Evidence

Question 1

Judge’s Preliminary Questions (5)

Answer 1

The judge decides 1) whether there is enough evidence for the jury to make a preliminary fact decision as to relevancy using ALL non-privileged evidence, even if inadmissible, before the evidence can go to the jury 2) whether expert witness is qualified before offering an expert opinion 3) hearsay standards of trustworthiness 4) whether a statement offered as a dying declaration is made under sense of impending death and 5) whether purported business record was made in regular course of business

Question 2

Jury decides

Answer 2

Whether offered evidence is relevant to the issues (authenticity and personal knowledge)

Question 3

Limiting Instruction

Answer 3

Evidence may be admissible for one purpose but not another, or admissible against one party but not another. Court must, upon timely request, restrict the evidence to its proper scope and instruct the jury accordingly. The court may exclude the evidence entirely if it determines that, even with a limiting instruction, the probative value of the evidence would be substantially outweighed by danger of unfair prejudice

Question 4

Presumption in a Criminal Case

Answer 4

The judge cannot instruct the jury that it must find a presumed fact against the accused; the judge must instruct them that they MAY regard the basic facts as sufficient evidence of the presumed fact.

Question 5

Burdens of Proof

Answer 5

Civil Cases - pleading party has burden of proof to make prima facie case by preponderance of the evidence. Criminal Cases - pleading party has burden of proof to make prima facie case beyond reasonable doubt

Question 6

Prop 8

Answer 6

CA Constitutional rule that states all relevant evidence is admissible in a CRIMINAL case, even if objectionable

Question 7

Prop 8 Exceptions

Answer 7

1) CEC 352 unfair prejudice substantially outweighs probative value 2) confrontation clause 3) hearsay 4) privilege 5) limits on character evidence 6) secondary evidence rule

Question 8

Logical Relevance

Answer 8

Evidence is relevant if it has any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. *CA requires that the fact of consequence must be in dispute

Question 9

Logical Relevance and Similar Occurences

Answer 9

Evidence of similar occurrences, even if about persons or events other than those directly issue, can still be relevant if 1) it proves causation 2) prior accidents or claims show pattern of fraudulent claim or a preexisting condition 3) it proves intent 4) it rebuts defense of impossibility 5) it is a comparable sale that establishes value 6) it proves a habit 7) it shows a routine business practice 8) it shows an industrial custom

Question 10

Unfair Prejudice / Probative Value

Answer 10

Rule 403 Probative/Prejudice Balance or CEC 352: Even if evidence is logically relevant, court has discretion to exclude if the probative value is substantially outweighed by unfair prejudice, confusion, misleading jury, undue delay, cumulative (repetitive), or waste of time

Question 11

Public Policy Exclusions of Relevant Evidence

Answer 11

Evidence of following is inadmissible, even if relevant: 1) Liability insurance 2) Subsequent remedial measures 3) settlements/offers to settle/please 4) Payment or offers to pay medical expenses 5) CEC expressions of sympathy 6) CEC Evidence of immigration status

Question 12

Liability Insurance Exception

Answer 12

Evidence of Liability Insurance is inadmissible to prove culpable conduct (e.g., Negligence) or D’s ability to pay a judgment, but may be admissible for any other purpose (bias, impeachment, ownership, scope of employment).

Question 13

Subsequent Remedial Measures Exception

Answer 13

Subsequent Remedial Measures are inadmissible to prove culpable conduct of negligence through defective product design, But admissible for any other purpose (including ownership or control, to rebut defense of no feasible precaution or destruction of evidence). CEC: inadmissible for negligence cases only, but admissible to prove defective design in strict products liability cases.

Question 14

Settlements/offers to settle/please exception

Answer 14

All statements and all related statements made in settlements, offers to settle, and certain plea statements (withdrawn guilty pleas, nolo contendere, offers to plead guilty, negotiating pleas) are inadmissible to prove validity or amount of claim or impeach a witness by prior inconsistent statement, UNLESS (1) no claim yet asserted or (2) no dispute as to liability or damages. CEC: any discussions during mediation are also inadmissible

Question 15

Payment or Offers to pay Medical Expenses Exception

Answer 15

inadmissible to prove liability for injuries, but admissible for all other purposes. Unlike settlements, related statements are admissible. Only exclude offer of payment. CEC: related statements are NOT admissible, all are excluded

Question 16

CEC Expressions of sympathy exception

Answer 16

Expressions of Sympathy relating to suffering or death of accident victim are inadmissible in civil case, but statements of fault within expression are not excluded

