Evidence

Question 1

What is logical relevance?

Answer 1

FRE: evidence is relevant if it tends to make more or less likely a fact in evidence than without the evidence.

CEC: relevant if material to a disputed fact.

Question 2

What is Proposition 8 and what does it apply to? Are there any exceptions?

Answer 2

Proposition 8 applies to CA criminal cases, and makes all relevant evidence admissible. However, there are exceptions such as:

1. Rape shield laws
2. Protection of media sources
3. Hearsay
4. Legal relevance
5. Exclusionary rules
6. Privileges

Question 3

What legal relevance?

Answer 3

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion or issues, misleading a jury, or wasting time.

Question 4

What are the public policy exclusions?

Answer 4

1. Subsequent remedial measures (unless to show ownership/control)
2. Liability Insurance (unless to show ownership/control. Note: does NOT cover statements of fault regarding insurance)
3. Offers to pay medical expenses.
4. Settlement offers (must be AFTER claim arose)
5. Plea bargains (though may come in under Prop 8, depending on prejudice)

CA ONLY: Expressions of Sympathy in CIVIL cases for death or suffering

Question 5

Objections to Form of Questions:

Answer 5

NUCALA:

1. Narrative (“so, what happened?”)
2. Unresponsive
3. Compound question
4. Argumentative
5. Leading
6. Assumes Facts Not In Evidence

Question 6

What is the process for present recollection refreshed, and is it admissible in evidence? What’s the CA distinction?

Answer 6

1. Establish witness doesn’t remember answer, but identifies something that will refresh memory.
2. Have witness review document silently, ask if it refreshes their recollection, and have them answer the question.
3. Witness must then testify to refreshed memory.

In CA, the document must be produced.

Question 7

Is lay opinion admissible?

Answer 7

Yes, if based on witness perception and helpful to trier of fact.

Question 8

Expert opinion requirements. CEC vs. FRE

Answer 8

1. Specialized knowledge that will assist trier of fact.
2. Qualified as expert.
3. Testimony based on sufficient facts/data.
4. Based on reliable methods:
   FRE-Daubert
   CEC - Frye (except for medical and non scientific testimony)
5. Applied reliably to facts of case.

Question 9

What is Daubert standard?

Answer 9

1. Peer reviewed and published
2. Tested
3. Low error rate
4. Reasonable acceptance

Question 10

What is the Frye standard?

Answer 10

Generally accepted in relevant scientific community.

Question 11

What are the types of privileges?

Answer 11

1.Attorney-client
2.Doctor-patient (not in fed common law)
3.Therapist-patient (CA also includes social worker)
4.5th Amendment self-incrimination
5.Marital:
A. Spousal immunity
B. Confidential communications

Question 12

What are CEC-only privileges?

Answer 12

1. Counselor-victim (sex assault/domestic violence)
2. Clergy
3. News reporters (don’t need to reveal sources)
4. Doctor-patient

Question 13

Who holds the attorney-client privilege? How long does it last?

Answer 13

The client, though the lawyer may assert it on the client’s behalf.

Fed: after death
CEC: until estate is distributed

Question 14

What are the exceptions to attorney-client privilege?

Answer 14

1. communication used in FURTHERANCE of CRIME or FRAUD.
2. dispute with lawyer
3. Two or more parties consult on matter, and it’s used by one against the other
4. CEC: disclosure necessary to PREVENT crime likely to result in death or bodily injury.

Question 15

When does doctor-patient privilege apply (in CA) and what are the exceptions?

Answer 15

If communications for purpose of medical diagnosis and treatment.

Exceptions:

1. If patient puts physical condition at issue.
2. Doc’s assistance was sought to aid wrongdoing.
3. Dispute between doctor and patient.
4. Info doc is required to report.
5. Commitment, competency, license revocation proceedings.

Question 16

What are the exceptions for therapist-client privilege in CA?

Answer 16

Same as doctor-patient but also:

1. Patient danger to self or others
2. Court-appointed
3. Patient is minor and possible crime victim.

Question 17

What is spousal immunity? Who holds the privilege?

Answer 17

One spouse cannot be compelled to testify against other spouse. WITNESS spouse holds privilege (thus, a spouse can testify if they want to).

Question 18

In what kinds of cases does spousal immunity apply?

Answer 18

Fed: criminal ONLY
CEC: Both

Question 19

When does spousal immunity apply and what does it cover? Exceptions? What is the effect on hearsay?

Answer 19

Only applies if spouses are STILL MARRIED, but it covers info learned BEFORE and DURING marriage.

Doesn’t apply in actions between spouses or cases involving crimes against testifying spouse/spouse’s children.

Hearsay: Makes spouse UNAVAILABLE.

Question 20

What is marital confidential communications privilege? What is the duration? Who holds the privilege? Exceptions? Hearsay effect?

Answer 20

One spouse may not disclose confidential communications of the other made during marriage.

Duration: SURVIVES marriage, but only covers statements made DURING marriage.

Holder: BOTH spouses hold and can prevent other spouse from disclosing.

