Evidence

Question 1

Relevance

Answer 1

For evidence to be admissible in a court of law, it must be both logical and legally relevant

Question 2

Logical evidence (FRE)

Answer 2

Evidence is logically relevant if it tends to prove/disprove a material fact

Question 3

CA logical relevance standard

Answer 3

evidence is logically relevant if it is material to a disputed fact

Question 4

Legal relevant

Answer 4

Evidence may be relevant if its probative value is substanitally outweighed by danger of unfair prejudice, confusing issues, misleading the jury, undue delay, wasting time or being needlessly cummlative

Question 5

CA Prop 8

Answer 5

Prop 8 applies to all criminal trials in CA. It’s the Victim’s Bill of Rights and provides that all relevant evidence is admissible, subject to balancing, with exceptions, including 1) the exclusionary rule; 2) the secondary/best evidence rule; 3) hearsay exclusions; 4) rape shield rules; 5) privilege exclusions; 6) limits on prosecutor offering specific evidence prior to defendant opening the door.

Question 6

CA 352 balancing

Answer 6

when there is a substantive likelihood that the evidence is more prejudicial than probative the court must conduct a balancing test when determining admission

Question 7

When would relevant evidence by excluded for public policy reasons

Answer 7

subsequent remedial measures

settlement offers or negoitation

offers to pay medical expenses

withdrawn guility pleas

Liability insurance

Question 8

CA specific- relevant evidence by excluded for public policy reasons

Answer 8

expression of sympathy

mediation statements and writting

Question 9

Sympathy policy exclusion

Answer 9

, expressions of sympathy are inadmissible but accompanying statements of fault in connection with these statements are admissible.

Question 10

Competence and Personal Knowledge

Answer 10

Non-expert witnesses must be competent and have personal knowledge of a matter to testify about the matter. Witnesses cannot be physically or mentally impaired and cannot be too young to understand the oath and the need to testify truthfully.

Question 11

In CA competence is

Answer 11

presumed

Question 12

Authentication def

Answer 12

A party must prove the item it seeks to admit is actually what the party purports it to be.

Question 13

Evidence can be authenticated by

Answer 13

witness testimony or evidence of holding in a substantially unbroken chain of custody.

Question 14

Vocal recognition

Answer 14

A voice may be identified by the opinion of anyone who has heard the voice at any time, even the same day or during current trial proceedings.

Question 15

Signature recognition

Answer 15

A jury can verify the authenticity of a signature with an appropriate example to compare.

Question 16

Best Evidence Rule / Secondary Evidence Rule (CA)

Answer 16

A party must provide the original document when testifying to contents of a writing. A photocopy is an acceptable substitute. Oral testimony is allowable only after showing original is not available for some reason other than misconduct.

Question 17

CA Secondary Evidence rule accepts

Answer 17

accepts duplicates and hand-written evidence of the contents of an original document.

Question 18

Character evidence

Answer 18

Generally, evidence of a person’s character is not admissible to show propensity. However, character evidence is generally admissible for any non-propensity purpose, such as when character is an ultimate issue in a case (i.e. defamation) or to impeach.

Question 19

In criminal cases, a defendant may always provide evidence of his own character. Prosecution is not allowed

Answer 19

to do so until the defendant opens the door.

Question 20

CA exception to D’s character

Answer 20

Prosecution can initate a showing of the D’s act of DV or elder abuse

Question 21

V’c character

Answer 21

A defendant may provide evidence of the victim’s character to prove the defendant’s innocence - except rape. If so, prosecution can show the victim’s good character for the same trait, or the defendant’s bad character.

Question 22

In CA for a victim’s character what are the only traits that can be introduce

Answer 22

violent

Question 23

Sex Offense Cases

Answer 23

A victim’s sexual behavior is inadmissible except 1) to show the defendant and the victim had previous sex, evidencing consent, or by the prosecutor for any reason they deem fitting. This type of evidence cannot be introduced in a civil case.

Question 24

D’s character - CA only can be proven by what type of evidence and when?

Answer 24

allows reputation and opinion evidence to prove character, whether on cross or direct.