Question 17

CEC Evidence of immigration status Exception

Answer 17

Evidence of Immigration Status inadmissible or discoverable in civil actions for personal injury or wrongful death. In other civil and criminal cases, just don’t say in open court unless judge already determined this is admissible in camera. No restrictions when immigration status is necessary to prove an element of a claim, offense or affirmative defense

Question 18

Character Evidence in Civil Cases

Answer 18

Character evidence is inadmissible to prove conduct is in conformity with character, Except in sexual assault or child molestation claims, or if character is in issue (negligent hiring/entrustment, child custody disputes, defamation). If admissible, reputation, opinion, and specific acts are allowed CEC: CA does not have any exceptions allowing defendant’s prior SIMILAR ACTS in civil cases, no specific acts allowed in civil cases

Question 19

Character Evidence in Criminal Cases to prove Defendant’s Conduct

Answer 19

Trial starts with the door closed to character evidence. Defense can be first to open the door as to his own good character for a trait involved in the case (Reputation + Opinion ONLY NOT specific acts). If Defense opens door to character evidence, then prosecution can offer pertinent character evidence to rebut. On direct, prosecution can rebut with its own witness with evidence of reputation and opinion, not specific acts. On cross, prosecution can ask defendant’s witness about reputation and opinion, but only specific acts to impeach defendant’s witness. CEC: prosecution cannot admit specific acts to rebut.

EXCEPTIONS: Prosecution can open door first if sexual assault or child molestation (prosecution can bring specific acts of other acts of sexual assault or child molestation); CEC: CA also allows prosecution to open the door with similar acts of defendant’s domestic violence & elder abuse

Question 20

Character Evidence in Criminal Cases to prove Victim’s character

Answer 20

Victim’s door to character evidence begins closed. Prosecution cannot be first to offer evidence; D must first open the door by
(1) offering evidence of V’s character (prosecution may then offer reputation or opinion evidence of V’s character for peacefulness, OR defendant’s bad character for same trait) *CEC: prosecution can only rebut with evidence of defendant brings evidence of victim’s VIOLENT character, and can rebut with evidence of defendant’s VIOLENT character; or (2) in a homicide case, D alleges V attacked first (prosecution can then open the door by offering evidence of victim’s peaceful character). On direct, prosecution can rebut with its own witness with evidence of reputation and opinion, not specific acts *(CEC: specific acts allowed). On cross, prosecution can ask defendant’s witness about reputation and opinion, but only specific acts to impeach defendant’s witness.

Question 21

Character Evidence and Rape Shield Statutes (Criminal cases)

Answer 21

Evidence of victim’s past behavior or sexual disposition in a rape or sexual assault case is generally inadmissible; Exception: specific acts of V’s conduct admissible only to prove (1) third party source of semen or injury or (2) prior consensual sex between D and V. CEC: opinion, reputation, and specific acts evidence of the victim’s sexual conduct and manner or dress are all inadmissible to prove the victim’s consent, unless the victim’s sexual conduct was with the defendant.

Question 22

Character Evidence and Rape Shield Statute (Civil cases)

Answer 22

Evidence of victim’s past behavior or sexual disposition in a rape or sexual assault case is inadmissible. Exception: admissible if probative value substantially outweighs unfair prejudice (but only if V put her reputation at issue) CEC: No exclusion for civil cases

Question 23

Specific Acts of Misconduct are admissible to prove MIMIC

Answer 23

Specific acts of misconduct are inadmissible to prove character or propensity to commit the crime, but admissible for any other purpose such as MIMIC: Motive, Intent, Mistake (absence of), Identity, Common Plan or Scheme

Question 24

Witness Competency Requirement

Answer 24

Witnesses must pass tests of basic reliability to establish their competency to give testimony, but they are generally presumed to be competent until the contrary is established.
Requirements: 1) Personal Knowledge—W may testify to a fact only if based on sensory perception 2) Present Recollection—W must testify from present recollection, not from a record regarding matters that W once knew but now has forgotten. 3) Communication –W can relate perception; and 4) Sincerity—Oath or affirmation to tell truth. CEC: Extra requirement that witness must understand legal duty to tell truth

Question 25

Scope of Cross Examination

Answer 25

Cross examination is limited to the scope of direct examination, But judicial discretion to allow further than the scope. Re-direct examination is permitted to address minor new matters raised on cross, but MUST be permitted if there were SIGNIFICANT new matters were raised

Question 26

Objections

Answer 26

1) Calls for Narrative—questions calls for a narrative 2) Nonresponsive—response to question does not answer question asked, motion to strike 3) Leading—allowed on cross, but not on direct unless adverse/hostile witness or witness needs help 4) Assumes Facts Not in Evidence – “When did you stop abusing your wife?” 5) Argumentative—lawyer not seeking an answer, but trying to make an argument 6) Compound—two questions asked at the same time; can confuse jury since it is unclear answer refers to which question.

