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CA Bar Exam > Evidence > Flashcards

Evidence Flashcards

1
Q

What is the general rule of relevance?

A

Irrelevant evidence is NOT admissible. Relevant admissible may be admissible. Evidence is relevant if it is offered to prove a fact of consequence, and it makes the fact more or less probable.

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2
Q

What is the California distinction on general rule of relevance?

A

Evidence is relevant if is is offered to prove a fact of consequence, THAT FACT IS IN DISPUTE, and the evidence makes the fact more or less likely.

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3
Q

What is California distinction on rule of relevance in a criminal case?

A

CA’s Proposition 8 declares all relevant evidence is admissible, except for:
-US constitution / privilege / hearsay / character evidence / Secondary Evidence Rule (BER) / if unfair prejudice substantially outweighs probative value

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4
Q

Explain court’s discretion to exclude relevant evidence

A

Courts have the discretion to exclude relevant evidence if it would cause unfair prejudice, confusion or waste time.

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5
Q

When does evidence create unfair prejudice?

A

When it leads to an emotional response or would be admissible for one purpose but could be used for another, inappropriate purpose.

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6
Q

Is habit evidence admissible?

A

Yes, if it doesn’t rise to the level of character evidence.

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7
Q

Is routine business practice admissible?

A

yes, if relevant to show that a business’s conduct conformed to standard practice

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8
Q

Is industrial custom evidence admissible?

A

Yes, it can be relevant to prove the standard of care in a negligence case.

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9
Q

Is evidence of liability insurance admissible?

A

Not to prove culpable conduct or ability to pay judgment. But it can be admitted for other purposes.

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10
Q

Is evidence of subsequent repairs / safety measures admissible? Is there an exception?

A
  • Not to prove culpable conduct or to show design defect in a product liability case (THAT PART DOESNT APPLY IN CA)
  • exception: can use it to rebut the argument of “no feasible alternative”
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11
Q

What is rule on admissibility of settlements, offers to settle, pleas, and related statements in CIVIL cases? What is CA distinction?

A
  • Not admissible to show liability or fault. Rule on settlements requires that a claim be filed or threatened or that facts be in dispute.
  • CA: cannot admit discussions during mediation or defendant’s expressions of sympathy
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12
Q

What is rule on admissibility of settlements, offers to settle, pleas, and related statements in CRIMINAL cases? What is CA distinction?

A
  • not admissible to show guilt
  • It is possible that Prop 8 would permit pleas to be admissible to show guilt. But the CA courts have not ruled on the issue, and the may disfavor that approach
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13
Q

When is evidence of the D’s character admissible in a CIVIL case?

A

-not admissible except to (i) prove D’s conduct in sexual assault or child molesting cases and (ii) where character is an issue in the case (e.g., defamation, child custody, loss of consortiom)

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14
Q

What is rule for prosecution and character evidence when CRIMINAL case begins? What are the exceptions?

A

Can’t be the first to offer character evidence.
Exception 1: sexual assault and child molestation cases Exception 2: if court already offered evidence of victim’s character, Prosecution can introduce evidence that D has same trait (e.g., upstanding character)

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15
Q

What are the California distinctions about character evidence in a CRIMINAL case?

A
  • NOT permitted to offer evidence of D’s character even after V’s character has been introduced
  • MAY show that D engaged in prior acts of domestic abuse, domestic violence, or elder abuse, in an action for each such crime
  • MAY show that D had a violent character, if court already admitted evidence that V had a character for violence.
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16
Q

What is the general rule on offering evidence of Victim’s character?

A

Defendant may introduce, and V can rebut.

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17
Q

What is the general rule on offering evidence of Victim’s character in a homicide case?

A

If D offers evidence that V attacked him, then V can be the first to offer character evidence of D and/or V to rebut

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18
Q

What form of evidence is permitted with respect to character evidence?

A

Direct: only Opinion
Cross: Opinion + Specific Instances, but only to undermine the Opinion from Direct

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19
Q

What are the 4 CA distinctions on character evidence re: the Victim?

A
  1. No homicide exception
  2. Direct Exam: Opinion + Specific
  3. Domestic Abuse/Violence / Elder Abuse cases - can show prior acts of the same crime
  4. Where court admitted evidence of V’s character for violence, Prosecution can introduce evidence that the D’s character is also violent
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20
Q

What is the MIMIC Rule?

A

Specific instances of bad conduct can be admitted to prove anything relevant to the case, other than conduct.
Motive / Intent / Mistake / Identity / Common Plan (or scheme)

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21
Q

Puppies Are Pleasantly Sweet

A

Rule for Witness Competency:

Personal knowledge / Able to communicate / Present recollection / Sincereity / UNDERSTANDS DUTY TO TELL THE TRUTH (CA)

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22
Q

What are six classic objections?

