Evidence

Question 1

Present Sense Impression

“hearsay”

Answer 1

Hearsay Exception Regardless of Availability

Present Sense Impression = a statement that describes or explains an event or conditions and is made while or immediately after the declarant perceived the event or condition.

Question 2

Recorded Recollection

Answer 2

Hearsay Exception Regardless of Availability

Rule: when a witness states that they have insufficient recollection about the matter they are testifying about, even after consulting a memo or other record provided on the stand, the record itself may be read into evidence if certain conditions are met:

(1) W has insufficient recollection
(2) W had personal knowledge when record was made,
(3) W made the record or adopted it,
(4) Record was made or adopted when fresh in the W’s mind, and
(5) W vouches for the accuracy of the record when it was made/adopted

Question 3

Business Records Exception

Hearsay

Answer 3

Regardless of Availability

Rule: any writing or record made of any condition, act, or event is admissible as proof of that occurrence of the proponent demonstrates:

1. The record was made in the ordinary course of business,
2. The business regularly keeps such records
3. Record was made near the time of the event/occurrence, and
4. record consists of matters within the personal knowledge of the entrant.

Question 4

Hearsay Exceptions for Unavailable Witnesses

Answer 4

1. Statement Against Interest
2. Dying Declaration
3. Former Testimony
4. Party Procures Unavailability

Question 5

Types of Non-Hearsay

Answer 5

Prior Inconsistent Statement
Prior Consistent Statement
Statement Made by Party
Prior Statement of Identification

Question 6

Learned Treatise Rule

Hearsay

Answer 6

Exception Regardless of Availability

Rule: a learned treatise may be substantively admissible if it is:

1. Called to the attention of a testifying witness or relief upon during her testimony, and
2. Establushed as a reliable authority bu the witness, another expert, or by judicial notice.

Reading Into Evidence: relevant exercepts relied on by the expert may be read into evidence, but the treatise as a whole is not admissible into evidence.

Question 7

Present Recollection Refreshed

Answer 7

** not a hearsay rule **

Rule: When a witness is testifying and struggles to remember an event, she may be given a writing, picture, or some other document to aid her recollection.

• The rules of authentication do not apply to the item used to refresh the witness’s memory.

Question 8

Best Evidence Rule

Answer 8

To prove the contents of a writing (including photos, xrays, recordings), the original writing must be produced.

Question 9

Prior Inconsistent Statement

Impeachment

Answer 9

A witness may be impeached by a prior inconsistent statement (whether or not it was made under oath).

Question 10

Use of Extrinsic Evidence to Impeach for Prior Inconsistent Statement

Answer 10

Rule: Extrinsic evidence may be used to prove PIS and impeach a witness if:

1. the witness was given the opportunity to explain or deny the PIS,
2. the proponent of the PIS is given the opportunity to interrogate the impeaching witness.

Question 11

Expert Testimony Requirements

Answer 11

Rule: expert testimony is admissible if:

1. specialized knowledge would assist the trier of facts,
2. the witness is a qualified expert,
3. the testimony is based on sufficient facts or data,
4. the testimony is result of reliable principles (Daubert, Kelly-Frye),
5. witness has applied the principles reliably to the facts

Question 12

Daubert Reliability Standard

Answer 12

FRE Standard for Reliability: for an expert’s principles to be reliable, they must be:

1. peer review/published
2. tested and subject to retesting
3. known for a low error rate,
4. generally accepted by other experts in the field.

Question 13

Kelly-Frye Reliability Standard

Answer 13

CEC Standard for Reliability

For the principles of an expert’s opinion/testimony to be deemed reliable, the proponent must prove that the underlying scientific theories have been generally accepted as valid in the relevant scientific field.

DOES NOT APPLY to:
1. Medical testimony, or
2. Non-Scientific testimony.

Question 14

Prior Inconsistent Statement

Non-Hearsay Substantive

Answer 14

A prior inconsistent statement may be introduced if:

1. the statement is inconsistent with the witness’s current testimony, and
2. the statement was given under oath.