Question 27

Refreshing Recollection

Answer 27

Anything (object/document) can be used to refresh a witness’s memory, but witness cannot read from the document while testifying. No hearsay problem because not being offered into evidence. Safeguards against abuse: if it is a writing the opponent may inspect it and offer it into evidence.

Question 28

Past Recollection Recorded Hearsay Exception

Answer 28

If refreshing W’s recollection fails (W still can’t remember), a party can get actual document read to the jury as evidence, even though it is hearsay, only if the following foundational elements are satisfied: 1) W once had Personal Knowledge of the facts in the writing; 2) The writing was made by W, under his direction, or adopted by him; 3) The writing was written/adopted when the facts were fresh in W’s memory; 4) The writing is accurate; and 5) W now has insufficient recollection to testify as to matters contained in document. If requirements are met, Document is read to jury. Document cannot be admitted into evidence as an exhibit unless it is offered by the adverse party.

Question 29

Lay Opinion Testimony

Answer 29

Admissible if the opinion is rationally based on witness’s perceptions and helpful to trier of fact; can’t be based on scientific or other specialized knowledge, and must tell jury more than if testimony were limited to facts perceived. Acceptable: speed of auto, sanity, intoxication, emotions, value of witness’s property. Not Allowed: legal conclusions, such as whether a contract was formed, whether they acted as an agent

Question 30

Expert Opinion Testimony

Answer 30

Requirements to be admitted: Hot Quiznos For Certain reliable Penguins - (1) Helpful to jury (used specialized knowledge average juror couldn’t figure out on his own); (2) Qualified (experience, education, training (3) Certainty of opinion; (4) Factual basis of opinion (personal knowledge, facts admitted in trial made known to expert, facts relied upon by other experts in the field); and (5) Reliable Principles applied to the facts based on Daubert Standard - (1) peer reviewed and published; (2) tested and subject to retesting; (3) low error rate; (4) reasonable level of acceptance; Must consider all relevant evidence and alternative theories (CEC: Kelley Frye Standard: Must use generally accepted principles in field). Expert opinions on ultimate issues are permitted except for testimony concerning defendant’s mental state in a criminal case

Question 31

Learned Treatise Exception

Answer 31

Admissible to prove anything stated therein if it’s an accepted authority in the field (exception to hearsay). Can be used for impeachment or substantively. Requires an expert witness to testify regarding the text. CEC: only admissible to show matters of general notoriety or interest. This means it is almost NEVER applied because Learned Treatise will almost always be specialized.

Question 32

Evidence to support witness credibility

Answer 32

Generally, a party may not bolster or accredit the testimony of her witness until her witness’s credibility has been attacked. If credibility of witness is attacked, a Prior Consistent statement is admissible for ALL purposes if made before the motive to lie or exaggerate (also admissible substantively under hearsay exemption). CEC: also admissible if the witness was impeached with a prior inconsistent statement, and the prior consistent statement was made before the prior inconsistent statement.

Question 33

Impeachment Methods

Answer 33

1) Contradiction 2) Prior Inconsistent Statement 3) Bias, Interest, Motive 4) Sensory Deficiencies 5) Prior Conviction 6) Prior Bad Acts of Lying without Conviction 7) Character Evidence of Reputation and Opinion Regarding Truthfulness

Question 34

Impeachment based on Contradiction

Answer 34

Can impeach witness on Cross, or offer Extrinsic evidence to contradict a fact that witness said to impeach on a material matter, but no extrinsic evidence allowed to impeach on a collateral matter

Question 35

Impeachment based on Prior Inconsistent Statement

Answer 35

Can impeach a witness on cross-examination or introduce extrinsic evidence that the witness has previously made statements inconsistent with their present testimony. Foundation requirements – EE admissible only if (1) W given an opportunity to explain or deny, (2) adverse party has opportunity to examine the witness, and (3) not used to prove a collateral matter, must be material. Exceptions: prior inconsistent statements are admissible without foundation requirement if 1) prior inconsistent statement is opposing party’s statement, 2) hearsay declarant is being impeached, or 3) justice requires it to be admissible

Question 36

Impeachment based on Bias, Interest, Motive

Answer 36

Foundation requirement – extrinsic evidence admissible to show bias/interest/motive in order to impeach if witness given opportunity to explain or deny

