Evidence California Bar Exam Rules 2021

Relevance

In order for evidence to be admissible in a court of law, evidence must be both logically and legally relevant.

Logical Relevance

Evidence is logically relevant when it tends to make any fact of consequence more or less probable. In CA, the rule is simply, “evidence is relevant if it is material to a disputed fact.”

Legal Relevance

Evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, confusing issues, misleading the jury, undue delay, wasting time or being needlessly cumulative.

California Prop 8

Prop 8 applies to all criminal trials in CA. It’s the Victim’s Bill of Rights and provides that all relevant evidence is admissible, subject to balancing,with exceptions, including 1) the exclusionary rule; 2) the secondary/best evidence rule; 3) hearsay exclusions; 4) rape shields rules; 5) privilege exclusions; 6) limits on prosecutor offering specific evidence prior to defendant opening the door.

CA 352 Balancing

When there is a substantial likelihood that the evidence is more prejudicial than probative the court must conduct a balancing test when determining admission. (Include for CA)

Policy Exclusions:

• Evidence of insurance against liability is not admissible to show negligence or ability to pay a substantial judgment.

• Evidence of a settlement offer or offers to compromise are not admissible to prove liability or invalidity of a claim. (In CA, discussions and writing during mediation proceedings are also not admissible).

• Offers to pay Medical Bills are not admissible to prove liability, even if there is no disputed claim. under the FRE, related statements of fact are admissible, in CA, they are not.

• Subsequent remedial measures are not admissible to prove liability but may be used to show ownership or control (FRE only - can’t be admitted to prove defective design in a strict products liability case).

Sympathy

In CA, expressions of sympathy are inadmissible but accompanying statements of fault in connection with these statements are admissible.

Withdraw of Pleas

A withdrawal of a guilty plea is inadmissible per both the FRE and in CA.

Competence and Personal Knowledge

Non-expert witnesses must be competent and have personal knowledge of a matter to testify about the matter. Witnesses cannot be physically or mentally impaired and cannot be too young to understand the oath and the need to testify truthfully. Competence is presumed in the CA evidence code.

Authentication

A party must prove the item it seeks to admit is actually what the party purports it to be. Evidence can be authenticated via witness testimony or evidence of holding in a substantially unbroken chain of custody.

Vocal Recognition

A voice may be identified by the opinion of anyone who has heard the voice at any time, even the same day or during current trial proceedings.

Signature Recognition

A jury can verify the authenticity of a signature with an appropriate example to compare.

Best Evidence Rule

A party must provide the original document when testifying to contents of a writing. A photocopy is an acceptable substitute. Oral testimony is allowable only after showing original is not available for some reason other than misconduct. In CA - called the Secondary Evidence Rule. CA accepts duplicates and hand-written evidence of the contents of an original document.

Character Evidence

Generally, evidence of a person’s character is not admissible to show propensity. However, character evidence is generally admissible for any non-propensity purpose, such as when character is an ultimate issue in a case (i.e. defamation or to impeach.

Defendant’s Character

In criminal cases, a defendant may always provide evidence of his own character. Prosecution is not allowed to do so until the defendant opens the door. In CA - prosecution can initiate a showing of the defendant’s acts of domestic violence or elder abuse.

Victim’s Character

A defendant may provide evidence of the victim’s character to prove the defendant’s innocence - except rape. If so, prosecution can show the victim’s good character for the same trial, or the defendant’s bad character. In CA only violent traits may be introduced.

Sex Offense Cases

A victim’s sexual behavior is inadmissible except 1) to show the defendant and the victim had previous sex, evidencing consent, or by the prosecutor for any reason they deem fitting. This type of evidence cannot be introduced in a civil case.

CA Only

Defendant - the California Evidence Code (CEC only allows reputation and opinion evidence to prove character, whether on cross or direct. Victim’s conduct - the defendant can be the first to offer the victim’s character evidence, and the prosecution may rebut. From Victim - reputation, opinion and specific instances are permitted on both direct and cross. Also, Prop 8 states if victim’s character is relevant, it is admissible subject to CEC 352 balancing.

Method of Admission

Under the FRE, when character evidence is admissible, it may be proven in the following ways: (1) on direct by opinion or reputation testimony; OR (2) on cross, add specific acts. In CA, the defendant’s character may only be proven by opinion or reputation. A victim’s character may be proven by opinion, reputation, or specific acts.

404(b) Prior Bad Acts

Prior crimes are not admissible to show propensity. However, evidence of prior bad acts may be admissible for other relevant non-propensity purposes, such as proving Motive, Identity, Absence of Mistake or Accident, Intent, a Common Plan or Scheme, Opportunity, or Preparation.

Prior Convictions

Felony or misdemeanor convictions involving dishonesty are always admissible to impeach. Felonies not for dishonesty have a 10-year limit from latter of conviction or release from confinement. Requires probative value/prejudicial effect determination, and proper notice must be given. In CA, admission require CEC 352 balancing for moral turpitude crimes, and misdemeanors are admissible under Prop 8.

Prior Inconsistent Statement

These statements are admissible to impeach. Extrinsic evidence is admissible only if relevant to a material issue and a proper foundation is laid. In CA, a prior inconsistent statement is admissible as non-hearsay when offered only to impeach a witness, and whether or not under oath.

Lay Witness

A lay witness is any person that is not an expert. They must take an oath to tell the truth, and have capacity to perceive, recall and communicate. In CA the witness must understand the legal duty to tell the truth. They may offer an opinion if it is rationally based on the witness’ perception, and it is helpful to the jury. Lay witness testimony cannot be based on specialized or scientific knowledge.

Expert Witnesses

Expert testimony is appropriate only when the subject matter is one where scientific, technical, or other specialized knowledge would assist the trier of fact. The witness must believe the opinion, it must be supported by fact and based on reliable principles.

Expert Witnesses in California

The following standards apply: Kelly/Frye Standard, where the opinion must be based on principles generally accepted by experts in the field; or the Daubert/Kumho Standard: reliability is determined by publication, peer review, error rate, results are tested and have an ability to retest, and the method of determining the opinion has a reasonable level of acceptance in the community.

Consulting Expert Witnesses

These experts are retained by a party, but not expected to testify. They have a higher standard to meet in order to subpoena and are only discoverable upon a showing of exceptional circumstances under which it would be impractical to the other party to obtain facts by other means.

Non-Expert Testimony

The judge will determine if the witness has sufficient knowledge, not the jury.

Witnesses

If a party asks that observing witnesses be excluded when other witnesses testify, the judge must comply.

Limitations on Cross Examinations

Courts may allow inquiry into additional matters on cross that weren’t address on direct.

Witness Competency

Witnesses must testify based on personal knowledge, have an ability to communicate, and take an oath or make an affirmation to tell the truth. In CA, they must also understand the legal duty to tell the truth.

Witness Disqualification

The FRE assumes all witnesses are competent.

Hypnosis

In CA, witnesses who have been hypnotized to refresh recollection are disqualified, except in a criminal case, where they were hypnotized by police using procedures are that protect against suggestion.

Experts in Criminal Cases

An expert is prohibited from testifying to a criminally accused mens rea.

Learned Treatise Hearsay Exception

Information from learned treatises may be admissible if called to the attention of the expert witness upon cross or relied upon during testimony, and it is established as reliable. Statements may be read into evidence and need not be made by the expert. The jury is not allowed to bring them into the jury room because they may read the wrong passages. Admissible whether or not the witness is available.

Hearsay

An out of court statement that is offered to prove the truth of the matter asserted. Only admissible if it falls under an exception.

Multiple Levels of Hearsay

Hearsay within hearsay, where each level must fall under an exception in order to be admissible.

