2) error rate; (3) testability; AND (4) whether it is generally accepted in the field.

Under CAs Kelley/Frye standard , reliability is based on whether a methodology is generally accepted in the field.

Question 17

[EVIDENCE] • 2 • Trial Objections • Assumes Facts Not in Evidence •

Answer 17

A question that assumes facts not in evidence or incorporates facts that have not yet been entered into evidence.

Question 18

[EVIDENCE] • 1 • Trial Objections • Calls for Narrative •

Answer 18

A question that calls for narrative is open ended and requires more than a short response.

Question 19

[EVIDENCE] • 3 • Trial Objections • Leading Question •

Answer 19

A leading question is one that suggests an answer to the witness. Leading questions are permitted on cross-examination, but NOT on direct UNLESS (1) the witness is hostile , an adverse party , or identified with the adverse party ; (2) it is clarifying background information ; OR (3) the witness has difficulty remembering. In CA, leading questions are only permitted on direct in the interests of justice.

Question 20

[EVIDENCE] • 1 • Trial Objections • Non-Responsive Answer •

Answer 20

A non-responsive answer provides more information than the question asked for.

Question 21

[EVIDENCE] • 1 • Trial Objections • Speculation •

Answer 21

A witness may ONLY testify to personal knowledge and cannot speculate.

Question 22

[EVIDENCE] • 1 • Trial Objections • Vagueness •

Answer 22

An attorney should not ask vague or open-ended questions.

Question 23

[EVIDENCE] • 1 • Trial Objections • Scope of Cross-Examination •

Answer 23

The scope of cross-examination is limited to the subject matter of the direct examination AND matters affecting the witnesss credibility.

Question 24

[EVIDENCE] • 2 • Judicial Notice • •

Answer 24

A court may take judicial notice of indisputable facts that are either commonly known in the community OR readily capable of verification. In a criminal case, judicial notice relieves the prosecution of its burden to prove the fact, but the jury can still consider the fact. In a civil case, judicial notice is dispositive of the fact.

Question 25

[EVIDENCE] • 1 • Juror Conduct • Prohibition Against Jury Investigations •

Answer 25

Juries are prohibited from conducting independent investigations of the case, and such conduct may result in a mistrial for the defendant.

Question 26

[EVIDENCE] • 3 • Character Evidence • •

Answer 26

Character evidence is the use of a trait to suggest the trait makes it more likely that a party engaged in the particular conduct at issue in the case. It is generally not admissible.

Evidence of character can be established through reputation, opinion, or specific acts. Character evidence is admissible (a) to prove character when character is an issue in the case; OR (b) to impeach a witness or declarants credibility on the stand.

Under the FRE, if character evidence is admissible, it may be proven on direct by opinion or reputation OR on cross by opinion, reputation, or specific acts.

In CA, if character evidence is admissible, the defendants character may be proven ONLY by opinion or reputation, while a victims character may be proven by opinion, reputation, or specific acts.

Question 27

[EVIDENCE] • 2 • Character Evidence • In Criminal Cases •

Answer 27

Under the FRE, character evidence is admissible if: (a) the case involves crimes of sexual assault or molestation ; (b) the government uses it to prove motive, intent, lack of mistake, identity, or a common plan or scheme; OR (c) the defendant opens the door by presenting character evidence. If the defendant presents evidence of his own character, the government can counter. If the defendant presents evidence of the victims character, the government can present evidence that the defendant possess the same character trait. In a homicide case , if the defendant claims the victim was the aggressor , the government can show the victims character for peacefulness.

In CA, character evidence is admissible if: (a) the case involves crimes of domestic violence, sexual assault, molestation, or elder abuse ; (b) the government uses it to prove motive, intent, lack of mistake, identity, or a common plan or scheme; OR (c) the defendant opens the door. If the defendant presents evidence of his own character, the government may counter. If the defendant presents evidence of the victims character for violence, the government MAY ONLY present evidence of the defendants character for violence.

Question 28

[EVIDENCE] • 1 • Character Evidence • Prior Convictions for Impeachment •

Answer 28

Under the FRE, evidence of prior felony or misdemeanor convictions involving dishonesty are ALWAYS admissible to impeach (the judge has no discretion to exclude it) UNLESS the conviction was expunged. Felonies that do not involve lying are admissible subject to a Rule 403 balance. Felonies over 10 years old are subject to a reverse balance, wherein the felony is inadmissible UNLESS its probative value outweighs unfair prejudice. Other misdemeanors are NOT admissible to impeach.

In CA, felonies involving moral turpitude are ALWAYS admissible to impeach (the judge has no discretion to exclude it) UNLESS the conviction was expunged. Felonies that do not involve moral turpitude are NOT admissible (this is not affected by Proposition 8 because if a conviction does not involve moral turpitude, it is not relevant for impeachment). All misdemeanors are NOT admissible. However, in a criminal case, misdemeanors involving moral turpitude are admissible under Proposition 8, but are still subject to 352 balance.