Question 15

Prior Statement of Identification

Answer 15

Non-Hearsay

A statement by a testifying witness that identifies a person or party is admissible if:

(a) declarant testifies at the current proceeding,

(b) declarant is subject to cross about the statement, AND

(c) statement IDs person declarant perceived earlier.

Question 16

Former Testimony Exception

Exception to Hearsay Rule

Answer 16

Unavailable Witnesses

Rule: testimony previously asserted by a now unavailable witness is admissible if:

1. Declarant was a W at a trial (whether current or other), and
2. The party who the statement is being offered against had an opportunity and similar motive to cross-examine the witness (if civil trial, if the party’s predecessory had the opportunity/motive to cross-examine, that works).

Question 17

Attorney-Client Privilege

Rules of Evidence

Answer 17

A client has the right not to disclose any confidential communications between the attorney and the client.

Question 18

Exceptions to Attorney-Client Privilege

Answer 18

Rule: A/C privilege does not apply if:

1. Communication was used in something the client knew (or should have known) was in furtherance of a crime/fraud
2. The communication relates to a dispute between client and lawyer,
3. Co-parties being jointly represented,
4. Lawyer believes disclosure is necessary to prevent a crime that leads to bodily harm or death (California only).

Question 19

Proposition 8

Answer 19

(“much ado about nothing”)

In criminal trials in California state courts, all relevant evidence is admissible, even if objectionable, unless a Prop8 exemption applies.

Literally most objections in the CEC/FRE are exempt under Prop8

Question 20

Liability Insurance

Public Policy Exemption + Execeptions

Answer 20

Rule: evidence of liability insurance is not admissible to prove culpable conduct.

Exceptions
* to prove ownership/control over property,
* to impeach,
* statement of fault made in connection with statement re: possession of liability insurance

Question 21

Settlement Offer Exemption

Public Policy Exemption

Answer 21

Rule: an offer to settle an already disputed claim and related statements are not admissible to prove the claim’s validity, liability, or amount.

Question 22

Guilty Plea Exemption

Public Policy Exemption

Answer 22

General Rule: an offer to plead guilty to a crime and all related statements made during negotiations are not admissible to prove the defendant is guilty or to prove consciousness of guilt.

California: such statements ARE admissible under Prop. 8.

Question 23

Subsequent Remedial Measures Exemption

Public Policy Exemption

Answer 23

General Rule: evidence of safety measures, or repairs performed after an accident are not admissible to prove culpability of conduct.
* Product Liability - inadmissible under FRE, admissible under CEC to show defective product design.

Question 24

Exceptions to the Subsequent Remedial Measure Exemption

Answer 24

Evidence of subsequent remedial measures may be admitted for a party to show:

1. ownership or control,
2. to rebut a claim that precaution was not feasible, and
3. that the other party destroyed the evidence.

Question 25

Objections to Form of Question

Answer 25

NUCALF

Narrative: questions calling for a narrative are too broad.

Unresponsive: witness’s answer is unresponsive to the question

Compound Question: two or more questions are contained in one.

Argumentative: the question is unnecessarily combative.

Leading Question: the question is phrased to suggest a desired response.

Facts: The question assumes facts not in evidence.

Question 26

Attorney Work Product Doctrine

Answer 26

Rule: Although documents prepared by an attorney in anticipation of litigation are not protected by A/C privilege, they are not subject to discovery except in cases of necessity.

Question 27

Authentication of Writing/Record Rule

Answer 27

Rule: A writing or any secondary evidence is not admissible unless the writing is authenticated by proof showing that the writing is what the proponent claims it is.

• The proof must be sufficient to support a jury finding of genuineness

Question 28

Methods of Authenticating a Writing

Answer 28

Stipulation by opposing party
Eyewitness testimony
Handwriting comparison
Reply letter doctrine

Question 29

Authentication of Physical Evidence

Answer 29

The object must be identified as what the proponent claims it to by:

1. Testimony of a witness that they recognize the object as what the proponent claims it is; or
2. Evidence that the object has been held in a substantially unbroken chain of possession.