Question 37

Impeachment based on Sensory Deficiency

Answer 37

Can impeach a witness on cross or with extrinsic evidence that the witness had no personal knowledge or recollection is impaired

Question 38

Impeachment based on Prior Conviction involving False Statement

Answer 38

All convictions (felony or misdemeanor) for crimes of dishonesty or false statement (perjury, forgery, fraud) are ADMISSIBLE for IMPEACHMENT, unless crime was MORE than 10 years ago. If more than 10 years ago, Court will admit if probative value outweighs unfair prejudice.(CA does not have timing rule, but can consider age of conviction in CEC 352 balancing). CEC: all felonies (convictions that haven’t been expunged or pardoned) involving moral turpitude (“general readiness to do evil”; i.e. lying, violence, theft, extreme recklessness, sexual misconduct) are admissible subject to PV/UP Balance (CEC 352). All other felonies inadmissible (not relevant if no MT). Misdemeanors are inadmissible to impeach a witness in civil case, but Prop 8 allows it in criminal case if moral turpitude (subject to CEC 352)

Question 39

Impeachment based on Prior Conviction NOT involving False Statement

Answer 39

Court excludes a criminal defendant’s felony not involving false statement unless probative value is more than unfair prejudice. For any other witness, court may admit unless unfair prejudice outweighs prejudicial effect. If conviction was more than 10 years ago, court can admit only if probative value outweighs unfair prejudice. Misdemeanors not involving lying (such as theft) are inadmissible to impeach. CEC: admissible if it is a felony/misdemeanor crime of moral turpitude (subject to CEC 352). Misdemeanors are inadmissible to impeach a witness in civil case, but Prop 8 allows it in criminal case if moral turpitude (subject to CEC 352)

Question 40

Impeachment using Prior Bad Acts of Lying without a Conviction

Answer 40

Admissible to impeach during cross of witness in both civil and criminal cases if acts involved LYING, but cannot admit extrinsic evidence. Even if witness denies the prior bad act, cannot produce extrinsic evidence of the prior bad act to rebut - must accept what the witness says as true. CEC: inadmissible in civil cases, but Prop 8 makes admissible in criminal cases if relevant; both cross and EE allowed, subject to PV/UP balancing

Question 41

Impeachment using Character Evidence

Answer 41

Can impeach witness on cross or through extrinsic evidence of reputation or opinion regarding the witness's truthfulness

Question 42

Impeachment of Hearsay Declarant

Answer 42

Can impeach a hearsay declarant the same way you would impeach an in-court witness.No foundation requirement of giving declarant the opportunity to explain or deny prior inconsistent statement

Question 43

Hearsay

Answer 43

Hearsay is an out of court statement offered to prove the truth of the matter asserted. It is inadmissible in court. The statement can be verbal, written, or assertive conduct. A statement made by an animal or machine is not hearsay.

Question 44

Prop 8 and Hearsay

Answer 44

In CA, Prop 8 says all relevant evidence is admissible, prop 8 does not apply to hearsay. Hearsay rules apply instead.

Question 45

Hearsay within Hearsay

Answer 45

A statement containing multiple levels of hearsay is admissible only if each level of the statement falls within a a hearsay exception (or is otherwise admissible over a hearsay objection)

Question 46

Not Hearsay

Answer 46

Examples of NOT hearsay are: 1) Verbal Acts that have Independent Legal Significance 2) statements offered to show effect on the listener 3) statements offered to show speaker's knowledge of facts stated, and 4) statement offered as circumstantial evidence of state of mind

Question 47

Hearsay Exemptions

Answer 47

Hearsay exemptions are admissible and deemed “not hearsay” even though they are out-of-court statements being offered for the truth of the matter asserted. The declarant must testify and be subject to cross examination. CEC: They are called hearsay exceptions in CA, not hearsay exclusions: 1) Admission by Party Opponent 2) Prior Inconsistent Statement 3) Prior Consistent Statement 4) Statement of Identification

Question 48

Admission by Party Opponent Hearsay Exemption

Answer 48

Statement made by opposing party, adopted by an opposing party through silence, or made by a vicarious party of the opposing party, can be offered against that party is admissible as a hearsay exemption if declarant testifies and subject to cross examination. No Personal Knowledge requirement. Adoptive Admission by Silence: Treated as an admission only if: (1) the party heard and understood the statement; (2) the party was physically and mentally capable of denying the statement; and (3) a reasonable person would have denied the accusation. Vicarious Party Admissions: Statement by (1) authorized spokesperson (express or implied (2) agent or employee concerning matter within scope of agency or employment and made during agency or employment relationship. (3) Partners: After a partnership is shown to exist, an admission of one partner relating to matters within the scope of the partnership business is binding upon co-partners (4) Co-Conspirator Statements: Admissible if made during course and in furtherance of conspiracy at a time when the declarant was participating in the conspiracy. CEC: CA employee concept is narrower—in civil case, an employer becomes responsible for employee’s words only if employer is also responsible for employee’s conduct in tort law (i.e. Respondeat superior/vicarious liability) £ Note: Preliminary Determination: The court must consider the contents of the statement, but the statement alone is not sufficient to establish the required relationship for vicarious party admission: there must be some independent evidence.

Question 49

Prior Inconsistent Statement Hearsay Exemption

Answer 49

A prior inconsistent statement made under oath (at a prior proceeding or a deposition) is admissible under a hearsay exemption to prove a substantive matter if declarant testifies at trial is subject to cross examination. CEC: prior inconsistent statement does not need to be under oath to be admissible

Question 50

Prior Consistent Statement Hearsay Exemption

Answer 50

a prior consistent statement can be offered to rebut a charge of recent fabrication, improper influence, or motive is admissible under a hearsay if declarant testifies at trial and is subject to cross examination

Question 51

Statement of Identification Hearsay Exemption

Answer 51

Statement of identification of a person made after a declarant perceives that person is admissible under a hearsay exemption if declarant witness testifies at trial and is subject to cross. CEC: admissible if (1) identification is of person who participated in crime (2) witness made identification while memory was fresh and (3) witness confirms in court that they made identification and it reflected understanding at the time

Question 52

Hearsay Exceptions requiring Declarant Unavailability

Answer 52

1) Former Testimony 2) Statement against declarant's interest 3) Dying Declaration 4) Forfeiture 5) Statements of Personal or Family History

Question 53

Hearsay Exceptions not requiring Declarant Unavailability

Answer 53

1) Excited Utterance 2) Present Sense Impression 3) State of Mind/Intention or Then-existing physical/mental condition 4) Statement made for Medical Diagnosis/Treatment 5) Business records 6) Public Records 7) Prior Felony Convictions 8) Ancient Documents 9) Catch-All exception

Question 54

Unavailability (PRISM)

Answer 54

A declarant is unavailable if (1) Exempt from testifying because of a PRIVILEGE; (2) REFUSAL to testify despite a court order (3) Witness is unable to testify due to INCAPACITY such as Death or illness; (4) Witness is Absent (beyond reach of court’s SUBPOENA power) (5) Witness Can’t remember (lacks MEMORY) of subject matter (CA requires total memory loss). CEC: Witness can be unavailable for refusal to testify out of FEAR.

Question 55

Former Testimony Hearsay Exception

Answer 55

Testimony given in earlier proceeding or deposition by a person now unavailable is admissible if: (1) that party against whom the evidence is offered against had an opportunity and similar motive to examine the declarant at prior proceeding (motive/interests must be similar in both cases) (2) OR In a civil case, party against whom the evidence is offered against was a predecessor in interest – meaning the party was NOT present but had a close privity-type relationship (legal connection) with a party who did have the opportunity and similar motive. CEC: broader – (1) no privity requirement, unavailable declarant former testimony admissible against if someone with mere similar interest was present at prior proceeding; (2) unavailable declarant former testimony is admissible if offered against the same person that offered it in prior proceeding, regardless if similar motive/interest. If you offered it in the first, it’s good enough to offer it against you now. CA Civ Pro: Deposition Testimony in the same civil action in which hearsay is offered at trial is ADMISSIBLE for all purposes if the deponent is unavailable at trial or lives more than 150 miles from the court house. If not, the former testimony exception does NOT apply to depo testimony given in the same case in which the hearsay is offered at trial (since they can just get that person to testify at trial)

Question 56

Statement Against a Declarant's Interest Hearsay Exception

Answer 56

A statement that a declarant wouldn’t say unless it was true is admissible if statement is against financial or penal interests* of the unavailable declarant at the time the statement was made; doesn’t have to be a party in current case. In criminal case: if offered to exculpate accused (i.e. by showing someone else did the crime), must have corroborating evidence showing the statement is trustworthy to admit it. CEC: CA is broader – exception includes statements against social interest with reputation harm (risk making declarant object of hatred, ridicule, or social disgrace in community)

