Evidence - FRE & CEC

Question 1

Relevance

Answer 1

Evidence is relevant if it has any tendency to make the existence of any fact that’s of consequence to the determination of the action more or less probable than it would be without the evidence

Question 2

Proposition 8 (CA)

Answer 2

Relevant evidence shall not be excluded in any criminal proceeding, but doesn’t apply to privilege, hearsay, character evidence, or 352

Question 3

FRE 403/CEC 352

Answer 3

Evidence where probative value is substantially outweighed by undue prejudice, confusion, or delay shall be excluded

Question 4

Leading Question

Answer 4

Suggest answer the examiner wants

Not permitted on direct examination except for preliminary matters or hostile/adverse W

Permitted on cross-examination

Question 5

Calls for Narrative

Answer 5

Leads W to tell a story, rather than answer a specific question

Question 6

Assumes Fact Not in Evidence

Answer 6

Examiner assumes a fact as true without first establishing it

Question 7

Compound Question

Answer 7

Asks more than one question in a single question

Question 8

Unresponsive/Nonresponsive Answer

Answer 8

W’s answer goes beyond scope/doesn’t answer

Question 9

Character Evidence - Rule

Answer 9

The use of prior conduct to infer a character trait and then use of that trait to prove conduct in conformity with that trait in the current case is generally inadmissible

Question 10

Character Evidence Exceptions - FRE

Answer 10

In civil and criminal sexual assault/child molestation cases, D’s prior bad acts of sexual assault/child molestation are admissible to prove conduct in the current case

Question 11

If character is at issue in the case

Answer 11

All 3 kinds of CE is admissible

Question 12

Mercy Rule

Answer 12

In crim case, D may first offer O/R evidence of relevant good character trait. Then P may:

Rebut with O/R evidence of same bad character trait of D; and
Inquire into D’s character W’s knowledge D’s specific acts of inconsistent with character trait to impeach W’s credibility

Question 13

Victim Character Evidence - FRE

Answer 13

In crim case, D may first offer O/R evidence of V’s relevant bad character trait. P can then rebut with O/R of V’s relevant good character trait and D’s same relevant bad character trait

In homicide case, if D claims self-defense and produces evidence that V attacked first, P can introduce O/R evidence of V’s peacefulness before D offers CE

Question 14

Victim Character Evidence - CEC

Answer 14

D can introduce all 3 types of CE of V’s bad character. P can then rebut with all 3 types of V’s good character, but if V’s character trait introduced by D is violence, P can ALSO introduce all 3 types of CE of D for violence

Question 15

Specific Acts for a Non-Character Purpose are Admissible

Answer 15

Common plan or scheme
Identity of Perpetrator
Motive
Opportunity
State of Mind

Question 16

Habit Evidence

Answer 16

A person’s regular practice of responding to a particular situation with specific conduct

Admissible to show that the party likely acted in conformity with the habit

Question 17

Custom Evidence

Answer 17

A business’s regular practice of responding to a particular situation with specific conduct

Admissible to show that the business likely acted in conformity with the custom

Evidence that no business follows a custom is admissible to show it’s reasonable not to follow the custom

Question 18

Policy Exclusion - Subsequent Remedial Measures

Answer 18

FRE:
Prohibits the admission of SRM taken after an accident or similar incident to prove negligence, fault, or damages
Permits such evidence to prove ownership, control, or feasibility of precautionary measures or deign (if controverted)

CEC:
Evidence of SRM or precautions admissible to prove product defects

Question 19

Policy Exclusion - Offers of Compromise

Answer 19

Inadmissible to show fault
Requires dispute as to liability or damages and “if, then” statement
Admissions made in connect with offer/settlement negotiations also excluded

Question 20

Policy Exclusion - Offers to Pay Medical Expenses

Answer 20

Admissions made in connection with offer excluded under CEC but admissible under FRE

Humanitarian offer (paying funeral expenses) and associated admissions are excluded in CEC

Question 21

Policy Exclusion - Benevolent Gestures - CEC

Answer 21

“I’m sorry for your loss. It’s my fault”

The second part (admissible) is admissible

Question 22

Policy Exclusion - Liability Insurance

Answer 22

Inadmissible to prove liability or fault, but admissible to prove ownership/control

