Evidence

Question 1

What are the 8 Objections to Form of the Question?

(What are the 8 Form Objections?)

Answer 1

1. Leading
2. Nonresponsive
3. Calls for a Narrative
4. Asked and Answered
5. Assumes Facts not in Evidence
6. Compound (question joins 2 or more questions with the words “and” or “or”)
7. Argumentative
8. Calls for Speculation

Question 2

What is a Leading question?

Answer 2

A question that suggests an answer.

Question 3

When are leading questions permitted?

Answer 3

Always permitted on cross-examination.

Not allowed on direct examination, except if:
(1) the witness is hostile;
(2) witness cannot adequately recall the subject matter of her testimony; or
(3) the questions relate to foundational matters.

Question 4

Leading questions are not allowed on direct examination, but there are 3 situations in which they are. What are they?

Answer 4

Leading questions are allowed on direct examination only if:
(1) the witness is hostile;
(2) the witness cannot adequately recall the subject matter of her testimony; or
(3) the questions relate to foundational matters.

Question 5

What is a nonresponsive answer (that would allow for the objection “Nonresponsive”)?

Answer 5

One that provides more information in the answer than what the question asked for.

Answer that doesn’t directly address the question asked; often by evading it, going off-topic, or volunteering irrelevant information.

Question 6

When would the objection “Calls for a Narrative” be used?

Answer 6

When the questions
- invite the witness to narrate a series of occurrences
- which may produce irrelevant or otherwise inadmissible testimony.

Question 7

When would the objection “Asked and Answered” be used?

Answer 7

When the witness
- has already answered a substantially similar question
- asked by the same attorney
- on the same subject matter.

Question 8

When would the objection “Assumes Facts not in Evidence” be used?

Answer 8

When a question assumes unproven facts to be true.

Ex: Unknown if Defendant ate the last cookie. Fact not proven. Defendant is asked:
“So when you ate the last cookie, did you have it with milk or with coffee?”

Other attorney would object and say:
“Objection, assumes facts not in evidence! It hasn’t been established whether Defendant ate the cookie or not.”

Question 9

When would the objection “Compound” be used?

Answer 9

When a single question contains 2 or more separate questions, often linked by the words “and” or “or,” making it confusing for the witness and difficult to answer accurately.

ex:
Compound Question:
- “Isn’t it true you visited the bar on Wednesday, and you stayed until 2 a.m.?”.

Properly Broken Down:
- “Did you visit the bar on Wednesday?” and
- “Did you stay until 2 a.m.?”.

Question 10

When is a question Argumentative and improper?
(thus requiring the objection “Argumentative”)

Answer 10

A question is Argumentative and improper if
(1) It is asked for the purpose of persuading the jury or judge, rather than to elicit information; or
(2) it calls for an argument in answer to an argument contained in the question; or
(3) it calls for no new facts, but merely asks the witness to concede to inferences drawn by the examiner from proven or assumed facts.

Question 11

When would the objection “Calls for Speculation” be used?

Answer 11

When a question
- invites or causes the witness to answer
- on the basis of conjecture.

Question 12

Relevance:
Evidence must be both ___ and ___ relevant to be admissible.

Answer 12

Both
(1) Logically
and
(2) Legally
relevant to be admissible.

Question 13

When is evidence logically relevant under the Federal Rules of Evidence (FRE)?

Answer 13

Evidence is logically relevant
- if it has any tendency
- to make a key fact in the case
(a fact of consequence to the determination of the action)
- more or less probable
(than it would be without the evidence).

CA distinction: to be relevant, the fact of consequence must also be in dispute.

Question 14

When is logically relevant evidence not legally relevant?

(when the probative value is substantially outweighed by 3 things)

Answer 14

Logically relevant evidence can be deemed not legally relevant and excluded by the court if the probative value is substantially outweighed by
- the risk of undue prejudice
- the potential waste of time, or
- the possibility of confusing the jury

Question 15

What are the 5 Extrinsic Policy Exclusions?

