CAS Bar Evidence 2 — Questions and Answers
Question 1: A witness testifies that she heard the defendant shout 'I'm going to kill you!' moments before the shooting. The defendant objects that this is hearsay. The court should rule:
- Sustained, because the statement is an out-of-court declaration offered for its truth
- Overruled, because the statement is not hearsay when offered to show the declarant's then-existing state of mind
- Overruled, because verbal acts are not hearsay when offered for their operative legal effect or to show effect on the listener (Correct answer)
- Sustained, because the defendant has a right not to have prior statements used against him
Correct answer: Overruled, because verbal acts are not hearsay when offered for their operative legal effect or to show effect on the listener
A threat offered to show intent or effect on the listener is not hearsay because it is not offered to prove the truth of the matter asserted.
Question 2: Under California Evidence Code § 1101, which of the following is the MOST accurate statement regarding character evidence in a civil case?
- Evidence of a person's character is admissible to prove conduct on a specific occasion in all civil cases
- Evidence of a person's character is generally inadmissible to prove conduct, but may be admitted when character is directly in issue (Correct answer)
- Character evidence is freely admissible in civil cases unlike criminal cases
- Character evidence is never admissible in civil proceedings under any circumstances
Correct answer: Evidence of a person's character is generally inadmissible to prove conduct, but may be admitted when character is directly in issue
Under CEC § 1101, character evidence to prove conduct is generally excluded, but is admissible when character or a character trait is itself directly in issue.
Question 3: A party seeks to introduce a certified copy of a public record to prove its contents. The opposing party objects on authentication grounds. The court should rule:
- Sustained, because all documents require live testimony to authenticate
- Overruled, because certified copies of public records are self-authenticating under California law (Correct answer)
- Sustained, because only original documents may be admitted
- Overruled, but only if a custodian of records also testifies
Correct answer: Overruled, because certified copies of public records are self-authenticating under California law
Certified copies of official public records are self-authenticating under CEC § 1530 and need no extrinsic authentication evidence.
Question 4: During cross-examination, opposing counsel asks a witness about a prior felony conviction for insurance fraud committed eight years ago. The witness is not the defendant. The court should:
- Exclude the conviction because it is more than five years old
- Admit the conviction because prior felony convictions are always admissible to impeach any witness
- Admit the conviction as relevant to the witness's credibility, subject to a discretionary balancing test (Correct answer)
- Exclude the conviction because only convictions involving moral turpitude are admissible
Correct answer: Admit the conviction as relevant to the witness's credibility, subject to a discretionary balancing test
Under CEC § 788, prior felony convictions may be used to attack credibility, subject to the court's discretion to exclude under CEC § 352 if prejudice outweighs probative value.
Question 5: A plaintiff in a personal injury case offers evidence that the defendant repaired a defective staircase railing after the plaintiff's fall. The defendant objects. The court should:
- Admit the evidence as proof of the defendant's negligence
- Exclude the evidence under the subsequent remedial measures rule as proof of negligence or culpable conduct (Correct answer)
- Admit the evidence because repairs are admissible to show the condition of the premises
- Exclude the evidence only if the defendant objects on relevance grounds
Correct answer: Exclude the evidence under the subsequent remedial measures rule as proof of negligence or culpable conduct
Evidence of subsequent remedial measures is inadmissible to prove negligence or culpable conduct under CEC § 1151, to encourage safety improvements.
Question 6: A physician testifies as an expert witness and states that her opinion is based in part on medical records she reviewed but which were not admitted into evidence. Under California law, this is:
- Improper, because experts may only rely on admitted evidence
- Proper, because experts may rely on materials reasonably relied upon by experts in their field, even if inadmissible (Correct answer)
- Improper, because medical records are hearsay that cannot be used for any purpose
- Proper, but only if the medical records are also admitted as exhibits
Correct answer: Proper, because experts may rely on materials reasonably relied upon by experts in their field, even if inadmissible
Under CEC § 801, expert opinions may be based on matters reasonably relied upon by experts in the field, including inadmissible materials such as medical records.
Question 7: A defendant in a criminal case invokes the attorney-client privilege to block disclosure of a letter written by his attorney advising him how to destroy incriminating documents. The prosecution argues the crime-fraud exception applies. The court should:
- Uphold the privilege because all attorney-client communications are absolutely protected
- Order an in camera review to determine whether the crime-fraud exception applies before ruling on privilege (Correct answer)
- Deny the privilege claim because defendants in criminal cases have reduced privilege protections
- Uphold the privilege because the communication occurred before any crime was committed
Correct answer: Order an in camera review to determine whether the crime-fraud exception applies before ruling on privilege
When the crime-fraud exception is invoked, courts typically conduct an in camera review to determine if the communication was made in furtherance of a crime or fraud before ruling on the privilege.
CAS Bar Evidence 2
A witness testifies that she heard the defendant shout 'I'm going to kill you!' moments before the shooting.
The defendant objects that this is hearsay.
The court should rule: