California Bar Examination Evidence (California & Federal) Flashcards

24 sample cards from the Evidence (California & Federal) deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What are the requirements for statements for medical diagnosis or treatment (FRE 803(4))?

   Statements made for, and reasonably pertinent to, medical diagnosis or treatment, describing medical history, symptoms, or their general cause. The cause is admissible if pertinent to treatment; statements of fault/identity generally are not (exception: identity in some abuse cases). The declarant's motive to be truthful supplies reliability.

2. How does the public records exception (FRE 803(8)) limit use of police reports in criminal cases?

   Public records of agency activities, matters observed under a legal duty, or factual findings from investigations are admissible. BUT in a CRIMINAL case, matters observed by law-enforcement personnel and investigative reports are NOT admissible AGAINST the defendant (to preserve confrontation rights).

3. What is the residual (catch-all) hearsay exception (FRE 807)?

   A hearsay statement not covered by 803/804 may be admitted if (1) it has sufficient guarantees of trustworthiness (considering totality and corroboration) and (2) it is more probative on the point than other reasonably available evidence. Notice to the adverse party is required. California has NO residual exception.

4. What does the Confrontation Clause (Crawford) require for hearsay in criminal cases?

   Under Crawford v. Washington, a TESTIMONIAL out-of-court statement by an unavailable declarant is inadmissible against a criminal defendant unless the defendant had a prior opportunity to cross-examine the declarant. This applies even if the statement fits a hearsay exception.

5. How do courts determine whether a statement is 'testimonial' (Davis v. Washington)?

   A statement to police is NON-testimonial if made to enable police to meet an ongoing emergency (its primary purpose). It is TESTIMONIAL if the primary purpose is to establish/prove past events potentially relevant to later criminal prosecution (e.g., structured interrogation after the emergency ends).

6. How does forfeiture by wrongdoing interact with the Confrontation Clause (Giles v. California)?

   A defendant forfeits Confrontation Clause objections if they engaged in wrongdoing INTENDED to make the witness unavailable (Giles requires specific intent to prevent testimony). This mirrors the FRE 804(b)(6) forfeiture-by-wrongdoing hearsay exception.

7. What is the attorney-client privilege and who holds it?

   Confidential communications between a client and attorney made to facilitate legal services are privileged. The CLIENT holds the privilege (attorney asserts on client's behalf). It covers communications, not underlying facts, and survives the client's death. Exceptions include the crime-fraud exception.

8. What is the crime-fraud exception to the attorney-client privilege?

   There is no privilege if the client sought or used the attorney's services to enable or aid the commission of a future crime or fraud. Communications about past wrongdoing remain privileged; the exception targets ongoing/future criminal or fraudulent schemes.

9. Compare the spousal testimonial privilege and the marital communications privilege.

   Spousal testimonial privilege (criminal cases): a spouse cannot be compelled to testify against the defendant-spouse; held by the witness-spouse (federal); covers all testimony but only during marriage. Marital (confidential) communications privilege: protects confidential communications during a valid marriage; held by both spouses; survives divorce; applies in civil and criminal cases.

10. What is the work-product doctrine and how does it differ from attorney-client privilege?

    Work product protects materials prepared in anticipation of litigation. Ordinary work product is discoverable on a showing of substantial need and inability to obtain the equivalent without undue hardship; OPINION work product (attorney's mental impressions/legal theories) gets near-absolute protection. Unlike the privilege, it protects documents, not just communications.

11. What are the methods of authenticating a writing or item (FRE 901)?

    The proponent must produce evidence sufficient to support a finding that the item is what it claims to be. Methods: testimony of a witness with knowledge, nonexpert opinion on handwriting, expert comparison, distinctive characteristics, voice/telephone identification, evidence about public records, ancient documents, or a process/system producing an accurate result.

12. What documents are self-authenticating under FRE 902 (no extrinsic evidence needed)?

    Examples: domestic public documents under seal, certified copies of public records, official publications, newspapers/periodicals, trade inscriptions/labels, acknowledged (notarized) documents, commercial paper, and certified domestic/foreign business records (902(11)-(12)) and certified electronic records (902(13)-(14)).