Exceptions: actions between spouses or crimes against testifying spouse or spouse’s children

Hearsay effect: Unavailable

Question 21

What are the 3 forms of character evidence?

Answer 21

Reputation, opinion, specific acts

Question 22

What is the general rule for character evidence?

Answer 22

Character evidence is generally not admissible to prove conduct in conformity therewith.

Question 23

When is character evidence admissible in CIVIL cases?

Answer 23

If character is at issue (wrongful death, defamation, negligent entrustment).

Fed: Character evidence of sexual behavior of DEFENDANT admissible.
CAC: Sexual behavior still not admissible against D

Question 24

If character evidence is admitted, what forms of testimony are allowed in CIVIL cases?

Answer 24

Generally only reputation and opinion.

Question 25

If character evidence is permitted in criminal cases, what must the character trait always be?

Answer 25

PERTINENT to the case.

Question 26

What is the general rule regarding DEFENDANT’s character in CRIMINAL cases?

Answer 26

Only the Defendant can “open the door” to character evidence, but once opened, the prosecution can rebut.

Question 27

What’s the exception in sexual assault/child molestation cases regarding character evidence?

Answer 27

In BOTH FRE and CEC, prosecution can “open the door” to offer character evidence of defendant.

Question 28

Under both rules, what happens in criminal case where Defendant offers character evidence against victim?

Answer 28

FRE: Prosecution can offer same character trait against D (not just rehabilitate victim) CEC: Prosecution can only attack Defendant with same trait if he offered evidence of VIOLENT character against victim.

Question 29

In CA, what is the rule in domestic violence/elder abuse cases?

Answer 29

Prosecution can open door with other acts of domestic violence or elder abuse.

Question 30

If a defendant testifies, does he put his character for truthfulness at issue?

Answer 30

Yes.

Question 31

What is the general rule for victim’s character? Exceptions?

Answer 31

Only D can open the door, but once opened, prosecution can rebut. Exceptions: Rape shield laws generally disallow character evidence of sexual conduct of victim (rep/op evidence ALWAYS disallowed, specific acts only for 3rd party semen source or consensual sex with D)

Question 32

What forms of character evidence are permitted to show D’s character on direct? On cross?

Answer 32

Direct: reputation and opinion, NO specific acts Cross: FRE- All 3 (but no extrinsic evidence for specific acts! Prosecution is stuck with answer) CEC- Only reputation and opinion

Question 33

What form of character evidence is permitted for VICTIM’s character on direct? On cross?

Answer 33

Direct: 1. FRE-reputation and opinion only 2. CEC - All 3 Cross: All 3

Question 34

In sexual assault cases, what forms of character evidence are admissible against victim?

Answer 34

Only specific acts to show (1) third party is source of semen, (2) prior acts of consensual sex.

Question 35

In CIVIL and CRIMINAL cases, when might character evidence be admissible for some other purpose?