Question 25

Method of admission - Under the FRE, when character evidence is admissible, it may be proven in the following ways:

Answer 25

on direct by opinion or reputation testimony or on cross, add speific acts

Question 26

In CA the ds character may only be proven by

Answer 26

opinion or rep

Question 27

In CA the v's character may only be proven by

Answer 27

opinion, rep or specific acts

Question 28

404b Prior Bad acts

Answer 28

Prior crimes are not admissible to show propensity.  However, evidence of prior bad acts may be admissible for other relevant non-propensity purposes, such as proving Motive, Identity, Absence of Mistake or Accident, Intent, a Common Plan or Scheme, Opportunity, or Preparation.

Question 29

Prior Convictions

Answer 29

Felony or misdemeanor convictions involving dishonesty are always admissible to impeach.    Felonies not for dishonesty have a 10-year limit from latter of conviction or release from confinement.  Requires probative value/prejudicial effect determination, and proper notice must be given.

Question 30

In CA prior convictions requires to be tested under which statutes

Answer 30

CEC 352 balancing for moral turpitude crimes, and misdemeanors are admissible under Prop 8.

Question 31

Prior Inconsistent Statements and when can you use extrinstric evidence

Answer 31

These statements are admissible to impeach.  Extrinsic evidence is admissible only if relevant to a material issue and a proper foundation is laid.

Question 32

CA - Prior Inconsistent Statements

Answer 32

admissible as non-hearsay when offered only to impeach a witness, and whether or not under oath.

Question 33

Lay witness

Answer 33

is any person that is not an expert.  They must take an oath to tell the truth, and have capacity to perceive, recall and communicate. Lay witness testimony cannot be based on specialized or scientific knowledge.

Question 34

Lay witness - CA

Answer 34

witness must understand the legal duty to tell the truth.   They may offer an opinion and tesitfy to scientic and specialized knowledge evidence if it is rationally based on the witness’ perception, and it is helpful to the jury.

Question 35

Expert Witness

Answer 35

– Expert testimony is appropriate only when the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact.  The witness must believe the opinion, it must be supported by fact and based on reliable principles.

Question 36

Expert Witness in CA you use which standards

Answer 36

Kelly / Frye Standard Daubert / Kumho Standard

Question 37

Kelly / Frye Standard

Answer 37

where the opinion must be based on principles generally accepted by experts in the field;

Question 38

Daubert / Kumho Standard

Answer 38

reliability is determined by publication, peer review, error rate, results are tested and have an ability to retest, and the method of determining the opinion  has a reasonable level of acceptance in the community.

Question 39

Consulting expert witnesses

Answer 39

These experts are retained by a party, but not expected to testify.  They have a higher standard to meet in order to subpoena and are only discoverable upon a showing of exceptional circumstances under which it would be impractical to the other party to obtain facts by other means.

Question 40

Who determines if the witness has sufficent knowledge

Answer 40

Judge

Question 41

If a party asks that observing witnesses be excluded when other witnesses are testifying

Answer 41

judge must comply

Question 42

Witness competency

Answer 42

Witnesses must testify based on personal knowledge, have an ability to communicate, and take an oath or make an affirmation to tell the truth.  In CA, they must also understand the legal duty to tell the truth.

Question 43

Hyponosis - CA rule

Answer 43

witnesses who have been hypnotized to refresh recollection are disqualified, except in a criminal case, where they were hypnotized by police using procedures that protect against suggestion.

Question 44

In a crim case, an expert must not tesify

Answer 44

to a criminally accused mens rea

Question 45

Learned Treatise Hearsay Exception

Answer 45

Information from learned treatises may be admissible if called to the attention of the expert witness upon cross or relied upon during testimony, and it is established as reliable.  Statements may be read into evidence and need not be made by the expert.  The jury is not allowed to bring them into the jury room because they may read the wrong passages. Admissible whether or not the witness is available.

Question 46

Hearsay

Answer 46

Out of court statement that is offered to prove the truth of the matter asserted. Only admissible if an exception applies

Question 47

Multiple levels of hearsay

Answer 47

each level must fall under an exception in order to be admissible

Question 48

Nonhearsay statements

Answer 48

If a statement is offered to prove something other than the truth of the matter asserted, it is non-hearsay and is admissible.

Question 49

Common non-hearsay statements include

Answer 49

1) verbal acts of independent legal significance; 2) statements offered to show the effect on the listener; 3) a prior inconsistent statement used to impeach; and 4) circumstantial evidence of the declarant’s state of mind (these show belief, attitude, knowledge or mental state).

