Evidence

Question 1

What is the probative value of evidence?

Answer 1

The probative value of evidence is its ability to prove something important at trial.

Question 2

What is initially required for evidence to be admissible?

Answer 2

Under the FRE, to be admissible, evidence must be both:

1. relevant – has any tendency to make a fact of consequence to the action more or less probable (logically relevant)
2. not unduly prejudicial – its probative value is not substantially outweighed by unfair prejudice (legally relevant)

Question 3

When is evidence relevant?

Answer 3

Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.

This is also referred to as logical relevance.

Question 4

When may otherwise relevant and admissible evidence be excluded?

Answer 4

Under FRE 403/CEC 352, otherwise relevant and admissible evidence may be excluded if its probative value is substantially outweighed by a danger of:

1. unfair prejudice;
2. confusing the issues;
3. misleading the jury;
4. undue delay;
5. wasting time; OR
6. being needlessly cumulative.

This is sometimes referred to as legal relevance.

Question 5

What can the court do under FRE 403/CEC 352?

Answer 5

Under FRE 403/CEC 352, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of:

1. unfair prejudice,
2. confusing the issues,
3. misleading the jury,
4. undue delay,
5. wasting time, or
6. being needlessly cumulative.

Question 6

When is evidence unfairly prejudicial?

Answer 6

Evidence is unfairly prejudicial when it is unnecessary and might cause the jury to improperly sympathize or dislike a party.

Question 7

What is California Proposition 8?

Answer 7

Under Proposition 8 of the California Constitution, all relevant evidence is admissible in a criminal trial.

Question 8

What is evidence under Proposition 8 still subject to?

Answer 8

Under Proposition 8, evidence is still subject to CEC 352 balancing regarding unfair prejudice, confusion of issues, misleading the jury, or being needlessly cumulative.

Question 9

What types of evidence are excluded under Proposition 8?

Answer 9

Exclusionary rules based upon the U.S. Constitution, secondary/best evidence rule, hearsay exclusions, privilege exclusions, evidence barred under rape-shield statutes, and limits on prosecution from offering specific character evidence.

Question 10

Are subsequent remedial measures admissible to show culpability?

Answer 10

Evidence of subsequent remedial measures is not admissible to show culpability or negligence.

Question 11

For what purposes can subsequent remedial measures be admitted?

Answer 11

The court may admit such evidence for impeachment or to prove a disputed issue as to ownership, control, or feasibility/impossibility of precautionary measures.

Question 12

Is evidence of liability insurance admissible to prove culpability?

Answer 12

Evidence of liability insurance is not admissible to prove culpability but may be admitted for other purposes like proving bias/prejudice of a witness.

Question 13

Is evidence of offers to pay medical bills admissible to prove liability?

Answer 13

Evidence of paying or promising to pay medical expenses is not admissible to prove liability for injury.

Question 14

Are offers to settle admissible to prove the validity of a disputed claim?

Answer 14

Offers to compromise and statements made during settlement negotiations are not admissible to prove or disprove the validity or amount of a disputed claim.

Question 15

What is the general rule for the authentication of evidence?

Answer 15

All evidence must be authenticated before being admitted into evidence.

Question 16

How can physical evidence be authenticated?

Answer 16

Physical evidence may be authenticated through witness testimony or by evidence showing it has been held in a substantially unbroken chain of custody.

Question 17

What is the Best Evidence Rule?

Answer 17

Under the Best Evidence Rule, a party must provide the original document or a reliable duplicate when a witness testifies to the contents of a writing.

Question 18

What is the general rule regarding character evidence?

Answer 18

Generally, evidence of a person’s character is not admissible to show propensity.

Question 19

When is character evidence admissible?

Answer 19

Character evidence is admissible for non-propensity purposes or when ‘Character in Issue’ is an essential element of a charge, claim, or defense.

Question 20

What is the rule for evidence of prior bad acts?

Answer 20

Evidence of prior bad acts is not admissible to show propensity but may be admissible for other relevant non-propensity purposes.

Question 21

What is the rule for evidence of habit or routine practice?

Answer 21

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the party acted in accordance with the habit or routine practice.

Question 22

What are prior inconsistent statements used for?

Answer 22

Prior inconsistent statements are admissible to impeach a witness’s trial testimony.

Question 23

What is the rule for prior convictions in FRE?

Answer 23

Evidence of prior convictions may be admitted to attack a witness’s character for truthfulness in certain instances.

Question 24

What is the rule for impeachment by specific instances of conduct?

Answer 24

Under the FRE, a witness’s credibility may be attacked by specific instances of conduct.

Question 25

What felonies are admissible in a criminal case?

Answer 25

Felonies that do not involve moral turpitude are NOT ADMISSIBLE.

