Evidence

Question 1

Relevance

Answer 1

• Evidence is logically relevant if it tends to be material to a disputed fact.
• Evidence is legally relevant unless its probative value is substantially outweighed by the danger of unfair prejudice.

Question 2

CA Prop 8

Answer 2

Under Prop 8 in criminal trials in CA state courts, all relevant evidence is admissible subject to special exceptions.

Question 3

Subsequent remedial measures

Answer 3

Evidence of safety measures or repairs performed after an accident are not admissible to prove liability. However, is admissible to establish ownership or control.

Question 4

Liability insurance

Answer 4

Not admissible to prove liability. Admissible to prove ownership or control, impeachment, or an admission made in conjunction with a statement regarding the possession of liability insurance.

Question 5

Offers to pay medical expenses

Answer 5

Not admissible to prove liability.

Question 6

Settlement offers

Answer 6

Not admissible to prove validity, liability, or amount.

Question 7

Offer to plead guilty

Answer 7

Not admissible but may come in under prop 8.

Question 8

Expressions of sympathy

Answer 8

Not admissible in civil actions but statements of fault are.

Question 9

Leading questions

Answer 9

Generally permitted on cross examination, limited to the subject matter of direct.

Question 10

Competence to testify

Answer 10

Witness must have personal knowledge of the matter.

Question 11

Present recollection refreshed

Answer 11

Any item may be used to refresh a witness’s memory, once shown the item the witness must testify from memory. The item is not evidence and the adversary has a right to inspect the item, cross examine, and introduce portions into evidence.

distinguish from past recollection recorded (hearsay exception)

Question 12

Lay opinion testimony

Answer 12

Lay opinion is admissible if rationally based on the witness’s perceptions and is helpful to the trier of fact.

Question 13

Expert opinion testimony

Answer 13

Specialized knowledge will assist the trier of fact, witness is qualified as an expert, testimony is based on sufficient facts or data, and testimony is the product of reliable principles and methods.

Question 14

Attorney-client privilege

Answer 14

A client has a right not to disclose any communications that were intended to be confidential with his attorney and were made for the purpose of securing legal services.

Question 15

Doctor-patient privilege

Answer 15

CEC only: Applies only to communications for the purpose of medical diagnosis and treatment.

Question 16

Spousal immunity and Marital confidential communications privilege

Answer 16

SI- A spouse may not be compelled to testify against the other spouse. It may only be claimed during marriage and the witness spouse holds the privilege.

MCCP- One spouse may not disclose the confidential communications of the other made during the marriage. Privilege survives divorce. Only applies to statements. One spouse may prevent the other spouse from disclosing. Makes spouse unavailable for hearsay purposes.

Question 17

CEC-only privileges

Answer 17

• Counselor-victim privilege (sexual assault, domestic violence)
• Clergy-penitent
• News reports may refuse to disclose sources

Question 18

Character evidence

Civil

Answer 18

In civil court CE is generally not admissible to prove conduct in conformity with that trait. However, when character is at issue and is an essential element of the case it is admissible.

Question 19

Rape shield provisions

Civil

Answer 19

FRE: Pla puts rep at issue, probative value substantially outweighs prejudice.

CEC: Inadmissible unless to prove prior sexual conduct with the defendant.

Question 20

Character evidence

Crim

Answer 20

Only def can open the door but once opened the prosecution may rebut. Exceptions:
* FRE - Def offers evidence of victims character, then prosecution may offer evidence that the def has the same character trait.
* CEC - Same but only for the trait of violence.
* For DV and elder abuse cases, other acts are admissible

On direct only reputation and opinion evidence are allowed to show a defendants character. On cross FRE rep, opinion, and specific acts but no extrinsic evidence of specific acts. CEC no specific acts on cross.

On direct FRE reputation and opinion evidence only to show victims character. CEC reputation, opinion, or specific acts. On cross reputation, opinion, and specific acts are allowed to show character.

Remember other purposes for character evidence may be admissible

Question 21

Other purposes for character evidence

Answer 21

Specific acts may be admissible to show:
1. Intent
2. Prep
3. ID/MO
4. Knowledge of a fact or event
5. Absence of mistake or accident
6. Motive
7. Opportunity
8. Plan

Question 22

Habit and custom

Answer 22

Show a regular repsonse to a repeated situation.

For persons, habit is admissible to show that the person acted in accordance with the habit on a particular occasion.

For businesses, the routine practice of an organization is admissible to show the practice was followed by the business on a particular occasion.

Question 23

Impeachment

Answer 23

A witness’s credibility may be impeached by cross-examination, or with the proper foundation, by extrinsic evidence.

Five ways to impeach a witness:
1. Character for truthfulness
2. Prior incoinsistenet statement
3. Bias
4. Sensory or mental defect
5. Contradiction of witness testimony by another witness

Question 24

Impeaching a witnesses character for truthfulness

Answer 24

Follows character evidence rules regarding forms of evidence (FRE- rep and opinion OK, specific bad acts ok on cross but no exstrinsic evidence). CEC- Civil court prohibits extrinsic evidence crim permits it.

