CAT 12 Evidence

EVIDENCE
CA 09 et evidence V.indd 1 12/15/21 4:25 PM

EVIDENCE 1.
ESSAY WRITING APPROACH

EVIDENCE
PRELIMINARY CONSIDERATIONS/ISSUES
1. Scope of Rules
“Applicants should be prepared to answer questions that have issues concerning the
Federal Rules of Evidence and the California Evidence Code. Applicants should be
prepared to compare and contrast the differences between the Federal Rules and
the California Evidence Code, especially where the California rules of evidence
have no specific counterparts in the Federal Rules.” [State Bar of California,
Committee of Bar Examiners/Office of Admissions]
2. Two types of essay formats
a. Narrative
b. Transcript
3. Interrogatory and Interrogatories
Example A—Narrative format
“Assume that, in each instance, all appropriate objections were made. Did the
court err in:
1. Taking judicial notice and instructing the jury on hair loss? Discuss.
2. Admitting Phil’s testimony regarding Dirk’s statements? Discuss.
3. Admitting the letter introduced by Phil? Discuss.
4. Admitting Chemist’s testimony? Discuss.”
[February 2012 #6]
Example B—Transcript format
“Assuming all proper objections, claims of privilege, and motions to strike were
timely made, did the court properly allow the prosecution to call the witness
in item (1) and properly admit the evidence in items (2)-(7)? Discuss. Answer
according to California law.” [February 2009 #3]
Example C—Narrative format

“Assuming that all appropriate objections were timely made, should the California
Superior Court have admitted:
1. Wanda’s testimony about Vic’s statement regarding the May phone call?
Discuss.
2. The certified copy of Vic’s 2007 felony perjury conviction? Discuss.
3. The certified copy of David’s 2006 misdemeanor simple assault conviction?
Discuss.
4. David’s testimony about the first fight involving Vic breaking another
man’s arm with a tire iron? Discuss.
5. David’s testimony about the second fight involving Vic threatening a
woman with a gun? Discuss. Answer according to California law.”
[July 2010 #3]
4. Issue Checklist
I. FORM
II. PURPOSE
III. PRESENTATION
IV. HEARSAY
V. PRIVILEGES

2. CALIFORNIA ESSAY
EVIDENCE PROBLEM SOLVING APPROACH
I. FORM
In what form is the essay question, in what forum, in what sequence is the evidence intro-
duced, and is there a question of counsel quoted?
A. Form of the Question—Narrative or Transcript?
B. Forum of the Litigation
1. State, CA, federal
2. Civil or criminal
C. Sequence of the Introduction of Evidence
1. Plaintiff/prosecution
2. Direct, cross, etc.
D. If a Question of Counsel Is Quoted
1. Objections to the form of questions
a. Leading
b. Nonresponsive
c. Calls for a narrative
d. Assumes facts not in evidence
e. Compound
f. Speculation
2. Objections to answers
II. PURPOSE
What is the purpose for introducing the evidence?
A. Logical Relevance
1. Tendency in reason to prove . . . more or less probable than it would be
without the evidence
2. Special relevancy problems: Similar happenings, experiments, prior suits or
contracts, negative evidence
B. Legal Relevance
1. Prejudicial impact vs. probative value
2. Extrinsic policy exclusions
a. Liability insurance
b. Subsequent remedial conduct
c. Settlement offers
d. Payment or offer to pay medical expenses
e. Guilty pleas
C. Character
1. Civil cases
a. Character in issue by virtue of case
b. Habit
2. Criminal cases
a. Open door rule
b. “MIMIC”

EVIDENCE 3.
III. PRESENTATION
How is the evidence being presented?
A. Witness
1. Competency—age and mental
2. Personal knowledge
3. Impeachment
a. Character
1) Truth or veracity
2) Look to form of character evidence
a) Opinion and reputation
b) Specific acts
b. Bias, motive
c. Defects in memory, perception, or knowledge
d. Inconsistent statements
B. Document Reliability
1. Authentication
2. Best evidence rule
C. Opinion Testimony
1. Lay opinion
2. Expert opinion
D. Judicial Notice
E. Burdens of Proof
F. Presumptions
IV. HEARSAY
Any out‑of‑court statements introduced?
A. Definition
1. Out‑of‑court
2. Statement
3. To prove truth of matter asserted
B. Not Offered for Its Truth/Not Hearsay

Some evidence is NOT hearsay because it is not being offered for its truth.
However, for essay purposes, you should still separately head note and IRAC the
“not hearsay” issues.
1. Verbal acts or legally operative facts (words of contract; defamation)
2. Effect on the hearer or reader (e.g., to prove notice in negligence case)
3. Circumstantial evidence of declarant’s state of mind
4. Nonhuman declarations (e.g., by an animal or machine)
C. Nonhearsay
1. Prior statements by witness
a. Prior inconsistent statement

4. CALIFORNIA ESSAY
b. Prior consistent statement

c. Prior identification
2. Admissions
a. Party
b. Vicarious
c. Adoptive (tacit)
d. Co-conspirator statements
D. Exceptions
1. Unavailability exceptions
a. Declarations against interest
b. Dying declarations
c. Former testimony
2. Reliability exceptions
a. Excited utterance
b. Present sense impression
c. Bodily condition
d. Present state of mind
3. Documentary exceptions
a. Past recollection recorded
b. Business records
c. Official records
4. Others
a. Ancient documents
b. Learned treatises
c. Federal catch-all
V. PRIVILEGES
Any privileged relationship involved?
A. Approach
1. Privileged relationship?
a. Professional
b. Marital
1) Spousal testimonial privilege
2) Confidential marital communications
2. Confidential communication?
3. Holder of privilege? Waived?
4. Exceptions?

EVIDENCE 5.
QUESTION 1
David and Vic were farmers with adjoining property. They had been fighting for several
years about water rights.
In May, Vic and his wife, Wanda, were sitting in the kitchen when Vic received a telephone
call. During the call, Vic became quite angry. As soon as he hung up, he said the following
to Wanda: “That rat, David, just called and told me that he was going to make me sorry! He
used some sort of machine to disguise his voice, but I know it was him!”
In June, Wanda and Vic passed a truck driven by David, who made an obscene gesture as
they drove by. Vic immediately stopped and yelled that if David wanted a fight, then that
was what he was going to get. Both men jumped out of their trucks. After an exchange of
blows, David began strangling Vic. Vic collapsed and died from a massive heart attack.
David was charged with manslaughter in California Superior Court.
At David’s trial, the prosecution called Wanda, who testified about Vic’s description of the
May telephone call.
During cross-examination of Wanda, the defense introduced into evidence a certified copy of
a felony perjury conviction Vic had incurred three years ago.
The prosecution then introduced into evidence a certified copy of a misdemeanor simple
assault conviction David had incurred four years ago.
During the defense’s case, David claimed that he acted in self-defense. He testified that he
knew about two other fights involving Vic. In the first, which took place four years before his
death, Vic broke a man’s arm with a tire iron. In the other, which occurred two years before
his death, Vic threatened a woman with a gun. David testified that he had heard about the
first incident before June, but that he had not heard about the second incident until after his
trial had commenced.
Assuming that all appropriate objections were timely made, should the California Superior
Court have admitted:
1. Wanda’s testimony about Vic’s statement regarding the May phone call? Discuss.
2. The certified copy of Vic’s three-year-old felony perjury conviction? Discuss.
3. The certified copy of David’s four-year-old misdemeanor simple assault conviction?

Discuss.
4. David’s testimony about the first fight involving Vic breaking another man’s arm
with a tire iron? Discuss.
5. David’s testimony about the second fight involving Vic threatening a woman with a
gun? Discuss.
Answer according to California law.

6. CALIFORNIA ESSAY
ANSWER TO QUESTION 1
1. WANDA’S TESTIMONY ABOUT VIC’S STATEMENTS
RELEVANCE
For evidence to be admissible, it must be logically and legally relevant. Under the California
Evidence Code (“CEC”), evidence is logically relevant if it has any tendency to prove or disprove
a disputed fact of consequence. In this case, Wanda’s testimony concerning the phone call is
relevant, in that it goes to show David’s intent to hurt Vic in some way prior to the June fight. This
is a fact at issue in the case because David is claiming he acted in self-defense when he killed Vic.
On the other hand, the evidence is relevant to prove David’s intent only if the following prelimi-
nary fact can be shown: that it was indeed David speaking on the phone. The burden of proof
concerning preliminary facts that must be shown to make evidence admissible is on the party
offering the evidence. But when the admissibility issue goes to relevance, that burden is low. The
party offering the evidence need only introduce evidence sufficient to sustain a finding of the
existence of the preliminary fact. Since Vic had some prior exposure to David’s voice, his opinion
that it was David to whom he was speaking probably meets this low standard.
Furthermore, even if it was not David on the phone, Wanda’s testimony makes it more likely that
Vic believed David wanted to hurt him. This fact sheds more light on Vic’s actions just prior to
the fight. In other words, the prosecution may argue that Vic was fearful that David wanted to
hurt him, which makes it less likely he would attack David and, thus, less likely David can show
he acted in self-defense.
Under Proposition 8 of the California Constitution (“Prop. 8”), any evidence that is relevant may
be admitted in a criminal case. However, Prop. 8 makes an exception for balancing under CEC
352, which gives a court discretion in excluding relevant evidence if its probative value is substan-
tially outweighed by a risk of unfair prejudice, confusion of issues, or misleading the jury. This is
also known as legal relevance.
Here, the evidence has probative value because it tends to show that David had a preexisting intent
to hurt Vic, and also that Vic believed this to be true. There is no indication that such evidence
poses a risk of unfair prejudice, confusion of issues, or misleading the jury, and, as a result, the
evidence is legally relevant.
PRIVILEGE
Wanda is Vic’s widow. There are two spousal privileges. The spousal testimonial privilege does
not apply here since Wanda’s testimony is offered against David, not Vic. The marital commu-
nications privilege might apply, however. Even though Vic is now dead, confidential communi-
cations made during a marriage are privileged and inadmissible if they were made during the
marriage. Either spouse may invoke the privilege. Here, as long as Wanda is willing to give this
testimony, David cannot stop her because David is not a holder of this privilege.
AUTHENTICATION OF TELEPHONE CALL

Oral statements must be authenticated in cases where the identity of the speaker must be shown
to make the statement relevant. Statements made during a telephone call may be authenticated by
testimony as to one of the following: (i) the listener recognizes the speaker’s voice; (ii) the speaker
has knowledge of certain facts that only a particular person would have; or (iii) the speaker has
identified himself.

EVIDENCE 7.
In this case, the defense may argue that none of the above methods were used to authenticate the
oral statement. Vic only said he knew it was David, even though he believed the caller had used
a voice-changing instrument. He could not be said to have recognized the caller’s voice, there
were no facts divulged in the conversation that only David would know, and the speaker did not
identify himself. Vic’s bare assertion that he knew the caller was David does not overcome the
requirement of authentication. On the other hand, the prosecution will argue that because David
and Vic knew each other “for several years,” Vic was qualified to state a lay opinion that the voice
on the other end of the line was David’s since, even if the voice was disguised, Vic could have
sufficient knowledge of David’s tone of voice or use of language to draw such an opinion. As such,
it is unclear whether David’s statement on the telephone can be authenticated.
HEARSAY WITHIN HEARSAY
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. In this case,
Wanda’s statement contains two out-of-court statements: (i) Vic’s statement made to Wanda, and
(ii) David’s statements to Vic over the phone. In such a case of “hearsay within hearsay,” the state-
ment will be admissible only if both the outer and inner layers fall within a hearsay exception or
can be classified as nonhearsay. (Note that hearsay is excluded from Prop. 8, so ordinary rules of
evidence apply to hearsay in criminal cases.)
First, Vic’s statement to Wanda (the outer layer) is hearsay because it is offered to prove the truth
of the matter asserted—that David called and threatened Vic. Second, the incorporated statement
from David (the inner layer) is also being offered for its truth—that David was planning to make
Vic “sorry.” Thus, both of the statements are hearsay and Wanda’s testimony will be admissible
only if both statements fall within a hearsay exception. On the other hand, the prosecution might
argue that David’s statement was not hearsay in that it was offered only to show its effect on
Vic—that it put him in fear and, thus, made it less likely he would attack David, which is the basis
for David’s self-defense claim (see below).
Outer Layer—Vic’s Statement to Wanda
Contemporaneous Statement
The CEC recognizes a hearsay exception for contemporaneous statements that are made at the
time of an occurrence; however, the exception applies only to a statement the declarant makes to
explain, qualify, or make understandable his own conduct, and the statement must be made while
the declarant is engaged in that conduct. In this case, Vic’s statement to Wanda was not meant to
explain his own conduct, but rather to relay a threat he thought was made by David. Therefore,
this exception would not apply.
Statement Describing Threat of Physical Injury
The CEC recognizes an exception to the rule against hearsay in the case of a statement in which
an unavailable declarant describes or explains the infliction or threat of physical injury upon the
declarant. For the exception to apply, the statement must be (i) made at or near the time of the
infliction or threat; (ii) made under circumstances that indicate its trustworthiness; and (iii) in
writing or made to law enforcement or medical personnel. Here, although the statement includes
a threat, it does not appear that the statement was in writing or made to the requisite police or
medical personnel. Therefore, this exception would not apply to Vic’s statement.
Spontaneous Statement
Vic’s outer statement to Wanda may qualify as an excited utterance or “spontaneous statement,” as
it is called in California. To meet this exception, the declarant must have made a statement while
under the stress of excitement caused by a startling event, and the statement must concern the
immediate facts of the startling event.

8. CALIFORNIA ESSAY
Here, the threatening nature of the phone call can certainly qualify as a startling event. The facts
indicate that the phone call made Vic very angry. His statement is followed by exclamation points,
which could indicate a degree of excitement or stress. Furthermore, Vic recounted the details of
the conversation to Wanda immediately after it ended, and his statement to Wanda related to the
phone call. Thus, Vic’s outer statement likely falls within the exception for spontaneous state-
ments.
Inner Layer—David’s Statement to Vic
Admission by Party-Opponent
A statement made by a party and offered against that party is admissible as an admission of a
party-opponent. In California, admissions are considered a hearsay exception. Here, David, the
defendant, made the statement. It is being offered against him by the prosecution. Thus, it would
qualify as an admission.
However, this exception applies only if David’s statement is authenticated (see above).
State of Mind
David’s statement may also be admissible under the present state of mind exception. The present
state of mind exception applies to statements by a declarant that describe the declarant’s state of
mind at that time. The exception can be used to admit statements of the declarant’s intent in order
to prove that the declarant carried out that intent. Here, David’s statement that he “was going to
make [Vic] sorry” was a statement of David’s present intent to carry out some retribution against
Vic.
Offering David’s Inner Statement for Another Purpose—Effect on Hearer

A statement that is inadmissible hearsay to prove the truth of the statement may nevertheless be
admitted as nonhearsay to show the statement’s effect on the hearer. Even if David’s statement
cannot be admitted to prove that he intended to harm Vic, it may be admissible nonhearsay if
offered to show that Vic believed this to be true. Vic’s belief is relevant because it may suggest
that Vic was fearful of David and, thus, during the brawl did not act in a manner that permits a
self-defense claim by David. Furthermore, David’s statement does not need to be authenticated for
this purpose because the issue is not whether David was the caller, but whether Vic believed that
it was him.
LIMITED ADMISSIBILITY
If evidence is admissible for one purpose, it is not excluded merely because of the danger that the
jury may also consider it for another incompetent purpose. If the court determines that even with
a limiting instruction, the probative value of the evidence with respect to its legitimate purpose
would be substantially outweighed by danger of unfair prejudice with respect to its incompetent
purpose, the evidence may still be excluded.
Here, the court may decide that Wanda’s testimony is overly prejudicial because the jury might
automatically assume that David was the caller, even if his statement could not be properly
authenticated. However, the court may decide that a limiting instruction to the jury is sufficient.
In sum, if the telephone conversation could not be properly authenticated, the court should not
have admitted Wanda’s testimony for the purpose of showing that David intended to harm Vic.

EVIDENCE 9.
However, Wanda’s testimony may be admissible for the limited purpose of showing that Vic
believed David had threatened him.
2. CERTIFIED COPY OF VIC’S PERJURY CONVICTION
RELEVANCE
The evidence of Vic’s conviction is logically relevant to the case, as it goes to show Vic’s character
for untruthfulness. It thus could be used to impeach his statements to Wanda concerning the
telephone call, and could make it more probable that David did not make the call or express any
intent to hurt Vic. David’s preexisting intent to hurt Vic is in dispute, because David is claiming
he acted in self-defense and was not the initial aggressor. However, the facts do not indicate
whether David is disputing that he made the threatening phone call to Vic. Either way, the
evidence is logically relevant.
The prosecution could argue that the evidence is inadmissible under CEC 352, on the grounds that
it would mislead the jury by making them think that Vic’s character for truthfulness is relevant
to whether or not he started the fight. However, it is unlikely a court would find that a reason-
able jury would make this inference, given that the conviction was for perjury, not for a crime
of violence. The evidence also has substantial probative value, as it tends to show that Vic is not
truthful, and was therefore lying about the phone call from David—thus making David’s self-
defense argument more probable. Therefore, the evidence would not be barred by CEC 352.
AUTHENTICATION
The copy of the conviction must be authenticated. However, under the CEC, certified copies of
public records are self-authenticating. This means that the document itself provides sufficient
evidence for a finding that it is genuine, and no additional foundational evidence is necessary.
CHARACTER EVIDENCE
A criminal defendant may introduce evidence of a victim’s character to prove that the victim acted
in conformity with that character on the occasion in question. California law permits reputation,
opinion, and specific acts evidence of the victim’s character on direct examination or cross-exami-
nation. Moreover, Proposition 8 allows for the admissibility of the victim’s character in a criminal
trial wherever relevant, subject to balancing.
However, David is not introducing Vic’s conviction to prove that Vic acted in a certain way during
the occasion in question—i.e., the fight between them. Vic’s character for truthfulness has nothing
to do with his degree of aggression during the fight. Rather, he is offering the perjury conviction
to prove that Vic is a liar, which would make his earlier statement to Wanda about the phone call
less credible. Therefore, this is not substantive character evidence, but impeachment evidence (see
below).
IMPEACHMENT OF HEARSAY DECLARANT

Vic is deceased and therefore unavailable to testify. However, a party may impeach a hearsay
declarant as if he testified as a witness at trial. The CEC provides that a witness may be
impeached with a felony conviction subject to three qualifications: (i) the conviction has not been
expunged, nor the witness pardoned; (ii) the felony must involve moral turpitude, and (iii) the
conviction’s impeachment value is not substantially outweighed by its dangers.

10. CALIFORNIA ESSAY
Here, Vic’s felony conviction for perjury is one that involves moral turpitude. There is no indica-
tion that it has been expunged or that Vic was pardoned. Furthermore, its impeachment value—
that Vic may have lied about David’s intent to hurt him—has significant value and there is no
indication that this value is substantially outweighed by any other dangers. Therefore, the convic-
tion may be properly used to impeach Vic’s credibility.
David may use Vic’s felony perjury conviction to impeach Vic’s hearsay statement about the
telephone call.
3. DAVID’S MISDEMEANOR ASSAULT CONVICTION
RELEVANCE
Evidence of David’s misdemeanor assault conviction is logically relevant because it tends to prove
that David was a violent individual and may have been the aggressor in the fight against Vic. This
concerns a fact of consequence that is in dispute because it undermines David’s claim of self-
defense.
However, this evidence may be excluded because of its prejudicial effect. By introducing evidence
of David’s conviction for a violent crime, there is a risk that the jury will decide to punish David
because of this past crime or “criminal character” rather than the conduct at issue in this case. Thus,
the court probably should have excluded this evidence because of the risk of unfair prejudice.
AUTHENTICATION
As with the copy of Vic’s conviction (see above), the certified copy of David’s conviction is a self-
authenticating document.
CHARACTER EVIDENCE
As stated above, character evidence is any evidence offered to show that a person acted in
conformity with his character on a particular occasion. In a criminal case, such evidence cannot
be offered by the prosecution unless the defendant “opens the door”; in other words, the defen-
dant must put his character at issue first, and only then may the prosecution rebut with character
evidence. However, the prosecution may be the first to offer evidence of the defendant’s character
to prove conduct when the court has admitted evidence of the victim’s character for violence
offered by the accused, to show that the accused also has a violent character. Note that Proposition
8 is not applicable, as it contains an exception for the rules limiting character evidence.
Here, David had not yet opened the door to his character for violence. When the prosecution
introduced David’s conviction, David had not offered any evidence of Vic’s character for violence
or his own character for peacefulness. Therefore, the prosecution could not introduce evidence of
David’s assault conviction to prove that he was the aggressor in the fight.
IMPEACHMENT
In California, a witness in a criminal case can be impeached with a misdemeanor conviction
involving moral turpitude. In this case, the conviction was for simple assault, which is not a crime
of moral turpitude. Furthermore, David had not yet testified when the prosecution introduced
David’s conviction. Therefore, the conviction was not proper impeachment evidence.
David’s misdemeanor assault conviction should not have been admitted.

EVIDENCE 11.
4. DAVID’S TESTIMONY ABOUT THE FIRST FIGHT
RELEVANCE
The evidence is logically relevant because it tends to show that Vic was a violent person, which
makes it more likely that Vic was the aggressor and that David did, in fact, act in self-defense. It
is also relevant to prove David’s state of mind at the time of his brawl with Vic. To succeed in his
self-defense claim, David must show he was reasonably in fear of Vic. Since David had heard of
the first fight before the brawl with Vic, evidence of that fight makes it more probable that David
was reasonably in fear of Vic.
The evidence does carry a risk of unfair prejudice, in that it raises an inference concerning Vic’s
character for violence. However, as described below, the use of character evidence is permissible
under the circumstances, and thus the evidence would not be inadmissible under CEC 352.
USE OF CHARACTER EVIDENCE
David’s introduction of evidence that Vic broke a man’s arm with a tire iron is character evidence,
as it is being used to show that Vic had a character for violence and acted in conformity with such
character during the June fight. However, under the CEC, a criminal defendant may be the first
party to introduce evidence of the victim’s character. As previously stated, David is introducing
Vic’s character for violence to show that Vic was the initial aggressor. This is a permissible use of
character evidence.
Method of Character Evidence
Character evidence can take the form of reputation evidence, opinion evidence, or specific acts.
Under the CEC, a defendant is permitted to use any of these methods in bringing in evidence
of the victim’s bad character. Here, David’s testimony would constitute evidence of a specific
act, since he is testifying as to Vic’s actions during a particular fight. This method of character
evidence used is permissible. However, as discussed below, the testimony will be barred by the
hearsay rule if offered for this purpose.
HEARSAY
Since David “heard about” the fight from someone else (i.e., he did not personally witness the
fight), his testimony is based on someone’s out-of-court “statement” to David. If the purpose of
David’s testimony is to show Vic’s violent character, he is offering the statement for its truth—that
Vic did indeed engage in the prior fight. Therefore, the statement is hearsay. There is no applicable
hearsay exception, so David’s testimony about the fight is inadmissible for this purpose.
NONHEARSAY PURPOSE—EFFECT ON HEARER

Even though David’s testimony about the fight cannot be introduced to show that Vic actually
engaged in the fight, it is still admissible for the nonhearsay purpose of showing its effect on
David. As discussed above, David’s knowledge of the fight tends to show that he believed Vic to
be a violent person, and this state of mind would support David’s self-defense claim.
Thus, the testimony is admissible for this limited purpose.
5. DAVID’S TESTIMONY ABOUT THE SECOND FIGHT
RELEVANCE
David’s testimony about Vic’s second fight is logically relevant because it tends to prove Vic was
the aggressor. However, it has less probative value than the first fight because David did not know
about it before his fight with Vic, and so it cannot tend to prove that David knew of Vic’s violent

nature during their fight and felt he needed to act in self-defense. Furthermore, evidence of Vic
threatening a woman with a gun may be unfairly prejudicial due to its inflammatory nature. On
balance, the testimony’s probative value may be substantially outweighed by unfair prejudice.
HEARSAY
As in 4., above, David’s testimony appears to be hearsay because it is based on someone’s out-of-
court statement to David about the fight. Unlike the testimony about the first fight, it is not being
offered to show its effect on David, because David did not know about it at the time of his alter-
cation with Vic. Rather, the statement is being offered for its truth—that Vic did indeed engage
in the fight, and is therefore more likely to have initiated the fight with David. Since there is no
applicable hearsay exception, the evidence is inadmissible.
Thus, the court erred in permitting David’s testimony about the second fight into evidence.

EVIDENCE 13.
QUESTION 1
RELEVANCE
Editor’s note: The relevance of each piece of evidence should be considered. However, points will be awarded
only once for spotting the issue and stating the rule. Therefore, the issue and rule will not appear in the score sheet
for each piece of evidence below. Instead, the points are awarded here.
Issue: Whether the evidence is relevant
1
Rule: For evidence to be admissible, it must be (i) logically relevant (has any tendency to prove or
disprove a disputed fact of consequence) and (ii) legally relevant (court has discretion in excluding
relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice,
confusion of issues, and the like) (one point for each enumerated statement; must include explanation
for credit and not simply name each type of relevance) 2
WANDA’S TESTIMONY ABOUT VIC’S STATEMENT
Analysis: (i) Wanda’s testimony is relevant to prove David’s intent to hurt Vic only if it can be
established that it was indeed David speaking on the phone. (ii) Even if it was not David on the phone,
Wanda’s testimony makes it more likely that Vic believed David wanted to hurt him. (one point for each
enumerated statement) 2
Conclusion: Wanda’s testimony about Vic’s statement is relevant
1
CONFIDENTIAL MARITAL COMMUNICATIONS PRIVILEGE
Issue: Whether Vic’s statement is barred by a marital privilege

1
Rule: (i) Confidential communications made during a marriage are privileged and inadmissible if they
were made during the marriage. (ii) The privilege may be invoked by either spouse. (one point for each
Analysis and Conclusion: Wanda is likely willing to testify, and she is the only remaining holder of
this privilege; thus, David cannot invoke the privilege 1
Issue: At issue is whether David’s statements made with a voice disguise can be authenticated
1
Rules: Oral statements must be authenticated in cases where the identity of the speaker must be shown
to make the statement relevant 1
Statements made during a telephone call may be authenticated by testimony as to one of the following:
(i) the listener recognizes the speaker’s voice; (ii) the speaker has knowledge of certain facts that only a
particular person would have; or (iii) the speaker has identified himself (one point for one enumerated
requirement; two points for two or three enumerated requirements) 2
Analysis: The examinee should discuss facts going against authentication, including at least one of the
following: Vic could not be said to have recognized the caller’s voice, there were no facts divulged in
the conversation that only David would know, and the speaker did not identify himself 1
Bonus: The prosecution will argue that because David and Vic knew each other “for several years,”
Vic was qualified to state a lay opinion that the voice on the other end of the line was David’s (by
identifying his tone of voice or use of language) 1
Conclusion: It is unclear whether David’s statement on the telephone can be authenticated (a more
definite conclusion is also acceptable) 1

HEARSAY
Issue: Whether Vic’s statement to Wanda regarding David’s statement is barred by the hearsay rule
1
Rules: (i) Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and
is inadmissible unless it falls within an exception to the rule. (ii) Bonus: Hearsay is excluded from
Proposition 8. (iii) “Hearsay within hearsay” is admissible only if both the outer and inner layers fall
within a hearsay exception. (one point for each enumerated statement) 3
Analysis: Vic’s statement to Wanda (the outer layer) is hearsay because it is offered to prove the truth of
the matter asserted—that David called and threatened Vic 1
(i) The incorporated statement from David (the inner layer) is hearsay if offered for its truth—that
David was planning to make Vic “sorry.” (ii) The prosecution might argue that David’s statement was
not hearsay in that it was offered only to show its effect on Vic—that it put him in fear and, thus, made
it less likely he would attack David. (one point for each enumerated statement) 2
Conclusion: Vic’s statement may constitute hearsay within hearsay depending on the purpose for which
it is offered 1
OUTER LAYER OF HEARSAY—VIC’S STATEMENT TO WANDA
SPONTANEOUS STATEMENT EXCEPTION
Rule: Under the “spontaneous statement” exception to the hearsay rule, (i) the declarant must have
made a statement while under the stress of excitement caused by a startling event, and (ii) the statement
must concern the immediate facts of the startling event (one point for each enumerated statement) 2
Analysis: (i) The threatening nature of the phone call can certainly qualify as a startling event; (ii)
the phone call made Vic very angry; and (iii) Vic recounted the details of the conversation to Wanda
immediately after it ended (one point for each enumerated fact) 3
Conclusion: Vic’s statement to Wanda is admissible under the spontaneous statement exception
1
Bonus: The examinee could identify the contemporaneous statement hearsay exception and conclude it
does not apply (because Vic’s statement to Wanda was not meant to explain his own conduct, but rather
to relay a threat he thought was made by David) 1
Bonus: The examinee could identify the hearsay exception for threat of physical injury and conclude
that it does not apply (because it does not appear that it was in writing or made to the requisite police
or medical personnel) 1
INNER LAYER OF HEARSAY—DAVID’S STATEMENT TO VIC
HEARSAY EXCEPTIONS
Rules: California recognizes a hearsay exception for an admission by a party-opponent—a statement

made by a party and offered against that party 1
Under the present state of mind exception, statements of the declarant’s intent are admissible to prove
that the declarant carried out that intent 1
Analysis: (i) David, the defendant, made the statement, and it is being offered against him by the
prosecution. (ii) However, it is admissible as an admission by a party-opponent only if David’s
statement on the telephone is authenticated. (one point for each enumerated statement) 2
David’s statement that he “was going to make [Vic] sorry” was a statement of David’s present intent to
carry out some retribution against Vic 1

EVIDENCE 15.
Conclusions: (i) David’s statement to Vic is admissible as a party admission only if his statement
is authenticated. (ii) David’s statement meets the requirements of the present state of mind/intent
exception. (one point for each enumerated statement) 2
NONHEARSAY PURPOSE
Rule: An out-of-court statement is not hearsay if it is not offered for its truth, but to show its effect on
the listener 1
Analysis and Conclusion: (i) Even if David’s statement cannot be admitted to prove that he intended to
harm Vic, it may be admissible nonhearsay if offered to show that Vic believed this to be true (i.e., that
Vic was fearful of David and therefore not the aggressor). (ii) Bonus: David’s statement does not need
to be authenticated for this purpose because the issue is not whether David was the caller, but whether
Vic believed that it was him. (one point for each enumerated statement) 2
Overall Conclusion: (i) Wanda’s testimony may be admissible for the limited purpose of showing that
Vic believed that David had threatened him; but (ii) the statement may not be offered for its truth unless
it is authenticated (one point for each enumerated statement) 2
CERTIFIED COPY OF VIC’S CONVICTION
RELEVANCE
Analysis and Conclusion: Evidence of Vic’s perjury conviction is relevant because it tends to show
that Vic was untruthful—thus calling into question the veracity of his hearsay statement 1
AUTHENTICATION
Bonus: Under the CEC, certified copies of public records are self-authenticating; thus, there is no
authentication issue 1
CHARACTER EVIDENCE
Bonus: (i) A criminal defendant may introduce evidence of a victim’s character to prove that the
victim acted in conformity with that character on the occasion in question. (ii) This is not substantive
character evidence because David is not introducing Vic’s conviction to prove that Vic acted in a certain
way during the occasion in question; rather, he is offering the perjury conviction to prove that Vic is a
liar and his prior statement cannot be trusted. (one point for each enumerated statement) 2
IMPEACHMENT OF HEARSAY DECLARANT
Issue: Whether Vic can be impeached with a prior conviction even though he is deceased and
unavailable for trial 1
Rules: A party may impeach a hearsay declarant as if he testified as a witness at trial
1
Under the CEC, a witness may be impeached with a felony conviction subject to three qualifications:
(i) the conviction has not been expunged, nor the witness pardoned; (ii) the felony must involve moral
turpitude; and (iii) the conviction’s impeachment value is not substantially outweighed by its dangers
(one point for one enumerated requirement; two points for two or three enumerated requirements) 2
Analysis: (i) Vic’s felony conviction for perjury is one that involves moral turpitude; (ii) there is no
indication that the perjury conviction has been expunged or that Vic was pardoned; and (iii) there is
no indication that the probative value of the evidence is substantially outweighed by any other dangers
(one point for one enumerated fact; two points for two or three enumerated facts) 2
Conclusion: David may use Vic’s felony perjury conviction to impeach Vic’s hearsay statement about
the telephone call 1

Overall Conclusion: Vic’s conviction should have been admitted

1
DAVID’S ASSAULT MISDEMEANOR CONVICTION
RELEVANCE
Analysis: (i) Evidence of David’s misdemeanor assault conviction tends to prove that David was a
violent individual and may have been the aggressor in the fight against Vic. (ii) Bonus: But there is a
risk that the jury may decide to punish David because of this past crime or “criminal character.” (one
point for each enumerated statement) 2
Conclusion: (i) The conviction is relevant; (ii) bonus: but the court probably should have excluded it
because of the risk of unfair prejudice (one point for each enumerated statement) 2
CHARACTER EVIDENCE
Issue: Whether the prosecution may introduce evidence of a defendant’s bad character
1
Rule: Evidence of a criminal defendant’s bad character may be introduced by the prosecution if the
defendant has “opened the door” by introducing evidence of his own good character 1
Analysis and Conclusion: David had not “opened the door” by introducing evidence of his own
character; thus, the conviction is inadmissible as substantive evidence of David’s violent character 1
IMPEACHMENT
Issue: The circumstances in which the credibility of a witness can be impeached with a prior conviction
1
Rule: In California, a witness in a criminal case can be impeached with a misdemeanor conviction
involving moral turpitude 1
Analysis: (i) The conviction was for simple assault, which is not a crime of moral turpitude. (ii) Bonus:
David had not yet testified when the prosecution introduced David’s conviction, so his credibility as a
witness could not be impeached at that time. (one point for each enumerated statement) 2
Conclusion: The conviction cannot be introduced to impeach David
1
Overall Conclusion: David’s misdemeanor assault conviction should not have been admitted
1
DAVID’S TESTIMONY ABOUT THE FIRST FIGHT
RELEVANCE
Analysis and Conclusion: The evidence is relevant because it tends to show (i) that Vic was a violent
person, and (ii) that David feared Vic at the time of the fight (one point for each enumerated purpose) 2
CHARACTER EVIDENCE
Issue: Whether a criminal defendant may introduce evidence of the victim’s bad character
1
Rules: (i) Under the CEC, a criminal defendant may introduce evidence of the victim’s character to
show that the victim acted in conformity on the occasion in question. (ii) Introducing specific acts of a
victim’s character is permissible under the CEC. (one point for each enumerated statement) 2
Analysis: David’s introduction of evidence that Vic broke a man’s arm with a tire iron is character
evidence, as it is being used to show that Vic had a character for violence and acted in conformity with
such character during the June fight 1

EVIDENCE 17.
Conclusion: This is a proper use of character evidence

1
HEARSAY AND NONHEARSAY PURPOSE
Issue: Whether David’s testimony is barred by the hearsay rule

1
Rule: See hearsay rule above
0
Analysis: (i) David “heard about” the fight, so his testimony is based on someone else’s out-of-court
statement. (ii) If offered for its truth (that Vic indeed engaged in the fight), the statement is hearsay. (iii)
There is no applicable hearsay exception. (one point for each enumerated statement) 3
Conclusion: (i) The testimony is not admissible for purposes of showing Vic’s character for violence
because it is based on hearsay. (ii) The evidence is still admissible on a limited nonhearsay basis: to
show its effect on David, since the mere fact that David heard of the first fight can support his claim of
self-defense. (one point for each enumerated statement) 2
DAVID’S TESTIMONY ABOUT THE SECOND FIGHT
HEARSAY
Issue: Whether David’s testimony is barred by the hearsay rule
1
0
Analysis: (i) David did not know about the second fight before his fight with Vic, so it is not being
offered to prove that David knew of Vic’s violent nature during their fight. (ii) Rather, the out-of-court
statement about the fight is being offered for its truth—that Vic engaged in the fight and is therefore
more likely to have initiated the fight with David. (iii) Thus, the statement is hearsay without an
exception. (iv) Bonus: Evidence of Vic threatening a woman with a gun may also be unfairly prejudicial
due to its inflammatory nature. (one point for each enumerated statement) 4
Conclusion: David’s testimony about the second fight should have been excluded
1
PASSING SCALE
Raw Score Approximate CA Scaled Score
0-8 Significantly below passing 40
9 - 14 Below passing 45
15 - 30 Slightly below passing 50, 55
31 - 45 Passing 60, 65
46 - 53 Above passing 70, 75
54+ Significantly above passing 80, 85, 90, 95

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EVIDENCE 19.
QUESTION 2
Paul sued David in federal court for damages for injuries arising from an automobile
accident.
At trial, in his case-in-chief, Paul testified that he was driving westbound, under the speed
limit, in the right-hand lane of a highway having two westbound lanes. He further testi-
fied that his passenger, Vera, calmly told him she saw a black SUV behind them weaving
recklessly through the traffic. He also testified that, about 30 seconds later, he saw David
driving a black SUV, which appeared in the left lane and swerved in front of him. He testi-
fied that David’s black SUV hit the front of his car, seriously injuring him and killing Vera.
He rested his case.
In his case-in-chief, David testified that Paul was speeding, lost control of his car, and ran
into him. David called Molly, who testified that, on the day of the accident, she had been
driving on the highway, saw the aftermath of the accident, stopped to help, and spoke with
Paul about the accident. She testified further that, as soon as Paul was taken away in an
ambulance, she carefully wrote down notes of what Paul had said to her. She testified that
she had no recollection of the conversation. David showed her a photocopy of her notes and
she identified them as the ones she wrote down immediately after the accident. The photo-
copy of the notes was admitted into evidence. The photocopy of the notes stated that Paul
told Molly that he was at fault because he was driving too fast and that he offered to pay
medical expenses for anyone injured. David rested his case.
Assuming that all appropriate objections and motions were timely made, should the court
have admitted:
1. Vera’s statement? Discuss.
2. The photocopy of Molly’s notes? Discuss.
Answer according to the Federal Rules of Evidence.

1. ADMISSION OF VERA’S STATEMENT INTO EVIDENCE
RELEVANCE
Only evidence that is both logically and legally relevant will be admitted. Logical relevance
means that the evidence tends to prove or disprove a fact that is of consequence in the action.
Vera’s statement is logically relevant. Such evidence would tend to make it more probable that
David was operating his black SUV in a reckless manner at the time of the accident, and that his
reckless driving was the cause of the accident.
Legal relevance means that the probative value of the evidence is not substantially outweighed by
the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of
time, or needless presentation of cumulative evidence. David might argue that Vera’s statement
that David’s SUV was being driven recklessly just prior to the accident would unfairly prejudice
the fact finder because it does not address the exact moment of the accident; nor is it certain that
David’s black SUV was the same one driving recklessly prior to the accident. However, the court
is likely to find the statement highly probative regarding the cause of the accident, and therefore
would find that the value of admitting the statement would not be substantially outweighed by the
risk of unfair prejudice. Thus, Vera’s statement is legally relevant.
PERSONAL KNOWLEDGE
A witness must have personal knowledge of the matter about which he is to testify. Similarly, a
hearsay declarant must have personal knowledge of the facts described in her out-of-court state-
ment. While Paul did not personally observe the black SUV driving recklessly as Vera did, he
heard Vera’s statement and thus has personal knowledge that the statement was made. Also, Vera’s
statement makes it clear that she had personal knowledge of the facts described in her statement.
HEARSAY
The Federal Rules of Evidence (“FRE”) define hearsay as a statement, other than one made by
the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth
of the matter asserted. Evidence that falls within the definition of hearsay is inadmissible unless it
falls within an exception to the rule.
In this case, Vera’s out-of-court statement that someone in a black SUV was driving recklessly
prior to the crash is being offered for its truth—that there was a black SUV driving recklessly just
before the crash. Therefore, the statement would be considered hearsay. In order for the statement
to be admitted, an exception to the hearsay rule would have to apply. A number of possible excep-
tions could be argued in this case.
Excited Utterance
The FRE recognize a hearsay exception for a statement made by a declarant during or soon after
a startling event. The statement must be made under the stress of excitement produced by the
startling event, and must concern the immediate facts of the event. Here, the facts clearly state
that Vera made her statement “calmly.” Therefore, it does not appear that Vera’s statement was
made under the stress of a startling event. As a result, the exception for excited utterances does
not apply.
Dying Declaration
A statement made by a declarant who is now unavailable, while believing her death was
imminent, that concerns the circumstances of what she believed to be her impending death is
admissible under the FRE.

EVIDENCE 21.
Here, Vera is unavailable due to her death in the accident; however, the facts indicate that she was
calm at the time of her statement, the statement was made before she was injured, and she did not
seem to be speaking under a belief of impending death. Therefore, this exception would not apply.
Present Sense Impression

Under the FRE, where a person perceives an event and is moved to comment on what she
perceived at the time of the perception or immediately thereafter, that statement is considered
reliable for evidentiary purposes. Such a statement of a present sense impression is an exception to
the rule excluding hearsay, and the statement may be admitted into evidence.
Here, Vera perceived the SUV weaving in and out of traffic, and she contemporaneously
commented on the reckless operation of the vehicle. As a result, the statement would be admis-
sible under the present sense impression exception to the rule against hearsay.
Because Vera’s statement qualified as a present sense impression, the court properly admitted
Vera’s statement into evidence.
2. ADMISSION OF MOLLY’S NOTES INTO EVIDENCE
RELEVANCE
Molly’s notes refer to Paul’s statements that he was driving too fast and was at fault in the
accident, and that he offered to pay medical expenses of those who were injured. Paul’s statements
tend to prove that Paul’s speed was responsible for the accident, rather than David’s driving. This
is a fact of consequence to the determination of the action against David. Molly’s notes are also
relevant to impeach Paul in that the notes reveal Paul made a prior statement inconsistent with the
version of the accident to which he testified. Thus, Molly’s notes are logically relevant.
As for legal relevance, the notes are highly probative as to the cause of the accident, and the risk
of unfair prejudice is slight. However, a portion of Paul’s comments will be excluded due to an
exclusionary rule based on public policy (see below).
OFFER TO PAY MEDICAL EXPENSES

Under the FRE, evidence that a party offered to pay the injured party’s medical expenses is not
admissible to prove liability for the injury. The public policy behind this rule is to avoid discour-
aging humanitarian acts. Admissions of fact accompanying such offers, however, are admissible.
Thus, the portion of the notes regarding Paul’s offer to pay the medical expenses of the injured
persons should have been excluded by the court. However, his statements regarding driving too
fast and his admission of fault in the accident would not be excluded under this rule.
PERSONAL KNOWLEDGE
Molly was present while Paul made his statements, and thus had personal knowledge of Paul’s
statements.
AUTHENTICATION OF THE PHOTOCOPY

A document must be properly authenticated, and it must meet the requirements of the best
evidence rule in order to be admitted as competent evidence. Authentication of a document
requires evidence to support a finding that the matter is what its proponent claims it is. Evidence
that is sufficient to support a jury finding of genuineness is all that is required under the FRE.

