CAS Bar Evidence 3 — Questions and Answers
Question 1: At trial, a party offers a recorded recollection to refresh a witness's memory after the witness states she cannot remember the relevant events. The opposing party objects. The court should rule that the recorded recollection is:
- Inadmissible hearsay in all circumstances
- Admissible as an exhibit only if the witness can currently verify its accuracy
- Admissible as a hearsay exception if the witness once had knowledge, the record was made when the memory was fresh, and the record accurately reflects the prior knowledge (Correct answer)
- Admissible only if the opposing party stipulates to its authenticity
Correct answer: Admissible as a hearsay exception if the witness once had knowledge, the record was made when the memory was fresh, and the record accurately reflects the prior knowledge
Under CEC § 1237, a recorded recollection is admissible if the witness once had knowledge, the record was made when the memory was fresh, and it accurately reflected that knowledge.
Question 2: In a criminal prosecution, the defendant seeks to introduce evidence that a third party committed the crime. The prosecution objects that the evidence is speculative. Under California law, the court should:
- Exclude the evidence because third-party culpability evidence is never admissible in California criminal cases
- Admit the evidence only if the defendant can prove beyond a reasonable doubt that the third party committed the crime
- Admit the evidence if it is capable of raising a reasonable doubt about the defendant's guilt and is not speculative (Correct answer)
- Exclude the evidence because it constitutes improper character evidence
Correct answer: Admit the evidence if it is capable of raising a reasonable doubt about the defendant's guilt and is not speculative
California courts admit third-party culpability evidence if it is not speculative and is capable of raising a reasonable doubt as to the defendant's guilt.
Question 3: A party seeks to admit a diagram prepared by an expert witness as a demonstrative exhibit during trial. The diagram was not produced in pretrial discovery. The court should:
- Automatically admit the diagram because demonstrative exhibits need no foundation
- Exclude the diagram as a discovery sanction and because demonstrative exhibits must be disclosed pretrial (Correct answer)
- Admit the diagram only if both parties agree to its use
- Exclude the diagram because experts may not use visual aids
Correct answer: Exclude the diagram as a discovery sanction and because demonstrative exhibits must be disclosed pretrial
Demonstrative exhibits prepared by experts must be disclosed during discovery, and failure to disclose can result in exclusion as a sanction.
Question 4: Under the California physician-patient privilege, which of the following communications is NOT protected?
- A patient's disclosure of symptoms to her treating physician
- Medical information disclosed in a criminal proceeding where the patient has placed her physical condition at issue (Correct answer)
- A physician's diagnosis shared only with the treating medical team
- A patient's disclosure of past medical history during an initial consultation
Correct answer: Medical information disclosed in a criminal proceeding where the patient has placed her physical condition at issue
Under CEC § 996, the patient-litigant exception eliminates the physician-patient privilege when the patient places her physical condition at issue in litigation.
Question 5: A party offers a business record that contains entries made by an employee who is now deceased. The record was created in the ordinary course of business at the time of the events recorded. The court should:
- Exclude it because the declarant is unavailable to be cross-examined
- Admit it under the business records exception because the foundational requirements are met regardless of the declarant's availability (Correct answer)
- Admit it only under the former testimony exception
- Exclude it unless another employee can testify to the specific entries
Correct answer: Admit it under the business records exception because the foundational requirements are met regardless of the declarant's availability
The business records exception under CEC § 1271 does not require the availability of the person who made the entries; the custodian or other qualified witness may lay the foundation.
Question 6: During a civil trial, counsel asks a witness on direct examination a leading question. The opposing party objects. The court should:
- Always sustain the objection because leading questions are never permitted on direct examination
- Overrule the objection because leading questions are appropriate to lay the foundation for any testimony
- Sustain the objection as a general rule, but the court has discretion to allow leading questions for preliminary or undisputed matters (Correct answer)
- Overrule the objection because leading questions are only restricted on cross-examination
Correct answer: Sustain the objection as a general rule, but the court has discretion to allow leading questions for preliminary or undisputed matters
Leading questions are generally improper on direct examination under CEC § 767, but courts have discretion to allow them for preliminary background matters or when dealing with a hostile or adverse witness.
Question 7: A defendant charged with battery seeks to admit evidence of the victim's prior violent acts to support a claim of self-defense. Under California law, this evidence is:
- Inadmissible because character evidence is excluded in criminal cases
- Admissible to show the defendant's reasonable fear, provided the defendant knew of the prior acts at the time of the incident (Correct answer)
- Inadmissible unless the victim testifies and opens the door to such evidence
- Admissible without limitation once self-defense is raised
Correct answer: Admissible to show the defendant's reasonable fear, provided the defendant knew of the prior acts at the time of the incident
Evidence of the victim's prior violent acts is admissible to support self-defense only if the defendant had knowledge of those acts at the time of the alleged incident, as it bears on the reasonableness of the defendant's apprehension.
CAS Bar Evidence 3
At trial, a party offers a recorded recollection to refresh a witness's memory after the witness states she cannot remember the relevant events.
The opposing party objects.
The court should rule that the recorded recollection is: