Evidence

Question 1

What is the general (federal) rule of relevance?

Answer 1

Irrelevant evidence is NOT admissible. Relevant admissible may be admissible. Evidence is relevant if it is offered to prove a fact of consequence, and it makes the fact more or less probable.

Question 2

What is the California distinction on federal rule of relevance?

Answer 2

Evidence is relevant if is is offered to prove a fact of consequence, THAT FACT IS IN DISPUTE, and the evidence makes the fact more or less likely.

Question 3

What is California distinction on rule of relevance in a CRIMINAL case?

Answer 3

CA’s Proposition 8 declares all relevant evidence is admissible, except for:
-US constitution / privilege / hearsay / character evidence / Secondary Evidence Rule (BER) / if unfair prejudice substantially outweighs probative value

Question 4

CA’s Proposition 8 declares all relevant evidence is admissible, except for:

Answer 4

-US constitution
-privilege
-hearsay
-character evidence
-Secondary Evidence Rule (BER)
-if unfair prejudice substantially outweighs probative value

Question 5

When does evidence create unfair prejudice?

Answer 5

When it leads to an emotional response or would be admissible for one purpose but could be used for another, inappropriate purpose.

Question 6

Is evidence of liability insurance admissible?

Answer 6

Not to prove culpable conduct or ability to pay judgment. But it can be admitted for other purposes.

Question 7

Is evidence of subsequent repairs / safety measures admissible? Is there an exception?

Answer 7

• Not to prove culpable conduct, negligence, or to show design defect in a product liability case (LAST PART on SL DOESNT APPLY IN CA-negl. only)
• exception: can use it to rebut the argument of “no feasible alternative”

Question 8

What is rule on admissibility of civil settlements, offers to settle, pleas, and related statements? What is CA distinction?

Answer 8

• Not admissible to show liability or fault. Rule on settlements requires threat of or filing of claim or that facts be in dispute.
• CA: cannot admit discussions during mediation (+stmts) or defendant’s expressions of sympathy in civil (- stmts of fault)

Question 9

What is rule on admissibility of criminal plea offers & discussions and related statements? What is CA distinction?

Answer 9

-FED: not admissible to show guilt
-CA: It is possible that Prop 8 would permit pleas to be admissible to show guilt. But the CA courts have not ruled on the issue & even if, may exclude for unfair prejudice

Question 10

When is evidence of the D’s character admissible in a civil case to prove propensity?

Answer 10

-FED: not admissible except to (i) prove D’s conduct in sexual assault or child molesting cases and (ii) where character is an issue in the case (e.g., defamation, child custody, loss of consortiom)

-CA: not admissible in civil, NO exceptions.

Question 11

What is rule for prosecution and character evidence when criminal case begins? What are the exceptions? Fed vs. CA?

Answer 11

CA mostly = Fed.

Can’t be the first to offer character evidence (for V or against D).
Fed Exception 1: sexual assault and child molestation cases (CA ADDS ELDER & DV EXCEPTION).
Fed Exception 2: if already offered evidence of V’s character (only rep & op), P can introduce rep & op evi that D has same trait (no acts) or rebut V for trait (in CA, D can bring rep, op, AND acts evi of V’s character).
–CA LIMITS P FROM INTRODUCING D’S BAD TRAITS, UNLESS IT’S VIOLENCE & D ARGUED V’S VIOLENCE
-FED ONLY: homicide where D pleads self-defense & D offers ANY evi of V as 1st aggressor, P can use opinion & rep evi of V’s peacefulness.

Question 12

What are the California distinctions about character evidence in a CRIMINAL case?

Answer 12

• NOT permitted to offer evidence of D’s character even after V’s character has been introduced
• MAY show that D engaged in prior acts of domestic abuse, domestic violence, or elder abuse, in an action for each such crime (not allowed in CA for civil)
• MAY show that D had a violent character, if court already admitted evidence that V had a character for violence.

Question 13

What is the federal rule on offering evidence of Victim’s character?

Answer 13

Defendant may introduce, and V can rebut.

Question 14

What is the federal rule on offering evidence of Victim’s character in a homicide case?

Answer 14

If D offers evidence that V attacked him, then V can be the first to offer character evidence of D and/or V to rebut

Question 15

Fed: What form of evidence is permitted with respect to character evidence?