In this case, Molly examined the photocopy and testified that it was a genuine copy of the notes
that she made right after speaking with Paul. This is sufficient evidence to authenticate the photo-
copy under the FRE.
BEST EVIDENCE RULE

The FRE require that, when seeking to prove the terms of a writing in a case where the terms are
material, the original must be produced. Here, Molly cannot remember the oral conversation she
had with Paul; thus, the terms of her written notes are material. However, the FRE will permit the
use of an exact copy of an original (called a “duplicate”), such as a photocopy, to the same extent
as an original, so long as no genuine question of authenticity is raised. The facts in this case do
not indicate that any such question was raised; therefore, the photocopy is sufficient to meet the
requirements of the best evidence rule.
Impeachment—Prior Inconsistent Statement

Paul will argue that Molly’s notes were improper impeachment evidence. For the purpose of
impeaching a witness’s credibility, a party may show that the witness has, on another occasion,
made statements that are inconsistent with some material part of his present testimony. To prove the
statement by extrinsic evidence, certain requirements must first be met: (i) a proper foundation must
be laid; and (ii) the statement must be relevant to some issue in the case. Extrinsic evidence of the
witness’s prior inconsistent statement is admissible only if the witness is, at some point, given an
opportunity to explain or deny the allegedly inconsistent statement. However, this foundation is not
required when the prior inconsistent statement qualifies as an opposing party’s statement.
Here, Paul’s statement contained in Molly’s notes (that he was driving too fast) is arguably incon-
sistent with his in-court testimony that he was driving under the speed limit before the accident.
David seeks to prove the statement by extrinsic evidence—i.e., the introduction of Molly’s notes.
The facts indicate that David rested his case without giving Paul any opportunity to explain or deny
the inconsistency. However, Paul’s statement within the notes qualifies as an opposing party’s state-
ment; thus, no foundation was required and the notes were admissible to impeach Paul.
If offered as substantive evidence, Molly’s notes present a potential multiple hearsay situation
because the notes themselves (the “outer” hearsay) and Paul’s comments within the notes (the
“inner” hearsay) are separate statements. For the notes to be admissible, each layer of hearsay
must be independently admissible as an exception to the hearsay rule. Note that in the context of
the hearsay within hearsay rule, a statement categorized as a hearsay exclusion (e.g., an opposing
party’s statement) functions as a hearsay exception.
The Outer Hearsay—Molly’s Notes
Molly’s notes are hearsay because they constitute a statement that is offered to prove the truth of
the matter contained therein, that is, that Paul actually said what Molly is claiming he said to her
just after the accident. Thus, Molly’s notes must fall under a hearsay exception.
Recorded Recollection
If a witness has insufficient recollection of an event to be able to testify fully and accurately, even
after referring to a memorandum that has been given to her on the stand, the writing itself may be
read into evidence once a proper foundation is laid for its admissibility. This is known as the past
recollection recorded exception to the hearsay rule.
The foundation for admissibility of the contents of the writing requires that: (i) the witness at
one time had personal knowledge of the facts stated in the writing; (ii) the writing was made or

EVIDENCE 23.
adopted by the witness; (iii) the writing was made while the matter was fresh in the witness’s
mind; (iv) the writing is accurate; and (v) the witness has insufficient recollection to testify fully
and accurately. The writing may be read into evidence and heard by the jury, but is not itself
admitted as an exhibit unless introduced by the adverse party.
Here, Molly testified that she wrote the notes immediately after her conversation with Paul, and
that the photocopy was accurate and genuine. She also stated that she had no recollection at the
time of trial of the original conversation. Thus, the statement falls within the recorded recollection
exception, and the photocopy of her notes should have been read into evidence. However, under
the FRE, only the adverse party can actually introduce the document into evidence. This was not
the case here. The notes were admitted during David’s case-in-chief, and David was the party who
offered the notes. Therefore, Molly’s notes were improperly admitted into evidence.
The Inner Hearsay—Paul’s Statement of Fault

As discussed above, Paul’s offer to pay the medical expenses of persons injured in the accident
will be excluded. The remaining part of his statement—that Paul was driving too fast and was at
fault—falls within the basic definition of hearsay because it is being offered to prove the truth of
the matter therein, i.e., that Paul was speeding and caused the accident. Paul will argue that his
statements are inadmissible under the hearsay rule.
Prior Inconsistent Statement

As discussed above, Paul’s statement was inconsistent with his testimony at trial. A witness’s prior
inconsistent statement is not hearsay if it was made under oath at a prior trial or proceeding, or in
a deposition. Because Paul’s statement to Molly was not made under oath, this hearsay exclusion
would not apply.
Statement Against Interest

David may also argue that Paul’s statement is admissible under the statement against interest
exception to the rule against hearsay. The FRE provide that a statement of a person who now is
unavailable as a witness is admissible if it was against that person’s pecuniary, proprietary, or
penal interest when made.
This exception will not apply in this case, however, because Paul is present at trial and not
unavailable. Moreover, the statement is clearly admissible as an opposing party’s statement, as
described below.
Statement by an Opposing Party

A statement made by a party and offered against that party is not hearsay under the FRE. Here,
Paul’s statement is being offered against him by David. Thus, Paul’s statement to Molly is a state-
ment of an opposing party and not hearsay.
In conclusion, the “inner” statements by Paul regarding his driving and his fault in the accident
are admissible. Although the “outer” notes by Molly are admissible under the past recollection
recorded exception to the hearsay rule, the court erred by admitting the photocopy into evidence.
The notes should have been read into evidence only.

QUESTION 2
RELEVANCE
1
disprove a fact of consequence) and (ii) legally relevant (court has discretion in excluding relevant
evidence if its probative value is substantially outweighed by a risk of unfair prejudice, confusion of
issues, and the like) (one point for each enumerated statement; must include explanation for credit and
not simply name each type of relevance) 2
ADMISSION OF VERA’S STATEMENT
RELEVANCE
Analysis: (i) Vera’s statement makes it more probable that David was operating his black SUV in a
reckless manner at the time of the accident, and that his reckless driving was the cause of the accident.
(ii) Bonus: David may argue that the statement is prejudicial because it is uncertain whether Vera was
referring to his own black SUV or someone else’s. (one point for each enumerated statement) 2
Conclusion: Vera’s testimony is relevant
1
HEARSAY
Issue: Whether Vera’s statement is barred by the hearsay rule

1
Rule: Hearsay is a statement, other than one made by the declarant while testifying at the current trial
or hearing, offered in evidence to prove the truth of the matter asserted, and is inadmissible unless it
falls within an exception to the rule 1
Analysis and Conclusion: Vera’s statement is hearsay because it was made out of court and it is being
offered for its truth—that there was a black SUV driving recklessly just before the crash 1
PRESENT SENSE IMPRESSION
Rule: Where a person perceives an event and is moved to comment on what she perceived at the time of
the perception or immediately thereafter, that statement is admissible as a present sense impression 1
Analysis and Conclusion: Vera commented on the reckless operation of the SUV as she was watching
it happen; thus, it is admissible as a present sense impression 1
OTHER HEARSAY EXCEPTIONS
Bonus: The examinee identifies the excited utterance hearsay exception and concludes it does not apply
(because the facts clearly indicate that Vera made her statement “calmly,” it does not appear that she
was under the requisite stress) 1
Bonus: The examinee identifies the dying declaration hearsay exception and concludes that it does not
apply (because the statement was made before Vera was injured and she did not seem to be speaking
under a belief of impending death) 1
Overall Conclusion: The court properly admitted Vera’s statement into evidence
1

EVIDENCE 25.
ADMISSION OF MOLLY’S NOTES INTO EVIDENCE

RELEVANCE
Analysis and Conclusion: Molly’s notes (i) are relevant to prove that Paul’s speed was responsible for
the accident, rather than David’s driving; and (ii) are also relevant to impeach Paul’s credibility (one
Issue: Whether the notes should be excluded because they contained an offer to pay medical expenses
1
Rules: (i) Evidence that a party offered to pay the injured party’s medical expenses is not admissible to
prove liability for the injury, (ii) but admissions of fact accompanying such offers are admissible (one
Analysis and Conclusion: (i) Only Paul’s offer to pay the medical expenses of the injured persons
should be excluded under this rule; (ii) his accompanying statements regarding driving too fast and
admitting fault are admissible (one point for each enumerated statement) 2
AUTHENTICATION
Issue: The standard for authenticating a document

1
Rule: Authentication of a document requires sufficient evidence to support a jury finding that the matter
is what its proponent claims it is 1
Analysis: Molly examined the photocopy and testified that it was a genuine copy of the notes that she
made right after speaking with Paul 1
Conclusion: Molly’s testimony is sufficient evidence to authenticate the photocopy
1
BEST EVIDENCE RULE
Issue: Whether a photocopy of a document is admissible under the best evidence rule
1
Rules: (i) Under the best evidence rule, when seeking to prove the terms of a writing in a case where
the terms are material, the original must be produced. (ii) The FRE will permit the use of an exact copy
of an original, such as a photocopy, to the same extent as an original, so long as no genuine question of
authenticity is raised. (one point for each enumerated statement) 2
Analysis: (i) Molly cannot remember the oral conversation she had with Paul; thus, the terms of her
written notes are material. (ii) However, no genuine question of authenticity has been raised. (one point
for each enumerated statement) 2
Conclusion: The photocopy meets the requirements of the best evidence rule
1
IMPEACHMENT—PRIOR INCONSISTENT STATEMENT
Issue: The circumstances in which a witness may be impeached with a prior inconsistent statement
1
Rules: (i) For the purpose of impeaching a witness’s credibility, a party may show that the witness has,
on another occasion, made statements that are inconsistent with his present testimony. (ii) Extrinsic
evidence of the witness’s prior inconsistent statement is admissible only if the witness is, at some
point, given an opportunity to explain or deny the allegedly inconsistent statement. (iii) However, this
foundation is not required when the statement qualifies as an opposing party’s statement. (one point for
each enumerated statement) 3

Analysis: (i) Paul’s statement contained in Molly’s notes is arguably inconsistent with his in-
court testimony regarding the accident. (ii) Although David rested his case without giving Paul any
opportunity to explain or deny the inconsistency, Paul’s statement qualifies as an opposing party’s
statement. (one point for each enumerated statement) 2
Conclusion: The notes were admissible to impeach Paul
1
Issue: Whether Molly’s notes are barred by the hearsay rule

1
Rules: See hearsay rule above
0
When a hearsay statement incorporates another hearsay statement, each layer of hearsay must fall
within a hearsay exception 1
Analysis: (i) Molly’s notes fall within the definition of hearsay because they constitute a statement
that is offered to prove the truth of the matter contained therein—that Paul actually said what Molly is
claiming he said to her just after the accident. (ii) Paul’s statement falls within the definition of hearsay
because it is being offered to prove the truth of the matter therein, i.e., that Paul was speeding and
caused the accident. (one point for each enumerated statement) 2
Conclusion: Molly’s notes are hearsay within hearsay, and each layer must fall within an exception
1
OUTER LAYER—THE NOTES
RECORDED RECOLLECTION EXCEPTION
Rules: If a witness has insufficient recollection of an event to be able to testify fully and accurately,
even after referring to a memorandum that has been given to her on the stand, the writing itself may be
read into evidence once a proper foundation is laid for its admissibility 1
The foundation for admissibility of the contents of the writing requires that: (i) the witness at one time
had personal knowledge of the facts stated in the writing; (ii) the writing was made or adopted by the
witness; (iii) the writing was made while the matter was fresh in the witness’s mind; (iv) the writing is
accurate; and (v) the witness has insufficient recollection to testify fully and accurately (two points for
three or four requirements; three points for all five) 3
Under this exception, the writing may be read into evidence and heard by the jury, but is not itself
admitted as an exhibit unless introduced by the adverse party 1
Analysis: Molly testified that (i) she wrote the notes immediately after her conversation with Paul,
(ii) the photocopy was accurate and genuine, and (iii) she had no present recollection of the original
conversation (one point for two supporting facts; two points for three or four supporting facts) 2
Conclusion: (i) Molly’s notes fall within the recorded recollection exception, (ii) but because they were
admitted during David’s case-in-chief (not offered by the adverse party), they were improperly admitted
into evidence if admitted as an exhibit (one point for each enumerated statement) 2
INNER LAYER—PAUL’S STATEMENT OF FAULT
STATEMENT BY OPPOSING PARTY
Rules: Under the hearsay exclusion for statements by an opposing party, a statement made by a party
and offered against that party is considered nonhearsay 1
Analysis and Conclusion: Paul is a party, and his statement is being offered against him by David;
thus, the statement qualifies as an opposing party’s statement 1

EVIDENCE 27.
OTHER EXCEPTIONS/EXCLUSIONS
Bonus: The examinee identifies the prior inconsistent statement exclusion and concludes it does not
apply because Paul’s statement was not made under oath 1
Bonus: The examinee identifies the statement against interest exception and concludes it does not apply
because Paul is available at trial 1
Overall Conclusion: (i) Molly’s notes were admissible, (ii) but should have been read into evidence
only (one point for each enumerated statement) 2
PASSING SCALE
6-9 Below passing 45
21 - 31 Passing 60, 65


EVIDENCE 29.
QUESTION 3
Dustin has been charged with participating in a robbery in California on the morning of
March 1.
(1) At Dustin’s trial in a California state court, the prosecution called Wendy, who was
married to Dustin when the robbery took place. Dustin and Wendy divorced before the trial
and Wendy was eager to testify.
During the direct examination of Wendy, the following questions were asked and answers
given:
(2) Prosecutor: You did not see Dustin on the afternoon of March 1, is that correct?
Wendy: That is correct.
(3) Prosecutor: Did you speak with Dustin on that day?
Wendy: Yes, I spoke to him in the afternoon, by phone.
(4) Prosecutor: What did you discuss?
Wendy: He said he’d be late coming home that night because he had to meet some people to
divide up some money.
(5) Prosecutor: Later that evening, did you speak with anyone else on the phone?
Wendy: Yes. I spoke with my friend Nancy just before she died.
(6) Prosecutor: What did Nancy say to you?
Wendy: Nancy said that she and Dustin had “pulled off a big job” that afternoon.
(7) Prosecutor: Did Nancy explain what she meant by “pulled off a big job”?
Wendy: No, but I assume that she meant that she and Dustin committed some sort of crime.
Assuming all proper objections, claims of privilege, and motions to strike were timely made,
did the court properly allow the prosecution to call the witness in item (1) and properly
admit the evidence in items (2) - (7)? Discuss.

