Ca Bar Exam - Evidence

Front 1

Logical Relevance

Back 1

Evidence is logically relevant if it tends to make the existence of any fact of consequence to the determination of the action more or less probable than it would be w/out the evidence.

CA - Must be a disputed fact of consequence

Front 2

Legal Relevance

Back 2

A trial judge has discretion to exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, or waste of time.

Front 3

Liability Insurance

Back 3

Evidence of liability insurance is not admissible to prove negligence or ability to pay but is admissible to prove ownership or control or to impeach a witness

Front 4

Subsequent Remedial Measures

Back 4

Evidence of safety measures or repairs after an accident is inadmissible to prove negligence or to prove defective design in a products liability case, but it is admissible to prove ownership or control, to rebut a claim of no feasible precaution, or to prove destruction of evidence.

CA - May be used in products liability to show defect.

Front 5

Settlement Offers

Back 5

Evidence of offers to settle are inadmissible to prove the validity or amount of a disputed claim. Statements made during settlement discussions are also inadmissible.

Front 6

Offers to Pay Medical Services

Back 6

Evidence of payments or offers to pay medical expenses is inadmissible to prove liability for the injuries in question. Accompanying admissions of fact are admissible.

CA - Admissions of fact inadmissible

Front 7

Withdrawn Guilty Pleas

Back 7

Evidence of withdrawn guilty pleas, offer to plea and related statements are inadmissible

Front 8

Character Evidence - Definition

Back 8

Character evidence goes to the general character of a person and conveys a moral judgment. Habit evidence, describes a persons regular response to a specific set of circumstances and conveys no moral judgment.

Front 9

Character Evidence - D's conduct in civil case

Back 9

Inadmissible unless character is at issue or if independently relevant as MIMIC.

Fed only - Evidence of prior sexual assault or child molestation in sex assault or molestation civil case.

Front 10

Character Evidence - D's conduct in criminal case

Back 10

Inadmissible unless:

1. D opens door by offering good character evidence. O/R on direct O/R/SA on cross.

CA - O/R on direct and cross.

2. Evidence of prior sexual assault or molestation in assault or molest case.

CA - Also in DV or elder abuse cases.

3. MIMIC

4. Character at issue (e.g., entrapment)

Front 11

Character Evidence - V's conduct in criminal case

Back 11

Inadmissible unless:

1. If court admits evidence offered by D of victim's bad character, prosecution can offer evidence that D has same character trait. O/R on direct O/R/SA on cross.

CA - Only applies to a violent trait.

Front 12

Character Evidence - V's peaceful character in homicide case

Back 12

Fed only - Admissible to rebut D's evidence that victim was the aggressor. O/R direct, O/R/SA cross.

Front 13

Character Evidence - V's sexual bahavior in rape case

Back 13

O/R inadmissible. SA admissible:

1. To prove someone other than D was the source of semen or injury;

2. T prove prior acts of consensual sex between V & D; AND

3. To avoid a violation of D's con. rights.

CA - Cannot offer SA of V's conduct.

Front 14

Judicial Notice

Back 14

Fed

If facts are appropriate for judicial notice, judge must take judicial notice if requested, otherwise jduge has discretion.

- Conclusive in civil case, jury may disregard in criminal case.

CA

If facts are of general knowledge, judge must take judicial notice, otherwise judge has discretion.

- Conclusive in both civil and criminal

Front 15

Authentication of Documentary Evidence

Back 15

Prior to being admitted, a writing or other physical evidence must be authenticated by proof showing it is what the proponent claims it to be.

Fed - Trade inscriptions and business records are self authenticating.

Front 16

Best Evidence Rule

Back 16

Applies only when evidence offered to prove material terms of writing, defined broadly to include any collection of data in tangible form. Duplicates may be produced if made by machine or same impression as original.

CA - Secondary evidence rule, generally the same. Handwritten notes are admissible.

Front 17

Competency

Back 17

- Witnesses must have the capacity to observe, recollect, communicate, and swear or affirm to tell the truth.

- Presiding judge and jurors may not testify.

CA - Witness must understand to tell the truth.

