CA Bar Exam Essay Rules > Evidence > Flashcards

Evidence Flashcards

(50 cards)

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1
Q

Logical Relevance?

A
  • Any tendancy to prove or disprove a material fact
  • Cal - disputed fact

Same thing.

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2
Q

Legal Relevancy Exclusion?

A

Probative vs. prejudicial balancing test

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3
Q

Prop. 8 - Victim’s Bill of Rights

A

Criminal Trials Only - All relevant evidence is admissible subject to few exemptions.

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4
Q

Prop 8. - Victim’s Bill of Rights Exceptions?

A

DR Mammal Counts SHEEP
* D opens door to character
* Rape shield laws (victim’s character)
* Member of media (confidential sources)
* Court can still balances probative vs. prejudicial and exclude
* Secondary evidence rule
* Hearsay
* Exclusionary rules based on US Constitution
* Exclusionary rules by CA after 1982
* Privileges existing in 1982

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5
Q

Public Policy Exceptions - Subsequent Remedial Measures?

A

Not allowed except:
* Ownership and control
* Rebut infeasibility
* Other party destroyed evidence

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6
Q

Public Policy Exceptions - Liability Insurance?

A

Not allowed except:
* Onwership and control
* Impeachment
* Admission

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7
Q

Public Policy Exceptions - Offers medical expenses?

A

Not allowed except:
* FRE: Admission
* CEC: None

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8
Q

Public Policy Exceptions - Settlement Offer?

A

Not allowed except:
* Disputed claim/settlement
* CEC: also applies to mediation

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9
Q

Public Policy Exceptions - Offers to Plead?

A

Not allowed except:
* Cal - Prop 8 allows.

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10
Q

Public Policy Exceptions - Expression of Sympathy?

A

Not allowed except:
* Admission of fault

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11
Q

Witness Testimony Requirement?

A

Personal knowledge.

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12
Q

Objection to Form Grounds?

A

NU CALF
* Narrative
* Unresponsive
* Compound
* Argumentative
* Leading
* Facts not in evidence

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13
Q

Present Recollection Refreshed?

A
  1. Witness shown item to refresh
  2. Witness testifies from memory
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14
Q

Lay Opinion Testimony?

A

Based on personal knowledge; not scientific or specialized knowledge

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15
Q

Expert Opinion Testimony?

A
  1. Assists trier of fact
  2. Qualifies as expert
  3. Opinion based on sufficient facts
  4. Reliable principles (Daubert or Frye)
  5. Applied principles reliably
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16
Q

FRE - Daubert Expert Test?

A
  1. Peer reviewed and published
  2. Tested
  3. Known for low error
  4. Reasonable level of acceptance
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17
Q

CEC - Frye Test

A
  1. Generally accepted as valid and reliable in field
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18
Q

Attorney-Client Privilege?

A
  • Confidential communication (intended) for purpose of legal services
  • Last until after death (FRE) or estate settled (CEC)
  • Exceptions for crime/fraud, dispute with L, or consultation
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19
Q

Doctor-Patient Privilege?

A
  • FRE: None
  • CEC: communication made for diagnosis and treatment only
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20
Q

Psychotherapist- Patient Privilege?

A

FRE and CEC have for confidential communications.

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21
Q

Marital Adverse Testimony (Spousal Immunity)

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A
  • Only claimed during marriage but applies to things before and during
  • Holder is witness spouse
  • Federal - criminal only
  • Except cases between spouses
22
Q

Marital Confidential Communication?

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A
  • Claimed during and after marriage but only for things during marriage
  • Holder: both spouses (either may invoke)
  • Except case between spouses
23
Q

Four CEC Only Privileges?

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A
  1. Doctor-patient
  2. Counselor-victim
  3. Clergy-penitent
  4. News reporters (sources)
24
Q

Three Types of Character Evidence?

