Evidence

Question 1

Evidence topic

1)

2)

3)

4)

Answer 1

Evidence topic

1) Relevan_ce_ relevance で頑張るよりも２）を書く
2) competency authentication
* A lay witness must have personal knowledge of a matter in order to testify about it. Here, P is testifying about statements E made to him at the scene of the accident; therefore, he has personal knowledge of the statements and is competent to testify about them.*

Tangible evidence must be properly authenticated, either through personal knowledge, distinct characteristics, by showing chain of custody, or, in the event of a reproduction of a photo, knowledge of the person who took the photo. Here, the hospital intake form can be authenticated by N’s personal knowledge, because shewas the one who filled out the intake form. Therefore, the intake form has been properly authenticated.

3) hearsay (confrontation clause!)
4) excption

Question 2

testimony to impeash also requires releveance!

( )!!!

Evidence is ( )

( )

Evidence is ( )

Answer 2

DON’T FORGET THE ISSUE

The issue is whether the court properly admitted the ###

For the evidence to be admitted there must legal and logical relevance

The first question is whether the email was relevant

or The first issue is whether the testimony is relevant. see the rule above.

Logical Relevance

Evidence is logically relevant if it has any tendency to make a material fact more ore less probable (than if it would be without the evidence. * CA fact must be in disupute

in CA fact must be in dispute

HERE, THE ## IS LOGICALLY RELEVANT. FIRST… (2016 FEB)

Legal Relevance

Evidence is legally relevant unless if its probative value substantially is outweighed by pragmatic consideration such as unfair prejudice to the party, confusion to the jury and waste of time for the judge.

character evidence かどうかはrelevanceで書く

this evidence is relevant for two purposes. First, it shows that he is a convicted criminal and it thus has a tendency to show that he may have been more likely to have convicted another crime. Second, this evidence is relevant because it tends to show that Des is untruthful and, because he is testifying, his truthfulness is relevant.　(2020-2)

Question 3

examples for

relevalnce

Answer 3

まずはこれだけ書いておく

Here the tape has logical relevance because it is probative of whether D committed battery

S’s testimony ,if true ,is relevant to the issue of whether the contents of the email were truthful, (which is an issue disputed in the case. )Her testimony makes it more probable that the email is true . And there does not appear to be any unfair prejudice that would substantially outweigh this probative value.

• The tape has legal relevance because it is material as to whether P ,,, and there does not seem to be any obvious danger of unfair prejudice.*
• Thee does not seem to be unfair prejudice to P because they are statements that P himself stated.*

A central issue in this case will be who was at fault for the automobile accident that caused the injuries.

The fact that David drives a black SUV and the fact that Vera observed a black SUV weaving recklessly through traffic tends to prove that David was driving recklessly and therefore was at fault for the accident.

Question 4

examples for

find legal relevalnce

deny legal relevance

Here the tape has logical relevance because it is …

The tape has legal relevance because it…and there does not seem to be

Answer 4

• # for legal relevance*
• There are no statement that might prejudice P because they are statement that P stated*
• Here the tape has logical relevance because it is probative of whether D committed battery.The tape has legal relevance because it is material as to whether P ,,, and there does not seem to be any obvious danger of unfair prejudice.*

There does not seem to be unfair prejudice to P because they are statements that P himself stated.

A central issue in this case will be who was at fault for the automobile accident that caused the injuries.

• Here the prejudicial effect will be*
• that D will be determined to have driven recklessly.However , this is highly probative and is what is at issue and being determined in the case.So the statement will not be excluded on ground of legal relevace*
• D would argue that this question would confuse the jury*
• However, although it would prejudice, it is not unfair since jury can weigh the evidence after it is admitted*
• However such a fact likely goes to the weight of the evidence and not admissibility*
• # deny*
• The fact that the defendant had illegal substances on his person when he was arrested has very little probative value on the issue of whether or not commit a robbery and it is highly prejudicial to the D.*

Question 5

examples for

deny legal relevance

proof of other crimes such as D had illegal substannces on his person when he was arrested

Answer 5

the evidence of his commissions of other crime

Here Although proof of other crimes may be used to show motive

the fact that the D had illegal substances on his person when he was arrested had very little probative value on the issue of whether or not he commited the armed robbery

and it is highly prejudicial to the defendant

Question 6

public policy exclusions

(which exception requires to be disputed?)

(which is available for impeachment?)

1

2

3

4

5

Answer 6

fault ,liability— 5—criminal and civil 3-5 don’t forget hearsay

1 Liability Insurance

2 Subsequent remedial measures

exception …if disputed

3 offer to settle

exception …if disputed

4 Offer to pay medical bills

5 Offer to plead guilty (civil and criminal)

* is admissible to use these evidence for impeachment

Question 7

Insurance liability

Answer 7

Public policy encourage people to have insurance.

Evidence of liability insurance is inadmissible to show fault

but admissible to prove ownership, control

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

Question 8

Subsequent Remedial measures

inadmissible to prove 1,2,3

admissible to prove 1,2,3

In CA

Answer 8

Public policy encourages subsequent remedial measures.

Evidence of SRM is inadmissible to prove fault, product defect, a need for a warning

but admissible to prove

ownership,

control,

feasibility of safer conditions

if that issue is disputed

IN CA admissible to prove defective design

Question 9

In CA

Offer to settle

1

2

3

exept

Answer 9

Public policy encourages people to settle dispute without fear that a settlement offer will be used against them in litigation.

1 Evidence of settlement ,

2 offers to settle

3 statment made in settlement discussions(except when offered in a criminal case)

are inadmissible to prove liability or amount of a disputed claim

or to impeach by a prior inconsistent statement or a contradiction

(admissible to impeach bias)

In CA discussion during mediation proceedings also inadmissible

Question 10

IN CA

A offer to pay or payment of medical expenses

Answer 10

IN CA in adimissible admission of fact made in the course of making such payment or offers I shouldn’t have dropped the banana peel

Public policy encourages people to charity.

A offer to pay or payment of medical expenses are inadmissible to prove liability for injury

but admissible to prove fact stated in connection with an offer

#Contrary to offer to settle

the rule does not extend to conduct or statements not a part of the act of offering or promising to pay.

Question 11

Offer to plead guilty

can D’s pela of guilty to chages is admissible in the civil case? How?

Answer 11

A offer to plead guilty, withdrawn guilty plea,plea of no contest,

a statement of fact made during any of these

are inadmissible against a D

Ex D’s plea of guilty to driving while intoxicated is an admission that she was intoxicated when the accident occurred.

As an admission by a party opponent, the record of the D’s conviction can be admitted as proof of the D’s intoxication

Question 12

The next question is whether the ### was properly authenticated.

Answer 12

Any document must be authenticated to be admissible by showing the item is what the proponent claims it to be.

• Here, the email has likely been properly authenticated*
• becauese,D testified that he has personal knowledge of the email–he received…*
• Here M is on the stand claming that she wrote the notes and the noted are hers*
• This is sufficient to authenticate the notes.*

Question 13

the best evidence rule is called in CA

Answer 13

Secondary evidence rule

same

To prove the content of a writing a party must

either (1) produce the writing or (2) provide an acceptable excuse for its absence.

exception voluminous record

party may use summary, chart caluclation to prove the content of the voluminous record

Question 14

the best evidence rule

To prove the con..

exception

Answer 14

To prove the content of a writing a party must

either (1) produce the writing or (2) provide an acceptable excuse for its absence.

exception voluminous record

party may use summary, chart caluclation to prove the content of the voluminous record

Question 15

LEARNED TREATISE

1

2

Answer 15

LEARNED TREATISE

1 authentication

P must prove that the treatise as a reliable authority by the witness

2 hearsay exception

A properly authenticated treatise may be used for substantive to the extent the expert has relied on it.

It also may be used for impeachment

Question 16

A witness must have

Who determines the qualification of a witness?

Answer 16

A witness must have personal knowledge regarding what she testifies to.

original は以下だが時間がない中でpersonal knoweledge only

で書いている答案も多いので限定した

COMPETENCY OF WITNESS

Witness testimony may be admissible if she has personal knowledge and under oath

(and defendant had opportunity to cross examine pursuant to the 6th Amendment)

Priliminary questions concerning the qualification of a person to be a witness shall be determined by the court

the probative worth of the evidence is assessed by jury.

Question 17

Lay opinion is admissible if

Answer 17

Lay opinion is admissible if

rationally based on witness’s perceptions

and is helpful to the trier of fact.

not based on scientific or specialized knowledge.

The handwriting(or recording )can be authenticated by the testimony of a law witness who has personal knowledge of D’s handwriting (voice) .

As to writing

not for the purpose of litigation

Question 18

Expert opinion is admissible if

Answer 18

An expert opinion is admissible

if witness is qualified,

the opinion is based on sufficient facts,

reliable principles were used,

Question 19

Witness testimony may be admissible if

Answer 19

Witness testimony may be admissible if she has personal knowledge and under oath

(and defendant had opportunity to cross examine pursuant to the 6th Amendment)

Question 20

In a civil trial

character evidence is not admissible to show( )

It is only admissible in cases regarding

( , , )

Character evidence can be proven by

( )

Answer 20

In a civil trial

character evidence is not admissible to show someone acted in accordance with their character.

It is only admissible in cases regarding negligent entrustment or hiring,defamation ,and child custody

Character evidence can be proven by (ROS)　

1) reputation

2)openion

3)specific act

Question 21

distinguish the following two

character evidence (to show that the D…)

impeachment evidence (to show that D is a iar)

見出しを分けてcharcter evidence inadmissible

impeachment evidence admissible///

character evidence(in criminal case) is …

In criminal case , character evidence is

except for

1)

2)

3)

Answer 21

CA only in case of domestic violence

evidence of the bad character of D is not admissible

to show that she is more likely to have committed the crime

of which she is accused.(to prove action in conformity therewith)

unless the defendant open the door.