(note that some of them can still be admitted for limited specific purposes)

Answer 15

1. Liability insurance
2. Subsequent remedial conduct
3. Settlement offers and guilty pleas
4. Payment or offer to pay medical expenses
5. Mediation Proceedings (CA only)

Question 16

As a matter of policy, evidence of Liability Insurance is not admissible to show negligence or ability to pay a substantial judgment.

What are the 3 purposes that it CAN be admitted for?

Answer 16

Admissible to
(1) show ownership or control
(2) to impeach; or
(3) as part of an admission.

Question 17

Subsequent remedial measures (repairs, etc.) made after an injury are not admissible to prove negligence, culpability, a defect in product or design, or a need for a warning or instruction.

What are the 3 purposes they CAN be admitted for?

Answer 17

Admissible to
(1) prove ownership or control
(2) to rebut a claim that the precaution was not feasible; or
(3) to prove that the opposing party has destroyed evidence.

Note: in CA, subsequent remedial measures are inadmissible in negligence cases, but ARE admissible in strict products liability cases.

Question 18

Settlement offers and guilty pleas (and other evidence of compromises or offers to compromise) are not admissible to prove _____?

Answer 18

Not admissible to prove
- liability for,
- or invalidity of,
- a claim where validity or amount are disputed.

Question 19

Are direct admissions of liability made during compromise negotiations admissible*?

*to prove liability for, or invalidity of, a claim where validity or amount are disputed

Answer 19

No.

Question 20

Are withdrawn guilty pleas and offers to plead guilty admissible*?

*to prove liability for, or invalidity of, a claim where validity or amount are disputed

Answer 20

No.

Question 21

Is Payment of, or Offers to Pay, the Injured Party’s Medical Expenses admissible as evidence?

Answer 21

No.

Note: in CA, the offer AND any statements made in the course of the offer are inadmissible.

Question 22

Are admissions of fact ACCOMPANYING offers to pay medical expenses admissible as evidence?

Answer 22

Yes.

The offer itself, no. But any admissions of fact ACCOMPANYING the offer are.

BUT, not in CA.

Question 23

Character evidence is inadmissible in Civil Cases to show conformity with that character trait, unless ___, or ___.

Answer 23

Unless
(1) character is at issue, or
(2) the evidence is being offered to prove habit.

Note: In CA, character evidence is NOT allowed. INCLUDING civil cases involving sexual assault or molestation.

Question 24

If character evidence is admissible in civil cases (character is at issue or evidence is being offered to prove habit), how can it be offered?

Answer 24

Can be offered by
(1) opinion evidence
(2) reputation evidence, or
(3) specific instances of conduct.

Question 25

Character evidence cannot be introduced by the prosecution in Criminal Cases (under the FRE, CEC, and Proposition 8) just to show the defendant's propensity to have committed the present crime, unless ___?

Answer 25

Unless - the defendant puts character at issue first.

Question 26

What can the defendant in a criminal case (under the FRE, CEC, and Prop 8) introduce character evidence for?

Answer 26

Defendant may introduce - evidence of his good character - to show he is innocent of the alleged crime. Evidence may be - offered as to the defendant's good reputation for the trait in question; or - given of a witness's opinion regarding the trait of the defendant.

Question 27

Once the defendant "opens the door" by introducing character evidence, how may the prosecution rebut it?

Answer 27

Prosecution may rebut character evidence by (1) cross-examining the witness regarding the basis for his testimony - including whether he knows or has heard of specific instances of the defendant's misconduct; and (2) calling qualified witnesses to testify to the defendant's bad reputation or give their opinions of the defendant's character.

Question 28

Extrinsic evidence of other crimes or misconduct (Defendant's Prior Bad Acts) is admissible if independently relevant to some issue other than the defendant's character. Including to show what 8 things?

Answer 28

(1) motive (2) intent (3) lack of mistake (4) identity (5) common plan or scheme (6) knowledge (7) opportunity, or (8) preparation

Question 29

Defendant's Prior Bad Acts - what is their admissibility in California?