Question 50

A Declarant is considered unavailable

Answer 50

if 1) exempt due to privilege; 2) if they refuse to testify; 3) they do not remember the events in question; 4) death or illness; 5) they can’t be found by reasonable means.  In CA, add: If declarant suffers total memory loss or refuses to testify out of fear.

Question 51

Statement against interest

Answer 51

A statement made against one’s penal, proprietary or pecuniary interest when uttered, and would not have been made by a reasonable person unless they believed it to be true.  Applies when declarant is unavailable and has no motive to lie. Must be corroborated in criminal cases.  In CA, add societal interest.

Question 52

Former testimony exception

Answer 52

Testimony given as a witness at a trial or hearing/deposition, is now offered against a party who had an opportunity and similar motive to develop it by direct/cross examination.  Requires that the witness is unavailable.

Question 53

Dying declaration

Answer 53

– In homicide or civil case, statement of declarant made while declarant believed they were dying, made about the cause or circumstances of their death.  The declarant must be unavailable but does not need to be dead.

Question 54

Dying declaration - CA exception

Answer 54

can be used for crim or civil case and Declarant must be dead

Question 55

Past recorded recollection

Answer 55

– A recollection 1) is on a matter the witness once knew about but cannot recall well enough to testify fully and accurately; 2) was made/adopted while the matter was still fresh on the witness’ memory; 3) accurately reflects the witness’ knowledge. Admissible whether or not the Declarant is unavailable

Question 56

A past recorded recollection may be read to the jury but may only be recieved as an ehibit if it is from

Answer 56

opponent

Question 57

Present Recollection refreshed

Answer 57

A witness may examine any item to refresh the witness’ present recollection.  Testimony must then be based on their recollection, and not a reading of the item.  The adverse party is allowed to inspect the item and introduce relevant portions into evidence.

Question 58

Statement of party opponet

Answer 58

A prior out of court statement by a party to the current litigation that is used against that party is not hearsay.  The statement need not be against the declarant’s interest at the time it was made; it must only be contrary to the declarant’s present interest.

Question 59

Adoptive admission

Answer 59

A declarant’s silence may constitute an adopted admission if the person heard the statement, remained silent, but a reasonable person would have denied the statement. .

Question 60

Unresponsive answer

Answer 60

An answer that goes beyond the scope of the question, or does not answer the question, and is subject to strike.

Question 61

Vicarious admission

Answer 61

Not hearsay, a vicarious admission is one made by 1) an authorized spokesperson; 2) a principal or agent acting with the scope of their relationship; or 3) co-conspirators.  In CA, not admissible in principal/agent situations.

Question 62

Police sketches

Answer 62

an out of court statement of an unavailable witness and is inadmissible as hearsay if the teller (not the artist) is unavailable to testify.

Question 63

Prior statements of ID

Answer 63

Statements of the declarant’s prior identifications are considered non-hearsay, however the declarant must testify and be subject to cross examination.  A cop present during the declarant’s identification can submit an admissible statement to that effect.

Question 64

Excitted Utterance / CA - Spontaneous Statement

Answer 64

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of the excitement.  These are admissible whether or not the declarant is available.

Question 65

Present Sense Impression / CA - Contemporaneous ststament

Answer 65

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Question 66

CA - Contemporaneous statement only qualifies if

Answer 66

explaining conduct of declarant made while declarant was engaged in such conduct.  These are admissible whether or not the declarant is available.

Question 67

Business record

Answer 67

A Record 1) made at or near the time of occurrence, or from information transmitted from someone with knowledge; 2) kept in the course of a regularly conducted activity of a business; 3) making that record was a regular practice; and 4) all the above are shown by testimony of the custodian.  May be inadmissible if the opponent can show its preparation indicates a lack of trustworthiness.

Question 68

CA - Business records rule

Answer 68

no opinions or diagnoses, and party introducing has the burden must show trustworthiness.  CA does not admit police records as business records (considered hearsay) but allows them as official records. These are admissible whether or not the declarant is available to testify.

Question 69

Absence of a Record of a regularly conducted activity

Answer 69

Evidence that a matter is not included in a record is admissible if 1) the purpose is to prove matter did not occur or exist; 2) a record was typically kept for that matter; and 3) opponent doesn’t show lack of trustworthiness. These are admissible whether or not the declarant is available.

Question 70

Public records

Answer 70

are admissible if 1) they set forth the office activities; 2) about a matter observed while under a legal duty to report (except in a criminal case for a matter observed by police); or 3) shows factual findings of a legal investigation.  These are admissible whether or not the declarant is available.