1. CALLING THE WITNESS

Under Proposition 8, all relevant evidence is admissible in a criminal case, subject to certain
exceptions. In cases involving privilege, for example, ordinary rules of evidence apply rather than
Proposition 8.
PRIVILEGE
Spousal Immunity
Under the California Evidence Code (“CEC”), the spouse of a party to any kind of proceeding
may not be called as a witness by the adverse party and may not be compelled to testify against
her spouse in that proceeding. The privilege belongs to the witness-spouse only, and can be
claimed only during the marriage.
In this case, Wendy was eager to testify. Furthermore, she could not have claimed spousal
immunity because the facts state that she and Dustin were divorced at the time of trial.
Marital Communications Privilege
The privilege for confidential marital communications belongs to both spouses and survives the
marriage. However, it applies only to the disclosure of confidential communications made during
the marriage, and does not prevent a spouse from being called to testify generally.
Here, although Dustin can object to Wendy’s testimony regarding any confidential communica-
tions between them that took place during the marriage, he cannot prevent her from being called
to the stand to testify as to other matters, e.g., her observations.
Therefore, calling Wendy to testify in this case was proper.
2. WHETHER WENDY SAW DUSTIN
RELEVANCE
California law requires that evidence be logically relevant as well as legally relevant in order to
be admitted. Logically relevant evidence is evidence having any tendency to make the existence
of any disputed fact that is of consequence to the determination of an action more or less probable
than it would be without the evidence. However, a trial judge has broad discretion to exclude even
logically relevant evidence if it is not legally relevant. Legal relevance means that the probative
value of the evidence may not be substantially outweighed by the danger of unfair prejudice,
confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation
of cumulative evidence.
The evidence sought to be elicited by the question of whether Wendy saw Dustin the day of the
robbery is both logically and legally relevant. The question goes to whether Wendy and Dustin
had been together at all on that day, which is probative of whether Dustin was somewhere else,
possibly committing a robbery. Therefore, it is logically relevant. Nothing in the facts indicates
that there would be any unfair prejudice to Dustin from the answer to the question, which makes
the question legally relevant as well.
LEADING QUESTION
A question is leading, and therefore objectionable on direct examination, when it suggests the
answer to the witness. There are several instances in which a court may allow a leading question

EVIDENCE 31.
on direct examination: (i) questions used to elicit preliminary or introductory matter; (ii) cases in
which a witness had a loss of memory or another circumstance in which he needs assistance in
responding; or (iii) cases in which a witness is hostile or an adverse party.
Here, the question is objectionable as a leading question. Although the prosecution could argue
that it is being asked as an introductory matter to lay a foundation for Wendy and Dustin’s conver-
sation about the money, whether Wendy actually saw Dustin would not be pertinent to the issue
of a telephone conversation. Nor is there any indication in the facts that Wendy either suffered a
memory loss or was a hostile witness to the prosecution. Therefore, the question should not have
been allowed in that form.
3. WHETHER WENDY SPOKE WITH DUSTIN
RELEVANCE
Applying the rules of relevance as discussed above, the question at issue is both logically and
legally relevant. It is logically relevant in that it is necessary to lay a foundation for the conversa-
tion between Wendy and Dustin. It also is legally relevant because nothing in the facts indicates
that Dustin is at risk for undue prejudice if the question or the evidence elicited by the question is
admitted.
Nonresponsive
A witness’s response may be stricken as nonresponsive if it goes beyond the scope of the specific
question that has been asked. When a question calls for a “yes” or “no” answer, any additional
testimony is subject to being excluded as nonresponsive. Under the CEC, a motion to strike a
nonresponsive answer can be made by counsel for any party.
Here, Wendy’s response “I spoke to him in the afternoon, by phone” is objectionable and should
have been stricken as nonresponsive, because it goes beyond a simple “yes” and therefore was
beyond the scope of the question asked.
4. WHAT WENDY AND DUSTIN DISCUSSED

RELEVANCE
According to the rules of relevance discussed above, Wendy’s statement about what Dustin told
her in the telephone conversation is both logically and legally relevant. The evidence that Dustin
stated he had to meet people and divide up some money does tend to make it more likely that
Dustin had committed a robbery. Therefore, it is logically relevant.
Although there is a chance that Dustin’s statement could confuse or mislead the jury because
he could have been referring to a completely innocent activity, the risk is not substantially
outweighed by the probative nature of the evidence. As a result, the statement is legally relevant.
Hearsay
Hearsay is a statement by a declarant, other than one made while testifying at the current trial or
hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is excluded from
Proposition 8, and so ordinary rules of evidence apply to hearsay in criminal cases. If a statement
is hearsay, it is inadmissible and must be excluded unless an exception to the rule applies. Dustin’s
statement that he was going to be late because he had to meet people and divide up money is
being offered to prove that he was in fact planning to do just that; therefore, it is hearsay and must
fall within an exception to be admitted.

The CEC recognizes an exception for contemporaneous statements that are made at the time of
an occurrence; however, the exception applies only to a statement the declarant makes to explain,
qualify, or make understandable his own conduct, and the statement must be made while the
declarant is engaged in that conduct. Here, Dustin’s statement that he would be late and that he
was going to meet people does explain his own conduct, but he did not make the statement while
engaged in the conduct. Instead, it was a statement of his future plans. As a result, the contempo-
raneous statement exception would not apply.
Admission by a Party-Opponent
Under the CEC any hearsay statement made by a party and offered in evidence against that party
is admissible as an exception to the hearsay rule. In this case, Dustin’s statement that he would
be late coming home that night because he had to meet some people to divide up some money is
being offered against him by the prosecution. Thus, it is a party admission, and would fall under
this exception to the rule against hearsay.
Present State of Mind

Alternatively, Dustin’s statement falls under the state of mind exception. According to CEC 1250,
a declaration of the declarant’s then-existing state of mind, including a statement of intent or
plan, can be admitted to prove that intent or plan. Furthermore, it is admissible as circumstantial
evidence that tends to show what the declarant intends to do in the future, or that such intent was
carried out. In this case, Dustin’s statement related to his intent to meet people later and divide
up money. It serves as circumstantial evidence that he carried out his intent. The statement would
therefore fall within the present state of mind exception.

Oral statements must be authenticated in cases where the identity of the speaker is important.
Statements made during a telephone call may be authenticated by testimony as to one of the
following: (i) the witness recognizes the speaker’s voice; (ii) the speaker has knowledge of certain
facts that only a particular person would have; or (iii) the speaker has identified himself. If the
witness claims to recognize the voice, the proponent of the evidence first must lay a foundation to
show the witness’s familiarity with the voice.
In this case, none of the above methods were used to authenticate the oral statement. Although it
is likely that Wendy could have identified the speaker as Dustin, nothing in the facts indicates that
the prosecution laid the foundation for the authentication of the call, that Wendy recognized the
speaker’s voice, or that Dustin identified himself as the caller. Furthermore, Dustin’s identity is
important because he is the defendant in the case.
However, if the telephone call is not disputed by Dustin, or if Wendy testifies that she recognized
Dustin’s voice, there is no authentication issue.
CONFIDENTIAL MARITAL COMMUNICATION

According to the privilege regarding confidential marital communications, discussed above,
Dustin’s comments to Wendy would be privileged because they were married at the time of the
telephone conversation. Both spouses jointly hold this privilege, and either can refuse to disclose
the communication or prevent any other person from disclosing it. Thus, even though Wendy is
eager to testify as to the conversation, Dustin can prevent her from doing so. A husband’s state-
ment to his wife that he is about to meet people and divide up money is likely intended by the

EVIDENCE 33.
husband to be a confidential communication. Furthermore, the statements were not made in the
presence of a stranger, did not relate to routine business matters, and were not abusive, any of
which would take the comments out of the scope of the privilege.
Even if Dustin’s statements to Wendy were authenticated, they fell under the marital communica-
tions privilege. Thus, the court should have excluded Dustin’s statements.
5. DID WENDY SPEAK WITH ANYONE ELSE
RELEVANCE
Applying the rules of relevance as discussed above, the question of whether Wendy spoke with
anyone else that day is both logically and legally relevant. It is logically relevant in that it is
necessary to lay a foundation for the conversation between Wendy and Nancy. That conversation
is relevant because it has some bearing on what Dustin did on the day of the robbery. It also is
legally relevant, because nothing in the facts indicates that Dustin is at a substantial risk for undue
prejudice if the evidence elicited by the question—that Wendy talked to someone else that day—is
admitted.
NONRESPONSIVE
Wendy’s response “I spoke with my friend Nancy just before she died” is objectionable and should
have been stricken as nonresponsive, because it goes beyond a simple “yes” and therefore was
beyond the scope of the question asked.
6. WHAT WENDY AND NANCY DISCUSSED
RELEVANCE
According to the rules of relevance discussed above, Wendy’s statement about what Nancy told
her in the telephone conversation is both logically and legally relevant. The evidence that she and
Dustin had pulled off a “big job” that afternoon does tend to make it more likely that Dustin had
committed a robbery. Therefore, it is logically relevant.
Although there is a chance that Nancy’s statement about what she and Dustin were doing could
confuse or mislead the jury because a “big job” could refer to a number of innocent activities, the
risk is not substantially outweighed by the probative nature of the evidence. As a result, the state-
ment is legally relevant.

As has been discussed above, an oral statement must be authenticated in cases where the identity
of the speaker is important. Although Wendy may have been able to identify the speaker as Nancy,
nothing in the facts indicates that the prosecution laid the foundation for the authentication of the
call, that Wendy recognized the speaker’s voice, or that Nancy identified herself as the caller.
However, Nancy’s identity is probably not important enough such that authentication is required.
Whether or not it was actually Nancy on the telephone has little bearing on the main point of the
statement made to Wendy—i.e., that Dustin, the defendant, had just finished a “big job.” Thus,
Nancy’s statement to Wendy probably did not need to be authenticated.
HEARSAY
Nancy’s statement that she and Dustin had pulled off a big job is being offered to prove that she

and Dustin had indeed performed some type of big job which, the prosecution will argue, meant
the robbery; therefore, the statement is hearsay and must fall within an exception.
Dying Declaration
In California, a declaration made under the belief of impending death is an exception to the rule
against hearsay. To qualify under this exception, the declarant must actually die, and the statement
must be about whatever killed him. Here, Nancy is deceased. Although the prosecution may argue
that Nancy’s statement should be allowed under this exception, her statement had nothing to do
with the circumstances of her death and there is no foundation showing Nancy believed her death
was imminent. Therefore, the evidence does not qualify as a dying declaration.
As discussed above, California recognizes a hearsay exception for contemporaneous statements
that are made at the time of an occurrence; so long as the declarant makes the statement to
explain, qualify, or make understandable her own conduct and the statement is made while the
declarant is engaged in that conduct.
In this case, Nancy’s statement that she and Dustin had pulled off a big job that afternoon does
explain her own conduct, but it did not occur while she was engaged in the conduct. Instead it was
a statement of her past activity. As a result, the contemporaneous statement exception would not
apply, and the statement should not have been admitted on these grounds.

Under the statement against interest exception, a statement by a now-unavailable person may be
admissible if it was against that person’s pecuniary, proprietary, or penal interest when made. In
the present case, Nancy has died and therefore is unavailable.
However, there is not a strong argument that the statement was against Nancy’s interest. All
Nancy said was that she and Dustin had carried out a big job that day. Although Wendy assumed
that this meant Nancy and Dustin had committed a crime, the exception requires that the
declarant knew the statement was against her interest when she made it. It is not clear that Nancy
understood that her statement was against her interest; that she and Dustin had carried out a “big
job” could refer to a number of noncriminal activities. Moreover, Nancy might have thought that
Wendy could be trusted not to use the statement in a way detrimental to the interests of Nancy
because Wendy is Dustin’s wife. Thus, the statement against interest exception to the rule against
hearsay would not apply.
Co-Conspirator Admission
An admission by party-opponent is a hearsay exception under the CEC, and certain vicarious
admissions fall within this rule. An admission by one conspirator, made to a third party in
furtherance of a conspiracy to commit a crime, while the declarant was a participant in the
conspiracy, may be admitted against a co-conspirator.
Here, Nancy’s statement to Wendy regarding the “big job” was not made in furtherance of a
conspiracy or while Nancy and Dustin were participating in a conspiracy. Rather, it was made
after she and Dustin had completed their “big job.” Therefore, Nancy’s statement is not admissible
as a co-conspirator admission.
Because Nancy’s statement did not fall within a hearsay exception, it should not have been
admitted.

EVIDENCE 35.
7. SIXTH QUESTION: WHAT “BIG JOB” MEANT
RELEVANCE
The evidence contained in Wendy’s response was logically relevant. If a “big job” meant a crime,
this evidence would make it more likely that Dustin had indeed committed a robbery.
There is the potential for prejudice against Dustin if this statement is admitted. On one hand,
the jury will hear that Dustin has completed a so-called “big job” and may assume this refers to
the robbery. On the other hand, Wendy has stated that she assumes a “big job” means some sort
of crime, and this clarification lessens the risk of unfair prejudice and confusing the jury. On
balance, the evidence is highly probative and is not substantially outweighed by the risk. There-
fore, the evidence was legally relevant.
NONRESPONSIVE
Wendy’s response, “but I assume that she meant that she and Dustin committed some sort of
crime,” is objectionable and should have been stricken as nonresponsive, because it goes beyond a
simple “no” and therefore was beyond the scope of the question asked.
SPECULATION
In order to facilitate an efficient determination of the facts, a court may reasonably control the
manner and form of examination of witnesses. An examining attorney may not ask a witness to
speculate or hypothesize as to the existence or meaning of a fact. Testimony must be based upon
the witness’s personal knowledge rather than on conjecture.
Here, Wendy’s statement that a “big job” meant Nancy and Dustin had committed a crime was not
based on her personal knowledge but, by her own words, an assumption. As such, her statement
was speculative. Note, however, that the question itself was not improper because it did not call for
Wendy to speculate in her answer.
LAY OPINION
An opinion by a lay witness generally is inadmissible, except when it is (i) rationally based on the
perception of the witness; (ii) helpful to a clear understanding of his testimony or to the determi-
nation of a material fact; and (iii) not based on scientific or otherwise specialized knowledge.
Here, an explanation of the meaning of “big job” probably would be helpful to the determination
of the facts; however, Wendy’s statement was not rationally based on her own perception. She
merely assumed the meaning of the words “big job.” Therefore, her statement would not have
been admissible as a lay opinion.
Wendy’s testimony regarding the meaning of “big job” should not have been admitted.

