Evidence

Question 1

CEC Truth in evidence amendment (prop 8)

Answer 1

Makes all relevant evidence admissible in a criminal case, even if it is objectionable under the CEC
Exceptions:
CC still applies
Hearsay Law
Privilege Law
Limits on character evidece to prove victim’s conduct
secondary evidence rule (best evidence rule)
where unfair prejudice substantially outweighs probative value

Question 2

Hearsay Exemptions

Answer 2

Not Hearsay but all are exceptions under CEC
Opposing party statement- (party admission)- statement by party, or its agent, offered by a party opponenet
- FRE: agent’s statement must be within the scope of employment
- CEC: agent’s statement only liable if agent’s negligence is basis for suit

Prior Inconsistent Statment given under oath (CEC does not require under oath)

Prior Consistent Statement prior to bribe or inconsistent statement
Statement of identification made after perceiving person

Question 3

CEC 3 Step approach

Answer 3

1. Raise all objections under CEC
2. For each objection discuss if Prop 8 overrules
3. Do an unfari prejudice substantially outweighed by probative value analysis if it seems admissible under Prop 8

Question 4

Character Evidence of Victim’s Character

Answer 4

NO PROP 8
Generally, Defendant must open the door.
To prove Victim’s conduct:
FRE- opinion/reputation only on direct, all three on cross
CEC- all three always available
FRE Only exception for murder cases:
if defendant offers evidence that witness was initial agressor, the prosecution may offer evidence of witness’s peaceful character by any method

Question 5

MIMIC

Answer 5

motive
intent
mistake (absence of)
identity
common scheme or plan

Specific instances can be used to prove anything other than character

Question 6

Competency: who can testify?

Answer 6

1. personal knowledge (perception)
2. present recollection (memory)
3. communication
4. sincerity(oath/affirmation to tell the truth)
5. CEC- witness must understand legal duty to tell truth
6. CEC- witness who was hypnotized before trial to help refresh recollection disqualfied (except in a criminal case if they were hypnotized by police)

Question 7

Expert Testimony

Answer 7

1. Testimony must be helpful
2. Expert must be qualified
3. Witness must be reasonably certain
4. Opinion must be supported by facts
5. BAsed on reliable principles
   FRE: need not show general acceptance, just peer reviewed and published, tested, low error rate, and reasonable level of acceptance:
   CEC- principles must be generally accepted

Question 8

RElevance

Answer 8

any tendancy to make existence of a fact or consequence more or less probable
CEC: and fact of consequence must be in dispute

Question 9

discretion to exclude relevant evidence

Answer 9

if probative value is substantially outweighed by unfair prejudice, confusion, or waste of time

Question 10

Policy reasons to exclude evidence and rules

Answer 10

Not admissible to prove culpability:
- evidence of liability insurance (FRE- not admissible to prove defective design in products liability case)
-evidence of subsequent remedial measures
- settlement negotiations (CEC includes discussions during mediation)
- offers to pay med expenses (FRE Related statements still admissible, CEC: all inadmissible)
CEC only: expressions of sympathy inadmissible, but admissions admissible

Question 11

Habit Evidence

Answer 11

Admissible to show person acted in accordance with the habit: habit evidnce generally conveys no moral judgment

Question 12

Methods of proving Character Evidence

Answer 12

1. Specific acts
2. Opinion
3. Reputation
   Not all are always admissible

Question 13

Character Evidence in Civil Cases

Answer 13

1. Character evidence is inadmissible to prove conduct (FRE) Exception: where civil claim is based on sexual assault or child molestation, then defendant’s prior acts are admissible)
2. Admissible if Character is in issue, then can be proven with any method
   - Defamation, negliglent entrustment; child custody, loss of consortium.

Question 14

Character Evidence of Defendant’s Character to prove conduct in Criminal Cases

Answer 14

Prop 8 no effect***
1. Defendant must open door first (unless sex assault child molestation)
2. If D presents evidence of witness’s character:
FRE: broad, opens door for D’s relevant trait
CEC: narrow, only opens door if related to violence
3. Methods allowed:
FRE- direct exam: repuation/opinion only, on Cross- any method
CEC ONly rep/op allowed ever

Question 15

Refreshing Recollection v. Recorded Recollection

Answer 15

Anything can be used to refresh (but witness must be able to look at it, and then testify without it, and it can be reviewd and offered into evidence by opposing counsel)
REcoreded recollection must meet hearsay exception:
- witness once had personal knowledge of facts
- document prepared/adopted by witness when fres in witenss’s mind
- Document was accurate when made
- Witness has insufficient recollection to testify as to the matters in the doc

Question 16

Learned Treatise Hearsay Exception

Answer 16

FRE: LT is admissible to prove anything stated therein if it is an accepted authority in the field
CEC: narrrow, only to show matters of generally noteriaty or interest

Question 17

Prior Consistent STaement (and later inconsistent statement)
FRE: exemption
CEC: Exception

Answer 17

prior consistent statement is not hearsay if it occured before a later bribe or inconsistent statement and is admissible for any purpose

Question 18

Impeachment by Prior Inconsistent Statement

Answer 18

FRE: admissible only for impeachement unless given under oath- then can be substantive
CEC- admissible as non hearsay if offered only to impeach
admissible under exception to hearsay if offered for impeachment and substantive evidcence- doesn’t need to be under oath

Question 19

impeachment by felony conviction

Answer 19

FRE- automatically admissible if it involves dishonesty and is less than 10 years old, otherwise admissible only on balance by court
CEC: admissible on balance by the court if it invovles “moral turpitude” otherwise, inadmissible
Moral Turpitude- crimes of lying, violence, theft, extreme recklessness, or sexual misconduct

