Evidence

Question 1

Relevance

Answer 1

Only relevant evidence is admissible. Relevant evidence is evidence that has the tendency to make a fact of consequence more or less probable that it would have been without the evidence. The party offering the evidence has the burden of establishing sufficient foundation to support the evidence.

Question 2

Spousal privileges

Answer 2

There are two spousal privileges. The first is the spousal testimonial privilege. Under it, the spouse of a party to an adversarial proceeding may not be compelled to testify against her spouse in that proceeding. The privilege belongs to the witness-spouse only, and can only be claimed during marriage.

The second is the marital communications privilege and it makes confidential communications made during marriage inadmissible. This privilege belongs to both spouses, survives the marriage, and applies only to confidential communications made during the marriage.

Question 3

Authentication of oral statements

Answer 3

Oral statements must be authenticated if the identity of the speaker is needed to make a statement relevant. Statements made during a telephone call may be authenticated by testimony that the listener recognizes the speakers voice, the speaker has knowledge of facts that only a particular person would have, or that the speaker identified himself.

Question 4

Double hearsay

Answer 4

Hearsay is an out of court statement offered to prove the truth of the matter asserted. Where a hearsay statement contains a hearsay statement, the statements will only be admissible if both the inner and outer statements fall within a hearsay exception or can be classified as nonhearsay.

Question 5

Spontaneous statement

Answer 5

CA - Under the spontaneous statement exception to the hearsay rule, the declarant must have made a statement while under the stress of excitement cause by a startling event, and the statement must concern the immediate facts of the startling event.

Question 6

Statements by party opponents - FRE

Admissions - CA

Answer 6

An statements by a party opponent is a statement made by a party and offered against that party. These are admissions in California.

Question 7

Hearsay

Answer 7

Hearsay is an out of court statement used to prove the truth of the matter asserted, and is inadmissible unless it falls within an exception to the rule. Hearsay is excluded from Prop 8.

Question 8

Effect on the listener

Answer 8

An out of court statement is not hearsay if it is offered to show its effect on the listener.

Question 9

State of mind

Answer 9

Under the state of mind exception a declarant’s intentions and plans are admissible to prove that the declarant carried out that intention or plan.

Question 10

Authentication of written statements and the best evidence rule

Answer 10

Authentication of a document requires sufficient evidence to support a jury finding that the matter is what its proponent claims it is.

Under the best evidence rule, original versions of documents must be produced. The FRE permit the use of an an exact copy of an original so long as no genuine issue of authenticity is raised or so long as it would not be unfair to admit the duplicate in place of the original.

CA - Secondary evidence rule. Certified copies of public records are self-authenticating.

Question 11

Character evidence of the vicitm

Answer 11

A criminal defendant may offer evidence of a victims character to prove the victim acted in conformity with that character.
FRE - Limited to opinion and reputation
CA - California allows the defendant to introduce reputation, opinion, or evidence of specific acts. The prosecution can only introduce evidence of the defendant’s violent character if the defendant first introduced evidence of the victims violent character.

Question 12

Impeachment of a hearsay declarant

Answer 12

A party may impeach a hearsay declarant as if he testified at trial.

Question 13

Character evidence of the defendant

Answer 13

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

Question 14

Witness impeachment with prior crimes

Answer 14

CA - In criminal cases under Prop 8, all evidence is admissible to impeach subject to a 352 analysis. In civil cases, a witness may only be impeach by felony convictions involving moral turpitude.

FRE - A witness may be impeached with any felonies committed within the prior 10 years, or misdemeanors involving dishonesty. Prior bad acts involving dishonesty may also be used but extrinsic evidence is not allowed.

Question 15

Witness requirements

Answer 15

A witness must have personal knowledge of the matter he testifies to. An examining attorney may not ask a witness to speculate or hypothesize as to the existence or meaning of a fact.

Question 16

Present sense impression

Answer 16

Where a person perceives an event and is moved to comment on what she perceived at the time of the perception or immediately thereafter, that statement is admissible as a present sense impression.

Question 17

Offers to pay medical expenses

Answer 17

Evidence that a party offered to pay the injured party’s medical expenses is not admissible to prove liability for the injury, but admissions of fact accompanying such offers are admissible.

Question 18

Witness impeachment with prior inconsistent statements

Answer 18

To impeach a witness’s credibility, a party may show that the witness has made statements that are inconsistent with some material part of his present testimony. Extrinsic evidence of the witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the allegedly inconsistent statements.
In CA, prior inconsistent statements are admissible for impeachment as well as truth. Under the FRE, they are only admissible if made under oath.

