Evidence Rules

Question 1

Spousal Immunity – CA privilege

Answer 1

The spouse of a party to any kind of proceeding may not be called as a witness by the adverse party and may not be compelled to testify against his spouse in that proceeding.

The privilege belongs to the witness-spouse only and can be claimed only during the marriage.

Question 2

Relevance - CA

Answer 2

For evidence to be admissible, it must be logically and legally relevant. Under the California Evidence Code, (“CEC”), evidence is logically relevant it has any tendency to prove or disprove a disputed fact of consequence.

Under Prop 8, any evidence that is relevant may be admitted in a criminal case. However, Prop 8 makes an exception for balancing under CEC 352, which gives a court discretion in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury. This is also known as legal relevenace.

• What does this evidence tend to prove
• Is there a risk it will be prejudicial

Question 3

Nonresponsive answer - CA

Answer 3

A witness’s answer may be stricken as nonresponsive if it goes beyond the scope of the specific question that has been asked.

When a question calls for a “yes” or “no” answer, any additional testimony is subject to being excluded as nonresponsive.

Question 4

Confidential Marriage Communication – CA Privilege

Answer 4

(1) confidentital communications made during a marriage are privileged and inadmissible if they were made during the marriage.
(2) The privilege may be invoked by either spouse.

Question 5

Hearsay - CA

Answer 5

Hearsay is a (1) statement by a declarant, (2) other than one made while testifying at the current trial or hearing, (3) offered in evidence to prove the truth of the matter asserted.

If a statement is hearsay, it is inadmissible and must be excluded unless an exception to the rule applies.

Hearsay is excluded from Prop 8, thereby the ordinary rule of evidence apply to hearsay in criminal cases.

Question 6

Statement against interests – CA Hearsay Exception

Answer 6

A statement of a person, now unavailable as a witness, may be admissible if it was against that person’s pecuniary, proprietary, or penal interest when it was made. This is an exception to the rule against hearsay.

In order to be admissible under the statement against interest exception

(1) the statement must have been against pecuniary, proprietary, or penal interest when made
(2) the declarant must have had personal knowledge of the facts
(3) the declarant must have been aware that the statement is against his interest and must have had no motive to misrepresent at the time of the statement and
(4) the declarant must be unavailable as a witness.

Question 7

Contemporaneous statement - CA Hearsay Exception

Answer 7

The CEC recognizes an hearsay exception for contemporaneous statements that are

(1) made at the time of an occurrence, but this
* only applies to a statement the declarant makes to explain qualify, or make understandable his own conduct, and
(2) the statement must be made while the declarant is engaged in that conduct.

Question 8

Spontaneous Statement – CA Hearsay Exception

Answer 8

The CEC recognizes an exception for spontaneous statement when the

(1) declarant makes a statement while under the stress of excitement caused by the startling event; and
(2) the statement concerns the immediate facts of the startling event

Question 9

Admission by Party Opponent – CA Hearsay Exception

vs

Statement by Opposing Party as Fed Hearsay EXCLUSION

Answer 9

Under the CEC,
(1) any statement made by a party and offered in evidence

(2) against that party is admissible as an exception to the rule excluding hearsay.

Such statements are traditionally referred to as “admissions.”

X’s own out of court statement is being offered against him by Y, which would therefore qualify as a party admission.

FED

*statement by a party and offered against the party is NONHEARSAY

Question 10

Hearsay “Statement” – CA

Answer 10

A “statement: is either a person’s (1) oral or written assertion or (2) nonverbal conduct intended as an assertion.

Question 11

Effect of Statement on Hearer – CA not hearsay

Answer 11

A statement is not offered to prove the truth of the matter asserted (and thus not hearsay) when admitted merely to show the statement’s effect on the hearer or reader.

Question 12

Voice Recognition - CA

Answer 12

Oral statements must be authenticated in cases where the identity of the speaker must be shown to make the statement relevant.

Question 13

Voice Recognition via Phone - CA

Answer 13

Statements made during a telephone call may be authenticated by testimony as to one of the following

(a) the listener recognizes the speaker’s voice
(b) the speaker has knowledge of certain facts that only a particular person would have; or
(c) the speaker has identified himself

Question 14

Hearsay within Hearsay - CA

Answer 14

Hearsay within hearsay if admissible only if both he outer and inner layers fall within a hearsay exception.

Question 15

Present State of Mind - CA hearsay exception

Answer 15

Under the present state of mind hearsay exception, statements of a declarant’s intent are admissible to prove that the declarant carried out that intent.

Question 16

Non Hearsay Purposes

Answer 16

An out of court statement is not hearsay if it is not offered for the truth, but to:

(a) show its effect on the listener

Question 17

Public Records Authentification - CA

Answer 17

Certified copies of public records are self-authenticating

Question 18

Criminal Defendant Offering Victim Character Evidence

Answer 18

(1) a criminal defendant may introduce evidence of a victim’s character to prove that the victim acted in conformity with that character on the occasion in question

Question 19

Witness Impeachment with Felony Conviction - CA

Answer 19

Under the CEC, a witness may be impeached with a felony conviction if

(a) the conviction has not been expunged, nor the witness pardoned;
(b) the felony involves moral turpitude; AND
(c) the conviction’s

Question 20

Witness Impeachment with Felony Conviction - CA

Answer 20

Under the CEC, a witness may be impeached with a felony conviction if

(a) the conviction has not been expunged, nor the witness pardoned;
(b) the felony involves moral turpitude; AND
(c) the conviction’s impeachment value is not substantially outweighed by its dangers

Question 21

Criminal Defendant Offers Good Character Evidence of Himself - CA

Answer 21

Generally, a prosecutor cannot initiate evidence of bad character of a defendant to show that the defendant was likely to have committed the crime charged.

Although, evidence of a criminal defendant’s bad character may be introduced by the prosecution if the defendant had “opened the door” by introducing evidence of his own good character.

Question 22

Impeachment w/ misdemeanor - CA

Answer 22

In CA, a witness in a criminal case can be impeached with a misdemeanor conviction involving moral turpitude.

Question 23

Criminal Defendant Offers Evidence of Victim’s Bad Character

Answer 23

Under the CEC,
(1) a criminal defendant may introduce evidence of the victim’s character to show that the victim acted in conformity on the occasion in question

(2) introducing specific acts of a victim’s character is permissible

Question 24

Leading Question

Answer 24

A leading question is one that suggest the answer, and such questions are generally objectionable on direct examination.

Exceptions
(1) Questions used to elicit preliminary or introductory manner

(2) cases in which a witness had a loss of memory or another circumstance in which he needs assistance in responding; or
(3) cases in which a witness is hostile or an adverse party

Question 25

Speculation

Answer 25

An examining attorney may not ask a witness to speculate or hypothesize as to the existence of meaning of a fact

Question 26

Lay Testimony

Answer 26

An opinion by a lay witness is generally inadmissible, except when

(1) it is rationally based on the perception of the witness
(2) it is helpful to a clear understanding of her testimony or to the determination of a material fact; or
(3) it is not based on specialized knowledge

Question 27

Liability Insurance - CA/Fed

Answer 27

Evidence that a person has liability insurance is inadmissible to show whether the person negligently.

Liability insurance may be admitted for a purpose other than negligence, such as:

(a) to prove ownership or control
(b) for the purpose of impeachment
(c) 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 (Don’t worry, my insurance will pay it off)

Question 28

Offer to Pay Medical Expenses

CA

Fed

Answer 28

CA - Offers to pay medical expenses AND accompanying admissions of fact are inadmissible to prove liability for the jury.

Fed - Offers to pay medical expenses are inadmissible to prove liability for the jury BUT ACCOMPANYING ADMISSIONS OF FACT ARE ADMISSIBLE.

Question 29

Present Bodily Condition - CA Hearsay Exception

Answer 29

Under the CEC, a hearsay exception occurs when a declarant’s statement is to her present bodily condition.

Question 30

Business Records - CA

Answer 30

A writing that is made as a memorandum or record of an event is admissible in evidence as proof of that event if

(1) it was made in the regular course of any business
(2) it was the regular course of such business to make it at the time of the event or within a reasonable time thereafter
(3) the business record consists of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matter to the entrant

Question 31

Official Records - CA

Answer 31

A record of an act, condition, or event made by a public employee is admissible as a hearsay exception if

(1) making the record was within the scope of the public employee’s duties
(2) the record was made at or near the time of the matters described; and
(3) the sources of information and the time of preparation indicate trustworthiness

Question 32

Co-conspirator Admission - CA

Answer 32

(1) An admission by one conspirators,
(2) made to a third party in furtherance of conspiracy to commit a crime,
(3) while the declarant was a participant in the conspiracy

may be admitted against a co-conspirator

Question 33

Confrontation Clause - CA

Answer 33

Under the confrontation clause, even if a hearsay statement comes under an exception, it will not be admitted where:

(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 statement before trial

A statement made during police investigation, when the main purpose of the interrogation is to establish facts that may be relevant to a later criminal prosecution, is testimonial in nature.

Question 34

Expert Witness Qualification

CA

Fed

Answer 34

CA
To be qualified as an expert, a witness must have special knowledge, skill, experience, training, or education to sufficiently qualify her as an expert on the subject to which her testimony related.

Fed
(1) witness must be qualified as an expert

(2) must be at least reasonably certain about their opinion
(3) the subject matter is one where scientific, technical, or other specialized knowledge would be helpful to the jury
(4) the opinion is based on sufficient facts or data
(5) the opinion is the product of reliable principles and methods; and
(6) the expert has reliably applied the principles and methods to the facts of the case

Question 35

Subject Matter of Expert Testimony - CA

Answer 35

An expert may state an opinion if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact determine a fact in issue.

Question 36

Basis of Expert’s Opinion - CA/Fed

Answer 36

To be admissible, the expert’s opinion must be based on

(a) facts that the witness knows from his own observation
(b) facts presented in evidence at trial and submitted to the expert
(c) facts not in evidence that were supplied to the expert out of court and which are of a type reasonably relief upon by experts in the particular field in forming opinions on the subject

Question 37

Best Evidence Rule

Answer 37

Under the best evidence rule, when the terms of a writing in the case are material, the original must be produced.

This rule applies where the knowledge of a witness concerning a fact results from having read it in the document.

An exact copy of an original, such as a photocopy, is admissible to the same extent as the original unless

(a) there is a genuine question as to the original’s authenticity; or
(b) under the circumstances, it would be unfair to admit the duplicate in place of the original

Question 38

SIC for Impeachment

Answer 38

SIC may be used to impeach a witness when

(1) a witness is being interrogated on cross-exam on any SIC that is proactive of truthfulness
(2) but the inquiry must be made in good faith

Question 39

Similar Accidents or Injuries Caused by Same Condition

Answer 39

Evidence of prior accidents or injuries cuaused by the same event or condition and occurring under substantially similar circumstances is admissible to prove

(a) the existence of a dangerous condiction
(b) that the dangerous condition was the cause of the present injury; or
(c) that the defendant had notice of the dangerous condition (if the other accident occurred before the plaintiff’s accident)

Question 40

Evidence of similar occurrence may be admitted for the purposes

Answer 40

(1) pre-existing condition
(2) false claim
(3) intent
(4) rebutting claim of impossiblity
(5) evidence of sale price of similar property to establish value
(6) Habit
(7) industry custom

Question 41

Habit

Answer 41

A habit describes a person’s regular response to a specific set of circumstances objectively without suggesting anything about the person’s morality.