A
  1. Calls for Narrative
  2. Leading Question
  3. Assumes facts not in evidence
  4. Argumentative
  5. Unresponsive answers
  6. Hearsay - look for document read from stand
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23
Q

What is the rule on refreshing recollection?

A
  • A witness may review a document to refresh his recollection, and then continue to testify when he finishes reading.
  • Other side then gets to review the doc
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24
Q

What happens if witness can’t remember even after you give them a document to refresh their recollection?

A

You are permitted to show documents to prove the Witness knew something in the past. The document must have been

  • made/adopted by the W
  • at the time when the facts were fresh in their memory
  • accurate at the time
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25
Q

When is lay opinion testimony admissible?

A
  • helpful to the jury
  • rationally based on the W’s perception
  • see, e.g., speed of car, value of property, sanity
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26
Q

When is expert testimony helpful?

A
  • helpful (specialized knowledge)
  • qualified
  • believes testimony with reasonable degree ofcertainty
  • based on applicable facts through personal knowledge / previously admitted evidence / inadmissible evidence that an expert usually relies on
  • applied reliable principles that were reasonably applied
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27
Q

What is federal standard for scientific opinions?

A
  • peer reviewed
  • published in scientific journal
  • tested and subject to retesting
  • low error rate
  • reasonable level of acceptance
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28
Q

What is CA standard for scientific opinion?

A

Must be based on standards that are generally acceptable in the applicable field

29
Q

What is the learned treatise rule? What is CA exception?

A
  • Testimony from an accepted treatise will not be treated as hearsay.
  • CA only admits to show matters of general notoriety or general interest
30
Q

When can a prior consistent statement be admitted?

A
  • Only admissible to support credibility if it has already been attacked
  • Not hearsay and admissible for all purposes if (i) made before alleged character issue or (ii) rehabilitates W credibility if attacked on non-character ground.
31
Q

When is contradiction evidence admissible to impeach?

A

Always, but not to impeach on a collateral matter

32
Q

When can a prior inconsistent statement be admitted? What is CA distinction?

A
  • if made under oath at trial or a deposition, always - for impeachment or to support case
  • All PIS are admissible for any purpose, whether or not made under oath
33
Q

When is extrinsic evidence of a prior inconsistent statement admissible to impeach on a collateral matter?

A

Never

34
Q

What is necessary to admit extrinsic evidence of a prior inconsistent statement for impeachment purposes?

A

Witness must have had an opportunity to explain or deny the statement at some point, including in a prior proceeding

35
Q

When can you use evidence of bias, interest, or motive to impeach a witness?

A

Generally, as long as the witness has had an opportunity to explain or deny the statement at some point.

36
Q

When can you admit evidence of a crime involving dishonesty or a false statement?

A
  • Generally for impeachment, even if risk of prejudice

- Never to show conduct

37
Q

Can felonies be used to impeach?

A

Yes, but court will balance probative value against risk of unfair prejudice

38
Q

Can misdemeanors be used to impeach?

A

No

39
Q

What are the two California distinction on using evidence of prior crimes to impeach or show conduct?

A
  • Can always admit evidence of crimes involving moral turpitude - to impeach or to prove crime
  • Misdemeanors involving a crime of moral turpitude may be admitted in a criminal case - but otherwise not admissible
40
Q

When can you admit acts of misconduct that didn’t result in a conviction? What is California distinction?

A
  • Only through cross-exam
  • CA civil case: not permitted
  • CA criminal case: possibly admissible under Prop 8
41
Q

Is character for truthfulness admissible?

A

yes

42
Q

Is credibility of hearsay declarant relevant?

A

Yes, and it can be impeached in the same manner as any other witness

43
Q

What is hearsay?

A

An out of court statement offered to prove the truth of the matter asserted. Hearsay is typically not admissible unless it falls under an exemption or exception to that general rule.

44
Q

What are two out of court statements that are simply NOT hearsay?

A
  1. Statement of independent legal significance (e.g., statement that legally proves an element of a claim)
  2. Circumstantial evidence of speaker’s state of mind
45
Q

What are the four exemptions from the hearsay rule? What is CA distinction?

A
  1. Opposing party statement
  2. Prior inconsistent statement given under oath at trail or deposition
  3. Prior consistent statement offered to rebut charge of recent fabrication, motive, or to rebut another non-character attack on credibility
  4. Statement identifying someone
    CA Distinction: admissible as EXCEPtions, not EXEMPtions
46
Q

What are the two exceptions to hearsay that require the declarant to be unavailable? What are CA distinctions

A
  1. Former testimony. Party it is offered against must have had
    • opportunity to examine the person
    • motive for exam was similar (N/A in CA)
  2. Declaration against financial interest, interest in preserving innocence, AND SOCIAL INTEREST
  3. DYING DECLARATIONS
47
Q

What are the 5 ways to prove a declarant is unavailable? What are the two CA distinctions?