Question 19

Recorded recollection

Answer 19

If a witness has insufficient recollection of an event to be able to testify fully and accurately, the writing itself may be read into evidence as a recorded recollection once a proper foundation has been established. The foundation requires that the witness at one time had personal knowledge of the facts stated int he writing, the writing was made or adopted by the witness, the writing was made while the matter was fresh in the witness’s mind, the writing is accurate, and the witness has insufficient recollection to testify fully and accurately. The writing may be read into evidence and heard by the jury but it is not itself admitted as evidence.

Question 20

Lay witness testimony

Answer 20

A lay witness opinion must be based on what the witness rationally perceived and must be helpful to clear an understanding of her testimony or to the determination of material fact.

Question 21

Business records exception

Answer 21

A record is admissible under the business records exception if it was made in the regular course of business, it was the regular practice of the business to make the record at the time it was made, and it consisted of matters within the personal knowledge of the recorder or of someone with a business duty to transmit the matter to the recorder. The authenticity of the record must be established, usually by having the custodian of records or other qualified witness testify as to the identity of the record and the mode of its production.

Question 22

Excited uttererance

Answer 22

A statement falls within the excited utterance exception when it is made by a declarant during or soon after a startling event, while the declarant is under the stress of excitement produced by the event, and it concerns the immediate facts of the event.

Question 23

Statement against interests

Answer 23

When a witness is unavailable, a statement against interest may be available if there is a statement that was against pecuniary, proprietary, or penal interest when it was made, the declarant had personal knowledge of the facts of the statement and was aware that the statement was against his interest, and had no motive to misrepresent the statement.

Question 24

Confrontation clause

Answer 24

Under the confrontation clause, even if a statement falls within a hearsay exception, it will be inadmissible if: the statement is offered against the accused in a criminal proceeding, the statement is testimonial in nature and the declarant is unable to testify, and the accused had no prior opportunity to cross examine the declarant.

Question 25

Expert testimony

Answer 25

To qualify as an expert on a subject, a witness must have special experience, knowledge or education to qualify him as an expert on the subject. Experts may state personal opinions if the subject matter concerns scientific, technical, or other specialized knowledge that would help the trier of fact.
To be admissible, the testimony must be based upon: facts the expert has observed, fact presented as evidence during trail, or facts that were submitted to the expert out of court that are of the type usually relied upon by experts in the field concerning the particular subject.

Question 26

Judicial notice

Answer 26

Facts will be subject to judicial notice if they are matters of common knowledge in the community, if the fact is capable of certain verification, or if it is a commonly accepted scientific principle.

Question 27

Scope of cross examination

Answer 27

Cross-examination is limited to matters brought out on direct examination and the inferences naturally drawn from those matters, and matters affecting the credibility of the witness. A witness can be impeached on cross examination with facts that contradict his testimony.

Question 28

Role of the jury

Answer 28

The role of the jury is to weigh the evidence that is presented in court, and a jury should not conduct independent investigations or consult outside sources. A jury is generally prohibited from testifying in post-verdict proceedings as to matters occurring in the course of jury deliberations.

Question 29

Character evidence

Answer 29

Character evidence is the use of a trait to suggest that it is more likely than not that the party acted in conformity with that trait. Character evidence is only admissible where character evidence is itself at issue, with an exception for prior sexual assaults.

Question 30

Habit and custom

Answer 30

Habit evidence requires a repeated response to the same stimulus. Custom is a habit with regards to a business practice.

Question 31

Subsequent remedial measures

Answer 31

Subsequent remedial measures are inadmissible to prove negligence, fault or damages in both products liability and negligence cases.

Question 32

Offers of compromise

Answer 32

Only when there is an actual dispute as to liability or damages is an offer of compromise inadmissible to show fault.

Question 33

FRE Hearsay Exclusions

Answer 33

Admissions of party opponents, prior inconsistent statements, prior identification, present sense impressions

Question 34

Vicarious admissions

Answer 34

FRE - Allowed if made while the employee is still employed and the statement concerns matters within the employees scope of employment.
CA - Allowed when the liability of the employer is based on respondeat superior, the employee is the declarant, and the statement would be considered an admission by the employee.

Question 35

Statements for diagnosis and treatment

Answer 35

FRE - Statements made describing physical symptoms are admissible if they are pertinent to diagnosis or treatment. and can regard past or present condition.
CA - Only allows statements of then existing conditions.

Question 36

Unavailability exceptions

Answer 36

Former testimony where there was an opportunity and motive to cross examine witness, dying declarations in civil and homicide cases, statements against interest so long as its not used against a party.

Question 37

Exceptions under both CA and FRE

Answer 37

Unavailability exceptions, present recollection refreshed, impeachment of witnesses, lay and expert opinion, writings

Question 38

Official records

Answer 38

A record of a public office, like police reports, may be admissible if it includes: the activities of the office or agency, matters observed pursuant to a duty imposed by law, or factual findings in civil actions and against the government in criminal cases when made pursuant to an investigation.