Answer 29

In CA, Prior Bad Acts are: - not admissible in civil cases, even on cross-examination. - admissible in criminal cases, and extrinsic evidence is permitted.

Question 30

Except in the case of rape victims, when can the defendant introduce reputation or opinion evidence of a bad character trait of the victim? (evidence of Victim's Character)

Answer 30

When it is relevant to show the defendant's innocence.

Question 31

Once the defendant has introduced evidence of a bad character trait of a victim (evidence of Victim's Character), what may the prosecution counter with?

Answer 31

Prosecution may counter with reputation or opinion evidence of (1) the victim's good character, or (2) the defendant's bad character for the same trait.

Question 32

Character Evidence of Rape Victim's Past Behavior offered to prove the victim's sexual behavior or sexual disposition is generally inadmissible in any civil or criminal proceeding involving alleged sexual misconduct. HOWEVER, in a criminal case, what kind of evidence of the victim's sexual behavior IS admissible?

Answer 32

In a criminal case, - evidence of a victim's sexual behavior is admissible to prove that someone other than the defendant is the source of semen, injury, or other physical evidence. And - specific instances of sexual behavior between the victim and the accused are admissible by the prosecution for ANY REASON, and by the defense to prove consent.

Question 33

What are the 4 requirements for a witness to be competent as a witness?

Answer 33

To be competent as a witness, the witness must (1) have personal knowledge, (2) have a present recollection of the facts to be testified to, (3) be able to effectively communicate their perceptions directly or through an interpreter, and (4) take an oath and affirmation to tell the truth.

Question 34

What are the 3 requirements regarding a witness's Personal Knowledge?

Answer 34

Witness: (1) must have personal knowledge as to what she testifies to. (2) may not speculate. (3) can only answer to what she personally knows.

Question 35

What is speculation as it pertains to evidence and the law?

Answer 35

Speculation is - when the witness is guessing at the answer and - has no personal knowledge of the answer.

Question 36

What is impeachment?

Answer 36

Impeachment means - the casting of - an adverse reflection - on the veracity of the witness.

Question 37

How may a witness be impeached?

Answer 37

Either by - cross-examination; or by - extrinsic evidence

Question 38

When can a party bolster a witness's testimony?

Answer 38

After the witness has been impeached. Note: in CA criminal cases, under CEC and Prop 8, both prosecutor and defendant may bolster a witness's. credibility before it has been attacked.

Question 39

How can Prior Inconsistent Statements be used?

Answer 39

Usually they are hearsay and only admissible for impeachment purposes. BUT if the prior inconsistent statement was made under oath at a prior proceeding, it is admissible non-hearsay and may be admitted as substantive evidence of the facts stated. Note: in CA, prior inconsistent statements are admissible for substantive purposes, even if not under oath.

Question 40

How can evidence of Bias be used?

Answer 40

to show that witness has motive to lie. Evidence that Witness - is biased or has an interest in the outcome of the lawsuit - tends to show the witness has motive to lie. - Admissible with proper foundation. Any evidence can be proffered to prove bias.

Question 41

Regarding Prior Convictions, what kind of convictions for crimes are admissible?

Answer 41

All convictions (felonies and misdemeanors) for *crimes involving dishonesty* are admissible. Felonies that do not involve dishonesty may be admissible to impeach, but court might exclude for unfair prejudice.

Question 42

If a Prior Conviction is otherwise admissible, but it is more than 10 years since - the date of conviction or - release from prison (whichever is later), it is inadmissible unless ____?

Answer 42

Unless - the probative value substantially outweighs unfair prejudice.

Question 43

Prior Convictions; Note for CA differences

Answer 43

in CA, felonies are admissible for impeachment purposes if they involve moral turpitude (a general readiness to do evil). Prior misdemeanors are not admissible in civil cases, even on cross-examination, and are admissible in criminal cases if they involve moral turpitude.

Question 44

What does a Dead Man’s Statute do?

Answer 44

A dead man’s statute prevents a party in a civil case from testifying about conversations or transactions with a deceased person. It protects the decedent's estate from fraudulent, self-serving claims since the deceased can't offer their side.