Answer 15

Direct: only Opinion & rep
Cross: Opinion, rep & Specific Instances, but only to undermine the Opinion/Rep from Direct

Question 16

What are the 4 CA distinctions on character evidence re: the Victim?

Answer 16

1. No homicide exception
2. Direct Exam: Opinion, Rep AND Specific acts
3. SA, DV & Elder Abuse cases - can show prior acts of the same crime
4. Where court admitted evidence of V’s character for violence, Prosecution can introduce evidence that the D’s character is also violent (P can bring NO other character evi against D)

Question 17

You can always use specific acts of bad conduct to prove what kinds of things in case (civil and criminal; CA & Fed)?

Answer 17

Anything other than conduct! so MIMIC.

AKA: Specific instances of bad conduct can be admitted to prove anything relevant to the case, other than conduct.

MIMIC = Motive / Intent / Mistake / Identity / Common Plan (or scheme)

Question 18

Rule for Witness Competency:

Answer 18

People Are Really Outgoing

Personal knowledge / Able to communicate / [present] Recollection / Oath [to tell truth]

CA ONLY: W must also understand their legal DUTY to tell the TRUTH

Question 19

What is federal standard for scientific opinions?

Answer 19

• peer reviewed
• published in scientific journal
• tested and subject to retesting
• low error rate
• reasonable level of acceptance

Question 20

What is CA standard for expert witness’s scientific opinion?

Answer 20

Must be based on standards that are generally acceptable in the applicable field (single factor, no Daubert)

Question 21

What is the learned treatise rule? What is CA exception?

Answer 21

• Testimony from an accepted treatise will not be treated as hearsay.
• CA only admits to show matters of general notoriety or general interest

Question 22

When can a prior inconsistent statement be admitted? What is CA distinction?

Answer 22

• if made under oath at trial or a deposition = not hearsay in fed, so ok for impeachment or to support case
  -CA: All PIS are admissible for any purpose, EVEN IF NOT under oath (HS exception)

Question 23

What are the two California distinction on using evidence of prior crimes to impeach or show conduct?

Answer 23

• Can admit evidence of felonies involving moral turpitude - to impeach or to prove crime - in both civil & criminal
• Misdemeanors involving moral turpitude may be admitted in a criminal case BUT NOT CIVIL.
  -In CRIMINAL ONLY, you can use underlying facts related to W’s credibility (but in civil limited to xyz conviction)

Question 24

When can you admit acts of misconduct that didn’t result in a conviction? What is California distinction?

Answer 24

• Only through cross-exam
• CA civil case: not permitted
• CA criminal case: possibly admissible under Prop 8

Question 25

What are CA distinctions to Admissions by Party Opponents Exclusion?

Answer 25

Fed = CA (though CA is exemption) -in civil CA cases, employee's admission only counts if empl's conduct is reason for liability (vicarious), unlike Fed is if smt said within scope of employment -Also CA allows for: deceased's stmts re Plaintiff in wrongful death suits & against the estate (like for wills); stmts by child re liable parent; predecessors in interest for property.

Question 26

What are CA distinctions to Dying Declarations?

Answer 26

Dying Declarations-CA allows in ALL crim (not just homicide) & civil cases AND in CA, decl. MUST have DIED.

Question 27

CHECK What are CA distinctions to Former Testimony Hearsay Exclusion?

Answer 27

1. Former Testimony Hearsay: Party it is offered against must have had - opportunity to examine the person - motive for exam was similar (N/A in CA)

Question 28

What are CA distinctions to Business Records exception?

Answer 28

CA will only admit SIMPLE opinions and diagnoses (EX: broken leg = simple, PTSD = complex)

Question 29

What are CA distinctions to Excited Utterance hearsay exception?

Answer 29

Fed = CA. Only diff in name.

Question 30

What are CA distinctions to Present Sense Impression hearsay exception?

Answer 30

CA = only about THEIR OWN conduct. must say it while engaged in the conduct

Question 31

What are CA distinctions to Public Records exception?

Answer 31

CA is broader (no categories, no limits on Pros) AND ALLOWS POLICE REPORTS (unlike fed which doesn't allow in criminal cases); BUT remember there may be a confrontation clause issue still.

