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 (CEC)

Answer 2

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

Question 3

FRE 403/CEC 352

Answer 3

Evidence whose probative value is substantially outweighed by undue prejudice, confusion, or delay is excluded

Question 4

Form of the Question - Leading Question

Answer 4

Suggests the answer the examiner wants

Not permitted on direct examination, except for preliminary matters & hostile or adverse Ws

Permitted on cross

Question 5

Form of the Question - Calls for Narrative

Answer 5

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

Permitted where W can’t testify in the traditional Q&A format

Asking about a specific conversation is allowed

Question 6

Form of the Question - Compound Question

Answer 6

Asks more than one question in a single question

Question 7

Form of the Answer - Nonresponsive Answer

Answer 7

W doesn’t answer the question or answers beyond yes/no

Question 8

Character Evidence - General

Answer 8

The use of evidence to infer a character trait and then use of that trait to prove conduct in current case is generally inadmissible

Question 9

Character Evidence - Exceptions

Answer 9

FRE: in civ and crim sexual assault/child molestation cases, D’s prior acts of sexual assault/child molestation are admissible to prove conduct in current case

CEC: such evidence isn’t allowed in civ cases

CEC: permits evidence of D’s commission of domestic violence and elder/dependent/child abuse in similar crim cases

Question 10

Character Evidence - If character is in issue

Answer 10

All 3 kinds of CE are admissible

Question 11

Character Evidence - Mercy Rule

Answer 11

In crim cases, D may first offer O/R evidence of D’s relevant good character trait

Then P may 1) rebut with O/R evidence of same bad trait of D; and 2) inquire into specific instances of conduct that are inconsistent with W’s good character testimony

Question 12

Character Evidence - FRE Victim Character Evidence

Answer 12

In crim cases, D may first offer O/R evidence of V’s relevant bad character trait

P can then rebut with O/R evidence of V’s relevant good character trait and D’s same relevant bad character trait

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

Question 13

Character Evidence - CEC Victim Character Evidence

Answer 13

In crim cases, 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, & if V’s character trait introduced by D is for violence, P can also introduce all 3 types of CE of D for violence

Question 14

Character Evidence - Rape Shield Laws

Answer 14

Prohibits use of O/R evidence and evidence of V’s prior sexual conduct to prove V’s consent, in rape and other criminal sexual crimes, and in civil cases of sexual harassment, sexual assault, or sexual battery

Can use prior sexual conduct with that D to prove consent, loss of consortium, and identity

Question 15

Specific Acts Admissible for a Non-Character Purpose

Answer 15

1) Context
2) Common plan or scheme
3) Identity of perpetrator (strikingly similar circumstances)
4) Motive
5) Opportunity
6) State of mind
7) Act not performed innocently or negligently

Question 16

Habit

Answer 16

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

Answer 17

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

Question 18

Policy Exclusion - FRE Subsequent Remedial Measures

Answer 18

Prohibits the admission of SRMs taken after an incident to prove negligence, fault, design flaws, or damages

Permits SRMs when offered for another purpose, such as proving ownership, control, impeachment, or feasibility of precautionary measures or design (if controverted)

Question 19

Policy Exclusion - CEC Subsequent Remedial Measures

Answer 19

SRMs or precautions are also admissible to prove product defects

Question 20

Policy Exclusion - Offers of Compromise

Answer 20

Requires dispute as to liability or damages, & “if, then” condition

Compromise offers and admissions made in connection are inadmissible

Compromise offers may be admitted in crim cases where the negotiations are with a gov’t body

Question 21

Policy Exclusion - Offers to Pay Medical Expenses

Answer 21

The offer itself is inadmissible

FRE, but not CEC, allows admissions made in connection

CEC also excludes humanitarian offers and admissions

Question 22

Policy Exclusion - Benevolent Gestures CEC

Answer 22

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

The admission is admissible

Question 23

Policy Exclusion - Liability Insurance

Answer 23

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

Absence of insurance also excluded

Question 24

Policy Exclusion - Plea Bargains

Answer 24

Inadmissible in all cases

FRE - plea offer if made to prosecutor

CEC - plea offer if made to prosecutor or police

Question 25

Hearsay - General

Answer 25

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

Question 26

Conduct as a Statement

Answer 26

FRE: burden on opponent of evidence to show that the actor intended conduct as a statement CEC: burden on proponent of evidence to show that the conduct wasn't intended as a statement

Question 27

Use of Statements for Nonhearsay Purpose

Answer 27

1) Proof declarant is alive/conscious 2) Proof of why a course of action is taken 3) Effect on hearer/reader 4) Proof of notice to a party 5) Verbal acts of legal significance 6) Proof of declarant's state of mind

Question 28

How Exceptions are Treated

Answer 28

FRE: excluded as not hearsay CEC: hearsay, but excepted

Question 29

Party-Opponent Admissions (CA)/ Opposing Party Statements (FRE)

Answer 29

An assertion by the party opponent that, if true, proves a part of the opposing party's case

Question 30

Vicarious Admissions - FRE

Answer 30

Admissions by employee can be used against employer if made while employee still employed & statement concerns a matter within employee's scope of employment

Question 31

Vicarious Admissions - CEC

Answer 31

Employee's admissions are admissions against employer when the liability of employer is based in whole or in part on the liability of employee

Question 32

Adoptive Admissions

Answer 32

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

Question 33

Authorized Admissions

Answer 33

Apply agency law

Question 34

Co-conspirator Admissions

Answer 34

Admissible if made in course of & in furtherance of the conspiracy. CA requires extrinsic evidence of conspiracy

Question 35

Confrontation Clause

Answer 35

When prosecution offers testimonial statements against D for a HS purpose, the out of court declarant must be produced for cross under oath, or prosecution must show unavailability & that accused had prior opportunity to cross

Question 36

Testimonial Statement

Answer 36

Procured by gov't with an eye toward use at trial

Question 37

Prior Inconsistent Statements - FRE

Answer 37

Statement made prior to the trial that's inconsistent with W's testimony May always be used to impeach May be used for its truth if PIS was made under oath or at a prior proceeding

Question 38

Prior Inconsistent Statements - CEC

Answer 38

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 39

Statements of Identification

Answer 39

Declarant testifies and is subject to cross, and the statement is one of identification of a person made after perceiving the person CEC: limited to crim trials

Question 40

Present Sense Impression (FRE)

Answer 40

Statement explaining or describing an event while the event occurs or immediately thereafter

Question 41

Contemporaneous Statements (CEC)

Answer 41

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

Question 42

Statement of Diagnosis/Treatment (FRE)

Answer 42

Statements made describing pain, cause of pain, medical history, and past and present symptoms, if pertinent to diagnosis or treatment

Question 43

Then-Existing State of Mind (CEC)

Answer 43

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

Question 44

When Declarant is Unavailable

Answer 44

1) Exempt from testifying because of privilege 2) Dead or physically/mentally ill 3) Absent and beyond ct's reach of subpoena 4) Absent despite proponent's reasonable efforts to compel 5) Contumacious declarant Not unavailable if unavailability was procured by proponent of the statement to prevent declarant from testifying

Question 45

Unavailability Exception - Former Testimony FRE

Answer 45

Testimony made under oath, and 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

Question 46

Unavailability Exception - Former Testimony CEC

Answer 46

May also be offered against non-party if similar motive to cross-examine in civil case

Question 47

Unavailability Exception - Dying Declaration FRE

Answer 47

Declarant is "dying;" declarant believes their death is imminent; and statement concerns cause of their death Only available in civil and homicide cases

Question 48

Unavailability Exception - Dying Declaration CEC

Answer 48

Declarant is "dying;" declarant believes their death is imminent; and statement concerns cause of their death Applies in all cases

