EVIDENCE

One Issue: Is the evidence admissible? (RECIP(e) H)

  1. FORMALITIES – The procedure used to introduce evidence properly.
  2. RELEVANCE (Logical, Legal, Reliable, Judicial Notice) – Makes material fact more or less likely to be true and is not unduly prejudicial and is reliable.
  3. EXTRINSIC POLICIES (Liability Insurance, Subsequent Remedial Measures, Settlement offers, Medical expense payment offers, Offers to plea bargain) – Inadmissible for proof of issue at hand.
  4. CHARACTER EVIDENCE – Cannot be used to prove conduct unless exception applies.
  5. IMPEACHMENT (Felony conviction, Untruthful acts, Reputation, Bias, Inconsistency, Incompetent, Contradictions) – Unreliable witness
  6. PRIVILEGES – Barred from being forced to testify
  7. HEARSAY – Not admissible unless an exception applies

 

FORMALITIES

  1. Type of Questions
    1. Leading: Only on Cross examination or for Preliminary, Introductory and Non-Crucial Matters – Only when Witness is having a memory problem, examining an adverse/hostile W
    2. Other improper: Misleading, Compound, Argumentative, Conclusory, Cumulative, Unduly harassing/embarrassing, Assuming facts not in evidence/
  2. Refreshing Recollection
    1. Any writing
    2. W can’t read from, but may examine silently and then return before speaking
    3. Adverse party can cross-examine and introduce
  3. Past Recollection Recorded
    1. Personal knowledge
    2. Timely made by W when fresh in mind
    3. If reliable
    4. and necessary

RELEVANCE

  1. Logical Relevance – Tends to prove or disprove a material fact in dispute
  2. Legal Relevance – Probative value outweighs undue prejudice, confusion of issues, misleading nature, waste of time.
  3. Reliability of evidence:
    1. Testimony witness
      1. Personal knowledge
      2. Under oath/affirmation (sworn in)
      3. Capacity (know difference between truth and falsehood)
      4. Lay witness – personal knowledge/understanding
        1. Adequate opportunity to perceive
        2. Opinion required to communicate witness’s perception
        3. Matter is within common experience (drunk, odors (smelled like pot), appearance, condition)
      5. Expert Witness
        1. Qualified as expert by court
        2. Proper basis of opinion:
          1. Personal observation, OR
          2. Use of skills to review of documents of third party, IF
          3. Opinion based upon established, reliable treatises or established standards in the field.
      6. Dead Man Acts
      7. Unavailable witness
    2. Items must be authenticated
      1. Writings – Author personal knowledge, public records, ancient writings, self-authenticating docs.
      2. Voices – Hearer’s personal knowledge, distinctive characteristics, telephone transactions
      3. Physical Objects – Observer’s personal knowledge, distinctive characteristics, chain of custody (tampering)
    3. Judicial Notice – Indisputable fact that is common knowledge, easily verifiable of unquestionable accuracy. Evidence substitute. [Civil = conclusive; Criminal = persuasive, not conclusive (Judge cannot tell jury *how* to interpret evidence)]
      1. BEST EVIDENCE RULE=
        1. To prove contents of writing
        2. The original writing itself (or duplicate original)
        3. Must be produced
        4. Or shown unavailable
        5. By proponent
        6. Unless writing refers to a collateral issue (BER not applicable to non-controlling issue)

 

EXTRINSIC EVIDENCE – For matters of justice and the functioning of society, admission of this evidence is against public policy.

  1. Liability Insurance – Admitting this would discourage people from carrying insurance.
  2. Subsequent Remedial Measures – Admitting this would discourage improvements or repairs. Inadmissible for purposes of showing negligence or culpability. May be used to prove:
    1. Ownership or control
    2. Feasibility of precautionary measures
    3. Impeachment
    4. Supporting evidence in Strict Liability actions.
  3. Offers to Settle/Compromise – Admission discourages out of court settlements. Inadmissible unless used to:
    1. Show bias of witness
    2. Explain a delay in undue delay hearings
    3. Show obstruction of justice.
  4. Offer to Pay Medical Expenses – Admissibility discourages humanitarian charity. Inadmissible to show liability.
    1. Federal – “I’m sorry, let me pay the doctor bill” = “I’m Sorry” admissible admission of liability; “Let me pay..” inadmissible offer to pay medical bills.
    2. California – “I’m sorry, let me pay the doctor bill” = whole statement inadmissible.
  5. Offers of Plea Agreement – Admitting evidence would discourage plea bargaining.
    1. Inadmissible in either criminal or civil cases, UNLESS
    2. May be used to prove perjury or to impeach a witness