Absence of insurance excluded

Question 23

Policy Exclusion - Plea Bargains

Answer 23

Inadmissible in all cases

FRE: plea offer must be made to prosecutor

CEC: plea offer must be made to prosecutor or police

Question 24

Hearsay

Answer 24

An out of court statement used to prove the truth of the matter asserted

Question 25

Excepted hearsay is treated as

Answer 25

FRE: excluded as not hearsay

CEC: hearsay but excepted

Question 26

Hearsay Exception - Party Opponent Admission

Answer 26

Admission by the party opponent that proves a part of the proponent’s case

Question 27

Hearsay Exception - Vicarious Admission

Answer 27

FRE: allows admissions by an employee to be used against employer if made while employee is still employed and if the statement concerns a matter within employee’s course and scope of employment

CEC: Employee’s admissions are admissions against employer when the liability of employer is based wholly or in part on the liability of employee

Question 28

Hearsay Exception - Adoptive Admission

Answer 28

Admissible if party would be expected to object if not true, unless statement is made by law enforcement

Question 29

Hearsay Exception - Authorized Admission

Answer 29

Apply agency law

Question 30

Hearsay Exception - Co-conspirator Admission

Answer 30

Admission made in course of and in furtherance of the conspiracy

Question 31

Hearsay Exception - Prior Inconsistent Statement

Answer 31

A statement made prior to the trial that’s inconsistent with what’s said at trial

FRE: If PIS is used to impeach, it’s not hearsay. If PIS is also used for its truth, it must be made under oath or at a prior proceeding

CEC: Admissible for both purposes so long as either W is given opportunity, while testifying, to explain/deny the statement, or W isn’t excused

Question 32

Hearsay Exception - Prior Consistent Statement

Answer 32

Can’t be introduced unless W’s credibility has first been attacked and the PCS was made before the grounds for the attack arose

Question 33

Hearsay Exception - Prior Identification by Witness

Answer 33

Requires the opportunity to cross-examine the declarant

Question 34

Hearsay Exception - Present Sense Impression (FRE)

Answer 34

A statement made by the declarant explaining or describing an event while the event occurs or immediately thereafter

Question 35

Hearsay Exception - Contemporaneous Statement (CEC)

Answer 35

Statement is offered to explain, qualify, or make understandable conduct of the declarant and was made while the declarant was engaged in such conduct

Question 36

Hearsay Exception - Statement for Diagnosis/Treatment (FRE)

Answer 36

Statements made describing pain, the cause of pain, medical history, and past and present symptoms, if they’re pertinent to diagnosis or treatment, are admissible

Question 37

Hearsay Exception - Then-Existing State of Mind (CEC)

Answer 37

Allows statements of the declarant’s then-existing physical sensation

Question 38

Declarant is unavailable if:

Answer 38

Exempt from testifying because of privilege; refuses to testify despite ct order (FRE); testifies to lack of memory on the subject matter of the statement; dead or physically/mentally ill; absent and the statement’s proponent has been unable to procure declarant’s attendance or testimony by process; contumacious declarant; declarant suffers total memory loss or refuses to testify out of fear (CEC)

Question 39

Hearsay Exception Requiring Unavailability - Former Testimony

Answer 39

FRE: Testimony under oath, if the party against whom it’s offered, or their predecessor in interest in a civil case, had an opportunity and similar motive to cross-examine W

CEC: Such evidence may ALSO be offered against non-party if similar motive to cross-examine in civil case

Question 40

Hearsay Exception Requiring Unavailability - Dying Declaration

Answer 40

FRE: only applies to civil and homicide cases, and the statement is made by a declarant who believes their death is imminent, and the statement concerns the cause of their death

CEC: Applies in all cases and the statement must be made by a declarant who believes their death was imminent, and the statement must be concerning the cause of their death but the declarant need not be unavailable

Question 41

Hearsay Exception Requiring Unavailability - Statement against Interest

Answer 41

FRE: statement must be contrary to the person’s pecuniary or proprietary interest, or would tend to subject them to criminal or civil liability. Statement may only be disserving of declarant’s interest

