Flash Card - Evidence

Question 1

When is evidence Relevant?
(logically and legally)

Answer 1

Logically Relevant:
1) When it has any tendency to make a fact more or less probable than it would be without the evidence, AND
2) The fact is of consequence in determining the action (in CA, the fact of consequence must be in dispute).

Legally Relevant:
1) If it’s not excluded on policy grounds; AND
2) If it’s not excluded under FRE 403/CEC 352

Question 2

FRE Rule 403/CEC 352 Exclusions

A court may exclude evidence if its probative value is substantially outweighed by a danger of what?

Answer 2

a) Unfair prejudice;
b) Confusing the issues;
c) Misleading the jury;
d) Undue delay;
e) Wasting time; OR
f) Being needlessly cumulative.

Question 3

What is admissible under California Proposition 8,
and what does it NOT affect?

Answer 3

ALL relevant evidence in a criminal trial.
It does not affect the following:
1) Exclusionary rules based on U.S. Constitution;
2) Secondary/Best evidence rule;
3) Hearsay or privilege exclusions;
4) Evidence barred under rape-shield statutes; and
5) Limits on prosecution from offering specific character evidence.

Question 4

When is evidence Unfairly Prejudicial?

Answer 4

When the evidence is:
1) Unnecessary; AND
2) Might cause the jury to improperly sympathize
or dislike a party.

Question 5

When is evidence of Subsequent Remedial
Measures NOT admissible?

Answer 5

To prove:
a) Negligence;
b) Culpable conduct;

Additionally, under the FRE:
c) A defect in product or design; OR
d) A need for a warning or instruction.

*But, it may be admissible to impeach or prove a disputed issue of ownership, control, or feasibility of precautionary measures.

Question 6

When are Settlement Offers and statements made during Settlement Negotiations NOT admissible?

Answer 6

a) To prove the validity or amount of a disputed claim (claim must be filed or threatened); OR
b) To impeach by a prior inconsistent statement or contradiction.
c) CA: Excludes written/oral statements made during mediation proceedings.

*It may be admitted to: prove bias/prejudice of a witness, negate a contention of undue delay, or prove obstruction in a criminal matter.

Question 7

What Pleas and Plea Negotiations are NOT
admissible in a subsequent civil or criminal case?

Answer 7

1) Statements made during plea discussions.
2) A nolo contendere plea.
3) A defendant’s guilty plea that was later withdrawn.

Question 8

Evidence of paying (or promising/offering to pay for) medical expenses is NOT admissible to prove what?

Answer 8

Liability
(even if there is no disputed claim)
FRE: Any related statements or factual admissions ARE admissible.
CA: Related factual statements are NOT admissible.

Question 9

Evidence of Liability Insurance is NOT admissible
to prove what?

Answer 9

Culpability
(that a person acted negligently or wrongfully)

*However, a court may admit it for another purpose (e.g. proving bias/prejudice of witness, agency, ownership, control, or motive).

Question 10

All physical evidence MUST be authenticated
before being admitted into evidence.

How may physical evidence be Authenticated?

Answer 10

By:
a) Witness testimony; OR
b) By evidence that shows it has been held in a substantially unbroken chain of custody.

*A party must prove that the item it seeks to admit is actually what the party purports it to be, unless stipulated otherwise.

Question 11

Voice recordings may be Authenticated by whom?

Answer 11

By anyone who:
1) Has heard the person speak (either firsthand or
electronically); AND
2) Identified the recorded person as the speaker.

Question 12

What is the Best Evidence Rule?

Answer 12

A party must provide the original document (or a reliable duplicate) when a witness:
a) Testifies to the contents of a writing; OR
b) Testifies to knowledge gained solely from a writing.

FRE: Handwritten duplicates are NOT admissible.
CA: Handwritten duplicates ARE admissible.

*In CA, this rule is called the Secondary Evidence Rule.

Question 13

Character Evidence

Character evidence may only be offered as
circumstantial evidence to prove propensity in what limited circumstances?

