EVIDENCE

Question 1

• Proposition 8
• Relevance
• Public Policy (LOSS)
• Competence / Personal Knowledge
• Authentication & BER

Answer 1

In CA crim cases, Prop 8 is a Victim’s Bill of Rights & part of the CA Cx. All relevant ev is admis except for certain exclusionary rules such as exclussionary rules based on the USCx, privileges, and hearsay.

Question 2

• Proposition 8
• Relevance (Logical and Legal)
• Public Policy (LOSS)
• Competence / Personal Knowledge
• Authentication & BER

Answer 2

Ev is log relvnt if it tnds to mke a fact of cnsquence mre or less prbble thn it wld be w/out th ev. [CA, fact mst be in dispute]._{H, [damages] ws a mat fact in dispute b/c P was suing for neg. [Evi] tndd to prve [damages] b/c}

Log relvnt ev may be excldd if its pv is sub o/weighed by danger of UCM, UWN.

_{H, [ev] [had/ no] substantial pj effect b/c [_]. [Ev] was probative to show [_]. The probative value of [ev] [outweighed/did not] any substantial prejudicial effect.}

Question 3

Public Policy (LOSS)

• Liability Insurance
• Offers to Pay Medical Expenses (FRE / CEC)
• Subsequent Remedial Measures
• Settlement Offers

Answer 3

L PP enc pple to hve insurance. INAD to shw a D is neg or hs ability to pay a sub j/ment, bt AD to prve O/C, I,or as anadmission.

O PP enc humanitarian motives. U/ FRE, payment of, or an offer to pay, med $ are INAD to prve liability, bt admissions of fact in conjunction w/ an offer to pay med $, are AD. In CA, an offer to pay med $, & admisions of fault in conjunction w/ an offer to pay med expenses, are INAD.

S PP enc sub remedial measures (repairs, etc.). Ev of SRM is INAD to prve fault, bt AD to prve O/C, feasability of precautionary measures, or spoilation (destruction) of ev.

S PP enc pple to settle disputes w/out fear tht a s/ment offer will be used as ev against them in litigation. A settlement offer is INAD to prve (1) liability for, (2) invalidity of, or (3) amount of, a disputed claim, or (4) to impeach through a PIC. (only inadmissible if claim filed or threatened)

Question 4

Competence and Personal Knowledge

Answer 4

Non-expert Ws mst be competent and have prsnl knwldge of a matter to testify abt th matter. Competence is presumed, unless otherwise provided in the [FRE/CEC]. _H,T

Question 5

FOR DOCUMENTARY EVIDENCE:

• Relevance
• Authentication - Documents
• Best Evidence Rule
• Hearsay
  
  • Hearsay Exceptions
    
    • Past Recollection Recorded
    • Business Records
    • Public Records

Answer 5

Docs mst be authenticated b4 they can be admitted into ev. They can be authenticated by test of a W with p.k. about the doc.

The original doc mst be usd to prve the contents of the doc whn the contents of the writing are at issue, unless an exception to the BER applies. _{H, the contents of the [doc] were material to D’s case. Since the original was offered [doc] was offered, there was no violation of the BER. Thus the [doc] met the BER.}

Question 6

Hearsay

Answer 6

HS is an out of ct statement offered to prove the truth of the matter asserted in the statement. HS is inadmissible unless a statement is not hearsay or an exception applies.

_{H, [ev] was a <strong>s/ment</strong> b/c it was [(writ/oral) assertion] [conduct intended to be a substitute for words] [Q conveyed rather than sought info].}

_{The <strong>declarant</strong>, [X], a prsn, made [ev] <strong>outside of court </strong>[where made].}

_{The s/ment [was/not] <strong>offered for its truth</strong> [insert statement exactly].}

_{The s/ment was offered to prove [purpose statement offered to prove].}

Question 7

Not hearsay (LES)

• Legally Operative Facts
• Effect on the Listener
• State of Mind

Answer 7

A statement is not hearsay when offered…

Legally operative facts: … to prove the statement was made.

Effect on the Listener: … to show the effect on the recipient.

State of Mind: … as circumstantial ev of a declarant’s mental state.

Question 8

_{CA = exception / FRE = not hearsay}

• Prior Consistent Statement
• Prior Inconsistent Statements
• Prior Identification

Answer 8

• Prior Consistent: A PCS, mde under oath or not, b4 th decl hd reason to fabricate, may be AD to rebut an express or implied charge that the decl fabricated the statement b/c of an improper motive.
• Prior Inconsistent: FRE = a PIC mde under oath may be AD to impeach the dec’s credibility AND as substantive ev. [CA, s/ment does nt need to be mde u/ oath].
• Prior Identification: A P.ID.S of a prsn after perceiving the prsn may be AD as substantive ev. [CA, the W mst mke the prior id while memory of the event is fresh, and confirm in ct s/he mde the id, and the id truly reflected her opinion at the time.]

Question 9

_{CA = exception / FRE = not hearsay}

• Admission by Party-Opponent
• Adoptive Admission
• Vicarious Admission - Agent/Employee
• Co-conspirator

Answer 9

Pty Opponent: U/ [B], a prior out of ct s/ment by a pty to th current lit tht is used against tht pty is not HS/exception. The s/ment need nt hve been agnst the dec’s intrst at time it was made; it mst only be contrary to dec’s present intrst.

Adoptive: An AA is a s/ment of anthr prsn tht a pty expressly or impliedly adopts. Silence by a pty in response to another’s s/ment is an adoptive admission if (1) pty ws present, heard, and u/stood s/ment, (2) pty hd ability and opprtnty to deny s/ment, and (3) reas prsn similarly situated wld hve denied s/ment.

Vicarious - Employee: A s/ment made by a party’s agent or employee, if mde during scope of emplymnt and concerning a matter w/in scope, is imputed to pty.

Co-conspirator: Admission of 1 conspirator (1) mde to a 3P in furtherance of a conspiracy to commit a crime or civil wrong (2) at a time whn th decl ws participating in the conspiracy, are admissible against co-conspirators.

Question 10

Hearsay Ex. TEMP

• Then-Existing State of Mind (FRE)
  
  • Present Physical Condition (CEC)
• Excitted Utterance
• Medical Diagnosis or Treatment
• Present Sense Impression (FRE)
  
  • Contemporaneous Statement (CEC)

Answer 10

• T-ESoM: A s/ment of prsnt intnt is ADMIS to prve cndct in cnfrmty w/ the stated intent.
  
  • PPC: A s/ment of a Dec’s then-existing emotion/sensation/physical condition is ADMIS when the ev is offered to prove the Dec’s emotion/sensation/physical condition at that time.
• An EU is a s/ment made u/ the stress of a startling event, regarding the cause or circs of the event, by a Dec w/ PK.
• Medical: A s/ment describing medical history or past or present symptoms = NH if made for medical D or T. A s/ment of the condition cause or source is ADMIS as an exception if it is reas pertinent to D or T.
• A PSI is a s/ment describing or explaining an event made while the Dec perceives the event (or immeidately thereafter).
  
  • In CA, a cntmporaneous s/ment (1) made while the Dec is engaged in conduct is ADMIS (2) to explain, qualify, or make D’s conduct understandable.

Question 11

Documents (PBPL)

• Past Recollection Recorded
• Business Record
  
  • Record Absence
• ​Public Record

Answer 11

PRR: A record abt a matter a W once had PK bt nw has insufficient recollection is ADMIS as a hearsay exc if the doc (1) was prepared or adopted by the W when the matter was fresh in the W’s memory; and (2) accurately reflects the W’s knowledge. The record may be read to the fact finder, and received as ev when offered by an adverse party.

A Bus record is ADMIS to prove the act or event recorded if (1) authen writing made in the regular course of business (2) w/ the p.k. of an entrant who is (4) u/ a duty to make the entry (5) at or near the time of the event.

Record Absence: Ev that matter is not included in a record of a regularly conducted activity may be admissible to prove the matter did not occur or exist, provided that a record was regularly kept for that kind of matter. The circumstances, incl. possible info source, must not indicate untrustworthiness.