1) the D has a character witness testify as to his openion or the reputation of the D.

A specific act of misconduct, offered to attack a witness’s character for truthfulness, can be elicited only on cross examination of the witness.

**The evidence of D’s truth fulness is admitted only it is relevant to the crime or innocense or a question raised as to his truthfulness(for rehabilitation).

2) D offers evidence that the victim has violent character(Victim’s character open door to evidence of D’s violent character)

In CA only the same character trait(violent- violent)

3)Prosecutor may offer evidence that D committed other acts of sexual assault or child molestation.

Evidence of other crimes or specific act is admissible for other purpose.(not character evidence)

As long as

1) there is sufficient evidence to support a jury finding that the D committed the prior act ( if it is not sufficient it is not admissible!!)
2) its probative value on the issue of MIMIC substantially outweighs the danger of unfair prejudice.

Motive

Identity

absence of Mistake

Intent

scheme

Question 22

Prior bad act of the witness is admissible?

Check 1

Check 2

Answer 22

can be asked on the cross examination only if it is probative of truthfulness(check1)

Check 1 as character for truthfulness

Check 2 as impeachment by contradiction( current testimony is false)

Question 23

In criminal cases

Character evidence is

.

Once the D

D can use

The prosecution can use…

Answer 23

In criminal cases

Character evidence is generally inadmissible to prove that someone acted in accordance with their character.

Oncce the D opened the door ,

D can use (RO)reputation or opinion.

The prosecution can use (ROS)reputation, opinion and specific acts.

The prosecutor use a D’s prior bad acts to prove MIMIC

(motive,intent lack of mistake, identity, common scheme or plan)

Question 24

Evidence of a person’s or organization’s habit or routine practice may be admitted to prove

Answer 24

Evidence of a person’s or organization’s habit or routine practice may be admitted to prove

that it is acted in accordance with the habit or routine practice.

Question 25

Prior sexual misconduct of a Defendant If A D is accused of a sexual assault or child molestation the court may admit evidence that

Answer 25

Prior sexual misconduct of A D #civil or criminal If A D is accused of a sexual assault or child molestation the court may admit evidence that the D committed any other sexual assault or child molestation.

Question 26

Prior sexual misconduct of a **victim** **In a criminal case** **In a civil case**

Answer 26

Prior sexual misconduct of a victim **In a criminal case** it is admissible to prove the source of injury consent, or excluding it would viokate the D's constitutional rights **In a civil case** it is not admissible unless the probative value substantially outweighs the danger of harme or prejudice. cf if the victim places it in controversy

Question 27

A ( )defendant may offer evidence of the victim's violent character to prove 1 2 Once D opened the door Prosecutor may rebut by evidence of 1 2 In CA 2 is limited to ( 0

Answer 27

A criminal defendant may offer evidence of the victim's violent character to prove 1 victime was the first aggressor (Reputation and Opinion only) 2 D reasonably believe in the need of self defense(specific act allowed) Once D opened the door Prosecutor may rebut by evidence of 1 victim's food character 2 D's bad character In CA 2 is limited to ( 0

Question 28

character evidence can D or prosecutor use the extrinic evidence of specific incidents of prior miscondut?

Answer 28

cannot(only openion or reputation) Prosecutor only on cross examination

Question 29

Character evidence(in civil case) except Cf slander case? What is the difference between habit

Answer 29

not admissible in a civil case. except claim based on sexual assault or child molestation. IN CA no exception distinguished from criminal case! However if the character is an essential element of the case under substantive law at issue Proof may be offered by i specific instances of conduct, testimony based on opinion and reputation In slander case, character evidence is relevant both to whether the P has a certain character trait(the truth is a defense to slander) and to the extent of damages(if the P actually has a bad reputation, then damages are limited) Habit is one's regular response to a specific set of circumstances. In contrast character describes one's disposition in respect to general traits.

Question 30

Hearsay is A hearsay statement must .. --- is an hearsay exception if *Another category of exception to hearsay is..* "Statements" can include....

Answer 30

P will argue that V's statement is inadmissible because it is hearsay.　(シンプルにissue を適示） Hearsay is an out of court statement **_offered_** to prove t_he truth of the matter asserted._ *Here, the email was a statement by D made prior to the trial thus it is out of court. The email is offered to prove that P was thief , whis D asserts is true to deny defamation.* A hearsay statement must **satisfy** an exception in order to be admissible, otherwise it will not be admissible. The Confrontation Clause is a federal Constitutional requirement which requires all criminal defendants the opportunity to confront witnesses against them.It applies only to the admisssion of testimonial evidence. "Statements" can include assertive conduct, such as nodding or hand gestures *It is questionable as to whether her act in walking away is a statement. But even if it is, here the statement is admissible under the hearsay exception for party-opponent statements.*

Question 31

Nonhearsay statement ( to prove it was said) **1** **2** **3**

Answer 31

Nonhearsay statement ( to prove it was said) 1 **verbal act or legaly operative word** (defamation, **word that show contract formation)** 2 **State of mind** \*I am the queen of England to show declarant is crazy 3 **_Effect on listner_ or reader** (motive or intent **notice**)

Question 32

*The residet's statemet is hearsay within hearsay* (when testimony **involves two different statement )** there may be a**n issue of** **## you easily missed double hearsay be carefull!!#**

Answer 32

double hearsay!! when testimony involves two different statement there may be an issue of double hearsay. For the testimony to be admissible both statement must meet a separate hearsay exception or exemption. *Here this testimony involves two statement 1)2).the first statement made by A is admissible as \*\*\** ***the first level of hearsay t**he resident/s statement about what he told the landlord would be admissible to show knowledge*

Question 33

Non hearsay _Party **admission**_ **1 Admission by ( )** Under FRE, is not hearsay. **2 ( )admission** the party manifested that it adopted or believed to be true 3 ( )Admission- Agent or Employee (4) ( ) Admission- by a Co-conspirator may be admissible against co-conspirators

Answer 33

**Admission by the opposing party あどみ** Under FRE, A prior out of court statement **by a party** that is **used against** that party **is not hearsay.** **Adoptive admission** the party manifested that it adopted or believed to be true **Vicarious Admission- Agent or Employee** A statement made by the party's agent or employee on a matter within the scope of that relationship and while it existed **Vicarious Admission- by a Co-conspirator** A statement made by the party's coconspirator during and in furtherance of the conspiracy may be admissible against co-conspirators

Question 34

Hearsay exception 1) 2) 3) 4) 5) 6) 7)

Answer 34

Hearsay exception 1) **Pre**sent Sense impression 2) Excited **Ut**terance 3) Then **Ex**isting Mental Emotional or physical condition 4) Statement of **me**dical treatment or diagnosis 5) **pa**st recollection recorded 6) **Bu**siness Records 7) **Pu**bulic records Learned treatises others

Question 35

Non hearsay Prior statement of a **trial witness(Declarant must be testifying at trial )** 1) Prior statements of 2) Prior **( )** statement (made under and D is at trial subject to ) 3) Prior **( )** statement used to ( )

Answer 35

Non hearsay Prior statement of a **trial witness(Declarant must be testifying at trial about a prior statement)** *admissible as substantive evidence* 1) Prior statements of **identification** 2) Prior **inconsistent** statement (made under penalty of perjury at a trial, hearing,(with som material part ) 3) Prior **consistent** statement used to **rebut** a **charge of recent fabrication or rehabilitate** the D's credibility as a witness when attacked on another ground.

Question 36

CA Hearsay exception 1)Present Sense impression F An present sense impression is a hearsay exception where the **_declarant_** explaining the event **at the time or immediate thereafter** CA 2)Excited Utterance

Answer 36

**1)present sense impression** **narrower** An present sense impression is a hearsay exception where the declarant explaining **_his conduct_** **at the time or immediate thereafter**

Question 37

Hearsay exception 1) Present Sense impression 2) Excited Utterance

Answer 37

**1)excited utterance** An excited utterance is a hearsay exception where it is made at or near the time of a start**ling** event and while **still under the stress from the event** **2)present sense impression** An present sense impression is a hearsay exception where the **_declarant_** explaining the event **at the time or immediate after** the event

Question 38

**statement for purpose of medical treatment** **in F** **only if the declarant is ( )describing an act of ( )** This is hearsay excption for **statement concerning** **past or present symptoms** **for the purpose of treatment or diagnosis** **in CA** **are there any exception for unavailable witness?**

Answer 38

Present and past symptoms or general cause of medical condition for the purpose of the medical trearment In ca narrower but another exception Fault and identities is not included Identity is admjtted Only if the declarant is a minor describing an act of child abuse or neglect Related exception (4 plus) (no requirement that statement made for medical purpose ) 1) if it is an **issue in the case and** 2) Declarant is **unavailable**

Question 39

**3)then existing state of mind** **4)statement for purpose of medical treatment**

Answer 39

**3)then existing state of mind** this is a hearsay exception for statement of declarant's **then existing state of mind condition .** ca only minor describing act of child abuse or neglect **4)statement for purpose of medical treatment** This is hearsay excption for **statement concerning past or present symptoms for the purpose of treatment or diagnosis** ca if the declarant is unavailable past condition made for medical purpose is admissible to prove the condition.