Answer 13

1) Criminal cases – by defendant OR by prosecution if the defendant
“opens the door” (unless in CA only: elder abuse or domestic violence);

2) Victim’s character (non sex-offense cases) – to prove defendant’s innocence; prosecution may rebut. (In CA, ONLY violent traits);

3) Homicide cases – if defendant claims victim was the aggressor, the prosecution may offer evidence of the victim’s character for peacefulness. (NOT IN CA);

4) Sex offense cases – not admissible, unless exceptions apply.

5) Civil cases – only if sex offense cases exception applies.
a. In CA, NO exception for sex offense cases.

Question 14

Character Evidence

Under the FRE, what are the exceptions in Sex Offense Cases that allow character evidence (to prove a victim’s sexual behavior or predisposition)
to be admissible?

Answer 14

1) Civil cases: If its probative value substantially
outweighs the danger of harm to the victim and unfair prejudice to any party. (Evidence of the victim’s reputation is admitted only if the victim placed it in controversy).

2) Criminal cases: If offered to prove the defendant was not involved in the sex crime, to prove consent, if offered by the prosecution, OR if exclusion would violate the defendant’s Constitutional rights.

Question 15

Character Evidence

How may character evidence be proven under FRE
and CA rules?

Answer 15

FRE:
By Reputation or Opinion –> In all instances.
By Specific Acts/Instances –> Only allowed:
a) on Cross-Examination of a character witness; OR
b) if “Character in Issue”.

CA:
Generally, the same as FRE.
CA Distinction 􀃆 If D opens door by offering Victim’s bad character in a criminal case, then evidence of opinion, reputation, or specific acts are admissible on both direct and cross examination.

Question 16

Prior Bad Acts may be admissible for NONPROPENSITY purposes, such as?

Answer 16

Proving:
a) Motive;
b) Identity;
c) Absence of mistake or accident;
d) Intent;
e) A common plan or scheme;
f) Opportunity;
g) Preparation; OR
h) Knowledge

Question 17

What must a proponent show in order to offer Prior Bad Acts as evidence?

Answer 17

1) That the prior act was committed by a preponderance of the evidence (vague references are insufficient).
AND
2) That its probative value substantially outweighs the danger of unfair prejudice.

Question 18

When is evidence of a person’s Habit or an organization’s Routine Practice admissible?

Answer 18

To prove that on a particular occasion the party acted in accordance with the habit or routine practice.

*This may be admitted regardless of corroboration or eyewitnesses.

Question 19

Extrinsic Evidence of Prior Inconsistent Statements are only admissible to impeach if it’s what?

Answer 19

1) Relevant to a material issue at trial (other than the witness’s credibility); AND
2) A proper foundation is shown (witness is given a chance to explain/deny, and the adverse party is given a chance to examine the witness about it).

*BUT, the above limitation is NOT applicable to statements by a party opponent.

*CA = Prior inconsistent statement is admissible as non-hearsay when offered only to impeach a witness. It is also an exception to the hearsay rule.

Question 20

Under the FRE, when is evidence of Prior Convictions admissible to attack a witness’s character for truthfulness?

Answer 20

1) Prior felony or misdemeanor convictions involving dishonesty
– a dishonest act or false statement.
2) In Felonies that DO NOT involve dishonesty, when:
a. In a criminal/civil case, where the witness is not a criminal defendant;
b. In a criminal case where the witness IS a defendant,
BUT the probative value outweighs the prejudicial
effect.

*Evidence of a conviction is NOT admissible if it has been pardoned/annulled on a finding of innocence.

Question 21

In CA, when is evidence of Prior Convictions admissible to attack a witness’s character for truthfulness?

Answer 21

Felony –> only convictions involving moral turpitude (subject to CEC 352 balancing).

Misdemeanor –> only admissible: (1) in a criminal case, AND
(2) if prior misdemeanor conviction involves moral turpitude.

Moral turpitude = crimes involving lying, violence, sex crimes, and extreme recklessness.

