California Bar Examination Evidence (California & Federal) Syllabus

Evidence (California & Federal) syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Evidence (California & Federal) in California Bar Examination, not a summary of it.

1. 1

   Relevance and Its Limits

   5 topics

   • Logical and Legal Relevance
   • Probative Value Versus Prejudice
     • Federal Rule 403 balancing
     • California Evidence Code section 352
   • Character Evidence
     • Propensity prohibition and exceptions
     • Methods of proving character
     • Habit and routine practice
   • Other Acts Evidence (Motive, Intent, Identity)
   • Subsequent Remedial Measures and Settlement Offers
2. 2

   Witnesses and Impeachment

   5 topics

   • Competency and Personal Knowledge
   • Examination of Witnesses and Leading Questions
   • Impeachment Methods
     • Prior inconsistent statements
     • Conviction of a crime
     • Bias, interest, and character for truthfulness
   • Rehabilitation of Witnesses
   • Lay and Expert Opinion Testimony
     • Daubert and Kelly/Frye standards
3. 3

   Hearsay

   5 topics

   • Definition of Hearsay and Nonhearsay Uses
   • Statements That Are Not Hearsay (Admissions and Prior Statements)
   • Exceptions Requiring Unavailability
     • Former testimony
     • Dying declarations
     • Statements against interest
   • Exceptions Not Requiring Unavailability
     • Present sense impression and excited utterance
     • State of mind
     • Business and public records
     • Recorded recollection
   • Confrontation Clause and Hearsay
4. 4

   Privileges, Authentication, and the Best Evidence Rule

   5 topics

   • Privileges
     • Attorney-client and work product
     • Spousal privileges
     • Physician-patient and psychotherapist-patient
   • Authentication of Documents and Items
   • Best Evidence (Secondary Evidence) Rule
   • Judicial Notice
   • Burdens and Presumptions

Evidence (California & Federal) flashcards for California Bar Examination

21 of 72 cards from the Evidence (California & Federal) deck — real questions with worked answers.

1. What is the difference between logical relevance and legal relevance under FRE 401-403?

   Logical relevance (FRE 401): evidence has any tendency to make a material fact more or less probable. Legal relevance (FRE 403): even logically relevant evidence may be excluded if its probative value is substantially outweighed by dangers like unfair prejudice, confusion, or waste of time.

2. Under FRE 401, what two components make evidence relevant?

   (1) Probativeness (materiality plus): the evidence has any tendency to make a fact more or less probable than without it, and (2) the fact is of consequence in determining the action.

3. State the FRE 403 balancing test for excluding relevant evidence.

   Relevant evidence may be excluded if its probative value is SUBSTANTIALLY outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. The standard favors admission.

4. How does California Proposition 8 affect relevance and exclusion in criminal cases?

   Prop 8 (Truth-in-Evidence) makes all relevant evidence admissible in criminal cases, but California Evidence Code 352 (the CA counterpart to FRE 403) discretionary exclusion survives Prop 8, along with hearsay rules, privileges, and certain other exceptions.

5. Compare the federal vs. California weighing standard for prejudice (FRE 403 vs. CEC 352).

   FRE 403: exclude if probative value is 'substantially outweighed' by danger of unfair prejudice. CEC 352 uses the same 'substantially outweighed' language but the danger includes 'undue consumption of time.' Both are discretionary and favor admission.

6. What is the general rule on using character evidence to prove conduct in conformity (propensity)?

   Under FRE 404(a), evidence of a person's character or character trait is NOT admissible to prove that on a particular occasion the person acted in accordance with that trait (no propensity use).

7. In a federal criminal case, when may a defendant introduce character evidence, and how may the prosecution respond?

   The accused may offer evidence of a pertinent good character trait (FRE 404(a)(2)). Once the defendant 'opens the door,' the prosecution may rebut it. Character is proven by reputation or opinion (FRE 405(a)); specific acts allowed only on cross-examination or when character is an essential element.

8. What are the three methods of proving character, and when is each available?

   (1) Reputation testimony, (2) Opinion testimony, and (3) Specific instances of conduct. Reputation and opinion are generally allowed; specific instances are allowed only on cross-examination of a character witness or when character is an essential element of a claim/defense (FRE 405).