Public Record: A PR is ADMIS whn it (1) sets forth the activities of an office, (2) records matters observed pursuant to a public employee’s duty imposed by law, at or near the time of an event (except police observations in crim cases), or (3) sets forth factual findings of a legal investigation, whn offered against th govt in a crim action, or agnst either party in a civil action.

Question 12

• Statement Against Interest
• Former Testimony
• Dying Declaration

Answer 12

• S/ment Against Interest: A s/ment against an u/a decl’s pecun, proprietary, or penal intrst whn mde, w/ prsnl knwldge of th facts, is admis if the dec ws aware th dec. is against her intrst and hd no motive to misrepresent.
• Former Testimony: The test of an u/a decl, given at a prior proceeding, is admis if (1) the pty against whm th test is offered ws a pty or in privity w/ a pty in th former action, (2) former action invlvd same sm, (3) test ws u/ oath, and (4) pty against whm test is offered hd an opp at prior proceeding to examine (ie, direct, cross, redirect) the decl.
• Dying Declaration: An u/a decl’s dying dec. is admis if s/ment (1) is mde by an indvdual who believes death is imminent, and (2) pertains to the cause or circs of death. [CA, DDs admis in all crim and civil prceedngs, and decl mst be dead]

Question 13

Hearsay Exception

Past Physical Condition

(CA only)

Answer 13

In CA, statements made to anyone. not just medical personnel, concerning an unavailable declarant’s past state of mind, emotion, sensation, or physical condition is admissible when the condition is in issue.

Question 14

Hearsay Exception

Prior Criminal Conviction Judgment

Answer 14

Ev of a final j/ment of conviction is admissible if

(1) judgment was entered after a trial or guilty plea, but not a “no contest” plea,
(2) conviction was for a crime punishable by death or imprisonment for more than one year, and
(3) ev is offered to prove any fact essential to sustain the judgment. If the prosecutor offers ev of a final judgment of conviction for a purpose other than impeachment, the judgment must have been against the D.

Question 15

Hearsay Ex.

Catch-All

Answer 15

For a hearsay statement not covered by a specific exception to be admitted, the FRE provides a catch-all exception, requiring

(1) hearsay statement possess circumstantial guarantees of trustworthiness,
(2) statement be strictly essential, and
(3) notice be given to the adversary on the nature of the statement.

Question 16

OBJECITONS

• Misleading
• Narrative
• Unresponsive
• Compound
• Argumentative
• Leading
• Foundation

Answer 16

• Misleading: A Q is misleading, & nt permitted, whn it can’t be answered w/out making an unintended admission.
• Narrative: The ct shall exercise reas control over the mode & order of interrogating Ws & presenting ev to (1) make the interrogation and presentation effective for ascertaining truth, (2) avoid needless consumption of time, & (3) protect Ws frm harassment or undue embarrassment.
• Unresponsive: An unresponsive answer goes beyond the Q scope.
• Compound: A Q is compound, & not permitted, when it requires a single answer to multiple Q’s.
• Argumentative: A Q intended to provoke an argument, rather than elicit a factual response, is not permitted.
• Leading: A LQ suggests the answer desired, & is gnrly improper on direct exam, bt permitted on cross-exam.
• Foundation: U/ FRE, whn the relevance of ev depends on whther a fact exists, sufficient proof mst be introduced to support a finding the fact exists. The ct may admit the proposed ev on the condition the proof be introduced later.
  
  • In CA, proffered ev is INADMIS unless ct finds there is ev sufficient to sustain a finding of the existence of the preliminary fact.

Question 17

OBJECTIONS

Speculation

Answer 17

W testimony concerning a particular matter is inadmissible unless s/he has personal knoweldge. Speculaiton is the thought process of substituting generalizations or hypotheses for facts that are missing or unsupported by evidence.

Question 18

OBJECTIONS

Assumes Facts Not in Evidence

Answer 18

A Q that assumes to be true disputed facts not yet established by evidence is not permitted.