Question 40

**5)Past recollection recorded** a hearsay exception allows a witness to read a writing to the jury if 1 the witness 2 the witness 3 the witness **6) Business record** **A record made** **in** **at** **that**

Answer 40

**5)Past recollection recorded** a hearsay exception allows a witness to read a writing to the jury if: (1) if the witness **now forgets the writing** and showing the writing to the witness does not jog his or her memory (2) the witness **made or adopted a statement** when he **had a personal knowledge** while it was **fresh in his memory** (3) the witness **can attest that, when made, the writing was accurate.** **6) Business record** A record made **in the regular course of business** **at or about the time the event occurred** and that contains information **observed by employees of the business**

Question 41

Former testimony of an unavailable witness may be admissible if 1 Forfeiture by wrongdoing

Answer 41

Former testimony of an unavailable witness may be admissible if 1 Declarant engages in wrongdoing for the purpose of making a witness unavailable for trial

Question 42

A statement against an unavailable declarant may be admissible unavailable : ４fdd 1 2 3 4 5 **( even if there is hearsay exception) in criminal case** **6**

Answer 42

A statement against an unavailable declarant may be admissible unavailable : not only absent , exempt from testifying, refuses to testify, testifies he does not remember 1 **for feiture** by wrong doing 2 former testimony 3 statement **against interest** 4 **_dying declaration_** 5 statement of personal or family history **6 ( even if there is hearsay exception)** **in criminal case** **if the D is unavailable and the D had no opportunity to cross examine the D the statement will not admitted by the 6th Amendment.**

Question 43

Former testimony of an unavailable witness may be admissible if 2 former testimony

Answer 43

Former testimony of an unavailable witness may be admissible if 2 Former testimony Former testimony of an unavailable witness may be admissible **if party against whom the testimony is offered** had **opportunity** and a **similar motive to develop the testimony** by direct, cross or redirect examination in the prior proceeding.

Question 44

A statement against an unavailable declarant may be admissible 3 statement against interest

Answer 44

Statement of an unavailable witness may be admissible if the declarant knew it was against his interest at the time of the statement was made. A reasonable person in his position would not have made the statement unless he believed it to be true

Question 45

A statement against an unavailable declarant may be admissible 4 -Dying declaration FA this exception is available in ( )case

Answer 45

Statement of an unavailable witness may be admissible If declarant, **while believing the her death to be imminent**, made **about its cause or circumstances**. FA this exception is available in (any civil case and criminal homicide case)

Question 46

An opposing Party's statement Under FRE, A Vicarious Admission- Agent or Employee A statement made by the party's agent or employee **Vicarious Admission- by a _Co-conspirator_**

Answer 46

An opposing Party's statement Admission by the opposing party Under FRE, A prior **out of court statement** by a party that is used against that party is not hearsay. **Adoptive admission** * #mere acceptance will act as an adoption of the statement* * partner in this* 2) the party **manifested that it adopted or believed to be true** **Vicarious Admission- Agent or Employee** **Vicarious Admission- by a Co-conspirator** 2020-2 Statements made by aco conspirator in furtherance of the conspiracy offered against the opposing party are wxceptions to hearsay. https://www.nycourts.gov/judges/evidence/8-HEARSAY/8.09\_COCONSPIRATOR%20STATEMENT.pdf

Question 47

Public record is exception to the hearsay rule Is a police record admissible in criminal case? FE? CE?

Answer 47

authentication must be certified before Under the Public records exception to the hearsay rule a record is admissible if \ 1 made by a public employee 2 made within the scope of duty of the public employee 3 recorded **at or about the time of the event** 4 the record is **trustworthy** police reports is admissible only in civil case FE police report containing factual finding or obsevarion in criminal case not admissible CE admissible

Question 48

business record is exception to the hearsay rule

Answer 48

authentication must be certified before Under the business records exception to the hearsay rule a record is admissible if \ 1 made **in the regular course of business** 2 that **regularly keeps** such records 3 recorded **at or about the time of the event** 4 by **employee who has personal knowledge** or fall within some other hearsay exception(double hearsay)

Question 49

h ## Footnote Work product Work product privilege applies to ( ) Material of ( ) are absolutely protected and not discoverable. Other materials will be discoverable by showing that there is ( )and ( ).

Answer 49

Work product Work product privilege applies to **material prepared _in anticipation_ of litigation** **Material of the attorney’s mental impressions, notes, or opinions are absolutely protected** and not discoverable. Other materials will be discoverable by showing that there is a substantial need for the facts contained in the work product and unavailable through other means

Question 50

Present **recollection** refreshed　れこれは共通

Answer 50

if witness forgets something he once knew, he may be shown a writing (or anything else) to jog his memory. Refresher may be anything the opposing party has a right to (1) inspect it, (2) use it in cross examination, and (3) introduce it into evidence.

Question 51

Past recollection recorded may be read to jury when .. パリコレレコード5 1) 2) 3) 4) 5) what may wittness to do as the document??

Answer 51

A writing may be **read to** the jury as a “past recollection recorded” if (1) the witness once had **personal** knowledge, (2) the witness now forgets, and showing the writing to witness **fails to jog the witness’s memory** (3) the writing was either **made by the witness or adopted** by the witness (e.g., written by the police but he agreed it was accurate), (4) the writing was made when the event was **fresh in the witness’s memory,** and (5) the witness can attest that, when made, **the writing was accurate.** (1) the W may **read** the document to the jury, (2) but the W **may not show** the document to the jury, (3) but the opposing party may introducing it as an exhibit(this is the same as present recollection refreshed)

Question 52

Habit is.. Evidence of a person's habit admitted?

Answer 52

Habit describes one's regular response to a specific set of circumstances Evidence of a person's habit may be admitted to prove that on a particular occasion the person acted in accordance with the habit.

Question 53

Can the D introduce evidence of his character for truth and veracity at aggravated assault case where he did not testify?

Answer 53

No(inadmissible) Since he did not testify his credibility is not at issue in the case His credibility is irrelevant to an aggravated assault charge

Question 54

judicial notice occurs in civil cases in criminal cases IN CA

Answer 54

Judicial notice occurs when a judge accepsts **a fact as true without evidence to prove it** if the fact is **_not subject to reasonable dispute_** because it **1)generarry known in the community** or 2)capable of immediate and accurate verification **by use of** **3)sources such as information in encyclopedias.** Judicial notice may be taken of such facts at any time whether or not requested, and **mandatory if** a party **requests and supplies the court** with the necessary information. **In civil cases** the courts instruct jury that it **must accept** Judicially noticed fact, but **in criminal case** that it **may accept** it but is not required to do so IN CA instructs jury that it must accpt in both civil and criminal cases

Question 55

Re-direct examination is allowed ...

Answer 55

only to reply to significant new matters raised in cross examination \*@MBE read all answers or you will miss the more correct answer

Question 56

impeachment of witness(bad act) IN CA

Answer 56

it is improper to impeach the witness's charatcter for truthfulness by extrinsic evidence or prior bad acts(allowed to inqury on the cross exam) not allowed "good act" *IN CA as long as misconduct is act o moral turpitude, Bothe intrinsic and extrinsic evidence is permitted,* it does not contain any explicit collateral issue rule However the trial judge has general discretion under the FRE 403 to exclude evidence whose probative value is substantially outweigud by a danger ...." This discretion allows the judge to keep out evidence that would be banned as ""extrinsic evidence ""on collateral issue

Question 57

impeachment of witness(including a defendant who takes the stand) (prior conviction)

Answer 57

a conviction must within 10 years of the trial 1)Prior convictions involving crimes of **dishonesty** (deceit untruthfulness, or falsification)are **automatically admissible**. cf theft offenses are not crime of dishonesty 2)Prior conviction may be used for impeachment of a witness if the conviction is for a **felony**(crime punishable for more than one year). and if its probative value is not substantially outweighed by the danger of unfair prejudice.(if more than 10 years have passed since the witness's conviction , it is not admissible) The conviction may usually be proved by either eliciting an admission on direct or cross examination or by the record of conviction. * Here, the conviction is more than 10 years old and has little relevance to the case.Therefore the conviction will likely not be admissible unless ..* * The prosecutor is allowed to ask the question on cross* * before having to admit the court record*

Question 58

impeachment of witness(including a defendant who takes the stand) (prior conviction) IN CA with misdeameanor convictions

Answer 58

CEC makes misdeameanor convictions inadmissible to impeach but Under Prop 8 misdeamenors can be admitted **in a criminal case** if it involving moral turpitude, unless its probative value is outweghed by the unfair prejudice. misdeamenor convictions is not admissible in civil case FE 1)Prior convictions involving crimes of **dishonesty** (deceit untruthfulness, or falsification)are **automatically admissible**. cf theft offenses are not crime of dishonesty 2)Prior conviction may be used for impeachment of a witness if the conviction is for a **felony**(crime punishable for more than one year). and unles its probative value is substantially outweighed by the danger of unfair prejudice.(if more than 10 years have passed since the witness's conviction , it is not admissible) * Here, the conviction is more than 10 years old and has little relevance to the case.Therefore the conviction will likely not be admissible unless ..* * The prosecutor is allowed to ask the question on cross* * before having to admit the court record*

Question 59

impeachment of witness(including a defendant who takes the stand) (prior conviction) IN CA with **prior felony conviction**

Answer 59

All felonies involving moral turpitude that i relevant for impeachment are admissiblee if the probate value overweighs the _unfair prejudice._ **Moral turpitude** include crimes of lying ,violence, theft, extreme reckleessnes and sexual misconduct **but not crimes for merely negligence or unintentional act.** **# in CA there is not 10 years rule but in balancing test** FE 1)Prior convictions involving crimes of **dishonesty** (deceit untruthfulness, or falsification)are **automatically admissible**. cf theft offenses are not crime of dishonesty 2)Prior conviction may be used for impeachment of a witness if the conviction is for a **felony**(crime punishable for more than one year). and unles its probative value is substantially outweighed by the danger of unfair prejudice.(if more than 10 years have passed since the witness's conviction , it is not admissible) * Here, the conviction is more than 10 years old and has little relevance to the case.Therefore the conviction will likely not be admissible unless ..* * The prosecutor is allowed to ask the question on cross* * before having to admit the court record*

