Evidence

Question 1

Relevance

Answer 1

1. Logical
   - prove or disprove a material fact
   - CEC: disputed fact
2. Legal
   - probative value substantially outweighed by danger of unfair prejudice
3. Prop 8 (CA Crim Code) - all relevant evidence admissible in criminal trials, except (DR Mammal Counts SHEEP)
   - D must open door to own character evidence
   - rape shield laws limit V’s character
   - media member
   - court may exclude if unfair prejudice&raquo_space; probative
   - secondary evidence rule (best evidence rule)
   - hearsay, unless exception
   - exclusionary rules of CA post-1982
   - privileges

Question 2

Public policy exceptions

Answer 2

1. Subsequent remedial measures, except:
   - ownership and control
   - precautions infeasible
   - other party destroyed evidence
2. Liability insurance, except:
   - ownership and control
   - impeachment
   - admission
3. Offers medical expenses
   - FRE exception: collateral admission gets in
   - CEC exception: none
4. Settlement offer
   - disputed claim only
   - CEC: applies to mediation also
5. Offers to plead
   - CA exception: Prop 8 may allow
6. CA expression of sympathy
   - except: admission of fault

Question 3

Witness examination

Answer 3

1. Personal knowledge required
   - W must declare will testify truthfully
   - judge can call W and ask questions
   - - CEC: judge can testify unless party objects
2. Objection: form of the question (NUCALF)
   - narrative (too broad - so what happened?)
   - unresponsive answer
   - compound (2 questions combined)
   - argumentative (do you really expect the jury to believe?)
   - leading (on direct, question suggests answer)
   - assume facts not in evidence
3. Present recollection refreshed
   - W shown item to refresh
   - W then testifies from memory
   - other side has right to inspect, introduce into evidence
4. Lay opinion
   - rationally based on W’s perceptions and helpful to trier of fact
   - FRE: not scientific or specialized knowledge
5. Expert opinion
   - assists trier of fact
   - W qualified as expert (knowledge, skill, training, experience, education)
   - opinion based on sufficient facts
   - reliable principles used
   - - FRE: Daubert standard
   - – peer reviewed and published
   - – tested
   - – low error rate
   - – reasonable level of acceptance
   - - CEC: Kelly/Frye standard
   - – underlying scientific theory
   - – generally accepted as valid
   - – exception: does not apply to medical and nonscientific testimony
   - applied principles reliably

Question 4

Privileges

Answer 4

1. Attorney-client
   - client: person or corporation
   - confidential communication (intended as confidential)
   - - not physical evidence
   - professional services is purpose of communication
   - holder: client
   - lasts until
   - - FRE: after death
   - - CEC: estate settles
   - exceptions
   - - further crime or fraud
   - - dispute w/ lawyer
   - - dispute b/w co-clients in common matter
   - - CEC: prevent death/serious bodily injury
2. Doctor-patient
   - FRE: no Dr.-patient privilege
   - CEC: communication made for diagnosis and treatment only
3. Psychotherapist-patient
   - FRE and CEC both allow
4. Self-incrimination (5A)
5. Spousal immunity
   - during marriage
   - holder: witness spouse
   - FRE: criminal only
   - except: cases between spouses
6. Confidential marital communication
   - during and after marriage
   - holder: both spouses
   - except: cases between spouses
7. Clergy-penitent communications
8. CEC-only privileges
   - counselor-victim
   - news reporters

Question 5

Character evidence

Answer 5

1. 3 types of character evidence
   - reputation in community
   - opinion by W of person
   - specific acts
2. Civil court rules
   - not for conduct in conformity
   - except: character “at issue”
   - - W puts credibility at issue, not necessarily general character
   - FRE exception: sexual assault/child molestation
   - rape shield: disallow evidence of V’s past sexual conduct
   - - FRE: P put reputation in issue, and probative value substantially outweighs prejudice
   - - CEC: only to prove P’s sexual conduct w/ the D
3. Criminal court rules: D’s character
   - D must “open door”
   - - W puts credibility at issue, not necessarily general character
   - pertinent character trait only
   - if D on stand: truthfulness
   - except: P can open door for propensity in sexual assault/child molestation
   - FRE exception: if D offers on V character, prosecution can match for D
   - CEC exception: if D offers on V’s violent character, prosecution can match for D
   - CEC exception: In domestic violence/elder abuse case, P can show other acts of domestic violence/elder abuse
4. Criminal court - V’s character
   - D must “open door”
   - pertinent character trait only
   - except: rape shield rules apply
   - FRE exception: D offers that V 1st aggressor, Prosecutor can rebut that V peaceful (rep/opin)
5. D’s character: form of evidence
   - direct: no specific acts
   - cross (to rebut):
   - - FRE: all 3 forms, but no extrinsic evidence allowed
   - - CEC: no specific acts
6. V’s character: form of evidence
   - direct
   - - FRE: no specific acts
   - - CEC: all 3 forms allowed
   - FRE exception: D offers that V 1st aggressor, Prosecution can rebut that V peaceful (rep/opin)
   - rape shield: disallow evidence of V’s past sexual conduct
   - - no reputation/opinion
   - - specific acts only for:
   - – 3P source of semen/injury
   - – prior consent w/ D
   - - CEC: V’s prior sexual conduct to show reasonable belief of consent
7. Other purpose character (MIMIC)
   - motive
   - intent
   - mistake
   - identity
   - common scheme or plan
8. Habit or custom: regular response to a repeated situation
   - individuals and business practices
9. Similar happenings