Non-Hearsay Statements

If a statement is offered to prove something other than the truth of the matter asserted, it is non-hearsay and is admissible. Common non-hearsay statements include 1) verbal acts of independent legal significance; 2) statements offered to show the effect on the listener; 3) a prior inconsistent statement used to impeach; and 4) circumstantial evidence of the declarant’s state of mind (these show belief, attitude, knowledge or mental state).

Declarant is Unavailable

A declarant is deemed unavailable if 1) exempt due to privilege; 2) if they refuse to testify; 3) they do not remember the events in question; 4) death or illness; 5) they can’t be found by reasonable means. In CA, add: If declarant suffers total memory loss or refuses to testify out of fear.

Statement Against Interest

A statement made against one’s penal, proprietary or pecuniary interest when uttered, and would not have been made by a reasonable person unless they believed it to be true. Applies when declarant is unavailable and has no motive to lie. Must be corroborated in criminal cases. In CA, add societal interest.

Former Testimony Exception

Testimony given as a witness at a trial or hearing/deposition, is now offered against a party who had an opportunity and similar motive to develop it by direct/cross examination. Requires that the witness is unavailable.

Dying Declaration

In homicide or civil case, statement of declarant made while declarant believed they were dying, made about the cause or circumstances of their death. The declarant must be unavailable but does not need to be dead. In CA, can be used in any criminal or civil case and the declarant must be dead.

Past Recollection Recorded

A recollection 1) is on a matter the witness once knew about but cannot recall well enough to testify fully and accurately; 2) was made/adopted while the matter was still fresh of the witness’ memory; 3) accurately reflects the witness’ knowledge. May be read to the jury, but received as an exhibit only if from opponent. Admissible whether or not the declarant is available.

Present Recollection Refreshed

A witness may examine any item to refresh the witness’ present recollection. Testimony must then be based on their recollection, and not a reading of the item. The adverse party is allowed to inspect the item and introduce relevant portions into evidence.

Adoptive Admission

A declarant’s silence may constitute an adopted admission if the person heard the statement, remained silent, but a reasonable person would have denied the statement.

Statement of a Party-Opponent

A prior out of court statement by a party to the current litigation that is used against that party is not hearsay. The statement need not be against the declarant’s interest at the time it was made; it must only be contrary to the declarant’s present interest. In CA - hearsay, but admissible.

Unresponsive Answer

An answer that goes beyond the scope of the question, or does not answer the question, and is subject to strike.

Vicarious Admissions

Not hearsay, a vicarious admission is one made by 2) an authorized spokesperson; 2; a principal or agent acting with the scope of their relationship; or 3) co-conspirators. in CA, not admissible in principal/agent situations.

Police Sketches

A police sketch is an out of court statement of an unavailable witness and is inadmissible as hearsay if the teller (not the artist) is unavailable to testify.

Prior Statements of Identification

Statements of the declarant’s prior identifications are considered non-hearsay, however the declarant must testify and be subject to cross examination. A cop present during the declarant’s identification can subject an admission to that effect.

Excited Utterance / CA Spontaneous Statement

An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of the excitement. These are admissible whether or not the declarant is available.

Present Sense Impression / CA Contemporaneous Statement

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. In CA, only qualifies if explaining conduct of declarant made while declarant was engaged in such conduct. These are admissible whether or not the declarant is available.

Absence of a Record of a Regularly Conduct Activity

Evidence that a matter is not included in a record is admissible if 1) the purpose is to prove matter did not occur or exist; 2) a record was typically kept for that matter; and 3) opponent doesn’t show lack of trustworthiness. These are admissible whether or not the declarant is available.

Business Record

An admissible business record is a record 1) made at or near the time of occurrence, or from information transmitted from someone with knowledge; 2) kept in the course of a regularly conducted activity of a business; 3) making that record was a regular practice, ; and 4; all the above are shown by testimony of the custodian. May be inadmissible if the opponent can show its preparation indicates a lack of trustworthiness. In CA - no opinions or diagnoses, and party introducing has the burden must show trustworthiness. CA does not admit police records as business records (considered hearsay) but allows them as official records. THese are admissible whether or not the declarant is available to testify.