Question 60

Impeachment of witness 1) 2) 3) 4) 6) 7) 8)

Answer 60

1) prior **Inco**nsistent statement 2) **Bi**as 3) **Con**viction of a crime 4) **bad** act (specific instances of misconduct) only by intrinsic evidence 6) **sensor**y deficiencies 7) **con**tradiction 8) **re**putation or **o**pinion for untruthfullness

Question 61

confrontation clause

Answer 61

Under the Confrontation Clause A hearsay statement will not be admitted even it falls within a hearsay exception if the accused in criminal case had no opportunity to crossexamine the Ds "testimonial"statement offered against him "testimonial" if a statement is not made to a law enforcement agent it is lesslikely to be found testimonial.(becasuse it is unlikely that the purpose of the questioning was to create a substitute for in court testimony)

Question 62

prior inconsistent statement is admissible asa nonhearsay if admissible for impeachment purpose if

Answer 62

Prior inconsistent statement is admitted to impeach the credibility of a witness.(FRE613) if 1)the witness was given a chance to explain or deny the statement and 2)the adverse party is given **the opportunity to cross examine** An inconsistent statement may be proved by either cross examination or extrinsic evidence To prove a statement by extrinsic evidence 1) a proper foundation must be laid 2) must be relevant (the statement cannnot be a collateral matter) * Here, who stabbed the deceased is one of the most substantive issues in the case , and the deceased's statement that the old enemy had stabbed him is clearly relevant to determine who kille the deceased.* prior inconsistent statement is admissible not only to impeach the credibility but also as substantive proof **if** **1)it was made under penalty of perjury at a trial or proceeding or in deposition.** **2)the declarant is subject to cross examination presently (inconsistent with in court testimony)** **2はIDENTIFICATIONにも必要！**

Question 63

what an expert witness may not testify?

Answer 63

Expert may not give opinion on the legal outcome of the case in a criminal case where defendant's mental state constitutes an element of the crime or defense An expert witness may not state an opinion as to wheher the accused did or did not have the mental state at issue ,which is an issue for the jury to decide

Question 64

A expert witness is qualified when ...

Answer 64

An expert may state an opinion or conclustion 1)who is qualified as an expert by knowledge ,skill ,experience ,traning or education 2) **helpful** to the tried of fact 3) **based on sufficient facts** or data

Question 66

In CA expression of sympathy relating to

Answer 66

In CA **expression of sympathy** relating to suffering or death of an accident victime are inadmissible in **civil** actions. ## Footnote *I'm very sorry you are badly hurt.*

Question 67

CA Vicarious Admission- Agent or Employee

Answer 67

only where negligent conduct of that employees(witness) **is based for employer's liability** in the case

Question 68

Dying declaration Under FE declaration by person who believes he is about to die and describes cause leading to his death **in civil case** and in **a homicide procecution** if declarant unavailable **In CA**

Answer 68

IN CA Excption applies 1) in all civil and criminal cases and 2)declarant must be dead

Question 69

declaration against interest is exception to hearsay if

Answer 69

at the time it was made it was against interest of declarant In Ca it include social interest too

Question 70

A certifeied copy of a judgment of conbiction is adbissible under

Answer 70

Public records exception

Question 71

In a civil suit brought in FC under diversity jurisdiction State privilege law applies, 1 )F psychotherapist -patient privilege CA ( ) CA only exception 2) F spousal immunity only in criminal cases CA 3) attorney-client privilege

Answer 71

Federal diversity case apply the state law priviledge 1) Doctor -patient privilege exists **only in civil case** **CA only excption** disclosure is necessary to end reasonable cause to believe that the **patient is a danger to himself or others and** **disclosure is necessary to end the danger** information that doctor is required to report to a public office 2) Spousal immunity applies to civil case spousal communication privilege is the same 3) attorney-client privilege ends when **the client dies and his estate is entirely disposed of.**

Question 72

( ) is privileged The privilege will be waived if

Answer 72

Confidential communication or information acquired by the psychotherapist from patient for the purpose of diagnosis or treatment is privileged The privilege will be waived if the patient expressly or impliedly puts physical or mental condition in issue ,(P in a personal injury case or D asserting an insanity)

Question 73

In a ( ) case the prosecution cannot.. The reational is to ... exception 1) 2)

Answer 73

In a #criminal case the prosecution cannot compel D's spouse to testigy against the D The reational is to protect marital harmony Spousal immunity applies only to criminal cases covers testimony against spouse so long as witness anda D are currently married at the time of testimony Exception communication **in furtherance of future crime or fraud** communication **or act destructive of the family unit** is not privileged