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A
  1. Reputation
  2. Opinion
  3. Specific Acts
25
Character Evidence - Civil Court Rules?
* Not for conduct in conformity * Except character at issue * FRE exception for sexual assault/child molestation * Rape Shield Laws (if P places at issue or in Cal to prove P's sexual conduct with D)
26
Character Evidence - Criminal Court Rules for D's Character?
* D must open door * Pertinent character trait only * If D on stand then truthfulness at issue * P can open door for sex assault/child molestation * FRE - if D offers V character, prosecution can match for D * CEC - if D offers V's violent character only can match * CEC exception for elder abuse/domestic violence
27
Character Evidence - Criminal Court Rules for Victim's Character?
* D must open door * Pertinent character trait only * NOT allowed under rape shield rules
28
Character Evidence - Other Purposes? (I PIK A MOP)
I PIK A MOP * Intent * Preparation * Identity or M.O. * Knowledge of fact or event * Absence of mistake/accident * Motive * Opportunity * Plan or scheme
29
Habit/Custom and Similar Happenings?
Can be allowed.
30
Impeachment - Character for Truthfulness?
* Reputation and opinon allowed * Criminal conviction if felony * Crimen Falsi if less than 10 years * CEC - misdemeanor if criminal
31
Impeachment - Prior Inconsistent Statement?
Extrinsic evidence allowed if explained or denied.
32
Impeachment - Bias?
Extrinsic evidence allowed if explained or denied.
33
Impeachment Grounds?
1. Character for truthfulness 2. Prior inconsistent statement 3. Bias 4. Sensory or mental defect 5. Contradiction by another witness
34
Rehabilitate impeached witness?
* Meet the attack * Good character if attacked * Prior consistent statement
35
Bolster the witness?
FRE: Not allowed CEC: Allowed
36
Hearsay?
Out of court statement offered for the truth of the matter asserted.
37
Nonhearsay Purposes?
1. Effect on the listener 2. Declarant's state of mind 3. Independent legal signficance (e.g., solicitation, defamation, contract)
38
Admissions - Excluded from Hearsay?
1. Party opponent admission 2. Adoptive/Silent Adoptive 3. Vicarious (employee or agent in scope) 4. Co-Conspiratory (during and in furtherance subject to 6th Amendment, must testify)
39
Other Witness Hearsay Exceptions?
1. Medical purpose diagnois and treatment 2. State of mind (then existing) 3. Present sense impression (describing event/condition) 4. Excited utterance (made under stress during event) 5. Prior inconsistent statement 6. Prior consistent statement 7. Prior identification
40
Business Record Hearsay Exception Elements?
1. Business activity 2. Regular practice to keep 3. W with firsthand knowledge 4. Business duty to report 5. Timely
41
Public Record Hearsay Exception Elements?
1. Agency record of own acts 2. Matters observed with duty to report 3. Ivestigative reports FRE: not against criminal D
42
Declarant Unavailable If:
1. Privileged 2. Death or illness 3. Cannot be reasonably procured 4. Refuses to testify 5. W cannot remember
43
Declarant Unavailable - Former Testimony Allowed?
* Civil case only * FRE: predecessor in interest * CEC: similar interest in prior proceeding dn deposiition in same proceeding allowed
44
Witness Unavailable - Dying Declarations Elements?
1. Regarding circumstances of death 2. While believing death imminent FRE: Civil and criminal homocide only and death not required
45
Witness Unavailable - Declaration Against Interest?
Financial or penal interest * CEC adds against social interest
46
Residual "catch-all" hearsay exception?
1. Trustworhty 2. Regarding material fact 3. More probative than other evidence; AND 4. Notice given
47
Document Authentication?
1. Real evidence: distinctive characteristic of chain of evidence 2. Deomstrative: fair representation 3. Writing/recording by admission, testimony, handwriting, circumstantial ,etc. 4. Self-authenticating (business records) 5. Ancient Documents - 20 years old and free of suspicion
48
Best Evidence Rule/Secondary Evidence Rule?
To prove contents, must produce original document or machine duplicates.
49
Summary of voluminous writings?
May be introduced by sponsoring witness.
50
Judicial Notice Allowed If:
1. Not subject to reasonable dispute; 2. Generally known in jurisdiction; and 3. Capable of accurate and ready determination.
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