Evidence

Question 1

Relevant evidence

Answer 1

Makes fact of consequence more or less probable.

CEC: Fact must also be disputed.

Question 2

Relevant evidence - similar occurrences

Answer 2

Generally not relevant. Exceptions:

• Similar occurrences to prove causation
• Prior fraudulent claims or preexisting condition to prove claim fraudulent or injury old
• Similar injuries caused by same event/condition to prove existence of condition; D’s awareness; that condition was cause of injury
• Similar acts to prove intent
• Acts to rebut a defense of impossibility
• Comparable sales to establish value.
• Habit evidence to prove action
• Routine business practice to prove action/event
• Industrial custom to prove standard of care

Question 3

Character evidence - civil cases - offered to prove D’s conduct - admissibility

Answer 3

Inadmissible, unless:

• SIC to prove MIMIC
• Character at issue

FRE: Evidence of prior sexual assault or child molestation admissible in sexual assault or child molestation case

Question 4

Relevant evidence - policy exclusions

Answer 4

The following relevant evidence is excluded:

• Liability insurance
• Subsequent remedial measures (CEC: admissible in products liability)
• Settlement offers, including accompanying fact statements (CEC: extends to mediation)
• Offers to pay medical expenses, but accompanying fact statements admissible (CEC: both inadmissible)
• Withdrawn pleas/offers (CEC: unclear if overruled by P8)

CEC: Expressions of sympathy inadmissible in civil cases, but accompanying statements of fault admissible

Question 5

Character evidence - civil cases - instances in which conduct at issue

Answer 5

Examples:
Suit for defamation of character
Negligent entrustment
Child custody disputes
Loss of consortium cases

All methods of proving character (OT/RT/SIC) are acceptable when character at issue

Question 6

Character evidence - criminal cases - offered to prove D’s conduct - how D can open door

Answer 6

D fully opens door by offering evidence regarding his character

D partially opens door by offering evidence regarding V’s character –

• FRE: P can offer evidence D has same trait
• CEC: If D offered evidence of victim’s VIOLENT character, P can offer evidence D has same VIOLENT trait

Question 7

Character evidence - criminal cases - offered to prove D’s conduct - types of evidence admissible by D, or by P after D opens door

Answer 7

Direct
FRE & CEC: OT, RT

Cross
FRE: OT, RT, SIC
CEC: OT, RT

Question 8

Character evidence - criminal cases - offered to prove D’s conduct - types of evidence admissible before D puts character at issue

Answer 8

• SIC to prove MIMIC
• Prior sexual assault or child molestation in case of same type

CEC: Also, prior DV or elder abuse in case of same type

Question 9

Character evidence - criminal cases - offered to prove V’s conduct - how D can open door

Answer 9

D fully opens door by offering evidence regarding V’s character

FRE: D partially opens door in homicide case by offering evidence that V was initial aggressor to support self-defense claim; P can offer evidence of V’s peaceful character (DE: OT/RT; XE: OT/RT/SIC)

Question 10

Character evidence - criminal cases - offered to prove V’s conduct - types of evidence admissible by D, or by P after D opens door

Answer 10

Direct
FRE: OT, RT
CEC: OT, RT, SIC

Cross
FRE & CEC: OT, RT, SIC

Question 11

Character evidence - civil cases - rape shield - types of evidence admissible

Answer 11

FRE:
OT, SIC admissible if PV substantially outweighs prejudice
RT admissible if P put reputation in issue and PV substantially outweighs prejudice

CEC:
Generally inadmissible; can offer SIC to show prior sex w/ defendant; can cross-ex and rebut SIC put on by P

Question 12

Character evidence - criminal cases - rape shield - types of evidence admissible

Answer 12

FRE:
OT, RT inadmissible
SIC admissible to show prior consensual sex w/ D or that someone else was source of semen or injury

CEC:
Generally inadmissible; can offer SIC to show prior sex w/ defendant; can cross-ex and rebut SIC put on by P

Question 13

Hearsay - definition

Answer 13

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

Question 14

Hearsay - admission by a party opponent

Answer 14

FRE: exemption to usual hearsay definition and, thus, not hearsay

CEC: hearsay but admissible under exception.

Question 15

Hearsay - admission by a party opponent - vicarious admission

Answer 15

Statement of authorized spokesperson for party is treated as admission of that party

Additionally –
FRE: Statement by employee of party is admission of party/employer if statement concerned matter within scope of employment and made during employment relationship
CEC: Statement by employee of party is admission of party/employer only where negligent conduct of that employee is basis for party/employer’s liability in the case under respondeat superior

Question 16

Hearsay - admission of party opponent - adoptive admission

Answer 16

Statement expressly or impliedly adopted or acquiesced to by party is treated as admission of that party
- Silence, other than in the face of police questioning in criminal case, can be admission if party: heard and understood statement, was capable of denying, and reasonably person would have denied

Question 17

Hearsay - admission of party opponent - statement by co-conspirators

Answer 17

Statement by co-conspirator made during and in furtherance of the conspiracy is treated as admission of party

Question 18

Hearsay - exceptions for which declarant must be unavailable

Answer 18

• Former testimony
• Statement against interest
• Dying declaration
• Statement against party procuring declarant unavailability

CEC:

• Statement of past physical condition or state of mind where at issue
• Statement describing infliction or threat of physical injury

Question 19

Hearsay - nonhearsay

Answer 19

Under FRE, following are nonhearsay due to hearsay exemption:

• Prior inconsistent statement
• Prior consistent statement
• Prior statement of identification
• Admission (including vicarious)

Under CEC, these are all hearsay exceptions

Question 20

Hearsay - declarant’s unavailability defined

Answer 20

Unavailable if any of the following:

1. Declarant exempt from testifying due to privilege
2. Declarant refuses to testify despite court order (CEC: only if declarant refuses to testify out of fear)
3. Declarant testifies he cannot remember subject matter of statement (CEC: only if declarant has total memory failure)
4. Declarant dead or physically/mentally ill
5. Declarant absent and proponent of statement cannot procure attendance by process or other reasonable means

Question 21

Hearsay - former testimony

Answer 21

Unavail. req!

Hearsay exception if:

1. Party offered against was party in former action
2. Former action involved same subject matter
3. Former testimony under oath
4. Party offered against had opportunity to examine witness

Civil proceedings
FRE: Can be offered against party when predecessor-in-interest was party in former action
CEC: Can be offered against party when litigant with similar motive to examine witness was party in former action

Question 22

Hearsay - statement against interest

Answer 22

Unavail. req!

Statement is admissible if when made it was against declarant’s:

• Financial interest
• Penal interest
• CEC only: Social interest (would make object of “hatred, ridicule, or social disgrace in the community”)

FRE: if statement offered to exculpate D (e.g., someone else confessed to crime), must be corroborating evidence to admit the statement

Question 23

Hearsay - dying declaration

Answer 23

Unavail. req!

FRE:
In civil and homicide cases, statement by declarant believing he is about to die that describes cause or circumstances leading to impending death is admissible

CEC:
In all cases, statement by statement by declarant believing he is about to die, and who later does die, that describes what caused death is admissible

Question 24

Hearsay - statement against party procuring declarant unavailability

Answer 24

Unavail. req!

FRE: In all cases, statement by declarant who is now unavailable is admissible against party who procured unavailability

CEC: In serious felony cases, statement the police recorded (in writing or on tape) by declarant who is kidnapped/killed is admissible against kidnapper/killer, if responsibility established by clear and convincing evidence

Question 25

Hearsay - statement describing infliction or threat of physical injury

Answer 25

Unavail. req! CEC only: admissible if made at or near time of infliction or threat; under circumstances indicating trustworthiness; in writing, recorded or made to a law enforcement official or medical personnel Watch out for Confrontation Clause issues!

Question 26

Hearsay - statement of past physical condition or state of mind where at issue

Answer 26

Unavail. req! CEC only: statement of declarant's past bodily condition or mental state admissible when at issue.

Question 27

Hearsay - statement of present mental, emotional, or physical condition

Answer 27

Statement of declarant’s then-existing physical or mental condition or state of mind is admissible to show the condition or state of mind - Memory or belief not admissible to prove fact remembered/believed CEC: Judges can exclude in suspicious circumstances

Question 28

Hearsay - excited utterance

Answer 28

Statement relating to startling event or condition is admissible when made while declarant was still under stress of excitement caused by event or condition CEC: Called "spontaneous statement"

Question 29

Hearsay - present sense impression

Answer 29

FRE: Statement describing or explaining an event or condition made while declarant was perceiving the event or condition or immediately thereafter. CEC: Statement explaining conduct of the declarant made while the declarant was engaged in that conduct; called "contemporaneous statement"

Question 30

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

Answer 30

FRE: Statement of past or present mental or physical condition of declarant or another person is admissible if made for and pertinent to medical diagnosis or treatment CEC: Statement of past or present mental or physical condition is admissible if made for medical diagnosis or treatment, but only if the declarant is a minor describing an act of child abuse or neglect