QUESTION 3
RELEVANCE
1
disprove a disputed fact of consequence) and (ii) legally relevant (court has discretion in excluding
relevant evidence if its probative value is substantially outweighed by a risk of unfair prejudice,
confusion of issues, and the like) (one point for each enumerated statement; must include explanation
for credit and not simply name each type of relevance) 2
CALLING THE WITNESS
Issue: Whether a marital privilege precludes Wendy from being called to the stand
1
SPOUSAL IMMUNITY
Rules: (i) Under the CEC, the spouse of a party to any kind of proceeding may not be compelled to
testify against her spouse in that proceeding. (ii) The privilege belongs to the witness-spouse only. (iii)
The privilege can be claimed only during the marriage. (one point for each enumerated statement) 3
Analysis: (i) Wendy was eager to testify, so she is not asserting the privilege. (ii) Wendy could not have
claimed spousal immunity because she and Dustin were divorced at the time of trial. (one point for each 2
enumerated statement)
Conclusion: Spousal immunity does not apply
1
MARITAL COMMUNICATIONS PRIVILEGE
Rules: The privilege for confidential marital communications: (i) belongs to both spouses; (ii) survives
the marriage; and (iii) applies only to the disclosure of confidential communications (iv) made during
the marriage (one point for two enumerated rules; two points for three or four enumerated rules) 2
Analysis: Although Dustin can object to Wendy’s testimony regarding any confidential
communications between them that took place during the marriage, he cannot prevent her from being
called to the stand to testify as to other matters 1
Conclusion: The marital communications privilege would not prevent Wendy from being called to the
stand 1
Overall Conclusion: Calling Wendy to the stand was proper
1
WHETHER WENDY SAW DUSTIN
Issue: Whether the question and answer were in proper form
1
RELEVANCE
Analysis and Conclusion: The question of whether Wendy and Dustin had been together at all on that
day is probative of where Dustin was on the day of the murder; thus, it is relevant 1
LEADING QUESTION

EVIDENCE 37.
Rules: A leading question is one that suggests the answer, and such questions are generally
objectionable on direct examination 1
Exceptions to the above: (i) questions used to elicit preliminary or introductory matter; (ii) cases
in which a witness had a loss of memory or another circumstance in which he needs assistance in
responding; or (iii) cases in which a witness is hostile or an adverse party (one point for one enumerated
exception; two points for two or three enumerated exceptions) 2
Analysis and Conclusion: The question to Wendy was a leading question, and none of the exceptions
to the prohibition on leading questions applies; thus, it was improper 1
Overall Conclusion: The question should have been excluded
1
WHETHER WENDY SPOKE WITH DUSTIN
Issue: Whether Wendy’s answer was in proper form
1
RELEVANCE
Bonus: The question and Wendy’s response lay a foundation for the telephone conversation between
Wendy and Dustin on the day of the robbery 1
NONRESPONSIVE
Rules: A witness’s response may be stricken as nonresponsive if it goes beyond the scope of the specific
question that has been asked 1
Analysis and Conclusion: Wendy’s response went beyond a simple “yes” and was therefore
nonresponsive 1
Overall Conclusion: The response should have been excluded
1
WHAT WENDY AND DUSTIN DISCUSSED
RELEVANCE
Bonus: The evidence that Dustin stated he had to meet people and divide up some money tends to make
it more likely that Dustin had committed a robbery 1
HEARSAY
Issue: Whether Dustin’s statements to Wendy are barred by the hearsay rule
1
Rule: (i) Hearsay is a statement by a declarant, other than one made while testifying at the current trial
or hearing, offered in evidence to prove the truth of the matter asserted, and is inadmissible unless an
exception applies. (ii) Bonus: Hearsay is excluded from Proposition 8, and so ordinary rules of evidence
apply to hearsay in criminal cases. (one point for each enumerated statement) 2
Analysis and Conclusion: Dustin’s statement that he was going to be late because he had to meet
people and divide up money was made out of court and it is being offered for its truth; thus, it is hearsay 1
ADMISSION BY A PARTY-OPPONENT
Rule: Under the CEC, any hearsay statement made by a party and offered in evidence against that party
is admissible as an exception to the hearsay rule 1
Analysis and Conclusion: Dustin’s statement is being offered against him by the prosecution; thus, it is
admissible as a party admission 1

PRESENT STATE OF MIND EXCEPTION
Rule: Bonus: A declaration of the declarant’s then-existing state of mind, including a statement of
intent or plan, can be admitted to prove that intent or plan, or that such intent was carried out 1
Analysis: Bonus: Dustin’s statement related to his intent to meet people later and divide up money, and
it serves as circumstantial evidence that he carried out his intent 1
Conclusion: Bonus: The statement would fall within the present state of mind exception
1
OTHER EXCEPTIONS
Bonus: The examinee identifies the contemporaneous statement hearsay exception and concludes it does
not apply (because while Dustin’s statement does explain his own conduct, it was not made while he
was engaged in the conduct) 1
Issue: Whether the conversation between Wendy and Dustin was privileged
1
Rule: See rules regarding confidential marital communications above
0
Analysis: (i) A husband’s statement to his wife that he is about to meet people and divide up money
is likely intended by the husband to be a confidential communication. (ii) Dustin and Wendy were
married at the time of the telephone conversation. (iii) Even though Wendy is eager to testify as to the
conversation, Dustin can prevent her from doing so. (one point for each enumerated statement) 3
Conclusion: Dustin’s statements to Wendy are privileged
1
AUTHENTICATION
Rules: Bonus: Oral statements must be authenticated in cases where the identity of the speaker is
important 1
Bonus: Statements made during a telephone call may be authenticated by testimony as to one of the
following: (i) the witness recognizes the speaker’s voice; (ii) the speaker has knowledge of certain facts
that only a particular person would have; or (iii) the speaker has identified himself (one point total for
any enumerated statement) 1
Analysis: Bonus: Dustin’s identity is important because he is the defendant in the case
1
Conclusion: Bonus: If the telephone call is not disputed by Dustin, or if Wendy testifies that she
recognized Dustin’s voice, there is no authentication issue 1
Overall Conclusion: Dustin’s statements to Wendy should have been excluded
1
WHETHER WENDY SPOKE WITH ANYONE ELSE
RELEVANCE
Bonus: Whether Wendy spoke with anyone else that day lays a foundation for the conversation between
Wendy and Nancy on the day of the robbery 1
NONRESPONSIVE
Issue: Whether Wendy’s testimony was in proper form

1

EVIDENCE 39.
Rule: See rule regarding nonresponsive answers above

0
Analysis: Wendy’s reference to Nancy’s death goes beyond the scope of the question
1
Conclusion: Wendy’s response should be stricken
1
WHAT WENDY AND NANCY DISCUSSED
RELEVANCE
Analysis: (i) The evidence that Nancy and Dustin had pulled off a “big job” that afternoon tends to
make it more likely that Dustin had committed a robbery. (ii) Although there is a chance that Nancy’s
statement about a “big job” could confuse or mislead the jury, the risk is not substantially outweighed
by the probative nature of the evidence. (one point for each enumerated statement) 2
Conclusion: The evidence is relevant
1
AUTHENTICATION
Bonus: Nancy’s identity is probably not important enough such that authentication is required
1
HEARSAY
Issue: Whether Nancy’s statement is barred by the hearsay rule

1
0
Analysis: Nancy’s statement was hearsay because it was made out of court and is being offered for its
truth—that she and Dustin had indeed performed some type of big job 1
The examinee may discuss the following hearsay exceptions: (i) dying declaration exception (does not
apply because Nancy’s statement had nothing to do with her death and she did not realize her death
was imminent); (ii) contemporaneous statement exception (does not apply because while Nancy’s
statement does explain her own conduct, it was not made while she was engaged in the conduct); (iii)
statement against interest exception (does not apply because there is not a strong argument that the
statement was against Nancy’s interest); or (iv) co-conspirator admission exception (does not apply
because Nancy’s statement was not made in the furtherance of a conspiracy or while Nancy and Dustin
were participating in a conspiracy—it was made after they completed their “big job”) (one point for
one enumerated exception; two points for two enumerated exceptions; award credit below for a third or
fourth exception) 2
Bonus: Add one point for each additional hearsay exception discussed by the student
2
Conclusion: Nancy’s statement did not fall within a hearsay exception
1
Overall Conclusion: Nancy’s statement should not have been admitted
1
WHAT THE “BIG JOB” MEANT
Issue: Whether Wendy’s testimony was relevant and in proper form
1
RELEVANCE

Analysis: (i) If “big job” meant a crime, it would make it more likely that Dustin had indeed committed
a robbery. (ii) There is the potential for prejudice against Dustin and jury confusion if this statement is
admitted, but it does not substantially outweigh the probative value of the evidence. (one point for each
Conclusion: The testimony is relevant
1
NONRESPONSIVE
Rule: See rule on nonresponsive testimony above

0
Analysis: Wendy’s response goes beyond a simple “no” and therefore was beyond the scope of the
question asked; thus, it was nonresponsive 1
SPECULATION
Rule: An examining attorney may not ask a witness to speculate or hypothesize as to the existence or
meaning of a fact 1
Analysis and Conclusion: (i) Wendy’s statement that a “big job” meant Nancy and Dustin had
committed a crime was speculative in nature—it was admittedly an assumption, and not based on
personal knowledge. (ii) Bonus: However, the question itself was proper because it did not call for
Wendy’s speculative answer. (one point for each enumerated statement) 2
LAY TESTIMONY
Rule: Bonus: An opinion by a lay witness generally is inadmissible, except when it is: (i) rationally
based on the perception of the witness; (ii) helpful to a clear understanding of her testimony or to
the determination of a material fact; and (iii) not based on specialized knowledge (one point for each
Analysis: Bonus: Although the explanation probably would be helpful to the determination of the facts,
Wendy’s statement was not rationally based on her own perception; she merely assumed the meaning of
the words “big job” 1
Conclusion: Bonus: Wendy’s testimony is not permissible lay testimony
1
Overall Conclusion: Wendy’s testimony regarding the meaning of “big job” should not have been
admitted 1
PASSING SCALE
22 - 33 Passing 60, 65

EVIDENCE 41.
QUESTION 4
Dave brought his sports car into the local service station for an oil change. While servicing
the car, Mechanic checked the brakes and noticed that they needed repair. The following
events occurred:
(1) Mechanic commented to Helper, “Dave had better get these brakes fixed. They look
bad to me.”
(2) Mechanic instructed Helper (who did not himself observe the brakes) to write on the
work order: “Inspected brakes — repair?”, which Helper then wrote on the work order.
However, Helper currently does not remember what words he wrote on the work order.
(3) Many hours later when Dave picked up his car, Helper overheard Mechanic say to
Dave, “I think your brakes are bad. You’d better get them fixed.”
(4) Dave responded, “I am not surprised. They’ve felt a little funny lately.”
(5) Later that day, when Helper was walking down Main Street, he heard the sound of
a collision behind him, followed by a bystander shouting: “The sports car ran the red light
and ran into the truck.”
The sports car involved in the accident was the one that Dave had just picked up from
Mechanic. Polly owned the truck. Polly sued Dave for negligence for damages sustained
in the accident. Polly’s complaint alleged that the accident was caused by the sports car
running the red light because the sports car’s brakes failed. Polly’s theory of liability is that
Dave knew or should have known that his brakes were bad and that driving the car under
those circumstances was negligent.
Polly called Helper as a witness to testify as to the facts recited in items (1) through (5)
above, and she also offered into evidence the work order referred to in item number (2).
Assume that in each instance, appropriate objections were made.
Should the court admit the evidence offered in items numbers (1) through (5), including the
work order referred to in item number (2)? Discuss.
[Editor’s note: The examiners did not specify which law to use. When this is the case for
an evidence essay on the bar exam, you are to apply the Federal Rules. But for illustrative
purposes only, the following Model Answer discusses both the Federal Rules of Evidence
and California law.]

1. MECHANIC’S COMMENT TO HELPER
RELEVANCE
Evidence must be both logically relevant and legally relevant to be admissible. Under the Federal
Rules of Evidence (“FRE”), logical relevance means that the evidence tends to prove or disprove
a fact that is of consequence in the action. California evidence rules are in accord; however,
the California Evidence Code (“CEC”) also specifically requires that the evidence go to a
disputed fact. Legal relevance means that the probative value of the evidence is not substantially
outweighed by the risk of unfair prejudice, confusion of the issues, misleading the jury, undue
delay, waste of time, or needless presentation of cumulative evidence effect if the evidence is
admitted. Even logically relevant evidence will be excluded if it fails the test for legal relevance.
The fact that Dave’s brakes are faulty makes it more likely that Dave is liable for Polly’s injuries;
as a result, the evidence is logically relevant under the FRE. Although the testimony would cause
some prejudice to Dave in that it points to his liability, the prejudice would not be unfair and the
jury would not be confused by the testimony. As such, the testimony is legally relevant as well.
According to the CEC, the facts state that Polly’s theory of liability is based on Dave’s notice that
his brakes were in disrepair. It is not clear whether Dave is disputing that his brakes were actually
defective. Furthermore, although Mechanic later made a similar comment to Dave, Mechanic’s
first statement to Helper was not communicated to Dave. Under the CEC, therefore, it is arguable
that Mechanic’s statement to Helper about the brakes is irrelevant.
HEARSAY
Hearsay is a statement, other than one made by the declarant while testifying at the current trial
or hearing, offered in evidence to prove the truth of the matter asserted. Evidence that falls within
the definition of hearsay will be excluded upon objection unless it comes under an exception to
the rule. Mechanic’s statement to Helper is hearsay because it is being offered for its truth—that
Mechanic observed that Dave’s brakes were broken. It is not offered to show its effect on Dave,
because Dave never actually heard this statement.
Present Sense Impression/Contemporaneous Statement

Under the FRE, where a person perceives an event and is moved to comment on what he
perceived at the time of the perception or immediately thereafter, that statement is considered
reliable for evidentiary purposes. Such a statement of a present sense impression is an exception
to the rule excluding hearsay, and the statement may be admitted into evidence. Here, Mechanic’s
statement is based on a perception he has had, but it is not clear if it was made at the same time or
just after he perceived the matter on which he is commenting. However, since Mechanic says the
brakes “look” bad, rather than “looked” bad, the question might suggest Mechanic was speaking
at the same time he was looking at the brakes. If the timing requirement is met, the present sense
impression exception applies.
Unlike the FRE, the CEC does not recognize a hearsay exception for present sense impres-
sions. The CEC does make an exception for contemporaneous statements that are made at the
time of an occurrence; however, the exception applies only to a statement the declarant makes to
explain, qualify, or make understandable his own conduct, and the statement must be made while
the declarant is engaged in that conduct. Here, Mechanic’s comment does not relate to his own

EVIDENCE 43.
conduct and does not attempt to explain such conduct. Thus, under the CEC, Mechanic’s state-
ment would not fall under the contemporaneous statement exception.
The statement does not fall within any other hearsay exceptions.
Therefore, Mechanic’s statement to Helper might be admissible under the FRE, but would be
inadmissible hearsay under the CEC.
2. THE WORK ORDER
RELEVANCE
Applying the rules of relevance discussed above, the evidence contained in the work order would
be logically and legally relevant. Mechanic’s note that the brakes were inspected and may be in
need of repair makes it more likely that the brakes were broken and that this fact was commu-
nicated to Dave. The notice element is a disputed fact in the case; therefore, the work order is
logically relevant under the CEC as well as the FRE. Again, although the evidence is likely to
cause some prejudice to Dave’s case, that in itself does not mean that the risk of unfair prejudice
substantially outweighs the probative value of the evidence. The evidence, in that it shows notice,
is very useful in determining a disputed fact when balanced against the potential for prejudice or
confusion. As a result, the work order is legally relevant.