Question 25

Impeaching with criminal conviction

Answer 25

All crimes involving a false statement are admissible and a judge may not exclude uner the relevance balancing test unless more than 10 years old. Felony convictions under FRE if witness is criminal defendant, conviction is admissible if probative value outweighs its prejudicial effect. Other witnesses admissible unless prejudicial effect substantially outweighs the probative value. Felony convictions under CEC are admissible if: 1. Has not been expunged, pardoned, etc. 2. The felony involves moral turpitude 3. Subject to legal relevance balancing test Under FRE, misdemeanors that are not crimes involving a false statement are not admissible to impeach. CEC civil may not be uses, CEC crim, may be used if crime of moral turpitude. Old convictions may not be used if it has been ten years from the date unless the probative value substantially outweighs the prejudicial effect.

Question 26

Rehabilitating an impeached witness

Answer 26

a. must meet the attack b. can be good character if truthfulness is attacked c. prior consistenet statement

Question 27

Bolstering

Answer 27

Evidence supporting a witness's credibility before it is attacked is prohibited under FRE but admissible under CEC.

Question 28

Hearsay

Answer 28

An out of court statement offered for the truth of the matter asserted. Hearsay is inadmissible unless an exception applies. An out of court statement may be nonhearsay when it is not being offered for another reason ie effect on listener or state of mind.

Question 29

Multiple hearsay

Answer 29

Each level of hearsay must fall within an exception.

Question 30

Hearsay exceptions - Admissions

Answer 30

A party admission is admissible. Adoptive admission is when the party knows of its content and manifests belief in it by words or action. A silent adoptive admission is when someone is accused and a reasonable person would have spoken up.

Question 31

Hearsay exceptions - Vicarious admissions

Answer 31

A statement made by an employee concerning a transaction withing the scope of the employee relationship. CEC is more narrow where negligent conduct of that employeeis the basis for the employer's liability.

Question 32

Hearsay exceptions - Statement of then-existing mental, emotional, or physical condition

Answer 32

Admissible

Question 33

Hearsay exceptions - Present sense impression

Answer 33

Describes an event made while the declarant was percieving the event or immediately thereafter.

Question 34

Hearsay exceptions - Excited utterance

Answer 34

Statement relating to a startling event made while the declarant was still under the stress caused by the event.

Question 35

Hearsay exceptions - Prior inconsistent statement

Answer 35

Substantively admissible (in addition to impeachment) if it was made under oath and the declarant is subject to cross examination.

Question 36

Hearsay exceptions - Prior consistent statement

Answer 36

Admissible substantively to rebut a charge of fabrication or bias.

Question 37

Hearsay exceptions - Prior identification

Answer 37

Admissible if declarant testifies.

Question 38

Hearsay exceptions - Past recollection recorded

Answer 38

If a witness cannot testify from memory a party may introduce a written record of an event. Requires: 1. Firsthand knowledge 2. Fresh in the memory when record was made 3. Witness now has impaired recollection 4. Record was accurate when written May be read to jury but is not itself admissible evidence.

Question 39

Hearsay exceptions - Business record

Answer 39

Admissible where a witness establishes that the record was kept in the course of regularly conducted business activity. Requires: 1. Business activity 2. Kept in regular practice 3. Made with someone with personal knowledge a. must have firsthand knowledge b. record made by one with a duty to report 4. timeliness (made at time near matters referenced)

Question 40

Hearsay exceptions - Public records

Answer 40

Admissible if: * Agency's record of its own activities * Matters observed in line of duty under duty to report * Investigative reports

Question 41

Hearsay exceptions - Declarant unavailable

Answer 41

1. Former testimony - Admissible if had an oppotunity to examine that person and a similar motive to develop the testimony. 2. Dying declaration - Made by declarant while believing death was imminent and is concerning the circumstances of his death. CEC must actually be dead. 3. Declaration against interest 4. Forfeiture by wrongdoing (witness tampering)

Question 42

Hearsay exceptions - Catch all

Answer 42

Admissible if: 1. trustworthy 2. regards a material fact 3. more probative than other evidence 4. notice is given to the opposing side

Question 43

Authentication

Answer 43

All evidence must be authenticated. Authentication is proof that the item is what the proponent claims it is.

Question 44

Ancient documents

Answer 44

Document is in an expected condition considering its age and was found in a place such a writing would be kept and is at least (FRE 20 CEC 30) years old.

Question 45

Self-authenticating documents

Answer 45

* Certified copies of public records * Official publications * Newspapers * Periodicals * CEC Sig of notary or domestic public employee

Question 46

Best evidence rule (Secondary evidence rule CEC)

Answer 46

To prove the contents of a writing, photo, or recording, the original must be produced or a duplicate unless the authenticity is disputed. If unavailable testimony is admissible or a handwritten duplicate.

Question 47

Summaries of voluminuous writings

Answer 47

Summary may be introduced.