Evidence [Highly Tested Rules]

Question 1

What is the public policy exclusion for liability insurance?

Answer 1

Evidence of a party’s liability insurance (or lack thereof) is NOT admissible to prove the party acted negligently or otherwise wrongfully

ADMISSIBLE:
1. to prove ownership or control (if disputed);
2. to impeach a witness (usually to show bias); or
3. as part of an admission of liability (where the reference to insurance coverage cannot be severed without lessening its probative value as an admission of liability)

Question 2

What is the public policy exclusion for subsequent remedial measures?

Answer 2

Evidence of safety measures or repairs after an accident is NOT admissible:
1. to prove negligence or culpable conduct; or
2. FRE: to prove a product defect in a products liability case based on a theory of strict liability

ADMISSIBLE:
1. to prove ownership or control (if disputed);
2. to rebut a claim that the precaution was not feasible;
3. to prove the opposing party destroyed evidence; or
4. CA: to prove a product defect in a products liability case based on a theory of strict liability

Question 3

What is the public policy exclusion for civil settlements and settlement negotiations?

Answer 3

Evidence of a settlement or offer to settle a civil claim in dispute as to either liability or amount, and statements made during settlement negotiations, is NOT admissible:
1. to prove or disprove the validity or amount of a disputed claim; or
2. to impeach a witness by prior inconsistent statement or contradiction (but ADMISSIBLE for impeachment on ground of bias)

NOTE: This exclusion is not triggered unless a claim is made or threatened, and the claim must be in dispute as to either liability or amount

Question 4

What is the public policy exclusion for payments of or offers to pay medical expenses?

Answer 4

Evidence of payments of or offers to pay medical or similar expenses is NOT admissible to prove liability for the injuries in question
* FRE: Accompanying admissions of fact are ADMISSIBLE
* CEC: Accompanying admissions of fact are NOT admissible

Question 5

What is the public policy exclusion for plea discussions?

Answer 5

Evidence of the following is generally NOT admissible in a civil or criminal case against the defendant who made the plea or participated in the discussions:
1. offers to plead guilty;
2. withdrawn guilty pleas;
3. actual pleas of nolo contendere (“no contest”); and
4. statements of fact made during any of the foregoing plea discussions

CA: It is unclear whether Prop 8 makes these discussions admissible in a California criminal case, but the court may still exclude the evidence under CEC 352

Question 6

What is the CEC-only public policy exclusion for communications and documents prepared in connection with mediation proceedings in civil cases?

Answer 6

Under the CEC, statements made in connection with mediation proceedings are subject to strict confidentiality rules and, subject to limited exceptions (e.g., when all parties consent to disclosure), statements made and writings prepared in connection with a mediation or mediation consultation are NOT admissible in civil cases

NOTE: This exclusion covers communications and documents made outside mediation as long as they were made for the purpose of the mediation

Question 7

What is the CEC-only public policy exclusion for expressions of sympathy in civil cases?

Answer 7

Under the CEC, expressions of sympathy relating to the pain, suffering or death of an accident victim are NOT admissible in civil cases
* BUT: Accompanying statements of fault are ADMISSIBLE

Question 8

What is character evidence?

Answer 8

Character evidence describes a person’s general disposition or propensity for a particular trait and conveys a moral judgment

Question 9

What is the general rule regarding the admissibility of character evidence in a civil case?

Answer 9

In a civil case, character evidence is generally NOT admissible to prove that on a particular occasion, the person acted in conformity with a particular character trait
* But evidence of a person’s character is admissible when their character is directly at issue (i.e., an essential element of a claim or defense)

Question 10

What is the FRE-only exception to the general rule that propensity character evidence is not admissible in a civil case?

Answer 10

FRE: In a civil case in federal court involving alleged acts of sexual assault or child molestation, evidence of the defendant’s other acts of sexual assault or child molestation are ADMISSIBLE for any purpose, including the defendant’s propensity to commit such acts

CEC: In California, there is NO exception for civil cases involving alleged sex offenses

Question 11

What is the general rule regarding the admissibility of character evidence of a defendant in a criminal case?

Answer 11

In a criminal case, only the defendant can “open the door” to character evidence, which he can do by offering reputation and/or opinion testimony of his own good character for a pertinent trait

Question 12

When can the prosecution rebut the defendant’s character evidence in a criminal case?

Answer 12

After a defendant in a criminal case “opens the door” to character evidence by offering evidence of his good character for a particular trait, the prosecution can rebut the defendant’s character evidence by:
1. calling its own character witnesses to provide reputation and/or opinion testimony of the defendant’s bad character for the trait in question; AND/OR
2. cross-examining the defendant’s character witness about specific acts of the defendant that show the defendant’s bad character for the trait in question; however, this questioning is admissible only to impeach the defendant’s character witness by showing their lack of knowledge

Question 13

When can a defendant in a criminal case introduce evidence of the victim’s character?

Answer 13

FRE: Except in sexual assault cases, the defendant may introduce reputation and/or opinion evidence of a bad character trait of the alleged crime victim when it is relevant to show the defendant’s innocence (i.e., the defendant claims he acted in self-defense)

CEC: In California, the defendant can offer evidence of specific instances of the victim’s conduct

Question 14

When can the prosecution rebut evidence of the victim’s bad character in a criminal case?

Answer 14

FRE: Once the defendant has introduced evidence of a victim’s bad character for a pertinent trait (usually violence), the prosecution may rebut the defendant’s character evidence by:
1. calling its own character withnesses to provide reputation and/or opinion testimony of (a) the victim’s good character for the same trait or (b) the defendant’s bad character for the same trait; AND/OR
2. cross-examining the defendant’s character witness about specific instances of the victim’s conduct

CEC: In California, the prosecution can offer evidence of specific instances of the victim’s conduct on BOTH direct and cross-examination
* If the defendant has introduced evidence of the victim’s character for violence, the prosecution may only rebut by offering evidence that the defendant has a violent character

Question 15

When can the prosecution initiate evidence of a victim’s good character in a criminal case?

Answer 15

FRE: In a homicide case in which the defendant pleads self-defense, evidence of any kind that the victim was the first aggressor opens the door to evidence that the victim had a good character for peacefulness
* The prosecution may only offer reputation and/or opinion evidence of the victim’s good character for peacefulness

CEC: California does NOT have an equivalent rule

Question 16

When can the prosecution be the first to introduce evidence of a defendant’s bad character for propensity purposes in a criminal case?

Answer 16

FRE: In a criminal prosecution for sexual assault or child molestation, the prosecution may offer evidence that the defendant committed other acts of sexual assault or child molestation to prove the defendant’s propensity to commit such acts

CEC: California extends this exception to prosecutions for a crime of domestic violence or elder abuse

Question 17

When is evidence of a person’s other crimes, wrongs or acts admissible?

Answer 17

Evidence of a person’s other crimes, wrongs or acts is ADMISSIBLE if relevant to an issue other than their character or propensity to commit the crime or alleged act

Question 18

What are common “non-propensity” purposes for offering evidence of a person’s other misconduct?

Answer 18

Motive
Intent (to show guilty knowledge or lack of good faith)
Absence of Mistake
Identity
Common plan or scheme (e.g., committing one crime in preparation of another)

“MIMIC”

Question 19

What are leading questions?

Answer 19

Leading questions are questions that suggest the desired answer, and they are generally allowed only on cross-examination

EXCEPTIONS:
A court will ordinarily allow leading questions on direct examination:
1. to elicit preliminary or introductory matter
2. when the witness needs help responding because of loss of memory, immaturity, or physical or mental weakness
3. when the witness is hostile, an adverse party, or a witness affiliated with an adverse party

Question 20

What are misleading questions?

Answer 20

A misleading question is one that cannot be answered without making an unintended admission

Ex: “Do you still beat your wife?”

Question 21

What are argumentative questions?

Answer 21

An argumentative question is a leading question that reflects the examiner’s interpretation of the facts or is unnecessarily combative

Ex: “Why were you driving so recklessly?”

Question 22

What are compound questions?

Answer 22

A compound question requires a single answer to multiple questions

Ex: “Did you see and hear the intruder?”

Question 23

What is a non-responsive answer?

Answer 23

A non-responsive answer is a response that does not answer the question asked or goes beyond the question asked

Ex: “Q: Did you leave your house on September 22? A: I went to the dentist and then to the grocery store”

NOTE: A non-responsive answer may be stricken

Question 24

What is a question that calls for a narrative answer?

Answer 24

A question that calls for a narrative answer allows a witness to answer by recounting facts, rather than a specific answer to a specific question

Ex: “Tell me what you did on the evening of September 22”

Question 25

What is a question that calls for speculation?

Answer 25

A question that calls for speculation asks the witness to speculate or theorize as to a fact, rather than answer based on the witness’s personal knowledge

Ex: “What do you think your sister was thinking when she left the house that day?”

Question 26

What is a question that assumes facts not in evidence?

Answer 26

A question assumes facts not in evidence when it assumes a disputed fact is true when it has not been established in the case

Ex: “When did you make your will?” (when there is no evidence that the witness made a will)

Question 27

What is an answer that lacks foundation?

Answer 27

An answer lacks foundation when the witness does not have sufficient personal knowledge as to the facts testified

NOTE: An answer that lacks foundation may be stricken

Question 28

When may a witness refresh their recollection?

Answer 28

A witness may use any writing or object for the purpose of refreshing their present recollection, but they may NOT read from the writing while testifying because it has not been authenticated and is not in evidence

FRE: If the witness refreshed their memory while on the stand, an adverse party is entitled to (1) have the writing produced at trial, (2) cross-examine the witness about the writing and (3) use and introduce relevant portions of the writing into evidence
* If the witness refreshed their memory before taking the stand, it is within the court’s discretion to require the writing be produced

CEC: In California, it is immaterial whether the refreshing was done before or during trial; if the opponent requests the writing, it must be produced

Question 29

When may a witness read a writing into evidence?

Answer 29

If a witness has insufficient recollection of an event to be able to testify full and accurately, even after referring to a writing that has been given to her on the stand, the writing itself may be read into evidence once a proper foundation is laid for its admissibility
* Although the writing is hearsay because it is being offered into evidence to prove the truth of its contents, it is ADMISSIBLE under the “recorded recollection” exception to the hearsay rule

Question 30

What is the proper foundation for a “recorded recollection”?

Answer 30

The foundation for admissibility of the contents of a writing under the “recorded recollection” exception to the hearsay rule requires that (i) the witness at one time had personal knowledge of the facts stated in writing, (ii) the writing was made or adopted by the witness, (iii) the writing was made while the matter was fresh in the witness’s mind, (iv) the writing is accurate, and (v) the witness has insufficient recollection to testify fully and accurately
* Although the record may be read into evidence, it CANNOT be admitted into evidence as an exhibit unless offered by an adverse party

Question 31

When is opinion testimony by lay witnesses admissible?

Answer 31

Opinion testimony by a lay witness is ADMISSIBLE when it is:
1. rationally based on the witness’s perception;
2. helpful to a clear understanding of the witness’s testimony, or helpful to the determination of a fact in issue; AND
3. FRE: NOT based on scientific, technical or other specialized knowledge

Question 32

What are examples of admissible opinions of a lay witness?

Answer 32

An opinion of a lay witness is generally admissible with respect to:
1. the general appearance or condition of a person
2. the state of emotion of a person
3. matters involving sense recognition
4. voice or handwriting identification
5. the speed of a moving object
6. the value of the witness’s own services or property
7. the rational or irrational nature of another’s conduct
8. a person’s intoxication

Question 33

When is opinion testimony of an expert witness admissible?

Answer 33

A witness may provide expert testimony in the form of an opinion if:
1. the subject matter is one where scientific, technical or other specialized knowledge would be helpful to the trier of fact;
2. the witness has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject matter;
3. the opinion is based on sufficient facts or data;
4. the opinion is the product of reliable principles and methods;
5. the expert has reliably applied the principles and methods to the facts of the case; AND
6. the expert possesses reasonable certainty or probability of his opinion

Question 34

How is the reliability of expert opinion testimony determined under the FRE?

Answer 34

When federal courts determine the reliability of the theory or methodology underlying an expert opinion, they consider the following factors under the Daubert-Kumho test:
1. whether the expert’s theory or methodology has been tested;
2. whether it has been subject to peer review and publication;
3. its known or potential error rate;
4. the existence and maintenance of standards controlling its operation; AND
5. whether it is generally accepted in the relevant field

Question 35

How is the reliability of scientific expert opinion testimony determined under the CEC?

Answer 35

When California courts determine the reliability of scientific expert opinions, under the Kelly-Frye test, only one factor is considered: whether the opinion is based on scientific principles that are generally accepted in the relevant scientific field

NOTE: This standard does NOT apply to non-scientific opinions, the reliability of which is determined based on the facts and circumstances of the case

Question 36

What are the rules regarding bolstering or accrediting the testimony of a party’s own witness?

Answer 36

FRE: Generally, a party is NOT permitted to bolster or accredit the testimony of their witness until the witness has been impeached

CEC: The CEC rule is the same in civil cases; in criminal cases, Prop 8 allows the prosecution and defendant to bolster a witness’s credibility before it has been impeached

Question 37

What are the available methods of impeachment?

Answer 37

1. Prior Inconsistent Statement
2. Bias
3. Sensory Deficiencies
4. Contradiction
5. Reputation or Opinion Testimony of Untruthfulness
6. Prior Conviction
7. Bad Acts

Question 38

How can a witness be impeached with their prior inconsistent statement?

Answer 38

A party may show, by cross-examination or extrinsic evidence, that a witness has made a prior statement inconsistent with their present testimony
* To prove the prior inconsistent statement by extrinsic evidence, a proper foundation must be laid and the statement must be relevant to some issue in the case

Question 39

What foundation must be laid to prove a prior inconsistent statement by extrinsic evidence?

Answer 39

Extrinsic evidence can be introduced to prove a prior inconsistent statement only if:
1. its content is NOT collateral (i.e., it is probative of a fact of consequence in the case or says something about the witness’s credibility);
2. at some point, the witness is given an opportunity to explain or deny the statement; AND
3. at some point, the adverse party is given an opportunity to examine the witness about the statement

Question 40

When does the foundation requirement for using extrinsic evidence to prove a prior inconsistent statement NOT apply?

Answer 40

The foundation requirement for using extrinsic evidence to prove a prior inconsistent statement does NOT apply:
1. if the prior inconsistent statement is an opposing party’s statement;
2. if the prior inconsistent statement was made by a hearsay declarant and used to impeach the hearsay declarant; or
3. if the court finds justice requires dispensing with the foundation requirement (e.g., the witness has left the stand and is unavailable when their prior inconsistent statement is discovered)

Question 41

When does a prior statement that omits a fact asserted during the witness’s testimony constitute a prior inconsistent statement?

Answer 41

A witness’s prior statement that omits a fact asserted during his current testimony may constitute a prior inconsistent statement if it would have been natural for the witness to include the omitted fact in their current testimony if they believed it to be true

Question 42

What is impeachment by bias?

Answer 42

Evidence that a witness is biased or has an interest in the outcome of a case tends to show that the witness has a motive to lie
* Impeachment with bias may be done by cross-examination or extrinsic evidence

Foundation for Extrinsic Evidence
Because impeachment with bias is not specifically addressed by the FRE, much is left to the court’s discretion
* The MAJORITY rule is that before a witness can be impeached by extrinsic evidence of bias, they must FIRST be asked about the facts that show bias on cross-examination

Question 43

When can a witness be impeached by showing they suffered sensory deficiencies?

Answer 43

A witness may be impeached by showing, either on cross-examination or by extrinsic evidence, that their faculties of perception and recollection were so impaired as to make it doubtful that they could have perceived the facts about which they testified
* There is NO foundation requirement for proving the witness’s sensory deficiency with extrinsic evidence

Question 44

How can a witness be impeached by contradiction?

Answer 44

On cross-examination, a lawyer may attempt to make a witness admit that he lied or was mistaken about some fact they testified to during direct examination
* If the witness does NOT admit the contradiction, extrinsic evidence may be used to prove the contradictory fact UNLESS the contradictory fact is collateral (i.e., it has no significant relevance to the case or to the witness’s credibility)

Question 45

How can a witness be impeached by reputation or opinion evidence of his bad character for truthfulness?

Answer 45

A witness can be impeached by calling a character witness to provide reputation or opinion testimony of the witness’s bad character for truthfulness to suggest that the witness was not telling the truth on the stand

Question 46

When can a witness be impeached with evidence of his prior felony conviction under the FRE?

Answer 46

Under the FRE, a witness may be impeached evidence of his prior felony conviction
* Felonies involving “crimen falsi” crimes (i.e., crimes involving a false utterance) are admissible, and the court has no discretion to exclude them UNLESS they are more than 10 years old
* Other felonies are admissible subject to the court’s discretion; however, if a criminal defendant is being impeached, evidence of other felonies is admissible ONLY if the prosecution shows its probative value OUTWEIGHS its prejudicial effect

Question 47

When can a witness be impeached with evidence of his prior felony conviction under the CEC?

Answer 47

In California, a witness may be impeached with evidence of his prior conviction of a felony involving “moral turpitude” (e.g., lying, violence, theft, extreme recklessness, sexual misconduct)
* In a civil case, the witness can only be impeached with the fact they have been convicted
* In a criminal case, evidence of the circumstances underlying the conviction is admissible if it has any tendency to disprove the witness’s credibility

Question 48

When can a witness be impeached with evidence of his prior misdemeanor conviction?

Answer 48

FRE: Under the FRE, a witness may be impeached with evidence of his prior conviction of a misdemeanor for a crimen falsi crime, and the court has no discretion to exclude the evidence UNLESS the conviction is more than 10 years old

CEC: In California, prior misdemeanor convictions are ONLY admissible for impeachment purposes (1) in a criminal case (Prop 8 makes the evidence admissible) and (2) when the misdemeanor was a crime of moral turpitude
* Evidence of the misdemeanor conviction is subject to the court’s discretion under CEC 352

Question 49

When is evidence of an older conviction admissible?

Answer 49

FRE: If more than 10 years have passed since the witness’s conviction or release from confinement, whichever is later, evidence of the conviction is NOT admissible UNLESS (1) its probative value substantially outweighs its prejudicial effect (reverse-403 balancing) and (2) its proponent gives the adverse party reasonable written notice of the intent to offer the evidence

CEC: California does NOT have a specific rule for older convictions, but the court may consider the age of the conviction as a factor diminishing its probative value when applying the CEC 352 balancing test

Question 50

When can a witness be impeached with evidence of his prior bad acts?

Answer 50

FRE: Under the FRE, subject to the court’s discretion, a witness may be interrogated on cross-examination about specific instances of their conduct if they are probative of their character for dishonesty, but (1) the cross-examiner must have a good faith basis to believe the witness committed the acts in question, (2) extrinsic evidence is not permitted, and (3) the cross-examiner cannot refer to any consequences the witness may have suffered (e.g., arrest, termination of employment, etc.)

CEC: The CEC does not permit impeachment with bad acts that did not lead to a conviction, but, in a criminal case, Prop 8 allows specific instances of moral turpitude to be admissible for impeachment, and extrinsic evidence CAN be used

Question 51

How may an impeached witness be rehabilitated generally?

Answer 51

A witness who has been impeached may be rehabilitated by (1) explaining or clarifying the impeaching facts on redirect examination, (2) calling other witnesses to give reputation or opinion testimony about the impeached witness’s good character for truthfulness (only if the witness’s character for truthfulness was attacked, (3) introducing the witness’s prior consistent statement if offered to rebut an attack on the witness’s credibility based on an improper motive, and the prior consistent statement was made before the alleged improper motive arose, or (4) introducing the witness’s prior consistent statement if offered to rehabilitate the witness impeached:
* FRE: on some different ground (other than general untruthfulness) if the prior consistent statement tends to rehabilitate the witness under the circumstances
* CEC: with a prior inconsistent statement, and the prior consistent statement was made before the prior inconsistent statement

Question 52

What are common examples of non-hearsay?

Answer 52

The following statements are not hearsay (nonhearsay) because they are not being offered for the truth of the matter asserted:
1. Verbal acts or legally operative facts (e.g., words of contract or defamatory words)
2. Statements offered to show their effect on the listener or reader (e.g., to prove notice in a negligence case)
3. Statements offered as circumstantial evidence of the declarant’s state of mind (e.g., when a party is trying to prove someone’s insanity or knowledge)

Question 53

What is double hearsay?

Answer 53

Hearsay that incorporates one or more other hearsay statements within it (“hearsay within hearsay” or “double hearsay”) is admissible ONLY IF both the outer hearsay statement and the inner hearsay statement fall within a hearsay exception or exclusion

Question 54

What are the hearsay “exclusions”?

Answer 54

Statements by or Attributable to Opposing Party (Admissions by Party-Opponent)
1. Party Statements (Admissions)
2. Adoptive Statements (Admissions)
3. Vicarious Statements (Admissions)
4. Co-conspirator Statements (Admissions)

Statements by Testifying Declarant-Witness
1. Prior Identification
2. Prior Inconsistent Statement
3. Prior Consistent Statement

Question 55

What is the “prior identification” hearsay exclusion/exception?

Answer 55

FRE: A prior statement by a testifying declarant-witness who is subject to cross-examination is not hearsay if the prior statement is one of identification of a person as someone the witness perceived earlier

CEC: The California exception imposes the following additional requirements:
1. the identification must have been of a person who participated in a crime or other occurrence;
2. the witness must have made the identification while their memory was fresh; and
3. the witness must confirm in court that they made the identification and that it truly reflected their opinion at the time

Question 56

What is “prior inconsistent statement” hearsay exclusion/exception?

Answer 56

FRE: A prior statement by a testifying declarant-witness who is subject to cross-examination is not hearsay if:
1. the prior statement is inconsistent with the declarant-witness’s in-court testimony; and
2. was given under oath at a prior trial, hearing or deposition

CA: The California exception does NOT require the prior inconsistent statement to be given under oath

Question 57

What is “prior consistent statement” hearsay exclusion/exception?

Answer 57

FRE: A prior statement by a testifying declarant-witness who is subject to cross-examination is not hearsay if the prior statement is consistent with the declarant-witness’s in-court testimony and is offered:
1. to rebut a charge that the witness is lying or exaggerating because of some improper motive, and the prior consistent statement was made before any motive to lie or exaggerate arose; or
2. to rehabilitate a witness impeached on some other ground (other than a general attack on the witness’s character for truthfulness), and the prior consistent statement tends to rehabilitate the witness under the circumstances

CA: The California exception allows a testifying witness’s prior consistent statement to be admitted, only if offered to rebut an attack on the witness’s credibility based on improper motive or prior inconsistent statement, and the prior consistent statement was made BEFORE any motive to lie arose or the prior inconsistent statement was made

Question 58

When are a party’s statements/admissions NOT hearsay?

Answer 58

Statements made by an opposing party and offered against them are not hearsay
* Formal judicial statements by a party-opponent are conclusive and cannot be contradicted during trial
* Informal judicial statements and extrajudicial statements by a party-opponent are not conclusive and can be explained

NOTE: Statements (admissions) of a party-opponent do NOT need to have been against their interest when made

Question 59

When are a party’s adopted statements/admissions NOT hearsay?

Answer 59

A statement made by a third party and offered against a party-opponent is not hearsay if the party-opponent manifested (by words or conduct) that they:
1. adopted such third party’s statement as their own; or
2. believed such third party’s statement to be true

Silent Adoptive Admissions:
A party-opponent can adopt another’s statement by silence if:
1. the party-opponent heard and understood the statement;
2. the party-opponent was physically and mentally capable of denying the statement; and
3. a reasonable person would have affirmatively denied the statement if they believed it was not true

Question 60

When are a party’s vicarious statements/admissions NOT hearsay?

Answer 60

The following statements are admissible against a party-opponent as vicarious party statements (admissions):
1. a statement made by a person authorized to speak on the party-opponent’s behalf (e.g., authorized spokesperson); and
2. a statement made by the party-opponent’s agent or employee if the statement:
(i) concerned a matter within the scope of their agency or employment; and
(ii) was made during the existence of the agency or employment relationship
* CEC: The CEC has no related provision; however, a statement of an employee is admissible against the employer if the employee’s negligent conduct is the basis for the employer’s liability in a respondeat superior civil case

Question 61

When are a co-conspirator’s vicarious statements/admissions NOT hearsay?