A
  1. exempt due to privilege
  2. dead / sick
  3. can’t be brought in after effort
  4. refuses to testify despite court order / REFUSES TO TESTIFY OUT OF FEAR (CA)
  5. memory fails / TOTAL MEMORY LOSS (CA)
48
Q

What are the six exceptions to hearsay that do NOT require declarant to be unavailable? What are CA distinctions

A
  1. Excited Utterance / Spontaneous Statement
  2. Present Sense - stmt is simultaneous with event || DECLARANT MUST SAY IT WHILE ENGAGED IN THE CONDUCT
    • – OJ EXCEPTION: DESCRIBING THREAT OF PHYSICAL ABUSE TO POLICE/MEDICAL PROFS UNDER TRUSTWORTHY CIRCUMSTANCES
  3. State of Mind / Physical Condition
  4. Past or Present Mental/Physical Condition if made for and pertinent to get medical diagnosis or treatment (need not be to doctor) - ONLY MINORS IN CHILD ABUSE
  5. Business Records (describes activities/policies of office / observed pursuant to legal duty / fact finding from legally authorized investigation - police reports in criminal case do not count)
  6. Public Records
  7. Prior felony convictions / ONLY IN CIVIL CASES
49
Q

What is the Confrontation Clause issue?

A

Even if hearsay testimony is otherwise admissible, the CC requires it to be excluded from certain criminal cases if:

  • declarant doesn’t testify at trial
  • stmt is testimonial
  • D didn’t have an opportunity to cross examine the declarant
50
Q

What is the general rule of authentication? What is standard?

A

Every item of non-testimonial evidence must be authenticated. Must be shown that a reasonable juror would believe it.

51
Q

How do you authenticate a signature?

A

Both testimonial and circumstantial evidence can be used

52
Q

What is the ancient documents exception to the authentication rule? What is CA distinction?

A

No authentication required for a document that is:

  1. At least 20 years old / 30 IN CA
  2. Doesn’t appear to be tampered with
  3. Found where you would expect it
53
Q

What documents are self-authenticating? What is CA distinction?

A
  • Certified copies of public documents
  • acknowledged docs
  • official publication
  • newspapers, periodicals
  • business records
  • trade inscriptions (NOT IN CA)
54
Q

How do you authenticate an item that is NOT unique?

A

Must prove chain of custody

55
Q

What is general Best Evidence Rule?

A

Original document is required where evidence has been offered to prove the contents of a writing (e.g., where case turns on the contents of a legal instrument)

56
Q

What documents satisfy the Best Evidence Rule? What is CA distinction?

A
  • original
  • certified copy
  • machine produced copy
  • testimony, if original is lost or destroyed and not in bad faith
  • HANDWRITTEN COPIES ARE OK
57
Q

What is the general rule of attorney-client privilege?

A
  • Communication between attorney and client or their reps
  • made to facilitate legal services
  • communication to anyone hired by A is covered
58
Q

What are exceptions to Attorney-Client privilege?

A
  1. communications to facilitate crime that hasn’t yet been committed
  2. legal services are at issue (e.g., malpractice suit)
  3. two parties had the same A, and C1 needs to a offer an otherwise privileged stmt against C2
59
Q

How long does attorney-client privilege last? How about in CA?

A
  • Forever

- Until estate is distributed

60
Q

What is therapist / social worker - patient privilege? What is CA distinction?

A
  • Communications intended to be confidential and made to facilitate professional services
  • CA: DOESN’T APPLY IN CRIMINAL CASE, IF REQUIRED TO REPORT TO DOCTORS, OR PROVIDER BELIEVES PATIENT IS A DANGER TO HIMSELF AND NEEDS TO BREAK BRIVILEGE
61
Q

Is there a doctor patient privilege?

A
  • not in federal
  • yes in california. patient must intend communication to be privileged and convey the info for purposes of getting medical treatment
62
Q

What are two types of marital privilege?

A
  1. testimonial

2 spousal confidentiality

63
Q

What is rule of testimonial privilege? What is CA distinction?

A
  • Current spouse can assert the privilege and avoid testifying against her spouse in a criminal case
  • CAN BE USED IN ANY CASE, AND SPOUSE DOESN’T HAVE TO TAKE THE STAND TO CLAIM PRIVILEGE
64
Q

What is rule of spousal confidentiality?

A

-Either spouse can block testimony if the communication occurred between spouses during marriage

65
Q

What are California’s additional privileges?

A
  1. counselor - sexual/domestic abuse victim
  2. clergy - congregant
  3. reporter who won’t disclose source
66
Q

Who decides whether a witness is qualified to testify?

A

Judge

67
Q

Who decides whether privilege applies?

A

Judge

68
Q

What decides what evidence is admissible?

A

Judge

69
Q

What facts are appropriate for judicial notice?

A

Facts that are generally known or can be established b looking at a source that is unquestionably accurate

CA Bar Exam (15 decks)

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