Evidence

Question 1

Logical Relevance

Answer 1

Evidence is relevant if it has a tendency to make a fact more or less probable than without it.

CA: evidence must tend to prove/disprove a disputed fact

Question 2

Legal Relevance

Answer 2

relevant evidence may be excluded if its probative value is substantially outweighed by its dangers of unfair prejudice

CA: Prop 8 states that relevant evidence shall not be excluded in any criminal proceeding unless subject to an exemption

Question 3

Subsequent remedial measures

Answer 3

not admissible to prove negligence or culpability.

can be used to prove (1) ownership/control, (2) feasibility of precautionary measures or (3) destruction of evidence

Question 4

compromise and negotiations

Answer 4

not admissible to provide negligence/culpability. Admissible for other purposes

Question 5

offer to pay medical expenses

Answer 5

inadmissble to prove liability, but statements that accompany conduct may be admissible

If there’s a statement offering to pay expenses AND admission → admission is admissible but offer is not

CA: Both statement AND offer to pay are inadmissible to prove liability

Question 6

plea negotiations

Answer 6

generally inadmissible.

Admissible if coupled w/admissible statement and would be fair to admit whole thing

Question 7

liability insurance

Answer 7

inadmissible to show fault/culpability but can be used to prove (1) ownership/control (2) impeach (3) as an admission

CA: only prohibition is using liability insurance to show insured person acted negligently or wrongfully

Question 8

Authentication

Answer 8

Authentication of a writing (tangible evidence) is required before it may be received in evidence.

To authenticate, proponent must produce sufficient evidence to support a finding that the thing is what its proponent claims it to be.

Question 9

best evidence rule

Answer 9

original document or reliable duplicate must be produced to prove contents of writing when contents are at issue or witness is relying on contents while testifying. Original not required if lost/destroyed in good faith

CA: Secondary Evidence Rule

Question 10

rule of completeness

Answer 10

if party introduces part of a statement, the other party may require the introduction of any other part of document in fairness

Question 11

character evidence (Civil)

Answer 11

Inadmissible to prove person acted in accordance with character on particular occasion. Admissible when character is essential element of claim/defense. Admissible through reputation, opinion and specific acts.

4 cases Character is at Issue: (1) defamation (2) child custody (3) negligent entrustment (4) misrepresentation/fraud

Question 12

character evidence (criminal)

Answer 12

admissible when defendant “opens the door” with evidence of good character (peacefulness/honesty).

Can only use reputation or opinion evidence to show good character. Can be rebutted with bad character.

Question 13

bad acts

Answer 13

not admissible to show D’s criminal propensity to prove he committed crime in question.

MIMIC (Motive, Intent, Absense of Mistake, Identity, Common Plan) admissible, can be introduced for other purposes except to prove D committed Crime

Question 14

habit evidence

Answer 14

person’s particular routine to a specific act. evidence of a persons habit is admissible to prove that person acted in accordance with that habit on a particular occasion

Question 15

hearsay

Answer 15

out of court statement offered to prove the truth of the matter asserted

Question 16

nonhearsay

Answer 16

prior statements & opposing party statements

CA: considered hearsay exceptions

Question 17

Prior Statements

Answer 17

Declarant must testify at present trial to be admissible.

Can’t apply if dead or unavailable witness

Question 18

prior inconsistent statements

Answer 18

made under penalty of perjury,

admissible to impeach declarant’s credibility and as substantive evidence.

CA: doesn’t need to be under oath

Question 19

prior consistent statement

Answer 19

admissible to rebut express/implied charge that declarant recently fabricated or acted with improper motive but must be made before declarant had reason to fabricate.