Question 26

Are misdemeanors admissible under Proposition 8?

Answer 26

Misdemeanors are ADMISSIBLE under Proposition 8 for crimes involving moral turpitude, subject to CEC 352 balancing. Otherwise, misdemeanor convictions are NOT ADMISSIBLE.

Question 27

What is moral turpitude?

Answer 27

Moral Turpitude is a broad standard that includes crimes involving lying, violence, sex crimes, and extreme recklessness.

Question 28

How can a witness's credibility be attacked under the FRE?

Answer 28

A witness’s credibility may be attacked on cross-examination by questioning him with specific instances of conduct (prior bad acts) ONLY IF the conduct is probative of the witness’s character for truthfulness or untruthfulness.

Question 29

Is extrinsic evidence admissible to attack a witness's credibility?

Answer 29

Extrinsic evidence is NEVER admissible to attack or support such instances of a witness’s credibility.

Question 30

Are prior bad acts admissible in California?

Answer 30

Prior bad acts are generally NOT ADMISSIBLE in CA, but are admissible under Proposition 8 if they involve moral turpitude.

Question 31

Is bias relevant for impeachment?

Answer 31

A witness’s bias, interest, motive, or partiality is ALWAYS relevant for impeachment.

Question 32

What is required before extrinsic evidence of bias is admissible?

Answer 32

Most jurisdictions require that the witness be questioned about the bias before extrinsic evidence of the bias is admissible.

Question 33

What is a lay witness?

Answer 33

A lay witness is any person who gives testimony in a case that is NOT called as an expert.

Question 34

What are the requirements for a lay witness to be competent?

Answer 34

To be competent, the witness must: (1) take an oath to tell the truth; AND (2) have the capacity to perceive, recall, and communicate.

Question 35

What must a lay witness's opinion be based on?

Answer 35

A lay witness may only offer an opinion if it is: (1) rationally based on the witness’s perception; AND (2) helpful to clearly understand the witness’s testimony or to determine a fact in issue.

Question 36

What are the requirements for expert testimony?

Answer 36

Expert testimony is permitted when: (1) the witness is qualified as an expert; (2) the testimony is helpful to the trier of fact; (3) based on sufficient facts or data; (4) based on reliable principles and methods; AND (5) the expert has reasonably applied the principles and methods to the facts of the case.

Question 37

What is the Daubert/Kumho standard?

Answer 37

Under the FRE, the Daubert/Kumho standard is based on the methodology’s: (1) testability; (2) publication and peer review; (3) error rate; (4) standards and controls; AND (5) whether it is generally accepted in the field.

Question 38

What is the scope of cross-examination?

Answer 38

The scope of cross-examination is limited to: (1) the subject matter of the direct examination; AND (2) matters affecting the witness’s credibility.

Question 39

When is refreshing a witness's recollection permitted?

Answer 39

Refreshing a witness’s recollection using a document is permitted when the witness once had personal knowledge of the matter but is unable to recall the matter while testifying.

Question 40

What is judicial notice?

Answer 40

A court may take judicial notice of indisputable facts that are either commonly known in the community or readily capable of verification and cannot reasonably be questioned.

Question 41

What is hearsay?

Answer 41

Hearsay is (1) an out-of-court statement, (2) that is offered to prove the truth of the matter asserted.

Question 42

What is required for multiple hearsay to be admissible?

Answer 42

Each level of hearsay must fall within an exception to be admissible.

Question 43

What are common non-hearsay statements?

Answer 43

Common non-hearsay statements include: (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 speaker’s state of mind.

Question 44

What is a statement/admission by a party opponent?

Answer 44

A statement/admission by a party opponent is NOT hearsay and is ADMISSIBLE.

Question 45

What constitutes an adoptive admission?

Answer 45

A person’s silence may constitute an adopted admission if: (1) the person heard the statement; AND (2) a reasonable person would have denied the statement.

Question 46

What is a vicarious admission?

Answer 46

A vicarious admission is excluded from hearsay under the Statements by a Party Opponent hearsay rule.

Question 47

What is a prior statement of identification?

Answer 47

A declarant’s prior statement of identification of a person is NOT hearsay if the declarant testifies and is subject to cross-examination about the prior statement.

Question 48

What are the requirements for a dying declaration?

Answer 48

A dying declaration is an exception to the hearsay rule and MAY ONLY be used in a civil case or a criminal homicide case.

Question 49

What is a statement against interest?

Answer 49

A statement against interest is admissible when: (1) it’s a statement against the declarant’s penal, proprietary, or pecuniary interest when made; (2) the declarant has firsthand knowledge; (3) a reasonable person would have made the statement only if believed to be true; AND (4) the declarant is unavailable.

Question 50

What are prior statements made under oath?