Answer 61

Statements of one co-conspirator, made to a third party in furtherance of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspiracy, are admissible against his co-conspirators

NOTE: The court must first determine the existence of a conspiracy and the participation of the declarant and party against whom the statement is offered by a preponderance of the evidence standard

Question 62

What hearsay exceptions require the declarant to be unavailable under the FRE and CEC?

Answer 62

1. Former Testimony
2. Statements Against Interest
3. Dying Declarations
4. Statements of Personal or Family History
5. Statements Offered Against Person Procuring Declarant’s Unavailability

Question 63

What additional CEC-only hearsay exceptions require the declarant to be unavailable?

Answer 63

1. Statements of Kidnapped or Murdered Declarant in “Serious Felony” Criminal Case
2. Statements of Declarant’s Past Physical Condition or State of Mind When at Issue
3. Statements Describing the Infliction or Threat of Physical Injury

Question 64

When is a hearsay declarant deemed to be “unavailable”?

Answer 64

A hearsay declarant is deemed “unavailable” as a witness if he:
1. is dead or unable to testify due to a then-existing physical or mental illness
CA: inability to testify due to trauma or fear can constitute a mental infirmity rendering the declarant unavailable
2. is exempt from testifying on the ground of privilege
3. FRE: refuses to testify despite a court order to do so
CA: persistently refuses to testify despite having been found in contempt
4. testifies that he does not remember the subject matter
CA: must suffer total memory loss
5. is absent and beyond the reach of the court’s supoena power, and his attendance or testimony cannot be procured by reasonable means

Question 65

What is the “former testimony” hearsay exception?

Answer 65

Testimony given under oath at a trial, hearing or deposition by an unavailable declarant is admissible if the party against whom the former testimony is being offered had an opportunity and similar motive to develop the declarant’s testimony at the prior proceeding

CIVIL CASES ONLY
* FRE: If the party against whom the former testimony is being offered was NOT a party in the prior action, the former testimony is still admissible if that party’s predecessor in interest was a party to such action
* CA: The former testimony is admissible if a party in the prior action had a similar interest to that of the party against whom the testimony is now being offered–neither the current party nor their predecessor in interest need to have been a party to the prior proceeding

Question 66

What are the additional CEC-only “former testimony” hearsay exceptions?

Answer 66

In a civil case in California state court, former testimony given under oath by an unavailable declarant is admissible if offered against a person who offered it in evidence on their own behalf at the prior proceeding OR such person’s successor in interest
* No “similar interest/motive” requirement

Under the California Rules of Civil Procedure, deposition testimony given in the same civil case is admissible for ALL PURPOSES at trial if the deponent:
1. is unavailable at trial; OR
2. lives more than 150 miles from the court house

Question 67

What is the “statement against interest” hearsay exception?

Answer 67

A statement by an unavailable declarant is admissible if:
1. the statement was against the declarant’s pecuniary, proprietary or penal interest when made [CA: also includes “social” interest], such that a reasonable person in the declarant’s position would have made it only if they believed it to be true;
2. the declarant had personal knowledge of the facts; and
3. the declarant was aware that the statement was against their interest when made

FRE: Under the FRE, if the statement is offered in a criminal case and would have subjected the declarant to criminal liability, the proponent must offer corroborating circumstances showing that the declarant’s statement is trustworthy

Question 68

What is the “dying declaration” hearsay exception?

Answer 68

A statement made by an unavailable declarant is admissible if:
1. the statement was made while the declarant believed their death was imminent
2. the statement concerned the cause or circumstances of what the declarant believed to be their imminent death
3. CA: the declarant died as a result

FRE: Under the FRE, this exception applies ONLY in civil cases and homicide cases

Question 69

What is the hearsay exception for “statements offered against a party procuring the declarant’s unavailability”?

Answer 69

FRE: Statements made by an unavailable declarant are admissible when offered against a party who engaged or acquiesced in wrongdoing that procured the declarant’s unavailability as a witness, if the party intended to cause that result

CEC: The CEC hearsay exception specifically provides that the judge has discretion to exclude the statement if it appears untrustworthy

Question 70

What is the CEC-only hearsay exception for “statements describing infliction or threat of physical injury”?

Answer 70

Under the CEC, a statement made by an unavailable declarant that describes, narrates or explains the infliction or threat of physical injury on the declarant is admissible if the statement (1) was made at or near the time of the infliction or threat, (2) was made under circumstances that indicate trustworthiness, and (3) is either in writing, recorded or made to a law enforcement official or medical personnel

Question 71

What is the CEC-only hearsay exception for “statements of past physical condition or state of mind”?

Answer 71

Under the CEC, an unavailable declarant’s statement of their past physical or mental condition, including a statement of intention, is admissible to prove such condition if it is an issue in the case
* The trial judge has specific discretion to exclude statements that are made under circumstances that indicate a lack of trustworthiness

Question 72

What are the hearsay exceptions that do NOT require the declarant to be unavailable?

Answer 72

1. Business Records
2. Judgments (Civil)
3. State of Mind or Physical Condition (Present)
4. Present Sense Impression
5. Excited Utterances / Spontaneous Statements
6. Recorded Reollection
7. Medical Diagnosis / Treatment
8. Convictions (Felony)
9. Learned Treatises
10. Ancient Documents
11. Public Records

“BJ SPERM CLAP”

Question 73

What is the “present sense impression” hearsay exception?

Answer 73

FRE: Under the FRE, a statement that describes or explains an event or condition, and is made while or immediately after the declarant perceives the event or condition, is admissible as a “present sense impression”

CA: The CEC exception for present sense impressions is much narrower and applies only when:
1. a statement explains the declarant’s own conduct; and
2. is made while the declarant was engaging in that conduct

Question 74

What is the “excited utterance” (or “spontaneous statement”) hearsay exception?

Answer 74

A statement relating to a startling event, made while the declarant was under the stress of excitement produced by the event, is admissible as an “excited utterance”

CA: The CEC calls these statements “spontaneous statements”

Question 75

What is the “present state of mind or physical condition” hearsay exception?

Answer 75

A statement of the declarant’s then-existing (present) state of mind (including their motive, intent, or plan) or their emotional, sensory or physical condition is admissible
* “State of mind” includes the declarant’s intent to do something in the future, including the intent to engage in conduct with another person
* But except as to certain facts concerning the declarant’s will, a statement of memory or belief is NOT admissible to prove the truth of the fact remembered or believed

CA: The CEC gives the judge specific discretion to exclude statements that are made under circumstances that indicate a lack of trustworthiness

Question 76

What is the “statements made for purposes of medical diagnosis or treatment” hearsay exception?

Answer 76

FRE: A statement that describes a person’s medical history, past or present symptoms, or their inception or general cause is ADMISSIBLE as an exception to the hearsay rule if it was made for–and reasonably pertinent to–medical diagnosis or treatment
* This exception covers statements of PAST condition

CEC: Under the CEC, this exception applies ONLY where (1) the declarant is a minor at trial, (2) the declarant was under age 12 at the time of their statement, and (3) the statement described an act or attempted act or child abuse or neglect

Question 77

What is the “business records” hearsay exception?

Answer 77

FRE: Any writing or record made by a business as a memorandum of any act, event, condition, opinion or diagnosis is ADMISSIBLE as an exception to the hearsay rule if (1) it was made in the regular course of business, (2) the business regularly keeps such records, (3) was made at or near the time of the event, and (4) consists of matters within the personal knowledge of the entrant, or within the knowledge of someone with a duty to transmit such matters to the entrant

CEC: The CEC exception does NOT refer to opinions or diagnoses, though courts will admit simple opinions and diagnoses

Question 78

What is the required foundation for business records?

Answer 78

The authenticity of a business record must be established by a sponsoring witness, who can be a custodian of records or any person in the business who is knowledgeable about the business’s recordkeeping, either (1) testifying that the record meets the elements of the business records exception or (2) certifying in writing that the record meets the elements of the business records exception

Question 79

What is the “public records” hearsay exception under the FRE?

Answer 79

Under the FRE, a record of a public office or agency is ADMISSIBLE as an exception to the hearsay rule if it was made by and within the scope of the duty of a public employee, was made at or near the time of the event, and (1) describes the activities of the office or agency; (2) describes matters observed pursuant to duty imposed by law (but NOT including police observations when offered in a CRIMINAL case); or (3) contains factual findings resulting from an investigation made pursuant to authority granted by law (but NOT when offered by the PROSECUTION in a CRIMINAL case)

Question 80

What is the “public records” hearsay exception under the CEC?

Answer 80

Under the CEC, a record of an act, condition or event made by a public employee is ADMISSIBLE as an exception to the hearsay rule if (1) making the record was within the scope of their duties, (2) the record was made at or near the time of the matters described and (3) the sources of information and time of preparation indicate trustworthiness

Question 81

What is the “recorded recollection” hearsay exception?

Answer 81

When a witness has insufficient recollection of an event to testify from memory, even after consulting a record, the record itself may be read into evidence if the following foundation is laid:
1. the witness at one time had personal knowledge of the facts recited in the record;
2. the record was made by the witness, under her direction or adopted by the witness;
3. the record was timely made when the matter was fresh in the witness’s mind;
4. the record accurately reflects the witness’s knowledge (i.e., the witness must indicate that the record was accurate when it was made); and
5. the witness has insufficient recollection to testify fully and accurately

NOTE: If admitted, the record may be read into evidence but may NOT be received as an exhibit UNLESS offered by the adverse party

Question 82

What is the “learned treatises” hearsay exception?

Answer 82

FRE: A relevant excerpt from a treatise, periodical or pamphlet may be used to impeach the qualifications of an expert witness, and the excerpt itself may be read into the record if the treatise is (1) called to the attention of the expert witness on cross-examination or relied on by the expert during direct examination and (2) established as reliable authority by the testimony or admission of the witness, by other expert testimony or by judicial notice
* If admitted, the excerpt may be read into evidence but NOT received as an exhibit

CEC: The CEC hearsay exception for learned treatises is very narrow and applies only to facts of general notoriety and interest found in published maps or charts, or books of history, science or art

Question 83

What is the “prior felony convictions” hearsay exception?

Answer 83

FRE: A judgment of a felony conviction is admissible as an exception to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment
* In a criminal case, the government may use a prior conviction for this purpose only against the accused; against persons other than the accused, the government may use prior convictions only for impeachment

CEC: The CEC hearsay exception for prior felony convictions applies only in CIVIL cases; however, a certified copy of a judgment of conviction may be admitted under the public records exception

Question 84

What is the “ancient documents” hearsay exception?

Answer 84

FRE: Under the FRE, an authenticated document prepared before 1998 can be offered for the truth of its contents under the “ancient documents” exception to the hearsay rule

CEC: Under the CEC, a document must be more than 30 years old to fall within the exception

Question 85

What is the FRE-only “catch-all” hearsay exception?

Answer 85

The FRE recognize a “catch-all” hearsay exception that allows a hearsay statement not covered by a specific enumerated exception to be admitted if:
1. it possesses sufficient guarantees of trustworthiness (considering the totality of the circumstances and any corroborating evidence);
2. it is more probative as to the fact for which it is offered than any other evidence the proponent can reasonably obtain; and
3. the proponent gives the adverse party reasonable notice of their intent to offer the statement, including the substance of the statement and name of the hearsay declarant

Question 86

When does the Confrontation Clause bar admission of a hearsay statement?

Answer 86

Under the Confrontation Clause of the Sixth Amendment, a hearsay statement will NOT be admitted (even if it falls within a hearsay exception) when:
1. the statement is offered against the accused in a criminal case;
2. the hearsay 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: However, the statement may be admitted if the prosecution demonstrates that the defendant forfeited his Confrontation Clause objection by wrongdoing that prevented the declarant from testifying at trial

Question 87

When is a statement “testimonial” for purposes of the Confrontation Clause?

Answer 87

A statement is “testimonial” for purposes of the Confrontation Clause if it was made in response to police interrogation, and the primary purpose of the interrogation is to establish or prove past events potentially relevant to a later criminal prosecution
* By contrast, a statement is NOT testimonial if the primary purpose of the interrogation is to enable the police to help in an ongoing emergency

Question 88

What factors are considered in determining whether an “ongoing emergency” existed at the time of police interrogation?

Answer 88

In determining whether an “ongoing emergency” existed at the time of police interrogation, courts consider various factors, including:
1. the nature of the dispute (public vs. private);
2. whether the perpetrator is still at large;
3. the scope of the threat to the victim and to the public; and
4. the type of weapon involved

Question 89

What is the general rule regarding the authentication of evidence?

Answer 89

Any item of documentary or real evidence will not be received in evidence unless it is first authenticated by proof that shows that the item is what the proponent claims it is
* The proof must be sufficient to support a jury finding of genuineness

Question 90

What is the rule regarding the authentication of oral statements?

Answer 90

When an oral statement is admissible only if said by a particular person (e.g., a statement by a party-opponent), authentication of the identity of the speaker is required

Question 91

How can a person’s voice be authenticated?

Answer 91

A voice can be authenticated by the testimony of anyone who has heard the voice at any time, including after litigation has begun and for the sole purpose of testifying

Question 92

How can statements made during a telephone conversation be authenticated?

Answer 92

Statements made during a telephone conversation can be authenticated by any party to the call who testifies that:
1. they recognized the other party’s voice;
2. the speaker had knowledge of certain facts that only a particular person would have;
3. they called a particular person’s number and a voice answered as that person or that person’s residence; OR
4. they called a business and talked with the person answering the phone about matters relevant to the business

Question 93

How can documentary evidence be authenticated?

Answer 93

A document can be authenticated by evidence that:
1. the party against whom it is offered has admitted its authenticity or acted upon it as authentic
2. Eyewitness testimony of anyone who saw the document executed or heard it acknowledged
3. the maker’s handwriting is genuine, which may be in the form of:
(i) the opinion of a lay witness who is familiar with the alleged writer’s handwriting in the course of normal affairs;
(ii) the opinion of an expert who has compared the writing to samples of the alleged writer’s handwriting; OR
(iii) the fact-finder’s (jury’s) comparison of the writing to samples of the alleged writer’s handwriting
4. the writing was written in response to a communication sent to the alleged writer (the “reply letter” doctrine); OR
5. the document is an “ancient document,” meaning it:
(i) is in a condition that creates no suspicion as to authenticity;
(ii) was found in a place where such a document would likely be kept; AND
(iii) is at least FRE: 20 years old or CA: 30 years old

Question 94

What are self-authenticating documents?

Answer 94

Extrinsic evidence of authenticity is not required for the following “self-authenticating” documents:
1. domestic public documents bearing a seal, and similar official foreign public documents;
2. official publications (e.g., a government pamphlet)
3. certified copies of public records or private records on file in a public office
3. newspapers and periodicals
4. acknowledged (notarized) documents
5. commercial paper (including signatures thereon) and related documents
6. FRE: trade inscriptions and labels (meaning, a tag or label that purports to have been attached in the course of business and indicates ownership, control or origin)
7. FRE: business records, electronically generated records, and data copied from an electronic device if:
(i) the records are certified; AND
(ii) the proponent gives the adverse party reasonable written notice and an opportunity for inspection

Question 95

What is the “best evidence rule” (or “secondary evidence rule”)?

Answer 95

When evidence is offered to prove the contents of a “writing,” the best evidence rule requires the original writing to be produced (subject to certain exceptions)
* “Writing”: Includes a writing, recording, photograph, video, x-ray and any tangible collection of data
* “Original”: The writing itself or any counterpart intended to have the same effect as an original, photograph print, and the printout or other readable output of electronically stored information
* “Duplicate”: An exact copy of an original made by mechanical means (e.g., photocopy)

CA: This rule is called the “secondary evidence rule” in California

Question 96

When does the best evidence rule (secondary evidence rule) apply?

Answer 96

The best evidence rule applies in two situations:
1. where the writing is a legally operative or dispositive instrument; OR
2. where a witness’s knowledge of a fact results from having read it in the writing

Question 97

When are duplicates admissible under the best evidence rule (secondary evidence rule)?

Answer 97

Where the best evidence rule applies, duplicates are admissible to the same extent as originals unless:
1. the circumstances make it unfair to admit the duplicate: OR
2. a genuine question is raised about the authenticity of the original

Question 98

When is secondary evidence admissible under the best evidence rule (secondary evidence rule)?

Answer 98

FRE: Secondary evidence of the writing’s contents (such as handwritten or reconstructed copies) is NOT admissible UNLESS a satisfactory excuse is given for nonproduction of the original, such as:
1. loss or destruction of the original (unless the proponent lost or destroyed the original in bad faith);
2. the original cannot be obtained by any available judicial process; OR
3. the original is in the possession of an adversary, who, after due notice, fails to produce it

CA: In California, where the secondary evidence rule applies, duplicates AND any WRITTEN secondary evidence of the original are all usually admissible (unless it would be unfair or a genuine question of authenticity is raised)

Question 99

When does the best evidence rule (secondary evidence rule) NOT apply?

Answer 99

The best evidence rule does NOT apply:
1. where the fact to be proved has an existence independent of any writing (in which case, any witness with personal knowledge of the fact can testify as to it)
2. where the writing is of minor importance (i.e., collateral) to the matter in controversy;
3. to copies of public records that are certified or testified to as correct
4. to summaries of voluminous records
> BUT: the proponent must make originals or duplicates of the underlying documents available for inspection or copying, and the court may order they be produced
5. where the party against whom the writing is being offered has given testimony, a deposition or a written admission about the writing’s contents, the proponent may use such evidence and need not give a satisfactory excuse for non-production of the original writing

Question 100

What is real evidence?

Answer 100

Real evidence is actual physical evidence addressed directly to the trier of fact, and it may be direct, circumstantial, original or prepared (demonstrative)

Question 101

How can real evidence be authenticated?

Answer 101

Real evidence can be authenticated by:
1. witness testimony that the witness recognizes the item as what the proponent claims it is; OR
2. evidence that the item has been held in a substantially unbroken chain of possession

NOTE: If the condition of the object is of significance, it must be shown to be in substantially the same condition at trial

Question 102

What facts are appropriate for judicial notice?

Answer 102

Judicial notice may be taken of any fact “not subject to reasonable dispute” because it (1) is generally known within the trial court’s territorial jurisdiction or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned
* FRE: Judicial notice MAY be taken of such facts at any time, and judicial notice MUST be taken if a party requests it
* CEC: The rule is the same as the FRE, except a court MUST take judicial notice of facts that are universally known, whether or not a party requests it

Question 103

When is a judicially noticed fact conclusive?

Answer 103

FRE: A judicially noticed fact is conclusive ONLY in a civil case

CEC: A judicially noticed fact is conclusive in civil AND criminal cases

Question 104

What is a testimonial privilege?

Answer 104

A testimonial privilege permits a person to refuse to disclose, and prohibit others from disclosing, confidential information in judicial proceedings

Question 105

In general, what type of communications are protected by a privilege?

Answer 105

To be privileged, a communication must be shown or presumed to have been made in confidence, meaning the communication was not intended to be disclosed to third parties
* FRE: Federal courts do NOT recognize a presumption of confidentiality for all privileges, although it has been held that communications between spouses for purposes of the confidential marital communications privilege are presumed to be privileged
* CEC: Under the CEC, a communication made between persons in a privileged relationship is PRESUMED to have been made in confidence, even if the communication was transmitted electronically

Question 106

Is a privilege destroyed when a confidential communication was overheard by an eavesdropper?

Answer 106

Traditionally, an eavesdropper was permitted to testify as to a confidential communication between parties
* FRE: Under the FRE, a privilege is not destroyed because it was overheard by someone whose presence is unknown to the parties
* CA: In California, the holder of a privilege may stop an eavesdropper from revealing confidential communication protected by the privilege

Question 107

When is a privilege waived?

Answer 107

Any privilege is waived by:
1. failure to claim the privilege;
2. voluntary disclosure of the privileged matter by the privilege holder; or
3. a contractual provision waiving in advance the right to claim a privilege

Question 108

What is the attorney-client privilege?

Answer 108

Under the attorney-client privilege, communications between an attorney and client (or their respective representatives) that are intended by the client to be confidential and made for the primary purpose of obtaining or rendering legal services are privileged unless the privilege is waived by the client
* The client holds the privilege and only they can waive it
* The privilege applies indefinitely

CEC: Under the CEC, the attorney-client privilege terminates when the deceased client’s estate has been distributed and the personal representative has been discharged

Question 109

What communications does the attorney-client privilege extend to when the client is a corporation?

Answer 109

FRE: If the client is a corporation, the attorney-client privilege applies to communications between a lawyer and an employee or agent of the corporation if they were authorized or directed by the corporation to make such communications to the lawyer

CEC: Under the CEC, the privilege applies to communications between a lawyer and employee or agent of the corporation if they (1) are the natural person to speak to the lawyer on behalf of the corporation in the matter, or (2) did something for which the corporation may be held liable, and the corporation instructed them to tell the lawyer what happened

Question 110

What are the exceptions to the attorney-client privilege?

Answer 110

The attorney client privilege does NOT apply where:
1. the attorney’s services were sought in furtherance of something the client should have known was a crime or fraud
2. two or more parties consulted the attorney on a matter of common interest, and the communication is offered by one party against the other in subsequent litigation
3. a communication is relevant to an issue of breach of duty in a dispute between the attorney and client
4. the client has otherwise put the legal services at issue in the case
5. a communication is relevant to an issue between parties claiming through the same deceased client
6. CEC: the attorney reasonably believes disclosure of the communication is necessary to prevent a crime that is likely to result in death or substantial bodily harm

Question 111

What is the physician-patient privilege?

Answer 111

In California, the physician-patient privilege applies to a confidential communication with a licensed physician, or someone the patient reasonably believes is a licensed physician, for the purposes of medical diagnosis or treatment
* The privilege also applies to communications with the physician’s staff member while such person is serving as the physician’s agent to gather information to pass on to the physician
* The privilege is NOT applicable in CRIMINAL cases

FRE: Federal courts do NOT recognize a physician-patient privilege

Question 112

What are exceptions to the physician-patient privilege?

Answer 112

The physician-patient privilege does NOT apply where:
1. the patient puts their condition at issue in the case (e.g., in a personal injury case)
2. the professional services were sought to aid in a crime or fraud, or to escape capture after commission of a crime or tort
3. the case alleges a breach of duty between the patient and physician
4. the communication is relevant to an issue between parties claiming through the same deceased patient

Question 113

What is the psychotherapist/social worker-client privilege?

Answer 113

FRE: Federal courts recognize a privilege for confidential communications between a psychotherapist or licensed social worker and their patient/client, and it operates in the same manner as the attorney-client privilege

CEC: The California pschotherapist-patient privilege covers a wide range of mental health workers, including social workers, counselors, school psychologists, etc.

Question 114

What are exceptions to the psychotherapist/social worker-client privilege?

Answer 114

The psychotherapist/social worker-client privilege does NOT apply where:
1. the patient puts their condition at issue in the case (e.g., in a personal injury case)
2. the professional services were sought to aid in a crime or fraud, or to escape capture after commission of a crime or tort
3. the case alleges a breach of duty between the patient and physician
4. the communication is relevant to an issue between parties claiming through the same deceased patient
5. CA: the psychoterapist has reasonable cause to believe the patient is a danger to themselves or others, and that disclosure is necessary to end the danger
6. CA: the patient is a child under the age of 16, and the psychotherapist reasonably believes the child has been the victim of a crime and disclosure is in the best interest of the child
7. CA: the psychotherapist has been appointed by the court

Question 115

What is the spousal testimonial privilege (spousal immunity)?

Answer 115

When the privilege of spousal immunity is invoked, a married person whose spouse is a defendant in a criminal case may not be called as a witness by the prosecution
* A married person may not be compelled to testify against the legal interests of their spouse in any criminal proceeding, regardless of whether their spouse is the defendant
* The privilege can only be claimed during the marriage but covers information learned before marriage
* The privilege belongs to the witness spouse, meaning they cannot be compelled to testify but may choose to do so

CEC: In California, the privilege applies to both criminal AND civil proceedings

Question 116

What is the privilege for confidential marital communications?

Answer 116

In any civil or criminal case, confidential communications between spouses during a valid marriage are privileged
* Either spouse can refuse to disclose the communication or prevent the other person from doing so
* For this privilege to apply, the communication must be made during marriage, but divorce does NOT terminate the privilege