Answer 35

``` MIMIC Motive Intent Mistake (absence of) Identity Common plan or scheme ```

Question 36

What is the general rule of impeachment?

Answer 36

Witness’s credibility may be impeached on CROSS-EXAMINATION, or, with proper foundation, EXTRINSIC EVIDENCE. Either party may impeach.

Question 37

What are the 5 ways to impeach?

Answer 37

1. Character for truthfulness 2. Prior Inconsistent Statement 3. Bias 4. Sensory/mental defect 5. Contradiction by another witness (unless on collateral matter)

Question 38

What forms of character evidence may be used to impeach for truthfulness? Exceptions?

Answer 38

Reputation and opinion only (can’t ask about specific acts that led to opinion/reputation) FRE: Specific bad acts that relate to truthfulness can be asked on cross, but NO extrinsic evidence (stuck with answer). CA: Rules depend on whether civil or criminal. 1. Civil - no cross of bad acts, and no extrinsic evidence. 2. Criminal - Prop 8 permits cross AND extrinsic evidence of bad acts (subject to balancing test)

Question 39

Truthfulness - criminal convictions In Fed court, what crimes are always admissible?

Answer 39

Crimen falsi (felony or misdemeanor). Judge may NOT exclude (even under balancing test), unless conviction is more than 10 years old.

Question 40

How are felony convictions treated (fed vs. CA)?

Answer 40

Fed: balancing test used CA: Only admissible if (1) not expunged, (2) one of “moral turpitude”, and (3) balancing test

Question 41

How are misdemeanor convictions treated (Fed vs. CA)?

Answer 41

Fed: Misdemeanors which are not crimen falsi are not admissible. CA: 1. Civil - not admissible 2. Criminal - only if moral turpitude

Question 42

What’s the rule with regard to rehabilitating a witness?

Answer 42

Must meet the attack. 1. Good character can be shown to rebut untruthfulness 2. Prior consistent statement can be used to rebut fabrication

Question 43

Is bolstering a witness’s credibility permitted?

Answer 43

FRE: Nope. Must be attacked first. CEC: Yes, either side may bolster.

Question 45

What are some non hearsay purposes?

Answer 45

1. Effect on listener 2. Declarant’s state of mind 3. Independent legal significance (words of defamation, words establishing contract, solicitation)

Question 46

What is multiple hearsay and what’s the rule?

Answer 46

If an out-of-court statement quotes/paraphrases another out-of-court statement. Each statement must be supported by an exception.

Question 47

What are the party opponent exemptions (CA calls “exception”)?

Answer 47

1. Party admission (any statement) 2. Adoptive admission - can be silent adoption if reasonable person would have spoken up (unless protected by 5th amend) 3. Vicarious admission (Spokesperson/Employee/Agent) 4. Co-conspirator admission (confrontation clause applies)

Question 48

For vicarious admission of an employee, what is the CA distinction?

Answer 48

Only admitted in cases alleging negligent conduct of employee.

Question 49

What are the hearsay exceptions for statements made around the time of an incident?

Answer 49

1. Medical diagnosis/treatment 2. Statement of then-existing mental, emotional, physical condition 3. Present sense impression 4. Excited utterance

Question 50

What is the rule for medical diagnosis exception? Do third party statements apply? Does the cause of the condition count? What is the CA distinction?

Answer 50

Must be made for purpose of diagnosis or treatment. Third party statements can be admitted if used to obtain treatment. The cause of condition may be admitted, but NOT statements of fault (e.g., Kerry caused me to cut my ear open). CA: This exception ONLY applies to child abuse victims.

Question 51

What is present sense impression and what is CA distinction?

Answer 51

Statement describing event/condition while declarant was observing event/condition, or immediately thereafter. CA: Only applies to declarant’s OWN conduct while engaged in that conduct.

Question 52

What is excited utterance?

Answer 52

Statement relating to startling event and made while declarant under stress of the excitement of the event.

Question 53

What are the prior statements of AVAILABLE witnesses permitted under hearsay?

Answer 53

Prior inconsistent statement (made under oath) Prior consistent statement (no need for oath, can be used SUBSTANTIVELY to rebut fabrication) Prior identification of person (substantively admissible).

Question 54

What are the documentary hearsay exceptions?

Answer 54

1. Past recollection recorded 2. Business record 3. Public records 4. Learned writings/treatises

Question 55

What does past recollection recorded exception require?

Answer 55

1. Firsthand knowledge by witness 2. Fresh in memory when record was made 3. Witness now doesn’t remember 4. Record was accurate when written NOTE: record will be read to the jury

Question 56

What is the business record exception? CA exceptions?

Answer 56

Record kept in course of regular business. 1. Agency records of own activities 2. Investigative reports (NOTE: FRE doesn’t allow police reports in criminal cases, but CEC does) CA: does not allow opinions or diagnoses.

Question 57

What is learned writings/treaties exception (CA vs. FRE)

Answer 57

FRE: Admissible if established by expert as reliable authority CEC: admissible for facts fo general notoriety

Question 58

What are the exceptions that require a declarant to be UNAVAILABLE?

Answer 58

1. Former testimony 2. Dying Declaration 3. Declaration against interest 4. Forfeiture by wrongdoing

Question 59

When is a witness unavailable?

Answer 59

1. Privileged from testifying 2. Death or illness 3. Reasonable means can’t procure witness 4. Witness refuses (CA requires out of fear) 5. Witness can’t remember (CA requires total memory loss)

Question 60

With former testimony, who must have been present at former hearing/depo?

Answer 60

FRE: allows predecessor in interest CEC: allows anyone with similar interest

Question 61

When is depo testimony admissible in CA?

Answer 61

1. Same civil action | 2. Witness unavailable or lives 150 miles from courthouse

Question 62

What is dying declaration, in what cases is it admissible, and what is CA distinction?

Answer 62

statement made by declarant believing his death was imminent. FRE- only in HOMICIDE cases (criminal and civil) CA- any cases, but declarant must actually be dead Also, CA - “OJ exception” - statements of physical abuse to cops/medical around time of abuse is admissible

Question 63

What is declaration against interest?

Answer 63

If, at time statement was made, it was against pecuniary or penal interest, it is admissible. CA: Also against SOCIAL interest.

Question 64

What is forfeiture by wrongdoing?

Answer 64

Hearsay exception will apply if witness unavailable due to witness tampering by party.

Question 65

What is the catch-all exception?

Answer 65

Hearsay statement may be admissible if trustworthy, material, probative, and notice is given to other side.

Question 66

What is the rule with authentication?

Answer 66

All evidence, other than testimony, must be authenticated, unless self-authenticating.

Question 67

What kind of documents are self-authenticating?

Answer 67

Certified copies of public records, official publications, newspapers

Question 68

What is the best evidence rule and what is it called in CA?

Answer 68

To prove contents of writing, the original must be produced. CA calls this “secondary evidence rule.” Duplicates are admissible unless authenticity of original is disputed. Does not apply if fact to be proved exists independently from writing (witness has personal knowledge), if writings are voluminous, or if writing is collateral.

Question 69

What is hearsay?

Answer 69

Hearsay is out-of-court statement offered for the truth of the matter asserted.

Question 70

When looking at a document, what issues should be analyzed?

Answer 70

1. Relevance (logical and legal) 2. Authentication 3. BER/secondary evidence rule 4. Hearsay/exceptions