Question 49

Unavailability Exception - Statement against Interest FRE

Answer 49

Statement must be contrary to declarant's pecuniary or proprietary interest, or tend to subject them to criminal/civil liability Statement can only be disserving of declarant's interest

Question 50

Unavailability Exception - Statement against Interest CEC

Answer 50

Statement must be contrary to declarant's pecuniary, proprietary, or social interest, or tend to subject them to criminal/civil liability Statement can only be disserving of declarant's interest

Question 51

Unavailability Exception - Crime Victim CEC

Answer 51

Statement made by unavailable declarant at or near time of injury/threat describing infliction or threat, in writing or recorded or made to police/medical professional

Question 52

Excited Utterance (FRE)/Spontaneous Statement (CEC)

Answer 52

Made while under the stress of a startling event and describes the event

Question 53

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

Answer 53

How the declarant was feeling, or what they were planing or intending to do

Question 54

Past Recollection Recorded

Answer 54

Writing made when fresh in W's memory and accurately reflects their knowledge W reads the writing into record

Question 55

Business Records

Answer 55

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

Question 56

Official Records

Answer 56

Made by gov't employees with a duty to make such records

Question 57

Learned Treatises - FRE

Answer 57

Admissible to the extent it's called to expert W's attention on cross, or relied upon by expert on direct

Question 58

Learned Treatises - CEC

Answer 58

Admissible to the extent it's called to expert W's attention on cross, or relied upon by expert on direct Doesn't include medical treatises unless expert admits to its authority

Question 59

Commercial Lists

Answer 59

Must be the kind generally relied upon as accurate by the public CA doesn't include market quotations

Question 60

Present Recollection Refreshed

Answer 60

W fails to recall something, but any writing can be used to refresh W's memory W can't read from it; only used to refresh memory Anything used to refresh memory must be shown to opposing party

Question 61

Witness Impeachment - FRE

Answer 61

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 inadmissible Apply 403 if W is a party

Question 62

Witness Impeachment - CEC

Answer 62

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 Apply 352 if W is a party

Question 63

Lay Opinion

Answer 63

Opinion is based on W's reasonable perception and helps understand W's testimony

Question 64

Expert Testimony

Answer 64

Expert must be qualified on the subject matter, have a proper factual basis for the testimony, testimony must be helpful to the fact-finder Methodology must be generally accepted by the relevant scientific community

Question 65

Writings - Elements

Answer 65

1) Authentication 2) Best (FRE)/Secondary (CEC) Evidence Rule 3) Hearsay

Question 66

Authentication

Answer 66

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 the document is what it purports to be

Question 67

Best (FRE)/Secondary (CEC) Evidence Rule

Answer 67

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

Question 68

Privileges - Presumption

Answer 68

If communication is made between the proper parties, there is a presumption of confidentiality that the opposing party must overcome

Question 69

Attorney-Client Privilege

Answer 69

Communication is: 1) Between an attorney and client; 2) Made in the course of the relationship; and 3) Transmitted in confidence

Question 70

Marital Communications Privilege

Answer 70

Communications between spouses made during a valid marriage Privilege extends beyond marriage Not privileged if communication is made to enable a spouse to commit a crime/fraud Both spouses hold the privilege so either can prevent the other from testifying

Question 71

Spousal Privileges

Answer 71

1) Privilege not to be called as a W against a current spouse; and 2) privilege not to testify against a current spouse Waiver of one privilege doesn't waive the other Only the testifying spouse can claim the privilege Privilege ends with marriage

Question 72

Judicial Notice

Answer 72

Court can take judicial notice of a fact that isn't subject to reasonable dispute in that the fact is 1) generally known within the court's territorial jurisdiction or 2) capable of accurate and ready determination by resort to unquestioned accurate sources Is a conclusive presumption in a civil case but only an inference in a crim case