Question 19

Character Evidence

Answer 19

CE is any doc or test offered to prve a prsn actd in a partic way on a partic occasion bsd on th prsn’s disposition or character. Ev of a prsn’s character is generally inadmis as irrelevant to prve conduct in conformity w/ th character trait.

Question 20

Character Evidence

• How Character Can Be Introduced
• Admitting Character - MIMIC

Answer 20

CE may be offered as substantive ev to (1) prve C whn it is the ultimate case issue, or (2) serve as circumstantial ev of hw a prsn possibly acted.

If C is an ultimate issue, CE is admis by (1) test re the prsn’s reputation, (2) the W’s opinion, or (3) specific acts.

Ev of a D’s bad C is gnrly inadmis by prosecutor. An accused may introduce ev of good C to show innocence of an alleged crime. Whn D opens door, prosecutor may rebut D’s claims by attacking D’s C.

A Cal prosecutor cannot initiate the use of character ev to prove the D’s conduct at the time of the conduct.

Question 21

Character Evidence

• How Character Evidence Can be Introduced
• Admitting Character - MIMIC

Answer 21

A D’s past crimes or other wrongful acts are not admis to show criminal propensity, but admis as circumstantial ev of Motive, Intent, absence of accident or Mistake, Identity, knoweldge, opportunity, or Common plan or scheme.

Question 22

Business Routine

Habit

Answer 22

Business Routine: Ev that a business has an established routine is relevant to show a particular event occured.

Habit ev is ADMIS to prove conduct in conformity with the habit on a particular occassion. A habit is a perosn’s particular routine reation to specific circumstances.

Question 23

Scope of Cross-Examination

Answer 23

The scope of x-examination generally is limited to the subject matter of the direct examination and witness credibility, but the ct, in its discretion, may allow inquiry into additional matters.

Question 24

Impeachment

Answer 24

A W may be impeached by [x-exam/extrinsic evidence].

[Extrinsic evidence is inadmissible to prove an instance to attack or support a Ws’ character for truthfulness on x-exam when a W denies a specific instance of conduct.]

Question 25

_Rehabilitation_

Answer 25

A W who has been impeached may be rehabilitated by (1) **explaination or clarification on redirect** examinaiton, (2) **reputation or opinion ev** of character for **truthfulness**, or (3) **prior consistent statement** to rebut an express or implied charge the W lied or exaggerated due to improper motive or influence.

Question 26

Attorney-Client Privilege

Answer 26

The A-CP protects confidential comms b/w an A and C from disclosure if the comm was (1) **confidential** (it was not knowingly made in front of a 3P), AND (2) **made to facilitate legal services**. When the C is a Corp, only comms b/w the A and high level employees are protected. The p does not apply when (a) legal services are sought to **further a crime or fraud**, (b) there is **litigation related to a breach of a duty** b/w the A and C; OR (c) joint clients are later involved in civil litigation. The C holds the privilege and may waive it at any time, incl. by disclosure to a 3P. H/e privilege is not waived through inadvertent disclosure to a 3P.

Question 27

_LAY OPINION_

Answer 27

U/ FRE/CA, lay W opinions are **inadmissible** unless (1) **rationally based on w's perception**, and (2) **helpful to a clear u/standing** of the testimony or determination of fact in issue. U/ FRE, mst also be (3) **not based on scientific, technical or other specialized knowledge**.

Question 28

_EXPERT OPINION_ CA

Answer 28

A person **may testify as an expert if** she (1) **hs scientific, techn, or spcialzd knwldge** tht will assist trier of fact, (2) **qualifies as an expert** in the field, (3) **possesses reas probability regarding his opinion**, and (4) **supports** **opinion** **with a proper factual basis**. When introducing novel scientific ev, CA adopts the _Frye Test_, requiring a preliminary showing of generally accepted scientific proof.

Question 29

_Spousal Immunity_

Answer 29

In CA, a prsn **married to a prty in any kind of proceeding** may **nt be called as a W by an adverse pty** to testify against the spse. The spousal immunity privilege **applies to test abt events tht occur b4 and during marriage**. The privilege **can be asserted only during a valid marriage**. The **W spse is** the **holder** of privilege.