13. How is an ancient document authenticated (FRE 901(b)(8))?

    A document is self-authenticated as 'ancient' if it (1) is at least 20 years old, (2) is in a condition that creates no suspicion about its authenticity, and (3) was found in a place where, if authentic, it would likely be. (Note: California's ancient-document rule uses 30 years.)

14. State the Best Evidence (Original Writing) Rule under FRE 1002.

    To prove the CONTENT of a writing, recording, or photograph, the original (or a duplicate) is required unless an exception applies. The rule applies only when the terms of the writing are at issue or a witness relies on the writing to prove content, not when a fact exists independently of the writing.

15. When does the Best Evidence Rule NOT apply?

    It does not apply when: (1) a fact to be proved exists independently of any writing, (2) the writing is collateral/unimportant, or (3) a witness with personal knowledge testifies to a fact that happens to be recorded. It applies only when proving the terms/content of the writing itself.

16. When may secondary evidence of a writing's content be admitted (FRE 1004)?

    The original is not required (and other evidence of content is admissible) if: (1) all originals are lost/destroyed (not in bad faith), (2) the original cannot be obtained by available process, (3) the opponent had control of the original and was on notice it would be subject to proof, or (4) the writing is collateral.

17. How does California's 'Secondary Evidence Rule' differ from the federal Best Evidence Rule?

    California abolished the strict Best Evidence Rule and adopted the Secondary Evidence Rule (CEC 1521): the content of a writing may be proved by otherwise admissible secondary evidence (not just duplicates), unless there is a genuine dispute about the original's terms or admission would be unfair. Originals are not strictly required.

18. What is a 'duplicate' and when is it admissible to the same extent as an original (FRE 1003)?

    A duplicate is a counterpart produced by a process that accurately reproduces the original (e.g., photocopy, scan). It is admissible to the same extent as the original UNLESS a genuine question is raised about the original's authenticity or circumstances make it unfair to admit the duplicate.

19. What is judicial notice of adjudicative facts (FRE 201)?

    A court may take judicial notice of an adjudicative fact that is not subject to reasonable dispute because it is (1) generally known within the territorial jurisdiction, or (2) capable of accurate and ready determination from sources whose accuracy cannot reasonably be questioned. It may be taken at any stage.

20. What is the effect of taking judicial notice in civil versus criminal cases (FRE 201)?

    In a CIVIL case, the court must instruct the jury to accept the noticed fact as conclusive. In a CRIMINAL case, the court must instruct that the jury MAY (but is not required to) accept the noticed fact as conclusive, to preserve the defendant's jury-trial rights.

21. Distinguish the burden of production from the burden of persuasion.

    Burden of production (going forward): the obligation to produce enough evidence on an issue to allow a reasonable trier of fact to find in one's favor (avoid directed verdict). Burden of persuasion: the obligation to convince the trier of fact to the required standard (preponderance, clear and convincing, or beyond a reasonable doubt). It does not shift.

22. What is the effect of a rebuttable presumption in a civil case under the FRE (Thayer 'bursting bubble' view)?

    Under FRE 301, a presumption shifts the burden of PRODUCTION to the opposing party but does NOT shift the burden of persuasion. Once the opponent produces sufficient rebutting evidence, the presumption 'bursts' (disappears) and the case proceeds on the underlying facts.

23. How does California treat presumptions, and what two types does it recognize?

    California (CEC) recognizes (1) presumptions affecting the BURDEN OF PRODUCTION (rebuttable, bursting-bubble like federal) and (2) presumptions affecting the BURDEN OF PERSUASION (which actually shift the burden of persuasion to the opposing party and are based on public policy). This differs from the federal single Thayer approach.

24. What is a conclusive (irrebuttable) presumption versus a permissive inference?

    A conclusive presumption is a substantive rule of law that cannot be rebutted by contrary evidence (e.g., certain conclusive presumptions of paternity/legitimacy). A permissive inference allows, but does not require, the trier of fact to draw a conclusion from established facts and shifts no burden.

What this deck covers

Evidence (California & Federal) flashcards FAQ