Public Record

These records are admissible if 1) they set forth the office activities; 2) about a matter observed while under a legal duty to report (except in a criminal case for a matter observed by police); or 3) shows factual findings of a legal investigation. These are admissible whether or not the declarant is available. In CA, includes statements made by a public employee in the scope of duty, at or near the time of the act and with no indication of untrustworthiness.

Ancient Documents

Prepared at least 20 years ago, kept in a place it would normally be kept and shows no signs of suspicion. In CA - 30 years old or older. These are admissible whether or not the declarant is available.

Then-Existing Mental, Emotional or Physical Condition

A statement of declarant’s then existing state of mind (motive, intent, plan) or emotional sensory or physical condition is an exception to hearsay rule. These are admissible whether or not the declarant is available.

Confrontation Clause

The 6th Amendment’s Confrontation Clause, applied to the states via the 14th Amendment, gives a criminal defendant the right to confront witnesses against him. The use of an out-of court statement (even if it falls within a hearsay exception or exemption violates a defendant’s 6th Amendment rights when 1) the statement is “testimonial”; 2) the declarant is unavailable to be cross examined at trial; and 3) the defendant did not have an opportunity to cross-examine the declarant before trial.

Testimonial Statements

Statements made to grand juries and to police when they are collecting testimony for use at trial, but not when assisting police in an on-going emergency.

Prior Statements Made Under Oath

Admissible if 1) statements are offered against a party that was present in previous trial (but now unavailable, and privity suffices in civil case); 2) same issues are involved; and 3) subject party had an opportunity to cross examine at the previous trial. In CA, privity not required, similar interest is ok.

Grand Jury Note

A defendant is not entitled to a lawyer inside the grand jury room, and illegally obtained evidence is permissible. Witnesses subpoenaed to appear before a grand jury are entitled to immunity.

Attorney-Client Privilege

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, or the disclosure is impliedly authorized in order to carry out the representation. The client holds this privilege, and it can remain after the client dies. In CA, this privilege does not survive client (terminates when estate is settled) and is permitted if disclosure is required to proven substantial bodily harm or death (and/or significant fraud/financial crimes per the FRCP). Privilege does not apply when legal services are sought in furtherance of a crime, in litigation between client and attorney, or when joint clients are litigating.

Physician-Patient Privilege

Not recognized in the FRE, but in CA exists for confidential a patient communications for statements made during medical diagnosis. Does not apply if the physician/psychotherapist believes the patient is dangerous to himself or others, nor when the doctor is required to report to a public officer - for example, in child abuse cases.

Spousal Immunity

A person may not be called as a witness to testify against their spouse, relating to any even before and during marriage. This privilege is held by the witness spouse and can be asserted only during marriage. Applies in both civil and criminal cases.

Confidential Martial Communications

This privilege protects all confidential communications made during a valid marriage - must be confidential. This privilege is held by both spouses and lasts even after divorce.

Opposing Party’s Statement

A statement made by a party to the current litigation is not hearsay if an opposing party offers it. This is considered non-hearsay.

Statement Made for Medical Diagnosis or Treatment

Exception only if 1) a statement made for and reasonably pertinent to medical diagnosis or treatement, 2) describes medical history; past or present symptoms, their inception or cause. These are admissible whether or not the declarant is available. In CA, only for child abuse/neglect victims under 12 years old.

Judicial Notice

Undisputed facts may be judicially noticed if they are capable of accurately and readily determined from sources whose accuracy cannot reasonably be questioned; or facts generally known within the territorial jurisdiction of the trial court. The court may accept, but in civil cases, jury must accept facts as conclusive, a criminal case jury may or may not, and in CA, both must accept.

Catch-All Hearsay Exception

If fitting no other category, a hearsay statement is admissible if 1) the statement provides circumstantial guarantees of trustworthiness; 2) the statement is strictly essential; and 3) notice is given to the adversary of that statement.