Question 57

Dying Declaration Hearsay Exception

Answer 57

A statement made by an now unavailable declarant is admissible in (1) CIVIL action or HOMICIDE case if (2) if the declarant believed he was about to die (3) and statement describes the cause or circumstances of the impending death (mere suspicion of cause of death insufficient). If criminal case, must be homicide. Attempted murder is not enough. CEC: applies in ALL civil and criminal cases, but declarant must be dead

Question 58

Forfeiture Hearsay Exception

Answer 58

Statements offered against a party that intentionally procured declarant’s unavailability through some misconduct are admissible. Requires that declarant be unavailable. CEC: statement of kidnapped or murdered declarant is admissible if defendant’s prosecution is for a serious felony and unavailability was caused by or aided by defendant for purpose of preventing defendant’s arrest or prosecution

Question 59

Statements of Personal or Family History Hearsay Exception

Answer 59

Statements by a now-unavailable declarant concerning births, marriages, divorces, relationship, genealogical status, etc., are admissible provided that: (1) The declarant is a member of the family in question or intimately associated with it; and (2) The statements are based on the declarant's personal knowledge of the facts or their knowledge of family reputation

Question 60

Excited Utterance Hearsay Exception

Answer 60

Statement relating to startling event or condition is admissible if made while declarant still under stress of exciting event (does not have to be immediate, as long as still under stress of event.) CEC: exception is called the "Spontaneous Statement Exception"

Question 61

Present Sense Impression Hearsay Exception

Answer 61

Statement is admissible if describing an event while declarant was perceiving the event or immediately thereafter. CEC: calls it the “Contemporaneous Statement” and is Narrower; must be statement explaining declarant’s OWN conduct that was made while declarant was doing that conduct . CA also has an “OJ Exception” in which a statement describing infliction or threat of physical abuse by an unavailable declarant in a writing or recording made to police or medical professional under trustworthy circumstances is admissible (but possible violation of Confrontation Clause since might be testimonial hearsay)

Question 62

Declaration of State of Mind/Intention or Then-Existing Physical/Mental condition Hearsay Exception

Answer 62

Declaration of State of Mind/Intention or Then-Existing Physical/Mental condition Hearsay Exception is admissible to show the condition or state of mind or INTENTION to do something, as well as action in accordance therewith. BUT statement describing a memory or belief is not admissible to prove fact remembered or believed (i.e. “I remember/believe that D shot victim” not admissible to prove D shot victim)). CEC: Judge has specific discretion to exclude statement based on lack of trustworthiness

Question 63

Statement Made for Purpose of Medical Diagnosis or Treatment

Answer 63

Statement is admissible if made for medical diagnosis or treatment (includes statement of cause if pertinent). CEC: much narrower – applies only if declarant is a minor describing an act of child abuse or neglect. However, a statement of an unavailable declarant’s statement describing PAST physical or mental condition is admissible to prove that condition if it is an issue in the case, even if not made for medical purposes (“my back was fine before the accident” said to a friend is admissible). Judge has specific discretion to exclude statement based on lack of trustworthiness

Question 64

Business Records Hearsay Exception

Answer 64

Business records may be admissible if it is a: (1) record of events, conditions, opinions** or diagnoses of a business; (2) made in course of regularly conducted business activity; (3) made at or near time of matters described; (4) by person with Personal Knowledge of the facts in that record or by someone with Personal Knowledge in ordinary course of their business; (5) and it was regular business practice to make such record. This must be authenticated by live testimony or written certification to be admitted. CEC: CA courts will include simple opinions or diagnoses (i.e. diagnosis for broken leg admissible, but not diagnosis for PTSD). This must be authenticated by live testimony identifying the business record and its creation; a written certification is not sufficient.

Question 65

Public Records Hearsay Exception

Answer 65

Public record is admissible if made by and within the scope of the duty of the public employee, and it must have been made at or near the time of the event. CRIMINAL: Record of public office admissible in criminal case if (1) it describes internal activities of the office. Police reports are not admissible in criminal cases under public record or business record exceptions. CIVIL: Record admissible if (1) it describes internal activities of the office (2) it describes matters observed pursuant to duty imposed by law (police reports OK in civil); or (3) contains factual findings resulting from investigation made pursuant to authority granted by law. Court can exclude if lack of trustworthiness. CEC: doesn’t have same restrictions on prosecution for police records; record admissible if (1) made by public (2) within scope of duties (3) made at or near time of matters described, and (4) circumstances indicate trustworthiness. But could have confrontation clause objection for testimonial hearsay

Question 66

Prior Felony Conviction Hearsay Exception

Answer 66

Copy of judgment of prior felony conviction is admissible to prove any fact essential to the judgment, but prosecution can’t offer judgments against persons other than the accused defendant except for impeachment Must be a CRIMINAL CONVICTION, not civil, and not an acquittal. CEC: exception applies only in civil cases, but a copy of judgment of conviction could be admissible under CA public records exception in criminal case, and Prop 8 permits prosecutor or D in criminal case to impeach W with criminal conviction involving moral turpitude.