Question 42

Subsequent Remedial Measures Inadmissible - Fed

Answer 42

Evidence of repairs or other precautionary measures made following an injury is not admissible to prove
(a) negligence

(b) culpable conduct
(c) a defect in a product or its design, or
(d) a need for warning or instruction

Question 43

Subsequent Remedial Measures Admissible - Fed

Answer 43

Evidence of subsequent remedial measures is admissible for the purposes:

(a) to prove ownership or control
(b) to rebut a claim that a precaution was not feasible; or
(c) to prove that the opposing party has destroyed evidence

Question 44

Evidence of Settlement - Fed

Answer 44

Evidence of a compromise (settlement) or an offer to prove compromise a civil claim is not admissible in any case to

(a) prove or disprove the validity or amount OF A DISPUTED CLAIM, or
(b) impeach a witness by a prior inconsistent statement or contradiction
* conduct or statements made in the course of negotiating a compromise-including direct admissions of liability- are also inadmissible for these purposes
* but evidence of settlement is admissible to impeach a witness on the ground of bias

Question 45

Disputed Claim Element of Bar on Evidence of Settlement - Fed

Answer 45

The claim must have been in dispute as to either (1) liability or (2) amount

Question 46

Civil Dispute with government authority - Fed

Answer 46

Conduct or statements made during compromise negotiations regarding a civil dispute with a governmental regulatory, investigative, or enforcement authority, are not excluded when offered in a CRIMINAL case.

Question 47

Plea Discussions - Fed

Answer 47

The following are generally inadmissible in any criminal or civil case against the defendant who made the plea or participated in the discussions

(a) offers to plead guilty
(b) withdrawn guilty please
(c) actual pleas of solo contenders;
(d) statements of fact made during any of the above plea discussions
* an actual guilty plea that has not been withdrawn is generally admissible in related litigations a statement of an opposing party

Question 48

Defendant’s Character in Criminal Case - Fed

Answer 48

As a general rule, the prosecution cannot initiate evidence of the defendant’s bad character to show conduct in conformity.

However, because the defendant’s life or liberty is at stake, the defendant is permitted to “open the door” and introduce evidence
of their own good character to show their innocence.

The defendant may offer evidence
of their own good character to prove their conduct in the case. The evidence must

(1) concern a pertinent trait, and
(2) such evidence must be in the form of
(a) reputation and/or
(b) opinion testimony.

Question 49

Requirements for Lay Witness Opinion Testimony - Fed

Answer 49

Opinions by law witnesses are generally inadmissible unless there is no better way for evidence to be obtained and

(1) is 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) not based on scientific, technical, or other specialized knowledge

Question 50

Qualification of an Expert - Fed

Answer 50

The witness possess special knowledge, skill, experience, training, or education.

Question 51

Reasonable Probability - Fed

Answer 51

The expert must have a reasonable level of certainty in the correctness of the opinion. A mere guess or speculation is not sufficient.

Question 52

Expert Testimony Proper Factual Basis Element - Fed

Answer 52

An expert’s option is supported by a proper factual basis when it is based on

(a) facts based on the expert’s own personal observation
(b) facts made know to the expert at trial; or
(c) facts not known personally but supplied to the expert outside the courtroom and of a type reasonably relied upon by other experts in the particular field – even if not admissible as evidence. (But if facts inadmissible, testimony must not disclose the facts unless balanced by the court via 403)
* basis of opinion need not be disclosed on direct, but possibly on cross

Question 53

Daubert Factors - Fed

Answer 53

Federal courts use Daubert factors to determine reliability of scientific testimony:

(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 54

Relevance - Fed

Answer 54

For evidence to be admissible it must be

1. LOGICALLY RELEVANT
   * has any tendency to prove or disprove a fact of consequence and
2. LEGALLY RELEVANT
   * allows the court to determine where’re the probative value is substantially outweighed by a risk of unfair prejudice, confusion of issues and the like

Question 55

Authentification Standard

Answer 55

Authentication of a document requires

1) Sufficient evidence
2) to support a jury finding
3) that the matter is what the proponent claims it is

Question 56

Recorded Recollections

Answer 56

If a witness can’t remember, and is not refreshed by look at a document, the writing itself can be read into the record after a proper foundation is laid.

Foundation requires

1) . the witness at one time had PERSONAL KNOWLEDGE of the events recorded
2) the writing was MADE or ADOPTED by the witness
3) the writing was made while the matter was FRESH in the witness’s mind
4) the writing is ACCURATE
5) the witness has INSUFFICIENT MEMORY to testify fully and accurately