Question 20

Impeachment by Misdemeanor conviction

Answer 20

FRE- involving dishonesyt admissible, if less than 10 years old, of older than 10 years balance by court
- if not involving dishonesty inadmissible
CEC: in a crim case, convictions involving moral turpitude are admissible on balance, in civil case in admissible

Question 21

Impeachment by specific instances of conduct/bad acts
And
Evidence of witness’s character for truthfulness

Answer 21

FRE: witness can be asked on cross about SIC/Bad Acts that bear on character for truthfulness
CEC: Civil- inadmissible. Crim- inadmissible, but Prop 8 makes acts of moral turpitude admissible by both cross-exam and extrinsic evidence
opinion/rep evidence on witness’s truthfulness is admissible

Question 22

Hearsay

Answer 22

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

Question 23

Hearsay Exemptions

Answer 23

No Prop 8**
Not hearsay(but all are exceptions under CEC)
Opposing Party Statement-part admission- staement by party, or its agent, offered by a party opponent
FRE: agent’s statemetn must be within scope of employment
CEC: Agent’s statement only liable if Agent’s negligence is basis for suit
Prior Inconsistent Statement: give under oath (cEC doesn’t require oath)
Prior Consistent Statement prior to bribe or inconsistent statement
Statement of identification made after perceiving the person

Question 24

Former Testimony Exception

Answer 24

testimony given in an earlier proceeding is admisible if:
1 party against who it is now offered had opportunity and similar motive to during the earlier proceeding, or
2. in a civil case, party against who the testimony is now offered was not present at the earlier proceeding but had a FRE) privity type relationship with someone who meets 1 above or (CEC) similar interest to person against whom testimony was offered in oringinal suit

and Declarant is unavaliable

Question 25

Declaration against interest exception

Answer 25

hearay is admissible if at the time it was made, it was against the financial interest of the declarant or would have subjected the declarant to crim liability CEC also considers it if would be against social interest) Declarant must be unavailable

Question 26

Dying Declaration Exception

Answer 26

hearsay statement by one believing he is about to di and describing circumstances leading to impending death is admissible in FRE civil cases or a homicide prosectuion or CEC all civil or crim cases CEC requires that person actually have died Declarant must be unavailable

Question 27

Excited utterance exception

Answer 27

Hearsay statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by even or condition CEC: calls it spontaneous statement Declaratn need not be unavaialbe

Question 28

Present Sense impression Exception

Answer 28

Hearsay statement admissible if describing or explaining an even or condition made while declarant was perceiving the even or condition or immediately thereafter CEC: narrower only applies to descriptions of declarants own conduct no need to show declarant unavailable

Question 29

Exception for declaration of then existing physical or mental condition

Answer 29

hearsay statement of declarant's then existing physical or mental condition is admissible to show the condition or state of mind. Only relevant to show state of mind no need to show declarant unavailable

Question 30

Exception for statement of past or present mental or physical condition made for medical diagnosis or treatment

Answer 30

Hearsay statement regarding past or present medical condition made for pertinent medical diagnosis or treatment is admissible but only those pertinent statements CEC only applie if declarant is a minor describing an act of child abuse or neglect no need to show declarant unavailable

Question 31

Business Records Exception

Answer 31

hearsay is admissible if it is 1. a record 2 kept in regularly conducted business activit 3 made at or near time of the matters described 4 by a person with knowledge of the facts in at record 5 was regular practice of business to make such a record no need to show declarant unavailable

Question 32

Public Records Exception

Answer 32

Hearsay record of a public office is admissible if: record describes activities and policies of the office record describes matters observed pursuant to duty imposed by law (but FRE only not plice reports in crim cases) Record contains factual findings resulting from investigation made pursuant to authority granted by law no need to show declarant unavailable

Question 33

Judgment of Previous conviction

Answer 33

Hearsay statement describing felony conviction is admissible in both civil and crim cases o prove any face essential to the judgment. but if offered for purposes other than impeachment and not aginast the defendant, then inadmisible. no need to show declarant unavailable

Question 34

Confrontation Clause

Answer 34

evne if hearsay law does not make the evidenc inadmissible, the CC might make it inadmissible if an out of court statement is used against the defendant in a crim case cc excludes out of court statement if declarant does not testify at trial, is now unavailable, the statement is testimonial, and defendant had no chance to cross examine when the statement was made statement made to plice during investigation are testimonial; statements made in dealing with an ongoing emergency are not

Question 35

Authentication

Answer 35

Every item of non-testimonial evidence must be authenticated, meaning proving that it is what it claims to be non unique items can be authenticated by demonstrating the chain of custody

Question 36

Best evidence rule

Answer 36

applies only where evidence is offered to prove the contents of writing then, originals or duplicates are sufficient called secondary evidence rule in CA. CEC may allow hand written copies

Question 37

Privileges

Answer 37

FRE recognizes attorney client, spousal, psychotherapist-patietnt, and soical worker-client. note, there is no doctor patient privilege but there is in CA

Question 38

Spousal Privilege

Answer 38

Spousal Testimonial Priv- permists witness to refuse to testify against spouse in crim case (or civil in CA) applies to things even before marriage; witness spouse owns the privilege Spousal Confidential communication privilege- protects confidential communication made during marriage; spouse can prevent witness from testifying

Question 39

Judicial Notice

Answer 39

court can take judicial notice of facts are 1. Generally known, or 2. capable of accurate and ready determination In a crim case a jury may but is not required to accept a judicially noticed fact (fre only) in a civil case, judicially noticed facts are conclusive.