Question 32

What are CA distinctions to the Declaration against Interest Hearsay exception?

Answer 32

Declaration against pecuniary, proprietary, or penal (unlike fed, CA doesn't require corroboration for crim. liability). (CA ADDS SOCIAL INTEREST).

Question 33

What are the 5 ways to prove a declarant is unavailable? What are the two CA distinctions?

Answer 33

1. exempt due to privilege 2. dead / sick 3. can't be brought in after effort 4. refuses to testify despite court order / (CA: REFUSES TO TESTIFY OUT OF FEAR) 5. memory failure & gaps / (CA: ONLY FOR TOTAL MEMORY LOSS)

Question 34

What is the ancient documents exception to the authentication rule? What is CA distinction?

Answer 34

No authentication required for a document that is: 1. At least 20 years old / 30 IN CA 2. Doesn't appear to be tampered with 3. Found where you would expect it

Question 35

What documents are self-authenticating? What is CA distinction?

Answer 35

- Certified copies of public documents - acknowledged docs - official publication - newspapers, periodicals - business records - trade inscriptions (NOT IN CA)

Question 36

What is federal Best Evidence Rule?

Answer 36

Original document is required where evidence has been offered to prove the contents of a writing (e.g., where case turns on the contents of a legal instrument)-- SECONDARY evidence rule in CA.

Question 37

What documents satisfy the Best Evidence Rule? What is CA distinction?

Answer 37

- original - certified copy - machine produced copy - testimony, if original is lost or destroyed and not in bad faith - HANDWRITTEN COPIES ARE OK

Question 38

How long does attorney-client privilege last? How about in CA?

Answer 38

- Fed: forever -CA: once dead client's estate is distributed & executor discharged--> also in CA: privilege doesn't apply where lawyer reasonably believed disclosure was needed to prevent crime likely to lead to substantial bodily harm/death | - Until estate is distributed

Question 39

What is therapist / social worker - patient privilege? What is CA distinction?

Answer 39

- Communications intended to be confidential and made to facilitate professional services - CA: DOESN'T APPLY IN CRIMINAL CASE, IF REQUIRED TO REPORT TO DOCTORS, OR PROVIDER BELIEVES PATIENT IS A DANGER TO HIMSELF AND NEEDS TO BREAK PRIVILEGE

Question 40

Is there a doctor patient privilege?

Answer 40

- Fed: No. -CA: Yes. patient must intend communication to be privileged and convey the info for purposes of getting medical treatment

Question 41

What is rule of testimonial privilege? What is CA distinction?

Answer 41

- Current spouse can assert the privilege and avoid testifying against her spouse in a criminal case -CA: CAN BE USED IN ANY CASE, AND SPOUSE DOESN'T HAVE TO TAKE THE STAND TO CLAIM PRIVILEGE

Question 42

What are California's additional privileges?

Answer 42

1. counselor - sexual/domestic abuse victim 2. clergy - congregant 3. reporter who won't disclose source

Question 43

Answer 43

Question 44

Answer 44

Question 45

What is a crime involving moral turpitude (CA)?

Answer 45

lying, violence (not simple assault), theft, extreme recklessness & SA.

Question 46

What does "strictest balancing" refer to? (FRE)

Answer 46

admit if PV >> PE (substantially outweighs; note: reverse of normal balancing)

Question 47

What does "stricter balancing" refer to? (FRE)

Answer 47

admit if PV > PE (just outweighs; note: not reverse of normal balance)

Question 48

What is the normal balancing standard under FRE 403 & CEC 352?

Answer 48

admit UNLESS PE >> PV (substantially outweighs)

Question 49

Do Federal courts allow impeachment through prior bad acts?

Answer 49

CIVIL & CRIMINAL- only for LYING acts, NO others. ONLY by cross-exam, NOT by EE.

Question 50

Does California allow impeachment through prior bad acts?

Answer 50

CIVIL- NO, the CEC doesn't allow non-conviction bad acts in any way (not EE & not through cross exam.) CRIMINAL-YES, Prop 8 overrides the CEC, so non-conviction MORAL TURPITUDE bad acts are allowed in as both EE & cross exam (subject to CEC 352 balancing). ONLY MT bad acts though bc other acts not relevant to impeachment.