Front 18

Personal Knowledge

Back 18

A witness must have PK of the matter about which she is called to testitfy

Front 19

Lay Opinion

Back 19

Inadmissible unless:

1. Rationally based on the witness's perception;

2. Helpful to a clear understanding of his testimony; AND

3. Not based on scientific, technical or other specialized knowledge. (#3 excluded in CA)

Front 20

Expert Opinion

Back 20

Admissible if:

1. Helpful to jury;

2. subject matter is appropriate;

3. witness is qualified as expert;

4. witness believes in opinion to a reasonable degree of certainty; AND

4. Opinion is reliable & supported by proper factual basis.

Front 21

Expert Opinion - Determining reliability of scientific opinion

Back 21

Fed Daubert

1. Publication/peer review;

2. Low error rate;

3. results tested & there is ability to retest; AND

4. reasonable level of acceptance among scientists.

CA Kelly-Frye

Scientific opinion is reliable and admissible only if based on scientific principles that are generally accepted in the relevant scientific field.

Front 22

Impeachment - Prior inconsistent statement

Back 22

Admissible to impeach but also admissible as substantive if made under oath in prior legal proceeding.

CA - Admissible to impeach, but admissible under hearsay exception if being offered to prove truth. No need for prior legal proceeding.

Front 23

Impeachment - Felony Convictions

Back 23

Admissible/no discretion

- Felony involving dishonesty and less than 10yo.

Admissible/discretion

- Felony not involving dishonesty or more 10yo

- If D is being impeached 403.

- If other witness is being impeached reverse 403.

CA - Felony convictions involving moral turpitude are admissible subject to 352

Front 24

Impeachment - Misdemeanor

Back 24

- Admissible if involves dishonesty and no discretion if less than 10yo.

- Inadmissible if does not invovle dishonesty.

CA - In civil cases, misdemeanor inadmissible. In criminal cases are admissible if moral turp. subject to 352.

Front 25

Impeachment - SA, bad acts

Back 25

- Witness can be asked on CROSS about SA that bear on character truthfulness subject to 403. (O/R admissible)

- No extrinsic.

CA - In civil, ALWAYS inadmissible. In criminal, acts of moral turpitude admissible on CROSS and extrinsic.

Front 26

AC Privilege

Back 26

- Communication between AC intended by client to be confidential & made to facilitate rendition of legal services is privileged unless waived.

- Client holds privilege, applies after death.

- if corp., employee/agent who is authorized to speack on behalf of corp. Common sense.

Front 27

AC Privilege Exception

Back 27

Does not apply if:

1. Prof. services were sought to further crime;

2. 2 or more parties consult lawyer on matter of common interest and communication is offered by one party against the other;

3. Communication relates to a breach of AC duty.

CA - Lawyer reasonably believes disclosure of communication is necessary to prevent crime likely to result in death of SBI.

Front 28

Physician - Patient Privilege

Back 28

Patient has privilege to prevent disclosure of confidential infor conveyed to physician (or nurse) for the purpose of medical treatment.

Exception

1. Patient has put physical condition in issue;

2. Medical services were sought to further crime or tort or to escape apprehension;

3. Case involves breach of duty arising out of physician patient priv;

4. Patient waived priv;

CA Exception

1. In criminal cases;

2. To info physician is required to report to a public office;

3. In commitment, competency or license revocation proceedings.

Front 29

Psychotherapist/Social Worker Privilege

Back 29

Exceptions

1. Patient has put mental condition in issue;

2. Prof services were sought to aid in crime or fraud or escape;

3. Case involves breach of duty between patient and therapist

CA Exceptions

1. If therapist has reasonable cause to believe patient is danger to himself or others;

2. TO court appointed therapists;

3. If patient is under 16yo and therapist believes victim of crime.

Front 30

Spousal Immunity

Back 30

One spouse cannot be compelled to testify against other spouse in a criminal proceeding. Only witness-spouse can invoke priv. Can be claimed only during marriage, but covers info learned before and during marriage.

CA - Applies to civil and criminal

Front 31

Confidential Marital Communications Privilege

Back 31

Applies in all cases and protects spousal communication made during marrage. Both spouses can claim priv not to disclose and to prevent other spouse from disclosing confidential marital communications. Priv survises marriage.

Front 32

Out of Court Statements - Not Hearsay

Back 32

1. Verbal acts or legally operative facts.

2. Statements offered to show their effect on the listener or reader.

3. Statements offered as circumstantial evidence of declarants state of mind.

Front 33

TMA

Back 33

Does it matter whether declarant is telling the truth? If not, the evidence is not hearsay.

Front 34

Prior Inconsistent Statement

Back 34

Not hearsay if made under oath at a prior proceeding or deposition. Admissible for impeachment purposes, only as substantive if made under oath. No extrinsic evidence if PIS is collateral.