CHARACTER EVIDENCE – Evidence of a person’s character or disposition is inadmissible proof of the conduct of that person, unless an exception applies. EXCEPTIONS:

  1. Not used to prove conduct (trying to establish knowledge or character, not prove an act)
  2. Defendant offers to show own character
    1. FED = no specific acts; prosecution may rebut
    2. CA = Allows specific acts; prosecution may rebut
  3. Defendant offers on character of victim
    1. FED & CA = D offers; Prosecution may rebut
    2. RAPE – evidence of victim character only if:
      1. To show D is not source of semen
      2. To show consent
      3. Must first be made by written motion and offer of proof before the judge in camera.
  4. Circumstantial Evidence – to show one of the following:
    1. Opportunity
    2. Intent/Knowledge absence of mistake
    3. Modus operandi, preparation, common plan
    4. Identity (distinct characteristics)

 

IMPEACHMENT (CARBIC C)

  1. Conviction
    1. Prior Felony Conviction within 10 years
    2. CA also allows moral turpitude misdemeanor convictions
  2. Acts – Prior bad acts that show propensity of lack of truthfulness
  3. Reputation or Opinion – FED ONLY – established by cross exam or extrinsic evidence.
  4. Bias – NEVER collateral issue since it goes to core credibility. CA – must give W opportunity to explain or deny evidence of bias. Either extrinsic or by cross exam.
  5. Inconsistency – Cross exam or extrinsic evidence of prior inconsistent statement (does not have to be contradiction, just inconsistent)
  6. Competency – Attack on capacity or reliability.
  7. Contradiction (Collateral Mater Rule): Extrinsic evidence not obtained on cross exam is inadmissible to impeach unless it goes to a material matter and W given opportunity to explain or deny evidence.

 

PRIVILEGES – Limits on forced testimony/ Ability to testify

  1. Attorney-Client
    1. Holder: Client
    2. Applies to: All communication made in lawyer-client relationship
    3. Limitations: Only communications made in reasonable confidence
    4. Waiver: Only by act of client. Exceptions:
      1. Atty v. Client suits
      2. Crime or fraud
      3. Will disputes
  2. Spousal Witness – ONLY IN CRIMINAL CASES
    1. Holder:
      1. FED/MAJORITY: Defendant
      2. MINORITY: Spouse of Defendant
    2. Applies to: Spouse of defendant
    3. Limitations: Current valid marriage; ends when marriage ends
    4. Exceptions: Inter-spousal torts, crimes, bigamy, adultery
  3. Marital Communications
    1. Holder: Both spouses
    2. Applies to: All marital communications between date of marriage and date of separation/divorce.
    3. Limitations: Only communications made in reasonable confidence; Verbal communication only
    4. Exceptions: Crime/fraud; D introduces evidence
  4. Doctor-Patient
    1. Holder: Patient
    2. Applies to: All communications made in course of treatment (consultation, tests, results)
    3. Limitations: Licensed Health Care Providers only
    4. Exceptions:
      1. Doctor v. patient suit
      2. Doctor appointed by court
      3. Crime/fraud
      4. Reports by social workers or public agencies
  5. Clergy-Penitent
    1. Holder: Both clergy and penitent
    2. Applies to: All penitent communications
    3. Limitations: Clergy must be authorized to hear penitent confessions; Religion must be one where confession to clergy is a core part of religious practices. (Catholic: Yes, Baptist: No)
    4. Exceptions: None
  6. Self-Incrimination
    1. Accused
      1. Holder: Accused
      2. Applies to: Option not to take stand
      3. Limitation: Only to avoid criminal prosecution
      4. Exceptions: Not applicable to Grand Jury, legislative or administrative hearings
    2. Witness
      1. Holder: Witness
      2. Applies to: Disclosure of matters that tend to incriminate witness
      3. Limitation: Only to avoid criminal prosecution

         

  7. GENERAL CONSIDERATIONS
    1. Eavesdroppers:
      1. FED = May testify
      2. CA = Priv holder may stop eavesdropper testimony
    2. Known Third party presence to communication:
      1. Third party = agent/employee of privileged party = OK as long as presence advances purposes of privileged relationship.
      2. Third Party = non agent/employee = NO Privilege UNLESS 3rd party qualifies for another priv (Spouse)
    3. COURT may assert on behalf of holder of privilege to further justice

HEARSAY (DAD SEE ME BOPP PICI)

  1. GENERAL RULE: – An assertion made by an out of court declarant offered to the truth of the matter stated is inadmissible hearsay.
    1. Assertion (verbal or non verbal communication)
    2. Out of court
    3. Offered to prove the truth of the assertions in the statement itself
    4. Barred unless an exception applies
    5. May be barred by 6th Amendment right to confront is reasonably expected to be used in criminal prosecution.
  2. Exceptions (DAD SEE ME BOPP PICI)
    1. Declaration Against Interest
      1. Unavailable witness
      2. Against financial or penal interest
      3. Against interest at time stated
      4. Reasonable person would not say it unless it was true
    2. Admissions (FED= Non hearsay)
      1. Offered against party
      2. Party admitted culpability/liability
        1. Silence ONLY when reasonable person would have objected/denied
        2. FRE – Employee/Agent Statement allowed
        3. Co-Conspirator statement allowed is independent evidence of conspiracy exists.
    3. Dying Declaration
      1. Unavailable .. CA – MUST BE DEAD (FED – must only believe was dying)
      2. Statement when knew/believed death was imminent
      3. Relating to circumstances of death
      4. CA = Any kind of case; CL – homicide cases only.
    4. Sense Impression (FED ONLY – NOT CA)
      1. CA = CONTEMPORANEOUS STATEMENTS
        1. Explain, Qualify or Understand
        2. What declarant was doing at time of statement
    5. Excited Utterance
      1. Statement relating to a startling event/condition
      2. Said while still under stress of event
    6. Expert Cross-Examination
      1. During Expert cross examination
      2. Writings established as reliable
      3. May be read into evidence (not admissible as exhibits)
    7. Mental State
      1. Present
        1. To prove mental state if at issue (“I’m going to kill you”)
      2. Past
        1. Only admissible to prove declarant’s will.
    8. Equivalency (FRE)
      1. Trustworthy equivalent to other exceptions
      2. Relates to material facts
      3. More probative than other available evidence
      4. Other party properly noticed of the evidence to be offered
      5. Interest of justice.
    9. Business Record Exception
      1. Written statement
      2. Made in regular course of business (not in prep of case/trial – bias)
      3. Near time of receipt of info
      4. Declarant had personal knowledge
      5. Unless circumstances show untrustworthy/unreliable. (doctored books)
    10. Official Written Statement
      1. Written statement
      2. By public official
      3. Recording legal duties or activities of office
      4. Unless untrustworthy
    11. Past Recollection Recorded
      1. Written statement or record
      2. Personal knowledge and reliable source
      3. Made when facts were fresh
      4. No present recollection
      5. Declarant testifies writing represents accurate reflection
      6. May be read into evidence
      7. Opposing party may offer entire document into evidence.
    12. Prior Testimony
      1. CA = ANY prior inconsistent statement may be offered as substantive evidence of its truth.
        1. Statement under oath
        2. Formal hearing/ deposition
        3. Similar/Same issues and parties
        4. Unavailable
      2. CA & FED – CAN be used to impeach
    13. Physical State
      1. Past bodily condition
        1. FED – Only statements for purposes of diagnosis or treatment
        2. CA – any statement of past bodily condition said to anyone.
      2. Present (time of statement) physical state
        1. May prove existence of condition
    14. Identification
      1. Prior statement by W
      2. IDing a person
      3. With personal perception of person (sight, hear, smell, etc)
      4. CA – while event was fresh in W’s memory
      5. CA – W must testify and confirm authenticity of prior opinion
    15. Consistent Statement
      1. Prior statement of W
      2. Consistent with testimony
      3. TO REBUT a charge of untruthfulness, unreliability or bias.
    16. Inconsistent Statement
      1. Prior Statement of W
      2. Inconsistent with testimony
      3. Given under penalty of perjury
      4. At a deposition, trial or other formal hearing.