A hearsay statement that includes other hearsay within it is admissible only if each of the hearsay
statements independently falls within an exception. Even though Helper is not putting quotation
marks around the words he wrote, it is clear he is writing down what Mechanic said. This means
there are two out-of-court statements—Mechanic’s verbal statement and Helper’s writing.
Polly might argue that the Mechanic’s words are not a statement in that he states a question rather
than asserts a fact. On the other hand, the evidence is relevant only if it asserts that the brakes
need repair; it would be irrelevant if it simply asked a question regarding the status of the brakes.
Thus, the work order is a statement and is being offered to prove the truth of the contents therein,
that is, that Mechanic found that Dave’s brakes might need repair and instructed Helper to make a
record of this finding. The work order itself—the document written by Helper—is the outer layer
of hearsay. Mechanic’s statement contained within the order—that Dave’s brakes were inspected
and may need repair—is the inner layer of hearsay.
Past Recollection Recorded

At trial, if a witness states that he does not have sufficient recollection of an event to be able to
testify fully and accurately, even after consulting a writing provided to him on the stand, the
writing itself may be read into evidence. The document itself is not admitted as an exhibit unless
it is offered by the adverse party. In order to qualify as past recollection recorded, a foundation
must be laid for the document’s admissibility, which must show that (i) the witness at one time had
personal knowledge of the facts recited in the writing; (ii) the writing was made by the witness or
made under his direction; (iii) the writing was made while the matter was fresh in the mind of the
witness; (iv) the writing is accurate; and (v) the witness has insufficient recollection to testify fully
and accurately.
Here, Helper had personal knowledge of the words Mechanic told him to write down, and the
writing was made by Helper at Mechanic’s direction. Nothing in the facts suggests that the writing
was not fresh in Helper’s mind when he made it. Furthermore, Helper “currently does not
remember” what he wrote on the work order. Even if the work order falls within this exception,

however, it could only have been read into evidence; the document itself could not have been
admitted as an exhibit.
Furthermore, Helper did not have personal knowledge of the facts asserted in Mechanic’s
recorded statement—that the brakes might need repair. Thus, Mechanic’s statement—the inner
level of hearsay—would need to fall within a separate hearsay exception. As a result, the work
order containing Mechanic’s statement cannot be admitted under the past recollection recorded
exception.
As discussed below, the business records exception is a better option for admissibility.
Business Record
A writing that is made as a memorandum or record of an act is admissible in evidence as proof
of that act if it was made in the regular course of business, and if it was the regular course of
such business to make it at the time of the act or within a reasonable time thereafter. This is an
exception to the rule against hearsay. To fall within this exception, statements within the business
record must consist of matters within the personal knowledge of either the recorder or of someone
with a business duty to transmit the matters to the recorder. Thus, the record’s contents do not
have to be within the personal knowledge of the recorder if both the recorder and the transmitter
of the record’s contents are employees of the same business. If this personal knowledge require-
ment is met, both the record itself and the recorded statements therein (i.e., each level of hearsay)
are enveloped within the business records exception. Otherwise, the recorded statements within
the business record must fall within a separate hearsay exception to be admissible.
Additionally, the authenticity of the record must be established for this exception to apply. The
usual method of authentication is to have the custodian or other qualified witness testify to the
identity of the record and the mode of its preparation. (Also, under the FRE, the record will be
self-authenticating if the custodian or other qualified person certifies in writing that the record
meets the requirements of the business records exception.)
Here, the work order and Mechanic’s recorded statement therein would qualify as a business
record. Nothing in the facts indicates that the work order was anything other than one routinely
made in the course of Mechanic’s car repair business or that the order was not prepared within a
reasonable time after the inspection. Helper and Mechanic were co-workers, and although Helper
did not have personal knowledge that the brakes were faulty, Mechanic did have such personal
knowledge.
Furthermore, it is likely that Helper can testify as to the identity of the record and the mode of its
preparation, even if he does not remember the exact words he wrote on the work order. Conse-
quently, the business records exception would apply to each level of hearsay in the work order.
In conclusion, the work order is admissible.
3. MECHANIC’S COMMENT TO DAVE
RELEVANCE
Mechanic’s comment to Dave does tend to make it more likely that Dave had notice of the condi-
tion of his brakes. This is a disputed fact in this action. Furthermore, Mechanic’s professional
judgment makes it more likely that the brakes failed. Therefore, the evidence is logically relevant.
Moreover, the testimony is highly probative of the notice issue, and admitting the evidence would
not create a substantial risk of unfair prejudice or confusion or misleading of the jury. Conse-
quently, the evidence is legally relevant.

EVIDENCE 45.
STATEMENT TO SHOW EFFECT ON THE HEARER

A statement that is inadmissible hearsay if offered to prove the truth of the statement may be
admissible nonhearsay to show the statement’s effect on the person who hears it. Here, Mechanic’s
comment to Dave is not being offered to prove that Dave’s brakes were bad; it is meant instead to
show that Dave had notice of the possible malfunction of his brakes before the accident and chose
to drive the car anyway. As such, Helper’s testimony concerning Mechanic’s statement to Dave is
not hearsay, and would be admissible.
The court should admit Helper’s testimony about Mechanic’s statement to Dave.
4. DAVE’S COMMENT TO MECHANIC
RELEVANCE
Dave’s response to Mechanic does tend to make it more likely that Dave was on notice of the
condition of his brakes prior to the accident, and his notice is a disputed fact in the case. For that
reason, the evidence has logical relevance. The testimony also is highly probative of the notice
issue, and admitting the evidence would not increase a substantial risk of unfair prejudice, confu-
sion of the jury, or the like. Therefore, the evidence would be legally relevant.
HEARSAY
Dave’s out-of-court statement is hearsay because it is being offered for its truth—that he was not
surprised at the condition of his brakes, and that his brakes had been giving him trouble prior to
the accident. (Alternatively, the statement may be classified as nonhearsay if offered only to prove
Dave’s knowledge, as discussed below.)
Statement of an Opposing Party

A statement made by a party and offered against that party is not hearsay under the FRE, and
is considered a hearsay exception under the CEC. This type of statement has traditionally been
called an admission. Here, Dave’s own statement is being offered against him. This is a classic
example of a statement of an opposing party, and the statement would be admissible.
State of Mind
A statement by a declarant that is offered not for the truth of the statement, but as circumstantial
evidence of the declarant’s state of mind, is not hearsay. Thus, the second part of Dave’s statement
(“They’ve felt a little funny lately”) is nonhearsay if offered to prove Dave’s knowledge because it
is circumstantial evidence that Dave believed his brakes were faulty.
Statements that reflect directly (rather than circumstantially) on the declarant’s state of mind
are admissible as an exception to the hearsay rule. The first part of the statement (“I am not
surprised”) is a direct assertion of Dave’s state of mind. Therefore, it would be classified as
hearsay, but admissible under the exception for statements of then-existing state of mind of the
declarant.
The court should have admitted Helper’s testimony regarding Dave’s statement to Mechanic
because the statement was not barred by the hearsay rule.
5. THE BYSTANDER’S STATEMENT
RELEVANCE
The fact that the sports car picked up by Dave ran the red light and hit a truck would tend to make

it more likely that Dave caused the accident by running a red light. It also tends to prove that Dave
drove the sports car he picked up from Mechanic’s shop even though he knew the brakes were
faulty. This evidence is probative as to Dave’s liability in the case, and is logically relevant under
the FRE.
Dave could once again argue, at least under the CEC, that the statement does not go to a disputed
fact and therefore is not legally relevant. In other words, whether he went through the light and hit
the car is not probative of his knowledge that the brakes were not working properly.
However, the facts are unclear as to Dave’s theory of the case. It is possible that Dave is disputing
that his brakes failed; perhaps his contention is that Polly is the one who ran the red light. On
balance, however, the statement will likely be admissible under both the FRE and CEC because it
outlines the circumstances of the accident.
As for legal relevance, the bystander’s statement is probative of the circumstances of the accident,
and its probative value is not substantially outweighed by the risk of unfair prejudice to Dave.
Therefore, the evidence is legally relevant.
HEARSAY
The bystander’s out-of-court statement would come under the definition of hearsay. “The sports
car ran the red light and ran into the truck” is being offered for its truth, that is, that Dave’s car
failed to yield at the red light and proceeded to strike the truck. Therefore, it must be excluded
unless it falls within an exception.
Present Sense Impression/Contemporaneous Statement

As discussed above, a statement of present sense impression is a hearsay exception under the
FRE. Here, the bystander made her statement immediately after she perceived the sports car
running the red light. Therefore, under the FRE, the statement would be admissible as a present
sense impression.
The CEC exception for contemporaneous statements that are made at the time of an occurrence
applies only to a statement the declarant makes to explain, qualify, or make understandable her
own conduct, while she is engaged in that conduct. Here, the bystander’s comment does not relate
to her own conduct and has not been made while she is engaged in any such conduct. Under the
CEC, therefore, the bystander’s statement would not fall under the contemporaneous statement
exception to the rule against hearsay.
Excited Utterance/Spontaneous Statement

The FRE recognize a hearsay exception for a statement made by a declarant during or soon after
a startling event. The statement must be made under the stress of excitement produced by the
startling event, and must concern the immediate facts of the event. There is a counterpart CEC
provision for “spontaneous statements.”
Here, the bystander shouted, “The sports car ran the red light and ran into the truck,” immedi-
ately after Helper heard the sound of the collision. This indicates that the bystander was under the
stress of excitement from the startling event—the accident—and that her statement concerned the
circumstances of the accident. As a result, the bystander’s statement would be admissible under
the excited utterance exception recognized by the FRE as well as the spontaneous statement
exception recognized by the CEC.
The court properly admitted the bystander’s statement into evidence.

EVIDENCE 47.
QUESTION 4
RELEVANCE
1
MECHANIC’S COMMENT TO HELPER
RELEVANCE
Analysis and Conclusion: The fact that Dave’s brakes are faulty makes it more likely that Dave is
liable for Polly’s injuries; thus, it is relevant 1
HEARSAY
Issue: Whether Mechanic’s comment is barred by the hearsay rule

1
Rule: Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and is
inadmissible unless it falls within an exception to the rule 1
Analysis: (i) Mechanic’s statement to Helper was made out of court and is being offered for its truth—
that Mechanic observed that Dave’s brakes were broken. (ii) Bonus: Mechanic’s statement is not being
offered to show its effect on Dave, because Dave never actually heard it. (one point for each enumerated
statement) 2
Conclusion: Mechanic’s comment to helper is hearsay
1
Rule: The FRE recognize an exception for present sense impressions, i.e., where a person perceives
an event and is moved to comment on what he perceived at the time of the perception or immediately
thereafter 1
Analysis and Conclusion: (i) If Mechanic made the statement during or immediately after his
perception, the present impression exception applies; but this is uncertain under the facts. (ii) No other
hearsay exception applies. (one point for each enumerated statement) 2
Overall Conclusion: Mechanic’s statement to Helper is admissible if it qualifies as a present sense
impression 1
THE WORK ORDER
RELEVANCE
Analysis: Mechanic’s note that the brakes were inspected and may be in need of repair makes it more
likely that (i) the brakes were broken and (ii) that this fact was communicated to Dave (one point for

Conclusion: The work order was relevant

1
HEARSAY
Issue: Whether the work order constitutes inadmissible hearsay

1
0
“Hearsay within hearsay” is admissible only if both the outer and inner layers fall within a hearsay
exception (one point for each enumerated statement) 1
Analysis: There are two out-of-court statements offered for their truth—Mechanic’s verbal statement
and Helper’s writing 1
Conclusion: The work order constitutes hearsay within hearsay
1
PAST RECOLLECTION RECORDED
Rules: Bonus: The examinee discusses the exception for past recollection recorded and its foundational
requirements: (i) the witness at one time had personal knowledge of the facts recited in the writing;
(ii) the writing was made by the witness or made under his direction; (iii) the writing was made while
the matter was fresh in the mind of the witness; (iv) the writing is accurate; and (v) the witness has
insufficient recollection to testify fully and accurately (two points for three enumerated requirements;
three points for four or five requirements) 3
Bonus: If foundational requirements for this exception were met, the document itself cannot have been
admitted as an exhibit unless offered by an adverse party—it may be read into evidence only 1
Analysis: Bonus: Here, the foundational requirements may be met because (i) Helper had personal
knowledge as to the words Mechanic told him to write down; (ii) the writing was made by Helper at
Mechanic’s direction; (iii) nothing suggests the writing was not fresh in Helper’s mind when he wrote
it; and (iv) Helper “currently does not remember” what he wrote (one point for two enumerated facts;
two points for three or four enumerated facts) 2
Bonus: Even if the recorded recollection exception applies to the work order itself, it would not apply to
Mechanic’s recorded statement therein because Helper did not have personal knowledge of the status of
the brakes 1
Conclusion: Bonus: The work order would not be admissible under this exception
1
BUSINESS RECORDS EXCEPTION
Rule: A record is admissible under the business records exception to the hearsay rule if: (i) it was made
in the regular course of the business, (ii) it was the regular practice of the business to make the record at
the time of the event, and (iii) it consists of matters within the personal knowledge of the recorder or of
someone with a business duty to transmit the matters to the recorder (one point for two requirements,
two points for all three enumerated requirements) 2
Bonus: If the personal knowledge requirement above is not met, the recorded statement needs to fall
within a separate hearsay exception to be admitted 1
Bonus: The authenticity of the record must be established
1

