Evidence Attack Sheet for the California Bar Exam

Is The Evidence Admissible?

1. Proper form? Leading?

2. Proper purpose?

   1. Logical relevance – must tend to prove or disprove a material issue in dispute. Remember similar happenings.

   2. Legal relevance – should relevant evidence nonetheless be excluded?

      1. Judicial Discretion: probative value substantially outweighs risk of unfair prejudice, confusing the issues, wasting time, misleading the jury.

      2. Public Policy: liability insurance, subsequent remedial conduct, settlement offers, payment or offer to pay medical expenses, guilty pleas.

   3. Character evidence

      1. Civil case: generally inadmissible to prove negligence, fault, or a person’s conduct on a given occasion. But, admissible if character is in issue or for impeachment.

      2. Criminal case: generally admissible to show MIMIC or for impeachment. But, evidence of the D’s bad character is inadmissible at the prosecution’s initiative to show propensity to commit a crime unless and until the D opens the door by presenting evidence of his good character to show innocence of the crime. Then and only then may P may present evidence of D’s bad character the specific trait mentioned by the D.

      3. V’s bad character: admissible when it is relevant to show D’s innocence.

         1. Note special rules for rape cases.

3. Proper presentation?

   1. Documentary evidence:

      1. Authenticated?

      2. Best evidence rule: In proving the contents of a writing, the original writing itself must be produced or shown to be unavailable, unless the writing refers to a collateral matter.

   2. Testimonial evidence: witness must be reliable – must have personal knowledge

      1. Opinion – Expert or Lay?

      2. Privilege?

      3. Impeachment?

         1. Character evidence for truth or veracity.

            1. Prior felony conviction or crime involving truth (no foundation needed)

            2. Specific acts of deceit of lying (only on cross; no extrinsic evidence)

         2. Prior inconsistent statements (need opportunity to explain)

         3. Evidence of bias, falsity (first need opportunity to explain or deny)

      4. Refresh recollection (can use anything)

      5. Recorded recollection (read writing into evidence)

   3. Other concerns: judicial notice, burdens of proof, presumptions

4. Hearsay?

   1. Out of court statement?

   2. Offered to prove the truth of the matter asserted?

      1. Non-hearsay use?

         1. State of mind (to show impact on the hearer or declarant’s state of mind)

         2. Impeachment/rehabilitation?

         3. Verbal act?

   3. Exempted from the hearsay rule?

      1. Prior inconsistent statements made under oath?

      2. Prior consistent statements offered to rebut charge of bias?

      3. Identification?

      4. Admission?

   4. Does an exception apply?

      1. F

         Declarant must be unavailable

         ormer testimony? 

      2. Statements against interest?

      3. Dying declaration?

      4. Spontaneous statements: then existing state of mind; excited utterance; present0sense impression; then existing physical condition; past physical condition

      5. Business records?