Question 22

When may a witness’s credibility be attacked on cross-examination with Specific Instances of Conduct (i.e. prior bad acts)?

Answer 22

Under the FRE: Only when:
The conduct is probative of the witness’s character for truthfulness or untruthfulness. (BUT, extrinsic evidence is NEVER admissible to attack/support such instances of a witness’s credibility.)

In CA: Prior bad acts are only admissible under Proposition 8 if the acts involve moral turpitude.

Question 23

How can a witness’s Character for Truthfulness
(credibility) be attacked or supported?

Answer 23

By:
a) Reputation testimony about the witness’s character for truthfulness or untruthfulness in the community; OR
b) Opinion testimony about the witness’s character.

**Evidence of truthful character is only admissible AFTER the witness’s character for truthfulness has been attacked.

Question 24

May a witness’s ability to observe, remember, or
relay facts accurately be attacked on impeachment?

Answer 24

YES, a witness may be impeached on these issues on:
a) cross-examination; OR
b) with extrinsic evidence.

Question 25

Under the FRE, how may a Hearsay Declarant’s
credibility be impeached (when a hearsay statement has been admitted into evidence)?

Answer 25

By any evidence that would be admissible if the declarant had testified as a witness.

*A court may admit evidence of inconsistent statements/conduct regardless of when the statement occurred or if the declarant had the opportunity to explain or deny it.

Question 26

When is Refreshing a Witness’s Recollection using
a document permitted?

Answer 26

When:
1) The witness once had a personal knowledge of the matter,
2) But is unable to recall the matter when testifying.
a. In CA: The refreshing may be done prior to or
during trial.

**Only the opposing party may offer the document into evidence.

Question 27

What is the Scope of Cross-Examination?

Answer 27

1) The subject matter of the direct examination(s);
AND
2) Matters affecting the witness’s credibility.

Question 28

When may a court take Judicial Notice?

Answer 28

When indisputable facts are either:
a) Commonly known in the community; OR
b) Readily capable of verification and cannot be reasonably questioned.

FRE: In civil cases, the court must instruct the jury to accept the facts as conclusive. In criminal cases, they must instruct the jury that they may or may not accept the noticed facts as conclusive.

CA: Judicially noticed facts are conclusive in civil & criminal cases.

Question 29

Trial Objections

What is a leading question, and when are they
permitted on direct examination?

Answer 29

One that suggests an answer to a witness. They are allowed on direct when:
a) The witness is hostile, an adverse party (or identified with);
b) It clarifies background information; OR
c) The witness has difficulty remembering.

In CA: Leading questions are ONLY permitted on direct examination in the interests of justice.

Question 30

What is a Lay Witness?
When is Lay Witness testimony admissible?

Answer 30

Any person who gives testimony in a case that is NOT called as an expert. Their testimony is admissible if they are competent to testify (FRE: competency is presumed, additionally. CA: the witness must understand the legal duty to tell the truth).

They must take an oath to tell truth, only testify to matters of personal knowledge, AND have the capacity to perceive, recall, and communicate.

Question 31

When may a Lay Witness offer an opinion?

Answer 31

If it is:
1) Rationally based on the witness’s perception;
2) Helpful to clearly understand the testimony or to determine a fact in issue;
AND additionally, under the FRE:
3) Not based on scientific, technical, or other specialized knowledge.

Question 32

When is Expert Witness testimony permitted?

Answer 32

When the:
1) Witness is qualified as an expert;
2) Testimony is helpful to the trier of fact;
3) Testimony is based on sufficient facts/data;
4) Testimony is based on reliable principles/methods;
AND
5) Witness reasonably applied the principles/methods to the facts of the case.

Question 33

Expert Testimony

What is reliability based on (FRE vs. CA)?

Answer 33

FRE Daubert/Kumho standard:
Reliability is based on the methodology’s: (1) Testability; (2) Publication & Peer Review; (3) Error Rate; (4) Standards & Controls; AND (5) Whether it is generally accepted in the field.