Question 29

[EVIDENCE] • 1 • Character Evidence • Prior Bad Acts •

Answer 29

Under the FRE, a witness may be impeached with evidence of prior bad acts ONLY IF those acts involved lying; the prior acts may be collateral to the issues in the case. However, extrinsic evidence of the act CANNOT be used to impeach the witness.

In CA, prior bad acts are generally not admissible. However, Prior bad acts are admissible under Proposition 8 only if the act(s) involve moral turpitude. Additionally, the use of extrinsic evidence is permitted on cross-examination.

Question 30

[EVIDENCE] • 15 • Hearsay • General Rule •

Answer 30

Hearsay is an out-of-court statement (words or conduct) that is offered to prove the truth of the matter asserted. Hearsay is ONLY admissible if it falls under an exception. A nonverbal act can be a statement for the purposes of the hearsay rule IF it is intended as an assertion.

Question 31

[EVIDENCE] • 3 • Hearsay • Double Hearsay •

Answer 31

When evidence contains hearsay within hearsay, each level of hearsay must fall within an exception to be admissible.

Question 32

[EVIDENCE] • 4 • Hearsay • Non Hearsay • Out of Court Statement Offered for Non-Hearsay Purpose

Answer 32

An out-of-court statement may be legally significant for a purpose other than to prove the truth of the matter asserted. In such a case, the statements are NOT hearsay. For example, out-of-court statements may be offered to prove that a contract was formed, to show the effect the statement had on the listener, or to show a speakers state of mind.

Question 33

[EVIDENCE] • 14 • Hearsay • Non Hearsay • Admission by Party Opponent

Answer 33

Statement made by a party and offered by an opponent. It need not be against the speaker’s interest.

Question 34

[EVIDENCE] • 1 • Hearsay • Non Hearsay • Adoptive Admission

Answer 34

A persons silence may constitute an adopted admission IF the person heard the statement AND a reasonable person would have denied the statement.

Question 35

[EVIDENCE] • 5 • Hearsay • Non Hearsay • Vicarious Admissions

Answer 35

Vicarious admissions are those made by: (a) an authorized spokesperson ; (b) a principal or agent made during/within the scope of the agency relationship ; OR (c) co-conspirators. In CA, there is no principal agent situation, but in respondeat superior civil cases, statements made by an employee are admissible if the employees negligent conduct is the basis for the employers liability.

Question 36

[EVIDENCE] • 6 • Hearsay • Exception • Declarant Unavailable Requirement

Answer 36

A declarant is considered unavailable as a witness IF the declarant (1) is exempted from testifying due to a privilege ; (2) refuses to testify about the subject matter despite a court order to do so; (3) testifies to not remembering the subject matter; OR (4) cannot be present to testify because of death or illness. The unavailability of the declarant must not have been caused by either party.

Question 37

[EVIDENCE] • 2 • Hearsay • Exception • Dying Declaration

Answer 37

A statement made by a person who is dying is admissible in civil and homicide cases IF the statement was made while the declarant believed death was imminent AND the statement regarded the circumstances or causes of death based on personal knowledge, not mere speculation. In CA, this exception only applies when the declarant is dead. Under the FRE, this exception applies only if the witness is unavailable.

Question 38

[EVIDENCE] • 6 • Hearsay • Exception • Statement Against Interest

Answer 38

A statement made against ones own penal or pecuniary interest is admissible. In CA, statements against ones societal interests are also admissible. This exception applies only if the declarant is unavailable.

Question 39

[EVIDENCE] • 1 • Hearsay • Exception • Prior Statements Made Under Oath

Answer 39

Prior statements made under oath are admissible IF (1) the statements are offered against a party who was present in the previous trial (in a civil case, a party who was in privity with a party in the previous case is sufficient); (2) the same issues are involved; AND (3) the party who it is offered against had the same motive to cross examine the witness in the previous trial and an opportunity to cross examine the witness. In CA, the party who the statements are offered against does NOT have to be in privity with a party in the previous case; that the parties share similar interests is sufficient. This exception applies only if the declarant is unavailable.

Question 40

[EVIDENCE] • 7 • Hearsay • Exception • Excited Utterance

Answer 40

An excited utterance is a statement made after an exciting event while the declarant is still under the stress of the event. There may be a delay between the event and the statement. In CA, this exception is referred to as a spontaneous statement.

Question 41

[EVIDENCE] • 8 • Hearsay • Exception • Present Sense Impression

Answer 41

A present sense impression is a statement describing an event contemporaneously or immediately thereafter. In CA, this exception is referred to as a contemporaneous statement, and it only applies to statements in which the declarant described his own conduct while engaged in that conduct.

Question 42

[EVIDENCE] • 4 • Hearsay • Exception • Business Records

Answer 42

Under the FRE, a business record is admissible IF it is (1) a record of events, conditions, opinions or diagnoses ; (2) that is kept in the regular course of business ; (3) made at or near the time of the matter described; (4) made by a person with knowledge of the matter; (5) it was the regular practice of the business to make such a record; AND (6) the opponent party does not show that the record was made under circumstances indicating a lack of trustworthiness.