Question 74

As a general rule in federal court apply the ( ), Howevwe in federal diversity case(where state law will govern the substantive claims) apply the federal rules of evidence but apply state law with respect to 1) 2) 3)

Answer 74

As a general rule in federal court apply the (Federal Rule of Evidence ), However in federal diversity case(where state law will govern the substantive claims) apply the federal rules of evidence but apply state law with respect to 1) burden of proof and presumption 2) dead man's statute 3) privileges

Question 75

Attorney-client privilege 1)applies to unless unless 1) 2)

Answer 75

Attorney-client privilege 1)applies to c**onfidential communication between attorney and client** **for the purpose of professional legal advice** unless 1) there is voluntary waiver 2) include future crime or fraude client put the legal advice in issue in an attorney client dispute Attorney includes any member reasonably necessary to facilitate the provision of legal service Cliendt includes a person sekking to become client , representative of client distinguish from waiver If the joint clients later have dispute **with each other** concerning the common interest privilege does not appliy to **them** (While otherwise privileged communications are privileged from disclosure to a third party, the communications are not privileged in a controversy between the co-clients)

Question 76

A voluntary waiver of Attorney-client privilege requires ( ) waiver. If there is partial disclousure/// I there is inadvertent disclosure...

Answer 76

IF 1) the partial disclosure is intentional 2) the disclosed and undisclosed communications concern the same subject matter 3) fairness requires that they are together A privilege will not be waived if the privilege holder took reasonable steps to prevent the disclosure and took reasonable stems to rectify the error.

Question 77

1 if there is **crime** appeared in the question don't forget the chracter evidence 2 if there are many hearsay exception 思いつくだけ書いてどれがよいかを書く D could also attempt to argue against inadmissibility by arguing that... Nonetheless, the declaration against interest exception is the best fit for this statement　use " see the rule above" 4 email is hearsay(out of court statement) 2016 5 3 printout ,email,tape hearsay or not The ## is not being introduced to prove its contents or double hearsay (statement level, record level) The computer print-out is not hearsay _because it is generated by a machine_ 5　CALIFORNIA法でと書いてあったら " Because this is a civil case, Proposition 8 does not apply." と必ず書く　一度忘れた 6 　書き始める前に先に論点を考える　厚く書いても配点が同じなら論点を落とさないように　 　　confrontation clause,business record, 7　relevance に時間をかけすぎるので最後にかく this evidence is relevant for two purposes. となることもあるので。 8 2019FEB とてもでないが終わらない　5つのstatement ですべてrelevance, personal knowledgeを書いていく　これは徒競走のようなもの 時間ないときに一番削られている部分はrelevance 一分でも減らすために早く書けるように訓練する in conclusion →in sum *Walt's testimony is relevant because it has a tendency to prove that Dave's water tank did in fact fall over, and that it had previously leaked. Therefore, the testimony is relevant*

Question 78

California Evidence Code and Truth in Evidence(Prop 8)

Answer 78

The California Evidence Code(CEC) governs the admission of evidence in California state courts A constitutional amendment called **the Truth in evidence Amendment** (Prop8) applies only in criminal cases. iT provides that all relevant evidence is admissible notwithstanding CECrules to the contrary. Prop 8 has a number of exclusion ,CHIPS 1)character evidence, 2) hearsay rules,3) the confrontation clause 4)privileges, 5)secondary evidence rule, 6) CEC 352(balancing test)

Question 79

traps for party admission ... be careful the case between who and who is decla**rant most of hearsay question traps are these.**

Question 80

( ) concerning the admissibility of evidence shall be determined by the court (not judge). The judge is not bound by the rules of evidence except those with respect to ( )

Answer 80

( Preliminary questions) concerning the admissibility of evidence shall be determined by the court (not judge). The judge is not bound by the rules of evidence except those with respect to ( privilege)

Question 81

the 911 recordings are

Answer 81

* double hearsay.* * The tape is a recording of his voice, which is itself another level of hearsay (Vic's statement is level 1, and the recording of his statement is level 2)*

Question 82

1 A Prior inconsistent statement made under ( ) may be admissible as substantive evidence. 2 A prior consistent statement may be admissible to rebut or to rehabilitate 3 identifies a person as someone the declarant perceved earlier

Answer 82

1 A Prior inconsistent statement made under penalty of perjury at a trial, hearing, may be admissible as substantive evidence. 2 A prior consistent statement may be admissible to rebut an express or implied charge that the declarant recently fabricated it or to rehabilitate the delarant's credibility as a witness when attacked on another ground 3 identifies a person as someone the declarant perceved earlier

Question 83

Proposition \*

Answer 83

Under Proposition 8 in California , all non privileged relevant evidence is admissible in a criminal prosecution brought in California unless it falls within one of the specified exceptions to the rule. Evidence that is admissible under Proposition 8 is still subject to CEC352 balancing.