COMMUNITY PROPERTY

  1. THRESHOLD QUESTIONS = Marital Status + Does CP Law Apply?
  2. CLASSIFICATION = Source, Actions, Presumptions
  3. MANAGEMENT & CONTROL = Personal Prop, Real Prop, Business questions; Debts to 3rd Parties & each other
  4. DIVORCE & DEATH = Equal Division Rule – Exceptions; DEATH = Intestate and testate rules

THRESHOLD QUESTIONS

  • Marital Status?
    • Legal Marriage = Capacity to contract + witnessed ceremony + license
    • Common Law marriage: (not valid in California ); Unmarried/Living Together Contract Law applies
    • Putative Spouse = Invalid marriage due to technicality + good faith believe of lawful marriage
    • Meretricious Spouse = Invalid Marriage + knows marriage is invalid; No CP – Contract Law Applies
  • Does CP Law Apply?
    • CP = Reside in CP state + property acquired after lawful marriage (or RDP) and before permanent separation – gifts, inheritance, transmutation.
    • Quasi-CP = Spouses reside in CP state + property acquired while spouses resided in SP state + property acquired would be CP if spouses lived in CP state upon acquisition. Treated as spouse’s SP until divorce is filed or at death – when it is treated as CP. (Bad-faith transfer to 3rd party for inadequate consideration or to skirt CP laws = surviving spouse can demand restoration of ½ of property value from decedent’s SP estate)
    • Quasi-Marital = Putative spouse + property acquired would be CP or Q-CP if marriage was valid. Treated as if CP.
    • Registered Domestic Partners (CA) = laws are identical to CP (unless it deals with pension division, which is controlled by federal law; pension remains undivided, but court may order percentage payment upon distribution at retirement.)

CLASSIFICATION

  • Source
    • Earnings are CP = Wages, income, good will of professional practice, all Contract benefits from employment-type relationships
      • Disability pay – treated same as other earnings/wages
      • Employee Stock Options – apportioned according to those traceable to being awarded during marriage vs. SP.
    • Personal Injury Damages: Prior to marriage are SP of injured spouse; during marriage are CP; Payments after divorce – goes to injured spouse as SP.
    • Gifts = SP unless expressly gifted to the couple with intent to be CP.
    • Rents, Issues, Profits, Dividends = If Source if SP, then SP; If source is CP, then CP.
    • Life Insurance: If premiums were paid out of CP, then CP; if premiums were paid out of SP, then SP.
    • Education/Training expenses = SP (cannot be divided); may owe community ½ reimbursement unless 10 years has passed. Student loans = always the SP of the educated spouse.
  • Action (Transmutation)
    • Agreement between spouses = after 1985, must be in writing and signed by adversely affected party. (Includes pre- and post-nups)
    • Interspousal Gifts: No writing required + intent + delivery
    • Comingling: Assets that cannot be traced to SP source as considered CP. No reimbursement of SP if used for family expenses.
    • Joint accounts: presumed CP unless traceable to SP and no contrary agreement.
    • CP investment in SP (including spouse’s TES (time, energy, services). CP investment + % increase in value = reimbursement from SP to CP.
  • Presumption
    • General = All property acquired for consideration during marriage is presumed CP.
    • Married Woman Presumption (property acquired before 1975) – held solely in woman’s name is presumed to be her SP.
    • Jointly Held = Presumed to be CP.