Question 31

Hearsay - business records

Answer 31

1. A record of events, conditions, opinions or diagnoses 2. Kept in course of regularly conducted business activity 3. Made at or near time of matters described 4. By person with knowledge of the facts in that record (directly or from someone w/ duty to report) 5. It was regular practice of business to make such record. Lack of record can be used to show non-occurrence Can exclude if untrustworthy CEC: Does not refer to opinions or diagnoses, but courts admit simple opinions and diagnoses

Question 32

Hearsay - public records

Answer 32

FRE: - Record describes activities and policies of the office OR - Record describes matters observed pursuant to duty imposed by law (but not police reports in criminal cases) OR - Only in civil cases or against the gov in criminal cases: record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy CEC: 1. Making record was within scope of public official's duties 2. Record was made at or near the time of the matters described 3. Circumstances indicate trustworthiness

Question 33

Hearsay - convictions

Answer 33

FRE: Civil cases: felony conviction admissible to prove any fact essential to the judgment Criminal cases: felony conviction admissible against D to prove any fact essential to the judgment; against others only for impeachment CEC: Civil cases: felony conviction admissible to prove any fact essential to the judgment Criminal cases: P8 permits P or D to impeach a witness using felony or misdemeanor conviction involving moral turpitude. CEC: Civil and criminal cases: Certified copy of judgment of conviction admissible under CEC public records exception.

Question 34

Hearsay - misc exceptions

Answer 34

- Vital records: records of vital statistics made to public officer pursuant to requirements of law - Family records: statements of fact found in family Bibles, jewelry engravings, tombstones, etc. - Market reports: market reports and public compilations relied on by public or persons of a particular occupation

Question 35

Hearsay - catchall exception

Answer 35

FRE only: 1. Circumstantial guarantees of trustworthiness 2. Statement is strictly necessary 3. Notice given to adversary as to nature of statement

Question 36

Hearsay - learned treatise

Answer 36

FRE: Admissible to prove anything if treatise is accepted authority in field. CEC: Only admissible to show matters of general notoriety or interest, meaning this exception is very narrow and almost never applicable.

Question 37

Hearsay - ancient document

Answer 37

1. Document is FRE:20/CEC:30 years old or more, 2. Does not on its face present any irregularities (e.g., erasures) 3. Was found in a place of natural custody (i.e., where you would expect such documents to be found)

Question 38

Hearsay - Confrontation Clause

Answer 38

Crawford v. Washington: CC excludes out-of-court statement if declarant does not testify at the trial, is now unavailable, statement is “testimonial”, and defendant had no chance to cross-examine declarant about statement when it was made. - Testimonial at least applies to statements made in court and statements made to further a police investigation aimed at producing evidence for a prosecution. - Statements to police to deal with ongoing emergency are non-testimonial and admission does not violate CC.

Question 39

Testimony - competency

Answer 39

Must have: - Personal knowledge - Present recollection - Ability to communicate - Sincerity (e.g., take oath/affirmation) CEC: Must understand duty to tell truth