Question 67

Ancient Documents Hearsay Exception

Answer 67

Ancient documents prepared before 1998 are admissible. CEC: In California, documents that are more than 30 years old are admissible. They are authenticated if 1) at least 20 years old (CEC: 30 years old), 2) no facial irregularities, and 3) it is found where you would expect to find such a document.

Question 68

Catch-all Hearsay Exception

Answer 68

The FRE provides a general catch-all exception for hearsay statements not covered by specific exceptions. The statement must have (1) circumstantial guarantees of trustworthiness, (2) be necessary so the interests of justice will be served by its admission and (3) there must be notice to the proponent’s adversary. CEC: California does not recognize a catch-all exception, but judges can create new hearsay exceptions by decisional law.

Question 69

Confrontation Clause

Answer 69

Criminal D’s have a constitutional right to confront adverse witnesses. The Confrontation Clause prohibits use of a hearsay statement (even if it falls within a hearsay exception) when: (1) The statement is offered against the accused/D in a criminal case; (2) The declarant is unavailable; (3) The statement was testimonial in nature; and (4) The accused/D had no opportunity to cross-examine declarant’s testimonial statement prior to trial. A Testimonial Statement is made in court or with the primary purpose of furthering a police investigation aimed at producing evidence for a prosecution (to establish or prove past events potentially relevant to a later criminal investigation). Statements to police for primary purpose of dealing with an ongoing emergency are NOT testimonial and their admission does not violate the CC

Question 70

Authentication

Answer 70

Every item of non-testimonial evidence must be authenticated, meaning that it is what its proponent claims it to be. The proof must be sufficient to support a jury finding of genuineness (that is, a reasonable juror could conclude that the writing is genuine).

Question 71

Ways to Authenticate Real Physical Evidence

Answer 71

Real evidence can be authenticated by 1) Recognition testimony, when someone testifies that the evidence is what is purports to be based, or 2) through chain of custody, showing custody of ownership over the evidence since it became in question.

Question 72

Ways to Authenticate a Signature as Evidence

Answer 72

Signatures can be authenticated through admission of the signor, eyewitness testimony who saw the defendant sign, expert testimony that compares signature samples, lay opinion based on seeing defendant sign somewhere, circumstantial evidence that reasonable person could conclude that D signed, and having the jury compare genuine signature to disputed one.

Question 73

Self Authenticating Writings

Answer 73

(1) certified copies of public documents (deeds); (2) acknowledged documents (notarized); (3) official publications (gov pamphlets); (4) newspapers and periodicals; (5) business records**; (6) trade inscriptions (tag or label attached during course of business that indicates ownership, control, or origin)** CEC: business records and trade inscriptions not self-authenticating

Question 74

Ways to Authenticate Photograph as Evidence

Answer 74

A photograph can be authenticated 1) if the photo fairly and accurately depicts the scene of the accident (shown through expert witness) or 2) by a witness that has personal knowledge of the events/objects captured in the photo, and does not have to be the photographer.

Question 75

Ways to Authenticate a Voice Recording

Answer 75

A voice recording can be authenticated by anyone who has heard the voice personally at any time before the trial

Question 76

Ways to Authenticate a Telephone Conversation

Answer 76

A telephone conversation can be authenticated by any party to the call who testifies that: (1) they recognized the other party’s voice; (2) the speaker had knowledge of certain facts that only a particular person would have; (3) they called a particular person’s number and a voice answered as that person or that person’s residence; or (4) they called a business and talked with the person answering the phone about matters relevant to the business.

Question 77

Best Evidence Rule

Answer 77

When evidence is offered to prove the CONTENTS of a writing/ recording/ photo, the original must be produced if terms of writing are material. Originals and duplicates/photocopies (not handwritten) are admissible if there are no question as to the original's authenticity or unfair to admit. Testimony regarding contents of writing may be admissible where original lost or destroyed, unless bad faith by proponent of testimony However, if the original cannot be provided due to loss or destruction in good faith, is unobtainable by any judicial process despite reasonable effort, or the original is in possession of an adversary and failed to produce the original, secondary evidence can be provided. CEC: calls it the Secondary Evidence Rule, and admits duplicates and other written evidence of contents of original, such as handwritten notes, but oral testimony is not admissible without a valid excuse

Question 78

Rule of Completeness

Answer 78

Where part or all of a writing or recorded statement is introduced into evidence, the adverse party may require the proponent of the evidence to introduce any other part—or any related writing or recorded statement—that ought in fairness to be considered at the same time.

Question 79

Attorney Client Privilege

Answer 79

1) Communication between attorney and client or their representatives INTENDED by client to be confidential and made to FACILITATE legal services is privileged in all civil and criminal proceedings, unless waived by client. 2) The privilege survives termination of relationship or death of the client. CEC: In CA, Privilege ends once the estate of a dead client has been distributed and executor has been discharged. 3) The Client holds the privilege and can waive it, and the attorney MAY claim privilege on the client's behalf. CEC: Attorney MUST claim privilege on client's behalf or risk waiving it. 4) Exceptions: there is no privilege for communications in furtherance of a crime/fraud, communications that relate to a lawyer's breach of duty, statements against another that consult an attorney together on the same matter, or when legal services are in issue in the case. CEC: another exception where privilege does not apply is when client says something that a lawyer reasonably believes should be disclosed to prevent a crime likely to result in death or substantial bodily harm

Question 80

In ONLY CRIMINAL CASES, 1) Spousal Testimonial Privilege Permits witness to refuse to testify against his/her spouse in criminal case about anything 2) Only need to be married at time of trial (not at time of crime) in order for privilege to exist. 3) Testifying witness spouse holds privilege and can waive it, and the other spouse cannot stop the other from speaking. CEC: applies in civil and criminal cases; spouse is privileged to not even be called to witness stand. Exceptions: No privilege exists when 1) communications are in furtherance of future joint crime/fraud, 2) In legal actions between spouses, or 3) In cases involving crimes against the testifying spouse or either spouse’s children.

Question 81

Spousal Confidential Communication Privilege

Answer 81

In any civil or criminal case, 1) confidential marriage communications between spouses during a valid marriage are privileged. 2) Must be married at time of communication to be privileged (but need not be married at trial). 3) Both spouses hold privilege, can both invoke privilege or stop the witness from disclosing. Exceptions: No privilege exists when 1) communications are in furtherance of future joint crime/fraud, 2) In legal actions between spouses, or 3) In cases involving crimes against the testifying spouse or either spouse’s children.

Question 82

Psychotherapist Patient Privilege

Answer 82

Communication intended by patient to be confidential made to facilitate rendition of professional psychological services is privileged in all civil and criminal proceedings unless waived by patient. Exceptions: No privilege (1) in malpractice suit between patient psychotherapist (or doctor) and (2) cases where patient puts physical or mental condition at issue. CEC: privilege does NOT apply if psychotherapist has reasonable cause to believe patient is a danger to himself or others and disclosure is necessary to end that danger. Does not apply in criminal cases.

Question 83

Doctor Patient Privilege

Answer 83

CEC: Patient has privilege to prevent disclosure of confidential information revealed to physician provided that (1) a professional relationship exists; (2) the information is acquired while attending the patient in the course of treatment; and (3) the information is necessary for treatment, and (4) information must be intended to be confidential). Exceptions: no privilege when (1) patient puts his physical condition in issue (personal injury suit); (2) physician’s services sought to aid in crime or fraud; (3) case alleging breach of duty arising out of relationship (malpractice); (4) in federal cases applying the federal law of privilege (5) patient agree to waive privilege in contract

Question 84

Judicial Notice

Answer 84

1) A court can take judicial notice of a fact if it is (1) generally known within the territorial jurisdiction through court documents or (2) easily verified by well-established sources like maps or a calendar. 2) The court has discretion to take judicial notice of a fact, or a party can request it, at any time, even on appeal. 3) In civil case jury MUST accept noticed fact as conclusive, but in criminal cases, the burden of proving the fact is satisfied and the jury MAY, but is not required to, accept it. CEC: In BOTH civil and criminal cases, jury MUST accept noticed fact as conclusive

Question 85

Preserving a Claim of Error for Appeal

Answer 85

A party may claim error in the court’s ruling of admitting or excluding evidence if it affects a substantial right of the party. If the court admitted evidence, the party opposing its admission needs to make a timely objection or move to strike the evidence. If the court excluded evidence, the proponent of the evidence needs to inform the court of the evidence’s substance by an offer of proof, unless its substance was apparent from the context.