Answer 50

Prior statements made under oath are admissible if: (1) offered against a party who was present in the previous trial; (2) the same issues are involved; AND (3) the party had the same motive and opportunity to cross-examine.

Question 51

What is an excited utterance?

Answer 51

An excited utterance is a statement relating to a startling event made while the declarant was under the stress of excitement caused by the event.

Question 52

What is a present sense impression?

Answer 52

A present sense impression is a statement describing an event made by the declarant while observing the event or immediately thereafter.

Question 53

What are business records?

Answer 53

Business records are an exception to the hearsay rule, admissible if kept in the regular course of business and made at or near the time of the matter described.

Question 54

What are government/public records?

Answer 54

Government or public records are admissible if made by and within the scope of duty of a public employee, made at or near the time.

Question 55

What are the conditions for admissibility of government or public records in California?

Answer 55

Government or public records are admissible if: (1) made by a public employee within the scope of duty; (2) made at or near the time of the act; AND (3) made under circumstances indicating trustworthiness. ## Footnote This applies to civil and criminal cases, though there may be confrontation clause issues in criminal cases.

Question 56

What is a past recollection recorded?

Answer 56

A past recollection recorded is a record made on a matter the witness once knew but cannot recall well enough to testify accurately. ## Footnote It is admissible if: (1) the witness had personal knowledge; (2) the writing was made or adopted by the witness; (3) made while events were fresh in mind; (4) the writing is accurate; AND (5) the witness cannot remember the event.

Question 57

What is the hearsay exception for statements of state of mind?

Answer 57

Statements of the declarant’s then-existing state of mind (motive, intent, or plan) are an exception to the hearsay rule. ## Footnote However, statements of memory or belief to prove a fact remembered/believed are NOT admissible unless related to the validity or terms of the declarant’s will.

Question 58

What statements are admissible for medical diagnosis or treatment?

Answer 58

Statements made for and pertinent to medical diagnosis or treatment are not excluded by the hearsay rule if they describe medical history or symptoms. ## Footnote In CA, statements about a person's past physical state are admissible ONLY if made to medical personnel for diagnosing or treating a child-abuse/neglect victim under 12.

Question 59

What is the hearsay exception for learned treatises?

Answer 59

Statements in learned treatises, periodicals, or pamphlets are an exception to the hearsay rule if: (1) called to the attention of an expert on cross-examination or relied on by an expert on direct examination; AND (2) the publication is established as a reliable authority. ## Footnote In CA, the exception is limited to historical works, books of science & art, and published maps/charts offered to prove facts of general notoriety.

Question 60

What are the requirements for ancient documents to be admissible?

Answer 60

Statements in ancient documents are admissible if: (1) prepared before January 1, 1998; AND (2) authenticity is established. ## Footnote In CA, the document must be more than 30 years old and generally acted upon as true.

Question 61

What is the catch-all hearsay exception under the FRE?

Answer 61

A hearsay statement is not excluded if it has equivalent circumstantial guarantees of trustworthiness, is offered as evidence of a material fact, is more probative than other evidence, AND admitting it serves the interests of justice. ## Footnote The proponent must give reasonable notice to the adverse party.

Question 62

What rights does the Confrontation Clause grant a criminal defendant?

Answer 62

The Confrontation Clause gives a criminal defendant the right to confront witnesses against him. ## Footnote Use of an out-of-court statement violates this right if the statement is testimonial, the declarant is unavailable, and the defendant had no opportunity to cross-examine.

Question 63

What is the attorney-client privilege?

Answer 63

The attorney-client privilege protects confidential communications between an attorney and client made to facilitate legal services. ## Footnote The privilege remains even after the client dies and does not apply if legal services are sought to further a crime or fraud.

Question 64

What is the attorney work product doctrine?

Answer 64

The work product doctrine protects materials prepared by an attorney in anticipation of litigation from disclosure unless a substantial need exists and equivalent materials cannot be obtained without undue hardship. ## Footnote In California, absolute privilege applies to materials containing the attorney's mental impressions.

Question 65

What is the physician-patient privilege in California?

Answer 65

Confidential patient communications made to a physician for medical diagnosis or treatment are privileged. ## Footnote The patient holds the privilege and can waive it, especially when the medical condition is placed 'in issue'.

Question 66

What are the conditions for spousal privileges regarding confidential marital communications?

Answer 66

Communications between spouses are privileged if made during a valid marriage and intended to be confidential. ## Footnote The privilege applies even after divorce, but is lost if the content is disclosed to a third party.

Question 67

What is spousal immunity under the FRE?

Answer 67

A witness-spouse may refuse to testify against their spouse in a criminal case. ## Footnote This privilege ends after divorce and does not apply in civil cases.