MANAGEMENT & CONTROL

  • CP Personal Property: either spouse has 100% control over CP, unless
    • Making gift of CP to third party without other spouse’s consent
    • Sell or encumber furniture of home or clothes of other spouse or children.
  • CP Real Property: Either spouse may control, but both spouses must agree to any encumbrance of more than a year.
  • CP Interest in Business: Managing spouse has duty to act in good faith in regard to other spouse’s CP interest in business.
  • Quasi-Community Property: Gifts must be before death for 100% of asset to transfer to 3rd party. In will, may only rant ½ interest in Q-CP to third party; other have goes to surviving spouse.
  • Debts to Third Party – Same as if asset. If one spouse’s act causes liability does not benefit community; a reimbursement may be owed to the community (1/2 value to other spouse).
  • Inter-Spousal Debts: If spouse pays support from CP when SP income/asset available, may owe reimbursement to Community.

DIVORCE & DEATH

  • Divorce = Equal Division Rule: Court must divide CP and Q-Cp equally
    • Unequal division ok = mutual agreement + full disclosure + no fraud
  • Death
    • Testate:
      • Spouses are free to dispose of SP as they see fit.
      • Each spouse only has power to dispose of ½ of CP in will (other half belongs to other spouse)
      • If decedent leaves more than ½ CP in will, surviving spouse may choose to take under will or ½ of Cp against the will.
      • Q-CP
        • Acquiring spouse will: only may dispose of 1.2 (treated like CP)
        • Non-acquiring Spouse will: If predeceases acquiring spouse, Q-CP is invalid since it is treated as acquiring spouse’s SP until divorce or acquiring spouse’s death.
      • Estate Debts with both CP and SP assets available: chargeable against both CP and Sp on prorate basis.

Intestate: Surviving spouse gets ½ Cp off the top + decedent’s ½ + portion of SP, depending on who else survives.

TORTS

  1. INTENTIONAL = Prima Facie Case – Defenses
  2. NEGLIGENCE = Duty + Standard of Care + Breach + Actual Cause + Proximate Cause + Damages – Defenses
  3. STRICT LIABILITY = (Wild/Known Vicious Animal or Abnormally Dangerous Activity) + Causation – Defenses
  4. PRODUCTS LIABILITY = ME SIN? – Defenses
  5. DEFAMATION = Defamatory Statement + Publicantion + Understood by 3rd Party + Causation + Damages – Defenses
  6. INTRUSION TORTS (Invasion of Privacy/Wrongful Institution of Legal Proceeding/Nuisance)
  7. ECONOMIC TORTS (Interference with Business Relations/Misrepresentation)
  8. GENERAL CONSIDERATIONS (Vicarious Liability/Immunity/Statute of Limitations/Recovery for Injury to Another/Multiple Ds)

TORT REMEDIES

  1. DAMAGES = Compensatory + Punitive + Nominal – Limitations
  2. RESTITUTION = Replevin + Ejectment + Quasi-Contract + Equitable Lien
  3. INJUNCTION = Inadequate legal remedy + Proprietary right infringed + Feasibility of Enforcement + Balancing hardships – Defenses

DAY

Monday 18

Tuesday 19

Wednesday 20

Thursday 21

Friday 22

Saturday 23

Sunday 24

Monday 25

8 – 11 AM

MEMORIZE

TORTS &

T REMEDIES

MEMORIZE

EVIDENCE

MEMORIZE

CON LAW

MEMORIZE

REAL PROP

MEMORIZE

BUS ASSOC

MEMORIZE PROF RESP

3 ESSAYS

3 ESSAYS

11 – N

FLASH CARDS

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SELF GRADE

SELF GRADE

1 – 4 PM

MEMORIZE

COMMUNITY PROPERTY

MEMORIZE

CRIM

LAW & CRIM PRO

MEMORIZE

CONTRACTS &

K REMEDIES

MEMORIZE CIV PRO

MEMORIZE WILLS &

TRUSTS

100 MIXED MBES

PERF.

EXAM

FLASH CARDS

4 – 5 PM

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SELF GRADE

SELF GRADE

6 – 9 PM

PERF

EXAM

120 MBE

TORTS

EVIDENCE

120 MBE

CRIM

CON LAW

120 MBE

CONTRACTS

REAL PROP

PERF

EXAM

FLASH CARDS

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