Question 51

In federal criminal cases...

Answer 51

Chart is for federal criminal cases ONLY. Note that in civil cases, juvenile convictions can NEVER be used.

Question 52

When would Federal courts use California evidence rules?

Answer 52

in diversity cases, ONLY for privilege, competency, and the effect of presumptions

Question 53

Judicial notice – must the court take it?

Answer 53

FRE: If requested, must take. If not requested, may take. CEC: Whether requested or not, MUST take.

Question 54

Judicial notice – must the jury accept it?

Answer 54

FRE: Jury MUST accept in civil; MAY in criminal. CEC: Just MUST accept in BOTH civil and criminal

Question 55

Relevance

Answer 55

FRE: Any fact; need not be in dispute CEC: Must pertain to a disputed fact

Question 56

Prop 8

Answer 56

All relevant evidence is admissible in a criminal case. EXCEPT: a. Confrontation clause (exclusionary rule) b. Hearsay c. Privilege d. Secondary/Best Evidence Rule e. Character Evidence (to prove Defendant’s or Victim’s conduct) f. Balancing under CEC 352

Question 57

Character in civil cases (big 4)

Answer 57

FRE: Inadmissible in civil cases unless character is essential to an element or defense. Admissible in civil cases arising out of child molestation or sexual assault cases. CEC: Same general rule. Does not follow FRE on child molestation/sexual assault

Question 58

Character in criminal case – Character of defendant

Answer 58

FRE: Reputation (R), Opinion (O) on direct, and specific acts (SA) are OK on cross. CEC: Reputation and opinion ONLY; no specific acts on cross.

Question 59

Character in criminal case – Types of evidence available to show character of victim

Answer 59

FRE: Limited to reputation or opinion. CEC: Can use R, O, and now SA are permissible.

Question 60

Character in criminal case – Character of victim in homicide case

Answer 60

FRE: Prosecution can present good character evidence if Defendant claims Victim was initial aggressor. CEC: Defense must first offer bad character of victim for violence.

Question 61

Impeachment – use of specific instances of dishonest acts

Answer 61

FRE: A party can ask a question on cross, but stuck with witness’s answer. No extrinsic evidence is allowed. Civil or criminal cases. CEC: If the witness denies, then can use extrinsic evidence. CRIMINAL ONLY.

Question 62

Impeachment – prior inconsistent statement

Answer 62

FRE: Admissible substantively, only if under oath (801). CEC: Admissible substantively, whether or not under oath.

Question 63

Impeachment – prior consistent statement

Answer 63

FRE: Must be made before motive to lie arose. CEC: PCS only has to be made before the alleged inconsistent statement.

Question 64

Experts

Answer 64

FRE: Daubert CEC: Frye

Question 65

Public policy – SRM

Answer 65

FRE: SRMs inadmissible. CEC: SRMs admissible in strict liability cases.

Question 66

Public policy – offers to pay medical expenses

Answer 66

FRE: Offers to pay medical expenses does not also cover accompanying statements. CEC: Both the offer and the accompanying statement are covered (i.e., inadmissible).

Question 67

Hearsay exceptions – dying declaration

Answer 67

FRE: Dying declarant needs to be unavailable but need not be dead, and only in homicide case. CEC: Any case, but only if declarant is DEAD.

Question 68

Hearsay exceptions – declaration against interest

Answer 68

FRE: Declaration against interest is against penal, proprietary, or pecuniary interest. CEC: Add subjecting declarant to social ridicule too.

Question 69

Hearsay exceptions – Present sense impression

Answer 69

FRE: Present sense impressions include events happening to anyone. CEC: Contemporaneous statements regarding declarant’s conduct ONLY.

Question 70

CA's additional hearsay exception

Answer 70

"OJ exception" Requirements: (1) Unavailable declarant; (2) Statement describing or explaining infliction or threat of physical abuse; (3) Made at or near time of injury or threat; (4) In writing, recorded, or made to police or medical professionals; (5) Under trustworthy circumstances.

Question 71

Hearsay exceptions – statements for medical diagnosis

Answer 71

FRE: Statement for medical diagnosis or treatment covers cause of injury. CEC: Source of injury is inadmissible.