CA Kelly/Frye standard:
Reliability is based on whether a methodology is generally accepted in the field.

Question 34

What is Hearsay?

Answer 34

1) An out of court statement,
2) That is offered to prove the truth of the matter asserted.

*Hearsay is ONLY admissible if it falls under an exception.

*A statement is an oral/written assertion or nonverbal conduct if intended as an assertion (it MUST assert something).

Question 35

What is Non-Hearsay?

Answer 35

An out of court statement that is offered to prove something other than the truth of the statement. It IS admissible.

Non-Hearsay includes:
1) Verbal acts of independent legal significance.
2) Statements to show the effect on the listener.
3) A prior inconsistent statement used to impeach.
4) Circumstantial evidence of the speaker’s state of mind.

Question 36

What is a Statement by a Party Opponent?
(deemed non-hearsay under the FRE, and a hearsay exception under CA)

Answer 36

1) Any statement offered against an opposing party,
2) That either:
a. Was made by the party in an individual or
representative capacity;
b. Is adopted or believed to be true;
c. Was made by an authorized person;
d. Was made by the party’s agent or employee; OR
e. Was made by the party’s co-conspirator in furtherance of the conspiracy.

Question 37

Hearsay Exclusion

When are Prior Statements of Identification by a
declarant witness deemed Non-Hearsay (under FRE and CA)?

Answer 37

FRE:
1) If the declarant testifies; AND
2) If the declarant is subject to cross-examination

CA: Prior statements made are an exception to the hearsay rule if:
1) It identifies someone who participated in the crime;
2) It was made at the time of the crime and was fresh in the witness’s mind; AND
3) Before the evidence of the statement is offered, they testify that they made the identification and that it was a true reflection of his opinion at the time.

Question 38

Hearsay Exceptions / Exclusions

When does a person’s silence constitute an
Adoptive Admission?

Answer 38

When:
1) The person heard the statement; AND
2) A reasonable person would have denied the
statement.

*This is excluded from hearsay (deemed non-hearsay) under the statements made by a party opponent hearsay rule.

Question 39

Hearsay Exceptions / Exclusions
What is a Vicarious Admission?

Answer 39

Admissions made by:
a) An authorized spokesperson;
b) A principal or agent made during the scope of the agency relationship - (Not applicable in CA); OR
c) Co-Conspirators.

*This is excluded from hearsay (deemed non-hearsay) under the statements made by a party opponent hearsay rule.

Question 40

Hearsay Exceptions
What is a Statement Against Interest, and when is
it admissible?

Answer 40

When:
1) it’s a statement made against one’s own penal, proprietary, or pecuniary interest when made;
2) the declarant has firsthand knowledge;
3) a reasonable person in the declarant’s position would have made the statement only if the person believed it to be true; AND
4) the declarant is unavailable.

*In CA, statements made against one’s societal interests are also admissible.

**Under the FRE, if offered in a criminal case, it MUST be supported by corroborating circumstances that clearly indicate its trustworthiness.

Question 41

Hearsay Exceptions

When are Prior Statements Made Under Oath
admissible?

Answer 41

1) If they are offered against a party who was present in the previous trial;
2) The same issues are involved; AND
3) The party who it is offered against had the same motive and opportunity to examine the witness in the previous trial. (In CA: the party sharing similar interests is sufficient).

*ONLY applicable is the declarant is unavailable.

Question 42

Hearsay Exceptions

Under the FRE, when is a hearsay statement NOT
excluded by the rule against hearsay?

Answer 42

When the statement:
1) Has equivalent circumstantial guarantees of
trustworthiness;
2) Is offered as evidence of a material fact;
3) Is more probative on the point for which it is offered than any other evidence that can be obtained by reasonable means; AND
4) Admitting it will best serve the interests of justice.

• CA does not have the above catch-all hearsay exception.

Question 43

Hearsay Exceptions

What is a Present Sense Impression?
What statements does this apply to in CA?

Answer 43

A statement describing an event made by the declarant;
a) While observing the event; OR
b) Immediately thereafter.

In CA: This is called a Contemporaneous Statement, and applies when the statement: (1) is offered to explain, qualify, or make declarant’s conduct understandable; AND (2) was made while declarant was engaged in such conduct.

Question 44

Hearsay Exceptions

What is an Excited Utterance (or Spontaneous
Statement as referred to in CA)?

Answer 44

A statement:
1) Relating to a startling event or condition,
2) Made while the declarant was under the stress of excitement that the event/condition caused.

Question 45

Hearsay Exceptions

Business Records are an exception to the Hearsay
rule.
When are they admissible under the FRE?

Answer 45

If it is:
1) A record of events, conditions, opinions, or diagnoses;
2) Kept in the regular course of business;
3) Made at or near the time of the matter described;
4) Made by a person with knowledge of the matter;
5) The regular practice of the business to make the record;
AND
6) The opponent party does not show a lack of
trustworthiness in making the record.

Question 46

Hearsay Exceptions

Business Records are an exception to the Hearsay
rule.
When are they admissible in CA?

Answer 46

The same elements have to be met as required under the FRE.

However, in CA the exception DOES NOT include
records of opinions or diagnosis, and the party
introducing the business record has the burden of
showing that the record was made under circumstances indicating trustworthiness.

Question 47

Hearsay Exceptions

Are Statements made for Medical Diagnosis or
Treatment an exception to Hearsay rule?

Answer 47

YES, when:
1) It’s made for and reasonably pertinent to a medical diagnosis, AND
2) It describes medical history or symptoms (past or present).

In CA: Statements made concerning a person’s past physical state are only admissible IF they were made to medical personnel for the diagnosis/treatment of a child abuse/neglect victim under 12.

Question 48

Hearsay Exceptions

Are Statements of Mental, Emotional, or Physical Conditions an exception to the Hearsay rule?

Answer 48

Yes, the declarant’s then existing state of mind (motive, intent, or plan) OR their emotional, sensory, or physical condition are exceptions to the Hearsay rule.
HOWEVER:
Statements of memory or belief offered to prove a fact believed or remembered are NOT admissible, unless it relates to the validity/terms of the declarant’s will.

Question 49

Hearsay Exceptions

What is a Dying Declaration?
In what cases may it be offered?

Answer 49

It is a Hearsay exception, and is admissible when:
1) The declarant is unavailable (In CA, must be
deceased);
2) The declaration was made under a sense of impending death; AND
3) Was about the circumstances that put the declarant in the position of impending death. (In CA, must concern what killed him).

*Used in civil cases and criminal homicide cases (CA = any criminal case).

Question 50

Hearsay Exceptions

When is a declarant deemed Unavailable?

Answer 50

If he:
a) Is exempted due to privilege;
b) Refuses to testify despite a court order;
In CA, does not apply UNLESS declarant refuses to testify out of fear or persistently refuses despite being found in contempt of court.
c) Testifies that he doesn’t remember the matter;
In CA, total memory loss is required.
d) Can’t be present to testify due to death or illness; OR
e) He is beyond the reach of the court’s subpoena.

Question 51

Hearsay Exceptions

Under the FRE, what records are admissible under
the Government or Public Records hearsay exception?

Answer 51

1) Policies and practices of a public office.
2) Observations in accordance with duties by law (except police reports in criminal cases).
3) Factual findings from a legally authorized investigation,
BUT only in:
a. Civil cases; and
b. Against the government in criminal cases.

*Record will not be admitted if opposing party shows they were made under circumstances lacking trustworthiness.

Question 52

Hearsay Exceptions

In California, what records are admissible under
the Government or Public Records hearsay exception?

Answer 52

A writing that is:
1) Made by and within the scope of duty of a public employee;
2) Made at or near the time of the act/condition/event;
AND
3) The record was made under circumstances indicating trustworthiness.