Question 20

prior statement of identification

Answer 20

prior identification of person after perceiving that person is admissible as nonhearsay substantive evidence even if witness has no memory of identification

CA: memory must be recent

Question 21

opposing party’s statement

Answer 21

(1) made by party opponent AND (2) offered against party opponent

Question 22

judicial notice

Answer 22

court can take judicial notice of any adjudicative facts thats not subject to reasonable dispute because its (1) generally known within courts jurisdiction or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Question 23

adoptive admission

Answer 23

Opposing party’s silence is considered an adoptive admission if (1) party was present and heard and understood statement (2) party had ability and opportunity to deny statement and (3) reasonable person similarly situated would have denied statement

Question 24

vicarious admission

Answer 24

statement made by one person imputed to another based on a relationship between them

Question 25

Hearsay exceptions - declarant unavailable

Answer 25

- statement against interest - former testimony - CA: Threat of infliction of injury - Statement of personal/family history - Dying declaration

Question 26

Statement against interest

Answer 26

statement was against declarant’s interest at time it was made AND a reasonable person wouldn’t have made statement unless its true

Question 27

former testimony

Answer 27

Not hearsay if party against whom testimony is offered had opportunity and similar motive to develop the testimony

Question 28

CA: Threat to Inflict Injury

Answer 28

made by unavailable declarant not more than 5 years before current proceeding was filed is admissible if circumstances indicate trustworthiness and statement is recorded or made to physician, nurse, paramedic or law enforcement

Question 29

dying declaration

Answer 29

declarant believed death was imminent AND statement concerns cause/circumstances of death (Only applies in homicide/civil cases) CA: Declarant must actually be dead + statement must be about what caused death. Applies in all Civil And Criminal Cases

Question 30

Hearsay - available/unavailable declarant

Answer 30

- Excited Utterance - present sense impression - then-existing state of mind - statement of treatment/diagnosis - business record - past recollection recorded/refreshed - public records - learned treatises

Question 31

lay witness testimony

Answer 31

admissible only if (1) rationally based on W’s personal knowledge (2) helpful to clear understanding of W’s testimony or facts at issue and (3) not based on scientific, technological or specialized knowledge

Question 32

expert witness testimony

Answer 32

admissible only if (1) specialized knowledge is helpful to jury (2) qualified as witness (3) reasonable certainty of opinion (4) based on proper facts/data (5) based on reliable principles and methods

Question 33

competence of witness

Answer 33

must have (1) personal knowledge and (2) must take oath to testify truthfully

Question 34

assumes facts not in evidence

Answer 34

assumes facts not yet established

Question 35

calling for a narrative

Answer 35

asks for a story, not the facts

Question 36

argumentative

Answer 36

question intends to provoke argument rather than elicit factual response. Not permitted.

Question 37

compound question

Answer 37

asks for more than one answer

Question 38

nonresponsive

Answer 38

doesn't respond to question asked. answer goes beyond scope of question (“Do you like soda? Yes I love coke.” Asks for yes/no)

Question 39

leading questions

Answer 39

not allowed on direct examination except to (1) hostile witnesses (2) opposing witnesses (3) child witness (4) solicit background info or to (5) refresh recollection. Allowed on cross-examination

Question 40

attorney client privilege

Answer 40

communication between attorney and client intended to remain confidential with purpose of seeking legal advice. Can be waived by client. CA: Privilege exists until waived or client dies and estate no longer exists exceptions: communications furthering fraud or crime not privileged. Not privileged if reasonable necessary to prevent death or substantial bodily harm

Question 41

spousal immunity

Answer 41

married persons can’t be compelled to testify against each other in any criminal proceeding. Witness spouse holds privilege. Applies for events before and during marriage. Privilege expires with divorce or annulment. CA: Applies in criminal and civil cases

Question 42

Spousal Communication privilege - marital communications

Answer 42

spousal communications during marriage is privileged. Both spouses hold privilege. Privilege begins with marriage and continues indefinitely. Doesn’t applying suing other spouse or charged with crime against each other or children. CA: Privilege can be asserted to prevent anyone from testifying

Question 43

work product doctrine

Answer 43

documents prepared in anticipation of litigation are protected unless party seeking disclosure (1) demonstrates substantial need AND (2) can’t obtain info by another means without undue hardship