In CA, the business record exception does NOT include records of opinions or diagnosis, though courts usually admit simple opinions and diagnosis. Additionally, the party introducing the business record has the burden of showing that the record was made under circumstances indicating trustworthiness.

Question 43

[EVIDENCE] • 2 • Hearsay • Exception • Government and Public Records

Answer 43

Under the FRE, the following are admissible as government or public records UNLESS the opposing party shows that the record was made under circumstances indicating a lack of trustworthiness : (1) A record describing the policies and practices of a public office; (2) Observations made by someone in accordance with his duties by law (excludes officer reports in criminal cases); (3) Factual findings made during an investigation pursuant to authority granted by law (in civil cases and only against the government in criminal cases).

In CA, government or public records are admissible as long as the writing was (1) made by and within the scope of duty of a public employee; (2) made at or near the time of the act, condition, or event; AND (3) the record was made under circumstances indicating trustworthiness. This exception applies to civil and criminal cases, though there may be confrontation clause issues when such records are used against the defendant in a criminal case.

Question 44

[EVIDENCE] • 2 • Hearsay • Exception • Past Recollection Recorded

Answer 44

A past recollection recorded is admissible if (1) the witness had personal knowledge of the events at one time; (2) the witness wrote the writing , ordered it to be written, or adopted the writing; (3) the writing was made while the events were still fresh in the mind of the witness; (4) the writing is accurate ; AND (5) the witness can no longer remember the event.

Question 45

[EVIDENCE] • 2 • Hearsay • Exception • Present Recollection Refreshed

Answer 45

Anything may be used to help refresh a witnesss recollection if the witness once had personal knowledge of the matter, but is unable to recall it on the witness stand. The opposing party may offer into evidence the item used to refresh the witnesss recollection.

Question 46

[EVIDENCE] • 8 • Hearsay • Exception • State of Mind

Answer 46

A statement of the declarants then-existing state of mind (i.e. motive, intent, or plan) OR emotional or physical condition is admissible to prove the declarants state or the declarants conduct. However, statements of memory or belief offered to prove the fact remembered or believed is NOT admissible; though the FRE will permit such use IF it relates to the validity or terms of the declarants will.

Question 47

[EVIDENCE] • 1 • Hearsay • Exception • Statements During Medical Treatment

Answer 47

Under the FRE, statements made concerning a present or past physical state are admissible ONLY IF made for medical diagnosis or treatment.

In CA, statements concerning a persons past physical state are admissible ONLY IF made to medical personnel for the medical diagnosis or treatment of a child-abuse/neglect victim less than 12 years of age.

Question 48

[EVIDENCE] • 3 • Privilege • Attorney-Client •

Answer 48

The attorney-client privilege protects confidential communications between an attorney and her client from disclosure in discovery. Communications between a client and her attorney are privileged and protected from disclosure, even after the client dies, IF the client intended the communication to be confidential AND the communication was made to facilitate legal services. When the client is a corporation , only communications between the attorney and high-level employees are protected. The privilege does NOT apply when (a) legal services are sought to further a crime or fraud ; (b) there is litigation related to a breach of duty between the lawyer and client ; OR (c) joint clients who are later involved in civil litigation. The client holds the privilege and may waive it at any time (through disclosure to a third party).

In CA, the privilege does NOT survive the client. Also, in addition to the above exceptions, the privilege does not apply if the lawyer reasonably believes disclosure is necessary to prevent a crime that is likely to result in substantial bodily harm or death.

Question 49

[EVIDENCE] • 2 • Privilege • Attorney Work Product •

Answer 49

The work product privilege protects all materials prepared by either an attorney OR a client (or their agent) in anticipation of litigation. Such materials are protected from disclosure UNLESS the opposing party can show a substantial need for the evidence AND that it is otherwise unavailable. However, a writing that reflects an attorneys impressions, conclusions, opinions, legal research, or theories is NEVER discoverable.

Question 50

[EVIDENCE] • 2 • Privilege • Eavesdroppers and Privilege •

Answer 50

Unknown eavesdroppers DO NOT destroy privilege. However known or anticipated eavesdroppers WILL destroy privilege.

Question 51

[EVIDENCE] • 2 • Privilege • Spousal Privilege • Confidential Marital Communications

Answer 51

Communications between a husband and wife are privileged IF made during the course of a valid marriage AND intended to be confidential. The privilege is held by both spouses (either may assert it), and applies even after divorce.

Question 52

[EVIDENCE] • 2 • Privilege • Spousal Privilege • Spousal Immunity

Answer 52

Under the FRE, a witness in a valid marriage may refuse to testify against her spouse ONLY in a criminal case. The witness spouse alone holds the privilege, and the privilege ends after divorce. In CA, the spouse holding the privilege may refuse to testify in both civil and criminal cases.