9. How does California differ from federal law on the form of character evidence about the defendant?

   California (CEC 1102) allows the defendant to prove good character by opinion or reputation, but generally NOT by specific instances in the case-in-chief. California permits character evidence in the victim/self-defense context (CEC 1103) more broadly than the FRE.

10. Under FRE 404(b), for what permissible purposes may evidence of other crimes, wrongs, or acts be admitted?

    Not to show propensity, but for MIMIC purposes: Motive, Intent, absence of Mistake/accident, Identity, Common plan or scheme (also opportunity, preparation, knowledge). Identity often requires a distinctive 'modus operandi.'

11. What standard of proof governs admission of FRE 404(b) other-acts evidence (Huddleston)?

    Under Huddleston v. United States, the court need only find sufficient evidence for a reasonable jury to conclude by a preponderance that the defendant committed the prior act; the judge does not have to find it actually happened. The act need not result in conviction.

12. Under FRE 413-415, how does the treatment of prior acts differ in sexual assault and child molestation cases?

    FRE 413-415 permit propensity use: in sexual-assault or child-molestation cases, evidence of the defendant's other such offenses IS admissible to show propensity, an exception to the FRE 404 ban (still subject to FRE 403).

13. What is the rule on subsequent remedial measures (FRE 407)?

    Measures taken after an injury that would have made it less likely to occur are NOT admissible to prove negligence, culpable conduct, a product defect, or a need for warning. They MAY be admitted for other purposes like ownership/control (if disputed) or feasibility of precautions (if disputed).

14. What is the rule on civil settlement offers and negotiations (FRE 408)?

    Offers to compromise (and conduct/statements during compromise negotiations) of a disputed claim are inadmissible to prove validity/amount of the claim or for impeachment by prior inconsistent statement. There must be a disputed claim. May be admitted for other purposes (e.g., proving bias, negating delay).

15. How do FRE 409 (offers to pay medical expenses) and FRE 410 (plea discussions) limit admissibility?

    FRE 409: offers/payment of medical expenses are inadmissible to prove liability (but accompanying admissions of fact ARE admissible). FRE 410: withdrawn guilty pleas, nolo contendere pleas, and statements during plea negotiations with a prosecutor are inadmissible against the defendant.

16. What are the requirements for witness competency under FRE 601 and 603?

    FRE 601: every person is competent to testify unless the rules provide otherwise (in diversity cases, state competency law may apply). FRE 603: a witness must give an oath or affirmation to testify truthfully. FRE 602 requires personal knowledge.

17. What does the personal knowledge requirement (FRE 602) require, and does it apply to experts?

    A lay witness may testify only to matters of which they have personal knowledge (perceived with their own senses). Personal knowledge may be shown by the witness's own testimony. FRE 602 does NOT apply to expert opinion testimony under FRE 703.

18. Under the Dead Man's Acts (where applicable), what testimony is barred?

    In some states (not under the FRE), an interested party is barred from testifying about a personal transaction or communication with a now-deceased person in a claim against the decedent's estate. The FRE has no Dead Man's Act; California has limited it largely to hearsay exceptions.

19. When are leading questions permitted on direct examination (FRE 611(c))?

    Leading questions are generally NOT allowed on direct but ARE permitted: on cross-examination, with hostile witnesses, adverse parties (or witnesses identified with adverse party), to develop preliminary/foundational matters, and with witnesses who have difficulty (children, the infirm).

20. What is the scope-of-cross-examination rule under FRE 611(b)?

    Cross-examination should be limited to the subject matter of the direct examination and matters affecting the witness's credibility. The court has discretion to allow inquiry into additional matters as if on direct.

21. What is the rule on refreshing recollection (FRE 612) and how does it differ from recorded recollection?

    Refreshing recollection (present recollection refreshed): a witness may review any item to refresh memory, then testifies from memory; the writing is NOT evidence. Recorded recollection (FRE 803(5)) is a hearsay exception where a witness cannot now recall, the record may be read into evidence but received as an exhibit only if offered by an adverse party.

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