Question 44

self-incrimination

Answer 44

5th amendment allows witness to refuse to give testimony that may incriminate him

Question 45

6th amendment confrontation clause

Answer 45

any out court statement made by unavailable declarants are inadmissible against criminal D unless D has prior opportunity to cross examine declarant at time of statement

Question 46

role of jury and judge

Answer 46

Judge = rules of law + admissibility Jury = rules of fact + weight and credibility of evidence

Question 47

CA Prop 8

Answer 47

Amends the CA constitution such that “relevant evidence shall not be excluded in any criminal proceeding”

Question 48

recollection recorded

Answer 48

Record may be used as substantive proof & read into evidence if: - witness once knew but can no longer recall fact - witness made or adopted record when fresh in mind and - record accurately reflects witness's knowledge

Question 49

refreshed recollection

Answer 49

Item may be used to refresh witness's memory either before or during testimony if: - witness once knew but can no longer recall fact and - item will help witness remember

Question 50

co-conspirator admission

Answer 50

Under the CEC, a statement made by a co-conspirator during and in furtherance of the conspiracy is admissible as an opposing party’s statement against other co-conspirators.

Question 51

business record

Answer 51

evidence of a writing made as a record of an act or event is admissible to prove the act or event if it was made in the regular course of a business, made at or near the time of the act or event, the custodian or other qualified witness testifies to its identity and the mode of its preparation, and the proponent establishes that the sources of information and method and time of preparation were such as to indicate its trustworthiness.

Question 52

present sense impression (CA: Contemporaneous statement)

Answer 52

A statement offered to explain, qualify, or make understandable conduct of the declarant, and made while the declarant was engaged in such conduct, is admissible.

Question 53

character evidence

Answer 53

Character describes a person’s disposition in respect to general traits, and it is inadmissible to prove a person has a propensity to act in conformity therewith

Question 54

excited utterance (CA: spontaneous statement)

Answer 54

made under stress of excitement of startling event by someone w/personal knowledge

Question 55

then-existing state of mind

Answer 55

statement concerning present intent, motive, plan or emotional/physical conditions

Question 56

learned treatises

Answer 56

statements that expert witness relied on during testimony (CA: allows works of historical, scientific, art books and published maps and charts)

Question 57

effect on listener/recipient

Answer 57

statement showing effect on listener, not offered for truth

Question 58

opposing party statement

Answer 58

A statement made by a party to the current litigation is not hearsay if it is offered by an opposing party. An opposing party’s statement need not have been against the party’s interest at the time that it was made.

Question 59

admission by party opponent

Answer 59

prior out of court statement by party to current litigation that’s used against that party. Statement doesn’t need to be against interest when made, only needs to be contrary to declarant’s present interest

Question 60

impeachment

Answer 60

W may be impeached on cross examination or with extrinsic evidence

Question 61

scope of cross examination

Answer 61

generally limited to subject matter of direct examination and credibility of witness but court has discretion to allow

Question 62

doctrine for curative admissibility

Answer 62

allows otherwise inadmissible evidence to rebut prejudicial evidence when (1) evidence was improperly admitted through no fault of prejudiced party (2) party objected and moved to strike evidence and (3) an instruction to disregard cant remedy prejudice

Question 63

parole evidence rule

Answer 63

If agreement is complete and final agreement, evidence of prior or contemporaneous agreements are inadmissible. Exception: clarify ambiguity, prove course of dealings, show fraud/duress/mistake, or show consideration paid

Question 64

judges as a witness

Answer 64

Can’t testify as a witness if theyre presiding over a trial

Question 65

juvenile conviction

Answer 65

evidence of the juvenile conviction is never admissible in civil cases to attack witness’s character for truthfulness

Question 66

Legally Operative Facts - hearsay

Answer 66

A statement offered to prove that the statement was made, regardless of its truth, is not hearsay.