CA - Exception to hearsay rule. Admissible for both impeachment and substantive, even if not made under oath. IN criminal case, must have chance to confront and cross examine at trial about PIS.

Front 35

Prior Consistent Statement

Back 35

Not heasay if offered to rebut attack on witness's credibility and if made before motive to lie arose. Exception in CA.

Front 36

Prior Identification

Back 36

Not hearsay if the statement is one of identification of a person as someone the witness perceived earlier.

CA - Witness must have made I.D. while memory of event was fresh; AND

Witness must confirm in court that she made prio I.D. and that it truly reflected her opinion at the time.

Front 37

Statement by Opposing Party

Back 37

Not hearsay if statement made by party and offered by opponent.

Front 38

Adoptive Admission

Back 38

Not hearsay if party expressly or impliedly adopts or acquiesces to statement of another.

Silence - The person heard and understood the statement; the party was physically and mentally capable of denying the statement; and a reasonable person would have denied the accusation.

Front 39

Vicarious Adoptive Admission

Back 39

1. Authorized Spokesperson

2. Principal- Agent: W/in scope of agency made while employment relationship exists is admissible against principal.

3. Co-conspirators: Statement of one conspirator made in furtherance of conspiracy to commit crime or civil wrong, and made during the conspiracy.

Front 40

Former Testimony

Back 40

1. Unavailable

2. Under oath in earlier proceeding or depo by now available witness

3. Similaryity of parties

4. Similarity of issues

5. Party against whom it is offered had opportunity to examine witness, and motive to conduct that exam was similar to current motive.

Front 41

Statement Against Interest

Back 41

1. Unavailable

2. At time it was made is against, financial or penal interests of declarant.

3. In criminal trial, must offer corroborating circumstances showing trustworthiness of declarants statement.

CA - Also includes social interests

Front 42

Dying Declaration

Back 42

Statement is admissible in civil and homicide cases if declarant believed death was imminent and statement concerned cause or circumstance of what he believed to be his impending death. Declarant must be unavailable, but not dead.

CA- Any case.

Front 43

Past physical condition or state of mind where an issue in the case

Back 43

CA - Statement of declarants past physical or mental condition, including statement of intention, is admissible to prove that condition if it is an issue in the case.

Front 44

Statement describing infliction or threat of physical injury

Back 44

CA - Statement made by unavailable declarant that describes, narrate or explains infliction or threat of physical injury on declarant is admissible if statement was made at or near time of infliction or threat; was made under circumstances that indicate trustworthiness; and is in writing, recorded, or made to law enforcement.

Front 45

Excited Utterance

Back 45

Statement made while under stress of startling event.

CA - Spontaneous statement.

Front 46

Present Sense impression

Back 46

Statement describing or explaining an event or condition made while declarant was perceiving event or condition or immediately after.

CA - Statement by declarant explaining his conduct made while declarant is engaged in the conduct.

Front 47

Present State of Mind

Back 47

Statement of declarants then existing physical or mental condition or state of mind is admissible to show the condition or state of mind. Statement describing memory or belief is not admissible to prove the fact remembered or believed.

Front 48

Present Physical or Mental Condition

Back 48

Statement describing present physical or mental condition is admissible.

Front 49

Past Physical or Mental Condition

Back 49

Statement of past physical or mental condition is admissible onyl if made for purpose of medical diagnosis or treatment.

CA - Admissible only if made by a child abuse or child neglect victim under age of 12 to medical personnel for purposes of medical diagnosis or treatment.

Front 50

Business Records

Back 50

Records of events, conditions, opinions, or diagnosis made in regular course of business, consisting of matters within personal knowledge of one with business duty to transmit.

Front 51

Past Recollection Recorded

Back 51

Writing made or adopted by witness who cannot no remember the facts, made while facts were fresh in his mind.

Front 52

Official Public Records

Back 52

Record of public office that describes activities of the office; describes matters observed pursuant to duty imposed by law; or contains factual findings from investigation made pursuant to authority granted by law, unless untrustworthy.

- No police reports in criminal case

Front 53

Learned Treatise

Back 53

Statements from authoritative works admitted if called to attention of expert witness and established as reliable authority

CA - Applies to facts of general notoriety and interest found in published maps, charts, or history or art books.

Front 54

Prop 8

Back 54

All relevant evidence is admissible. 9 exceptions:

1. Hearsay

2. 352

3. secondary evidence

4. Exclusionary rules based on constitution

5. Character