Question 40

Testimony - objections to form

Answer 40

``` Leading Nonresponsive Calls for narrative Assumes facts not in evidence Compound Speculation Argumentative ```

Question 41

Testimony - judge and jurors

Answer 41

Judge and jurors may not testify

Question 42

Testimony - present recollection refreshed

Answer 42

If witness cannot recall subject of testimony, document or anything else can be used to refresh recollection; opponent can offer into evidence CEC: opponent can offer into evidence even if witness used to refresh before trial

Question 43

Testimony - past recollection recorded

Answer 43

1. Witness once had personal knowledge of the facts 2. Document made by witness, under his direction, or was adopted by him 3. Document written or adopted at a time when facts were fresh in witness' memory 4. Document was accurate when made 5. Witness now has insufficient recollection to testify as to the matters in document

Question 44

Testimony - lay opinion

Answer 44

1. Rationally based on witness' perception 2. Helpful to factfinder 3. FRE: Not based on scientific, technical, or other specialized knowledge

Question 45

Testimony - expert opinion

Answer 45

1. Helpful to factfinder 2. Witness is qualified 3. Witness believes in opinion to reasonable degree of certainty 4. Opinion supported by a proper factual basis - Personal observation, facts made known at trial, facts not personally known but reasonably relied on by experts in field 5. Opinion based on reliable principles that were reliably applied

Question 46

Testimony - lay opinion - admissible opinions

Answer 46

- General appearance or condition of a person - State of emotion - Matters involving sense recognition (weight/smell/etc). - Voice or hand writing identification - Speed of moving objects - Value of own services - Rational/irrational nature of another's conduct - Intoxication

Question 47

Testimony - expert opinion - federal standard for "reliable principle"

Answer 47

Daubert/Kumho standard for scientific evidence: - Principle has been peer reviewed and published in scientific journals - Has been tested and is subject to retesting - Has a low error rate - Has a reasonable level of acceptance Non-scientific opinions: reliability determined by ad hoc looking at facts and circumstances of case

Question 48

Testimony - expert opinion - California standard for "reliable principle"

Answer 48

Kelley-Frye standard for scientific evidence: Principle generally accepted by experts in the field Non-scientific and medical opinions: reliability determined based on facts and circumstances of case

Question 49

Testimony - expert opinion - impeachment

Answer 49

FRE only: can use learned treatise to impeach AND as substantive evidence; relevant portion read into evidence while expert on stand but not admitted

Question 50

Hearsay - not hearsay

Answer 50

Statement: - with independent legal significance - offered to show effect on listener - offered to show speaker’s (or writer’s) knowledge of facts stated - offered as circumstantial evidence of state of mind

Question 51

Testimony - impeachment - prior inconsistent statement

Answer 51

Means: cross exam; extrinsic evidence not on collateral matter Foundation for extrinsic evidence: witness given opp. to explain/deny AT SOME POINT In addition to impeachment, PIS can prove truth of matter asserted -- FRE: If under oath at prior proceeding (nonhearsay) CEC: Regardless of circumstances (hearsay exception)

Question 52

Testimony - impeachment - bias, interest, or motive

Answer 52

Means: cross exam; extrinsic evidence Foundation for extrinsic evidence: witness asked about bias, etc. BEFORE INTRODUCTION

Question 53

Testimony - impeachment - felony conviction - federal

Answer 53

Means: cross exam; judgment of conviction Foundation for judgment: none Felony involving false statement: admissible Felony not involving false statement: admissible subject to balancing - Criminal defendant impeached: inadmissible unless PV outweighs prejudice - Other witnesses impeached: admissible unless prejudice outweighs PV Even if admissible, if more than 10 years since later of conviction or release, felony inadmissible unless PV outweighs unfair prejudice.

Question 54

Testimony - impeachment - misdemeanor conviction - federal

Answer 54

Means: cross exam; judgment of conviction Foundation for judgment: none Misdemeanor involving false statement: admissible Misdemeanor not involving false statement: inadmissible Even if admissible, if more than 10 years since later of conviction or release, misdemeanor inadmissible unless PV outweighs unfair prejudice.

Question 55

Testimony - impeachment - felony conviction - California

Answer 55

Felonies involving "moral turpitude" admissible but court must balance; felonies not involving moral turpitude inadmissible Most felonies involve moral turpitude; a few do not (e.g., felony battery can be charged for insignificant touching that happens to cause serious injury)

Question 56

Testimony - impeachment - misdemeanor conviction - California

Answer 56

CEC: misdemeanors inadmissible P8: in criminal case, misdemeanors involving moral turpitude (lying, violence, theft, extreme recklessness, and sexual misconduct), subject to balancing PV v. unfair prejudice

Question 57

Testimony - impeachment - bad acts

Answer 57

FRE: x-exam about SIC that bear on truthfulness allowed, subject to court balancing; extrinsic evidence not allowed CEC: no x-exam or extrinsic evid. involving SIC P8: in criminal case, relevant SIC allowed through x-exam or extrinsic evidence, subject to balancing PV v. unfair prejudice - Relevant: SIC involving moral turpitude (lying, violence, theft, extreme recklessness, and sexual misconduct)

Question 58

Testimony - impeachment - other means

Answer 58

OT/RT regarding truthfulness - EE allowed Sensory deficiencies - X-exam/EE allowed Contradictory facts - Cannot be collateral matter - X-exam/EE allowed

Question 59

Testimony - rehabilitation - prior consistent statement

Answer 59

Admissible if made before motive to lie arose FRE: nonhearsay due to exemption CEC: hearsay but within exception

Question 60

Hearsay - prior statement of identification

Answer 60

Witness' statement of ID after perceiving a person (e.g., "that's the guy who shot me") is admissible FRE: nonhearsay due to exemption CEC: hearsay but within exception, provided: - Witness' memory fresh at time of ID - Witness must confirm in court that he made the ID and it reflected opinion at time

Question 61

Documentary and real evidence - authentication

Answer 61

Non-testimonial evidence (e.g., writings, photos, guns) must be authenticated by proof showing it is what proponent claims; burden is low: "sufficient to sustain finding"

Question 62

Documentary evidence - authentication - means

Answer 62

``` Admission Eyewitness testimony Expert opinion Lay opinion Circumstantial evidence Genuine exemplar Ancient documents rule (FRE:20/CEC:30) Self-authenticating documents ```

Question 63

Documentary evidence - authentication - self-authenticating documents

Answer 63

``` Copies of public documents (deeds) Acknowledged documents (i.e., documents where the original signature is attested before a notary to be valid) Official publications (government pamphlets) Newspapers, periodicals ``` FRE only: Certified business records Trade inscriptions

Question 64

Real evidence - authentication - means

Answer 64

Unique object: witness testimony that recognizes object as what proponent claims Non-unique object: chain of custody - Little breaks are OK (e.g., drug lab chemist turned back for a moment to answer call) - Big breaks are a problem (e.g., detective took drugs from D but left at crime scene overnight)

Question 65

Documentary evidence - best evidence rule

Answer 65

Applies where evidence offered to prove contents of "writing" (any tangible recording of data), i.e.: - Case turns on contents of legal instrument - Knowledge obtained from writing Only certain evidence is admissible: - Originals - Duplicates (carbon/photocopy) - CEC only: handwritten copies - Testimony regarding contents may be admissible where original lost or destroyed, unless bad faith by proponent of testimony - Voluminous documents exception Non-originals not admissible where there is genuine question as to authenticity of original

Question 66

Privileges - source

Answer 66

FRE: Common law CEC: Statute; most exempt from P8 Civil suit brought in federal court under diversity jurisdiction, state privilege law applies

Question 67

Privilegs - attorney-client

Answer 67

Communication between attorney-client or their reps intended by client to be confidential and made to facilitate legal services privileged unless waived by client Death -- FRE: Survives death of client CEC: Ends once estate of dead client distributed and executor discharged Corporations -- FRE: Applies to communications from employees/agents if authorized by corp to make communication to lawyer on behalf of corp CEC: Applies to communications from employee/agent if natural person to speak to lawyer on behalf of corp in matter OR employee/agent did something for which corp may be held liable and corp instructed her to tell lawyer what happened

Question 68

Privileges - attorney-client - exceptions

Answer 68

- Professional services sought to further crime or fraud - Two or more parties consult attorney on matter of common interest and communication is offered by one party against another - Communication relates to alleged breach of duty between lawyer and client - CEC only: lawyer reasonably believes disclosure of communication necessary to prevent crime likely to result in death or substantial bodily harm

Question 69

Privileges - doctor-patient

Answer 69

FRE: Not recognized, comes from state law only CEC: Exists under CA law Exceptions: - Patient puts physical condition in issue - Professional services sought to aid in crime or fraud or to escape capture after a crime or tort - In case alleging breach of duty between patient and doctor - CEC only: in criminal cases; for information doctor required to report to a public office (e.g., GSWs and some communicable diseases); in commitment, competency, or licensure proceedings

Question 70

Privileges - psychotherapist-patient

Answer 70

Exceptions: - Patient puts physical condition in issue - Professional services sought to aid in crime or fraud or to escape capture after a crime or tort - In case alleging breach of duty between patient and therapist - CEC only: therapist has reasonable cause to believe patient is danger to himself or others and disclosure necessary to end danger; court-appointed therapist; patient under 16, victim of crime, and therapist thinks disclosure in best interest

Question 71

Privileges - spousal

Answer 71

Testimonial privilege: spouse may refuse to testify against other spouse as to anything; applies only during marriage FRE: only in criminal cases CEC: all cases, and spouse is privileged not even to be called to witness stand Confidential communication: protects confidential spousal communications made during marriage; continues to apply after marriage

Question 72

Privileges - misc CA privileges

Answer 72

- Confidential communications between counselor and a victim of sexual assault or domestic violence - Penitential communications between penitent and clergy - Immunity from contempt of court for news reporter who refuses to disclose sources

Question 73

Judicial notice

Answer 73

Taking notice: party must request judicial notice to compel judicial notice and, if not requested, court has discretion to take judicial notice - CEC only: whether requested or not, court must take judicial notice of matters generally known within jurisdiction Effect of notice -- FRE: in civil cases, court instructs jury that it must accept fact; in criminal case, court instructs jury that it may accept fact CEC: in both civil and criminal cases, court instructs jury that it must accept judicially noticed fact