Rule Statements

Question 1

Logical Relevance

Answer 1

Evidence is relevant if it has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action. In California, relevant evidence must also be relevant as to a disputed fact.

Question 2

Legal Relevance

Answer 2

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. In California, relevant evidence shall not be excluded in any criminal proceeding unless subject to an exemption.

Question 3

Hearsay

Answer 3

Hearsay is an out-of-court statement that is offered to prove the truth of the matter asserted. Hearsay evidence is generally inadmissible unless it falls within an exception or exclusion.

Question 4

Dying Declaration

Answer 4

A statement qualifies as a “dying declaration” if: (i) the declarant believes that her death is imminent; and (ii) the statement pertains to the cause or circumstances of her death. Under this exception, the declarant must be unavailable, but does not have to be dead. The dying declaration exception applies only in homicide prosecutions and civil cases.

Question 5

Present Sense Impression

Answer 5

A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived it is not excluded as hearsay.

Question 6

Excited Utterance

Answer 6

A statement made about a startling event or condition while the declarant is under the stress of excitement that it caused is not excluded as hearsay. Under this exception, the event must shock or excite the declarant, and the statement must relate to the event, but the declarant need not be a participant in the event.

Question 7

Offer to Pay Medical Expenses

Answer 7

Evidence of the payment, offer to pay, or promise to pay medical or similar expenses resulting from an injury is not admissible to prove liability for the injury. Any conduct or statement that accompanies the payment, offer to pay, or promise to pay medical expenses is admissible.

Question 8

Authentication

Answer 8

All tangible evidence must be authenticated. To authenticate an item, the proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it is. Documentary evidence is commonly authenticated by stipulation, testimony of an eyewitness, or handwriting verification.

Question 9

Best Evidence Rule

Answer 9

The best evidence rule requires that the original document, or a reliable duplicate, be produced in order to prove the contents of a writing, recording, or photograph, including electronic documents, x-rays, and videos. A duplicate is a counterpart produced by any process or technique that accurately reproduces the original. This rule applies only when the contents of the document are at issue or a witness is relying on the contents of the document when testifying.

Question 10

Multiple Hearsay

Answer 10

A statement that contains hearsay within hearsay may be admissible as long as each part of the combined statement conforms to a hearsay exception.

Question 11

Present Recollection Refreshed

Answer 11

A witness may examine any item (e.g., writing, photograph) to “refresh” the witness’s present recollection. The witness’s testimony must be based on the witness’s refreshed recollection, not on the item itself (e.g., the witness cannot read from the refreshing document).

When the item used to refresh a witness’s recollection is a writing, the adverse party is entitled to have the document produced, to inspect the document, to cross-examine the witness about it, and to introduce any relevant portion into evidence. The item used to refresh a witness’s present recollection is generally not admitted into evidence.

Question 12

Recorded Recollection

Answer 12

If a witness is unable to testify about a matter for which a record exists, that record is not excluded as hearsay if the following foundation is established: (i) the record is on a matter that the witness once knew about; (ii) the record was made or adopted by the witness when the matter was fresh in the witness’s memory; (iii) the record accurately reflects the witness’s knowledge; and (iv) the witness states that she cannot recall the event well enough to testify fully and accurately, even after consulting the record on the stand. Under this exception, the record, if admitted, may be read into evidence, but it may be received as an exhibit only if offered by an adverse party.

Question 13

Opposing Party’s Statement

Answer 13

A statement made by a party to the current litigation is not hearsay if an opposing party offers it. An opposing party’s statement need not have been against the party’s interest at the time that it was made.

Question 14

Statement Against Interest (FRE)

Answer 14

A statement made by a declarant who is unavailable to testify is not excluded as hearsay if the statement: (i) was against the declarant’s interest at the time it was made; and (ii) would not have been made by a reasonable person unless he believed it to be true.

Question 15

Proposition 8

Answer 15

Proposition 8 provides that “relevant evidence shall not be excluded in any criminal proceedings.” This rule is subject to a number of exceptions, including privileges authorized by the CEC and hearsay exceptions.

Question 16

Spousal Immunity (CA)

Answer 16

In California, a married person whose spouse is a party to a proceeding has a privilege not to be called as a witness by an adverse party to that proceeding without the prior express consent of the spouse having the privilege. The spousal immunity privilege applies to testimony about events that occurred before and during the marriage. The spousal immunity rule applies to any kind of proceeding, not just criminal cases. The spousal immunity privilege can be asserted only during a valid marriage, the right to assert the privilege expires upon divorce or annulment.

Question 17

Confidential Marital Communications

Answer 17

Communication made between spouses while they were married is privileged if the communication was made in reliance on the sanctity of marriage. This privilege applies only to communications made during marriage. This privilege applies to civil and criminal cases. Both spouses hold this privilege.

Question 18

Personal Knowledge

Answer 18

A non-expert witness must have personal knowledge of a matter in order to testify about it.

Question 19

Statement Against Interest (CA)

Answer 19

In California, a declaration against interest is admissible if the declarant is unavailable as a witness and the statement, when made: (i) was so far contrary to the declarant’s pecuniary or proprietary interest; (ii) so far subjected him to the risk of civil or criminal liability; (iii) so far tended to render invalid a claim by him against another; or (iv) created such a risk of making him an object of hatred, ridicule, or social disgrace in the community; (v) that a reasonable man in his position would not have made the statement unless he believed it to be true.

Question 20

Contemporaneous Statement (CA)

Answer 20

In California, a statement offered to explain, qualify, or make understandable conduct of the declarant; and made while the declarant was engaged in such conduct, is admissible.

Question 21

Effect on Recipient

Answer 21

A statement offered to show the effect on the person who heard it is not hearsay.

Question 22

Liability Insurance (CA)

Answer 22

In California, evidence of liability insurance cannot be used to establish negligence or fault.

Question 23

Physician-Patient Privilege

Answer 23

Statements made by a patient to a doctor for the purpose of obtaining medical treatment may be privileged. The patient holds the privilege and may waive it. In California, statements must be made to a licensed physician in order to be privileged. The privilege applies whether the patient is seeking treatment or diagnosis.

Question 24

Present Physical Condition

Answer 24

When a declarant’s physical condition at a particular time is in question, a statement of the declarant’s mental feeling, pain, or bodily health made at that time can be used to prove the existence of that condition but not its cause.

Question 25

Statement Made for Medical Diagnosis or Treatment

Answer 25

Under the FRE, a statement describing medical history or past or present symptoms is not hearsay if it is made for medical diagnosis or treatment. A statement of the cause or source of the condition is admissible as an exception to the rule against hearsay if it is reasonably pertinent to diagnosis or treatment. In California, this rule applies only to a statement made by a victim who is a minor at the time of the proceedings, provided the statement was made when the victim was under the age of 12, describing any act, or attempted act, of child abuse or neglect.

Question 26

Public Records

Answer 26

A hearsay exception applies to a record or statement of a public office or agency that sets out the: (i) activities of the office or agency; (ii) observations of a person under a duty to report the observation; or (iii) factual findings of a legal investigation, when offered in a civil case or against the government in a criminal case.

Question 27

Business Records

Answer 27

A record of an act, event, condition, opinion, or diagnosis is not excluded as hearsay if: (i) the record was kept in the course of a regularly conducted activity of a business; (ii) the making of the record was a regular practice of that activity; and (iii) the record was made at or near the time by someone with knowledge.

A police report can qualify under the business records exception, but a statement made by a witness that is contained in the report does not generally qualify because the witness is not acting on behalf of the police in making the statement. The statement may, however, qualify under another hearsay exception, such as an opposing party’s statement.

Question 28

Lay Opinion

Answer 28

A lay opinion is admissible if it is rationally based upon the perception of the witness, and helpful to a clear understanding of the witness’s testimony or determination of a fact in issue. The opinion must not be based on scientific, technical, or specialized knowledge.

Question 29

Expert Opinion

Answer 29

The subject matter of expert testimony must be scientific, technical or some other specialized knowledge, which focuses on the reliability of the testimony, and will help a trier of fact understand evidence or determine a fact at issue, which focuses on the relevance of testimony. California has adopted the Frye test when introducing novel scientific evidence. The Frye test requires a preliminary showing that the scientific theory or technique has been generally accepted as valid and reliable in the relevant scientific field.