Question 53

Hearsay Exceptions

When is a Past Recollection Recorded admissible?

Answer 53

If:
1) The witness had personal knowledge of the events at one time;
2) The writing was made/adopted by the witness;
3) The writing was made while the events were still fresh;
4) The writing is accurate;
AND
5) The witness can no longer remember the event.

Question 54

Right to Confront Witnesses
When does an out-of-court statement violate a Defendant’s 6th Amendment rights?

Answer 54

When:
1) The statement is testimonial;
2) The declarant is unavailable to be cross-examined at trial;
AND
3) The defendant didn’t have an opportunity to cross-examine the declarant before trial.

**Exceptions: dying declarations, wrongdoing by a defendant.

Question 55

Right to Confront Witnesses
What types of statements are testimonial in nature?

Answer 55

a) Statements made to grand juries;
b) Affidavit or Certified Report with forensic lab results;
AND
c) Statements made to police whose primary purpose is to collect testimony to be used at a later trial.
(It is NOT testimonial if used to assist police in an
emergency.)

Question 56

What is Spousal Immunity?
(FRE vs. CA)

Answer 56

FRE:
A witness-spouse in a valid marriage may refuse to testify against his/her spouse in a criminal case. Spousal Immunity DOES NOT apply in civil cases.

CA:
The spouse holding the privilege may refuse to testify in BOTH criminal and civil cases.

Question 57

What is the privilege of Confidential Marital
Communications?

Answer 57

Communications between spouses are privileged if:
1) Made during the course of a valid marriage; AND
2) Were intended to be confidential.

*Applies in both civil and criminal cases, held by both spouses even after a divorce.

Question 58

In what circumstances do the Spousal Privileges
(spousal immunity and confidential marital communications) NOT apply?

Answer 58

1) In cases between the spouses.
2) When a spouse commits a crime against the other spouse or their children.

Question 59

What does the Attorney Work Product Doctrine
protect?
Under what circumstances is it NOT protected?

Answer 59

It protects ALL materials prepared by an attorney or his agents in anticipation of or during litigation. (In CA: Only materials prepared in anticipation of litigation are deemed work product).

They are protected UNLESS a party can show:
1) A substantial need for the materials exists; AND
2) A substantial equivalent of the materials cannot be obtained without undue hardship.

Question 60

Attorney Work Product Doctrine (California)
Absolute Privilege
vs.
Qualified Privilege

Answer 60

Absolute: Materials prepared in anticipation of litigation and are comprised of the attorneys’ mental impressions, notes, or opinions. These are absolutely protected and are NOT discoverable.

Qualified: All other materials prepared in anticipation of litigation are deemed as qualified work product. These may be discoverable upon showing of substantial need and inability to obtain elsewhere.

Question 61

What is the Attorney-Client Privilege?

Answer 61

It protects confidential communications between an Attorney and Client from disclosure if the communication:
1) Was confidential; AND
2) Made to facilitate legal services.

*The client holds the privilege.

Question 62

When does the Attorney-Client Privilege NOT
apply?

Answer 62

When:
a) Legal services are sought to further a crime or fraud;
b) There is litigation related to the breach of duty between attorney and client; OR
c) Jointly represented clients are subsequently involved in a civil litigation against each other.

*CA: Privilege DOES NOT survive the client, and does not apply if the attorney believes disclosure is necessary to prevent a crime likely to result in bodily harm or death.

Question 63

What is the Physician-Patient Privilege?

Answer 63

It protects confidential communications between a Physician and Patient from disclosure if the communication:
1) Was confidential; AND
2) Made for the purpose of medical diagnosis or treatment.

*The patient holds the privilege (not the physician).

Question 64

When is the Physician-Patient Privilege recognized?
(CA vs. Federal)

Answer 64

CA: Recognizes the privilege

Federal Courts: DO NOT recognize the privilege
*Exception: Federal courts will recognize it when:
1) it’s a civil case;
2) a claim/defense is based on state law; AND
3) state law recognizes a physician-patient privilege.