CEC: statement must be contrary to the person’s pecuniary or proprietary interest, or would tend to subject them to criminal or civil liability or against their social interest. Statement may only be disserving of declarant’s interest

Question 42

Hearsay Exception Requiring Unavailability - Crime Victims (CEC)

Answer 42

Where declarant is unavailable and the statements involve a threat or injury, are made shortly after the threat or injury, are in writing or recorded or made to law enforcement, medical personnel, or domestic abuse shelters

Question 43

Hearsay Exception - Excited Utterance (FRE)/Spontaneous Statement (CEC)

Answer 43

Must be made while under the stress of the startling event

Question 44

Hearsay Exception - Statement of Then-Existing Mental, Emotional, or Physical Condition

Answer 44

How was the declarant feeling, or what were they planning or intending

Question 45

Hearsay Exception - Past Recollection Recorded

Answer 45

The writing was made when W’s memory was fresh and accurately reflected their knowledge

Question 46

Hearsay Exception - Business Records

Answer 46

Must be made as part of a regularly conducted activity, at or near the time of the event, by a person with knowledge, and the time and mode of preparation suggest trustworthiness

Custodian must testify to the above

Question 47

Hearsay Exception - Official Records

Answer 47

Record mad by a gov’t employee with a duty to make such records

Question 48

Hearsay Exception - Convictions (CEC)

Answer 48

Apply so long as they’re considered official records

Question 49

Present Recollection Refreshed

Answer 49

Not a hearsay issue
W fails to recall something, but any writing can be used to refresh their memory
W can’t read from it;
Anything used to refresh W’s memory must be shown to opposing party

Question 50

Witness Impeachment - FRE

Answer 50

Convictions: felonies committed within 10 years or dishonesty misdemeanors
May only be impeached with unconvicted bad acts that involve untruthfulness
Extrinsic evidence of prior bad acts is inadmissible

Question 51

Witness Impeachment - CEC

Answer 51

In civil, impeachment can only be with felonies
In crim, Prop 8 allows impeachment of W with felonies, misdemeanors, and prior bad acts involving moral turpitude
Extrinsic evidence of prior bad acts admissible in crim cases to impeach

Question 52

Lay Opinion

Answer 52

Based on W’s reasonable perception, such as manner, temp., behavior, whether W shows adequate foundation or personal knowledge

Question 53

Expert Opinion

Answer 53

Expert must be qualified on the subject matter, have a proper factual basis for the testimony, testimony must help the fact-finder

The methodology must be generally accepted in the relevant scientific community

Question 54

Anytime there’s a writing, you must discuss:

Answer 54

Authentication
Best/Secondary Evidence Rule
Hearsay

Question 55

Authentication

Answer 55

Is the writing, thing, or voice what it purports to be?

Any writing or voice can be authenticated by any number of methods by someone who can prove it is what it purports to be

Certified judgments, notarized deeds, newspapers, are self-authenticating

Question 56

Best (FRE)/Secondary (CEC) Evidence Rule

Answer 56

If the content of the writing is in issue, proponent must produce the original or a copy

Question 57

Attorney-Client Privliege

Answer 57

Privilege attaches if someone consults with a person whom they reasonably believe to be an attorney

Both client and attorney are entitled to assert the privilege, but only client can waive it

Privilege applies to all communications intended to be confidential

Question 58

Physician-Patient Privilege

Answer 58

Same rules for attorney-client privilege

Question 59

Marital Communications Privilege

Answer 59

Communications between two spouses made during a valid marriage are intended to be confidential - extends beyond marriage

If communication is made to enable spouse to commit a crime/fraud, it’s not privileged

Both spouses hold the privilege so either can prevent the other from testifying

Question 60

Spousal Privileges

Answer 60

1) The privilege not to be called as a W against a current spouse, and 2) the privilege not to testify against a current spouse

The waiver of one privilege doesn’t waive the other

Only the testifying spouse can claim the privilege

Ends with marriage

Question 61

Judicial Notice

Answer 61

The fact must not be subject to reasonable dispute in that it is either 1) generally known within the ct’s territorial jurisdiction or 2) capable of accurate and ready determination by resort to unquestioned accurate sources