Question 71

CA - Public records rule

Answer 71

statements made by a public employee in the scope of duty, at or near the time of the act and with no indication of untrustworthiness.

Question 72

Ancient documents

Answer 72

Prepared at least 20 years ago, kept in a place it would normally be kept and shows no signs of suspicion.  In CA – 30 years old or older. These are admissible whether or not the declarant is available.

Question 73

Then existing mental, emotional or physical condition

Answer 73

A statement of declarant’s then existing state of mind (motive, intent, plan) or emotional sensory or physical condition is an exception to hearsay rule.  These are admissible whether or not the declarant is available.

Question 74

Prior statements made under oath

Answer 74

Admissible if 1) statements are offered against a party that was present in previous trial (but now unavailable, and privity suffices in civil case); 2) same issues are involved; and 3) subject party had an opportunity to cross examine at the previous trial.  In CA, privity not required, similar interest is ok.

Question 75

Confrontation clause

Answer 75

- The 6th Amendment’s Confrontation Clause, applied to the states via the 14th Amendment, gives a criminal defendant the right to confront witnesses against him.

Question 76

The out-of-court statement even if it falls within a hearsay exception or exemption, violates the confrontation clause when

Answer 76

1) the statement is “testimonial”; 2) the declarant is unavailable to be cross examined at trial; and 3) the defendant did not have an opportunity to cross-examine the declarant before trial.

Question 77

testimonal statements

Answer 77

Statements made to grand juries, and to police when they are collecting testimony for use at trial, but not when assisting police in an on-going emergency.

Question 78

Grand Jury rule

Answer 78

A defendant is not entitled to a lawyer inside the grand jury room, and illegally obtained evidence is permissible.  Witnesses subpoenaed to appear before a grand jury are entitled to immunity.

Question 79

Attorney client privilege

Answer 79

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or the disclosure is impliedly authorized in order to carry out the representation. The client holds this privilege, and it can remain after the client dies.

Question 80

CA - AC privilege

Answer 80

this privilege does not survive client (terminates when estate is settled) and is permitted if disclosure is required to prevent substantial bodily harm or death (and/or significant fraud/financial crimes per the FRCP).

Question 81

AC privillege does not apply when

Answer 81

legal services are sought in furtherance of a crime, in litigation between client and attorney, or when joint clients are litigating.

Question 82

Physican patient privilege

Answer 82

Not recognized in the FRE, but in CA exists for confidential patient communications for statements made during medical diagnosis.  Does not apply if the physician/psychotherapist believes the patient is dangerous to himself or others, nor when the doctor is required to report to a public officer – for example, in child abuse cases.

Question 83

Communication Privilege - H &W elements

Answer 83

Either criminal or civil Confidential talks between H and W The couple must be legally married at the time of communication but survives divorce Either spouse can refuse to disclose the information or prevent the other spouse from disclosing

Question 84

Under communication privilege, who must waive in order to waive this privilege

Answer 84

both spouse

Question 85

Testimonial Privilege

Answer 85

Applies in a criminal case One spouse has to be called to testify Must be a legal marriage at the time of testify Covers anything said before or during the marriage Ends at divorce Witness spouse holds the privilege

Question 86

What are exceptions to the H&W privilege

Answer 86

Statements about future crimes Any converstations about spousal or child abuse

Question 87

Statements made for medical dignosis or treatment

Answer 87

Exception only if 1) a statement made for and reasonably pertinent to medical diagnosis or treatment, 2) describes medical history; past or present symptoms, their inception or cause. These are admissible whether or not the declarant is available. In CA, only for child abuse/neglect victims under 12 years old.

Question 88

Opposing party's staement

Answer 88

statement made by a partty to the current litigation is not hearsay if an opposing party offers it. Considered nonhearsay

Question 89

Judical Notice

Answer 89

Undisputed facts may be judicially noticed if they are capable of accurately and readily determined from sources whose accuracy cannot reasonably be questioned; or facts generally known within the territorial jurisdiction of the trial court.  The court may accept, but in civil cases, jury must accept facts as conclusive, a criminal case jury may or may not, and in CA, both must accept.

Question 90

Catch all hearsay exception

Answer 90

-  If fitting no other category, a hearsay statement is admissible if 1) the statement provides circumstantial guarantees of trustworthiness; 2) the statement is strictly essential; and 3) notice is given to the adversary of that statement.