Question 6

Impeachment

Answer 6

1. Character for truthfulness
   - reputation and opinion ok
   - specific acts
   - - FRE: ok, but no extrinsic evidence allowed
   - - CEC:
   - – civil: prohibits extrinsic evidence and initial cross exam
   - – criminal: ok
   - criminal convictions:
   - - involving dishonesty: ok (balancing test only if >10 years old)
   - - felony
   - – criminal D: ok if probative value outweighs prejudicial effect
   - – others: ok unless prejudicial effect substantially outweighs probative value
   - – CEC: felony convictions involving moral turpitude admissible subject to balancing test
   - - misdemeanor
   - – FRE: not allowed unless involving dishonesty (balancing test only if >10 years old)
   - – CEC: civil - not allowed, criminal - if moral turpitude
2. Prior inconsistent statement
   - extrinsic evidence allowed, but W must have opportunity to explain or deny
3. Bias
   - extrinsic evidence allowed, but W must have opportunity to explain or deny
4. Sensory or mental defect
5. Contradiction by another W
6. Rehab impeached W
   - meet the attack
   - good character if character for untruthfulness attacked
   - prior consistent statement
7. Bolstering the W before attacked
   - FRE: not allowed
   - CEC: allowed

Question 7

Hearsay and exceptions

Answer 7

1. Hearsay: out of court statement offered for the truth of the matter asserted
2. Nonhearsay purpose
   - effect on listener/reader
   - declarant’s state of mind
   - legally operative fact
3. Admissions: any statements
   - party admissions
   - adoptive: manifest belief in truth of statement
   - vicarious: employee or agent statement in course of relationship
   - CEC: employee negligence only
   - co-conspirator: during and in furtherance of the conspiracy (confrontation clause require co-conspirator to testify or can’t use)
4. Witness statements: other hearsay exceptions
   - medical purpose diagnosis and treatment
   - - cause ok, but not fault
   - - CEC: child abuse victim only
   - state of mind: then-existing mental, emotional, physical state
   - present sense impression
   - - describe event/condition
   - - while perceiving
   - - CEC: describing declarant’s own conduct only
   - excited utterance
   - - startling event
   - - statement made while under stress of event
5. Prior statement of available W’s
   - prior inconsistent statement made under oath
   - prior consistent statement to rebut charge of fabrication, improper motive, sensory deprivation, etc.
   - prior identification
6. Document exceptions
   - past recollection recorded
   - - firsthand knowledge
   - - fresh at time of recording
   - - W’s recollection impaired now
   - - record accurate at time made
   - business record
   - - business activity
   - - regular practice to keep
   - - firsthand knowledge
   - - business duty to report
   - - timely at time made
   - public record
   - - agency record of own acts
   - - matters observed with duty to report
   - - investigative reports
   - - FRE: not against criminal D
   - learned writings
7. Declarant unavailable exceptions
   - unavailability is established by
   - - privileged
   - - death or illness
   - - witness refuses to testify
   - - witness can’t remember
   - former testimony
   - - civil case only
   - – FRE: predecessor in interest only
   - – CEC: similar interest in prior proceedings and deposition in same proceeding allowed
   - dying declaration
   - - re: circumstances of death
   - - while believing death imminent
   - - FRE: civil and criminal homicide only and death not required
   - - CEC: death required and allows “OJ” exception for physical abuse
   - declaration against interest
   - - financial or penal interest
   - - CEC: social interest too
   - forfeiture by wrongdoing (W tampering)
8. Residual “catch-all” exception

Memorization:
4 admissions:
- party
- adoptive
- vicarious
- co-conspirator

4 witness availability immaterial:

• MT (medical treatment)
• PBC (present bodily condition)
• PSI (present sense impression)
• EU (excited utterance)

3 prior statements of available witness:

• PIS (prior inconsistent statement)
• PCS (prior consistent statement)
• PI (prior identification)

4 documents:

• PRR (past recollection recorded)
• business
• public
• learned writing

4 declarant unavailable:

• FT (former testimony)
• DD (dying declaration)
• DAI (declaration against interest)
• FBW (forfeiture by wrongdoing)

Question 8

Documents

Answer 8

1. Establish relevance
2. Authentication
   - real evidence: distinct characteristic or chain of title
   - demonstrative: must be a fair representation
   - writings/recordings: by admission, W testimony, handwriting authentication, circ evidence, etc
   - self-authenticating documents: certified copies of public records, newspapers, periodicals, CEC: notarized
3. Best evidence rule (CA: secondary evidence rule)
   - original (or machine copy, unless original disputed)
4. Summaries of voluminous writings

Question 9

Judicial notice

Answer 9

1. Judicial notice allowed if
   - not subject to reasonable dispute
   - generally known in jurisdiction, OR
   - capable of accurate and ready determination by source whose accuracy cannot be reasonably questioned.