EVIDENCE 49.
Analysis: It appears that (i) the work order was made in the course of Mechanic’s car repair business
and (ii) was prepared within a reasonable time after the inspection (or there is no indication otherwise).
(iii) Helper and Mechanic were co-workers, and although Helper did not have personal knowledge
that the brakes were faulty, Mechanic did have such personal knowledge. (iv) Bonus: Helper is likely
a qualified witness who can testify as to the work order’s mode and preparation. (one point for each
Conclusion: The work order and Mechanic’s recorded statement therein fall under the business records
exception 1
Overall Conclusion: The work order is admissible
1
MECHANIC’S COMMENT TO DAVE
RELEVANCE
Analysis and Conclusion: Mechanic’s comment to Dave is relevant because makes it more likely that
(i) the brakes were broken and (ii) Dave knew that they were broken (one point for each enumerated
statement) 2
HEARSAY—EFFECT ON HEARER
Issue: Whether the comment is barred by the hearsay rule

1
0
A statement that is inadmissible hearsay if offered to prove the truth of the statement may be admissible
nonhearsay to show the statement’s effect on the person who hears it 1
Analysis: Mechanic’s comment to Dave is not being offered for its truth, but to show that Dave had
notice of the possible malfunction of his brakes before the accident and chose to drive the car anyway 1
Conclusion: The comment is not hearsay
1
Overall Conclusion: The court should admit Helper’s testimony about Mechanic’s statement to Dave
1
DAVE’S COMMENT TO MECHANIC
RELEVANCE
Analysis and Conclusion: Dave’s response to Mechanic tends to make it more likely that Dave was on
notice of the condition of his brakes prior to the accident; thus, it is relevant 1
HEARSAY
Issue: Whether the comment is barred by the hearsay rule

1
Rule: See hearsay rules above
0
Analysis and Conclusion: (i) Dave’s statement is hearsay if offered for its truth—that he was not
surprised at the condition of his brakes, and that his brakes had been giving him trouble prior to
the accident; but (ii) it is nonhearsay if offered only to prove Dave’s knowledge (one point for each
STATEMENT BY AN OPPOSING PARTY

Rule: A statement made by a party and offered against that party is not hearsay
1
Analysis: Dave’s own statement is being offered against him; thus, it qualifies as an opposing party’s
statement 1
ALTERNATIVE ANALYSIS—STATE OF MIND
Rules: (i) A statement by a declarant that is offered not for the truth of the statement, but as
circumstantial evidence of the declarant’s state of mind, is not hearsay. (ii) Statements that reflect
directly (rather than circumstantially) on the declarant’s state of mind are classified as an exception to
the hearsay rule. (one point for each enumerated statement) 2
Analysis: (i) The first part of Dave’s statement (“I am not surprised”) was a direct assertion of his
state of mind and falls under the state of mind exception; and (ii) the second part of Dave’s statement
(“They’ve felt a little funny lately”) is nonhearsay if offered to prove Dave’s knowledge (one point for
Conclusion: Dave’s comment to Mechanic is admissible as a statement regarding state of mind
1
Overall Conclusion: The court should have admitted Helper’s testimony regarding Dave’s comment to
Mechanic 1
THE BYSTANDER’S STATEMENT
RELEVANCE
Analysis and Conclusion: The fact that the sports car picked up by Dave ran the red light is relevant
because it makes it more likely that Dave (i) caused the accident, and (ii) drove the car after being told
about the brake problem (one point for each enumerated statement) 2
HEARSAY
Issue: Whether the bystander’s statement is inadmissible hearsay
1
0
Analysis and Conclusion: The bystander’s statement was made out of court and is being offered for its
truth—that Dave’s car failed to yield at the red light and proceeded to strike the truck; thus, it is hearsay 1
Rule: See present sense impression rule above

0
Analysis: The bystander made her statement immediately after she perceived the sports car running the
red light 1
Conclusion: The bystander’s statement qualifies as a present sense impression
1
ALTERNATIVE ANALYSIS—EXCITED UTTERANCE (CA: SPONTANEOUS STATEMENT)
Rule: A statement falls under the excited utterance exception when it (i) is made by a declarant during
or soon after a startling event, (ii) while the declarant is under the stress of excitement produced by
the startling event and (iii) concerns the immediate facts of the event, is admissible under the excited
utterance exception to the hearsay rule (one point for one enumerated requirement; two points for two
enumerated requirements) 2

EVIDENCE 51.
Analysis: (i) Bystander’s statement was made under the stress of excitement from the accident, (ii) was
made immediately after the accident, and (iii) concerned the circumstances of the accident (one point
for one enumerated fact; two points for two enumerated facts) 2
Conclusion: The bystander’s statement would be admissible under the excited utterance
exception 1
Overall Conclusion: The court properly admitted the bystander’s statement into evidence
1
PASSING SCALE
21 - 30 Passing 60, 65


EVIDENCE 53.
QUESTION 5
While driving their cars, Paula and Dan collided and each suffered personal injuries and
property damage. Paula sued Dan for negligence in a California state court and Dan filed a
cross-complaint for negligence against Paula. At the ensuing jury trial, Paula testified that
she was driving to meet her husband, Hank, and that Dan drove his car into hers. Paula
also testified that, as she and Dan were waiting for an ambulance immediately following the
accident, Dan said, “I have plenty of insurance to cover your injuries.” Paula further testi-
fied that, three hours after the accident, when a physician at the hospital to which she was
taken asked her how she was feeling, she said, “My right leg hurts the most, all because that
idiot Dan failed to yield the right-of-way.”
Officer, who was the investigating police officer who responded to the accident, was unavail-
able at the trial. The court granted a motion by Paula to admit Officer’s accident report into
evidence. Officer’s accident report states: “When I arrived at the scene three minutes after
the accident occurred, an unnamed bystander immediately came up to me and stated that
Dan pulled right out into the path of Paula’s car. Based on this information, my interviews
with Paula and Dan, and the skid marks, I conclude that Dan caused the accident.” Officer
prepared his accident report shortly after the accident.
In his case-in-chief, Dan called a paramedic who had treated Paula at the scene of the
accident. Dan showed the paramedic a greeting card, and the paramedic testified that he
had found the card in Paula’s pocket as he was treating her. The court granted a motion by
Dan to admit the card into evidence. The card states: “Dearest Paula, Hurry home from
work as fast as you can today. We need to get an early start on our weekend trip to the
mountains! Love, Hank.”
Dan testified that, as he and Paula were waiting for the ambulance immediately following
the accident, Wilma handed him a note. Wilma had been identified as a witness during
discovery, but had died before she could be deposed. The court granted a motion by Dan to
admit the note into evidence. The note says: “I saw the whole thing. Paula was speeding. She
was definitely negligent.”
Assuming all appropriate objections were timely made, should the court have admitted:
1. Dan’s statement to Paula about insurance? Discuss.
2. Paula’s statement to the physician? Discuss.
3. Officer’s accident report relating to:
a. The unnamed bystander’s statement? Discuss.
b. Officer’s conclusion and its basis? Discuss.
4. Hank’s greeting card? Discuss.
5. Wilma’s note? Discuss.

1. DAN’S STATEMENT REGARDING INSURANCE
RELEVANCE
The California Evidence Code (“CEC”) requires that evidence be logically relevant as well
as legally relevant in order to be admitted. Logically relevant evidence is evidence having any
tendency to make the existence of any disputed fact that is of consequence to the determination
of an action more or less probable than it would be without the evidence. However, a trial judge
has broad discretion to exclude even logically relevant evidence if it is not legally relevant. Legal
relevance means that the probative value of the evidence may not be substantially outweighed by
the danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of
time, or needless presentation of cumulative evidence.
In this case, Dan’s statement that he has “plenty of insurance” to cover Paula’s injuries gives rise
to the inference that Dan was at fault in causing those injuries. Thus, Dan’s statement is logically
relevant.
POLICY EXCLUSION
Evidence of Liability Insurance

As for legal relevance, certain evidence that is otherwise relevant may be excluded for public
policy reasons. Under the CEC, evidence that a person had liability insurance is inadmissible
to show whether the person acted negligently; however, it may be admitted for another purpose,
such as (i) to prove ownership or control, (ii) for the purpose of impeachment, or (iii) as part of an
admission.
Here, the statement is not being offered to prove ownership or control; nor is it being used for
impeachment purposes. Furthermore, Dan merely said he had insurance that would cover Paula’s
injuries and did not actually admit fault in the accident.
The court should not have admitted Dan’s statement regarding liability insurance.
Offer to Pay Medical Expenses

Under the CEC, offers to pay medical expenses and accompanying admissions of fact are
inadmissible to prove liability for the injury. Dan’s statement can be interpreted as an offer to pay
Paula’s expenses. Therefore, it is also inadmissible on this basis.
HEARSAY
or hearing, offered in evidence to prove the truth of the matter asserted. Dan’s statement, “I have
plenty of insurance to cover your injuries,” is not being offered to show that Dan has plenty of
insurance, but to show that Dan implicitly admitted fault in the accident. Thus, it is not hearsay.
However, if it was offered for its truth, it would qualify as an admission by a party-opponent (i.e.,
a statement made by a party—Dan—and offered against that party).
Regardless, Dan’s statement should have been excluded because its admission violates public
policy.

EVIDENCE 55.
2. PAULA’S STATEMENT TO THE PHYSICIAN
RELEVANCE
Paula’s statement, “My right leg hurts the most, all because that idiot Dan failed to yield the right-
of-way,” tends to make it more likely that (i) Paula has been injured, and (ii) Dan’s failure to yield
the right-of-way was the cause of Paula’s injuries. Therefore, the statement is logically relevant.
Furthermore, Paula’s statement is probative, does not raise the risk of unfair prejudice, and does
not have much potential to confuse or mislead the jury. As a result, her statement is legally
relevant.
HEARSAY
Paula’s statement, “My right leg hurts the most, all because that idiot Dan failed to yield the right-
of-way,” was made out of court and is being offered for its truth, i.e., that Paula’s right leg was
injured in the accident as a result of Dan’s failure to yield the right-of-way. Consequently, Paula’s
statement to the physician would be inadmissible hearsay unless a hearsay exception applies.
qualify, or make understandable her own conduct, and the statement must be made while the
Here, Paula’s statement as to the pain in her leg relates not to her own conduct, but rather to her
physical condition. Moreover, the part of her statement about Dan’s failure to yield relates to his
conduct, not her own. For that reason, no part of her statement would be admissible under the
contemporaneous statement exception to the rule against hearsay.
A statement concerning the immediate facts of a startling event made while the declarant is still
under the stress of excitement caused by a startling event is admissible as an exception to the
hearsay rule. Although the car accident was a startling event, Paula did not make her statement to
the physician until three hours after it had occurred. She was likely not under the requisite stress
when she made the statement, and it would therefore not apply.
Present Bodily Condition

Under the CEC, a declarant’s statement as to her present bodily condition is admissible as a
hearsay exception. Here, Paula’s comment about the pain in her leg relates to her physical condi-
tion, but the comment about Dan’s failure to yield does not. Therefore, only “my right leg hurts
the most” would be admissible under this exception.
The court properly admitted Paula’s statement as to the pain in her right leg, but erred in allowing
the part of her statement regarding Dan’s failure to yield the right of way.
3. OFFICER’S ACCIDENT REPORT
RELEVANCE
Officer’s police report is logically relevant because it tends to make it more likely that Dan drove
into Paula’s car and caused the accident. As for legal relevance, there is a chance that Officer’s
statement will prejudice the jury, particularly due to the fact that the source of the evidence is a
member of law enforcement, which lends great weight to the statement. However, a police officer

as the source of the evidence also makes the evidence highly probative. Other than the part of
Officer’s statement in which he gives a conclusion as to fault, the statement’s probative value is
not substantially outweighed by the risk of unfair prejudice. The portion of Officer’s statement in
which he draws a conclusion is discussed in b., below.
AUTHENTICATION OF REPORT
The prosecution first must establish the authenticity of the police report. Usually, the custodian
of the record or another qualified witness will testify to the identity of the record and the method
of its preparation. It is not necessary for the creator of the record to be called. Nor does a witness
need to authenticate the record if the custodian certifies in writing that the record meets the
requirements of the business records exception.
In this case, nothing in the facts indicates either that a custodian or other qualified witness was
called to authenticate or that the record was properly certified so as to be self-authenticating. If it
was not properly authenticated, it should not have been admitted.
a. THE UNNAMED BYSTANDER’S STATEMENT
RELEVANCE
The bystander’s statement is logically relevant to show that Dan drove into Paula’s car and there-
fore caused the accident. If true, the statement is highly probative of how the accident occurred
and is not unfairly prejudicial unless shown to be unreliable.

A hearsay statement that includes other hearsay within it is admissible only if both hearsay state-
ments independently fall within an exception. Here, the police report written by Officer is one
layer of hearsay, because it concludes that Dan caused the accident and it is being offered for its
truth. The bystander’s statement contained in the report is a second layer of hearsay, being offered
to prove that Dan pulled into the path of Paul’s car. Therefore, each layer of hearsay must be
admissible under an exception for the police report to be admitted.
Outer Hearsay—The Report Itself
Business Records
A writing that is made as a memorandum or record of an event is admissible in evidence as proof
of that event, if made in the regular course of any business; and if it was the regular course of
such business to make it at the time of the event or within a reasonable time thereafter. Police
reports may qualify as business records in civil cases. To be admissible, however, the business
record must consist of matters within the personal knowledge of the entrant or within the personal
knowledge of someone with a business duty to transmit such matters to the entrant. The CEC
version of the business records exception does not authorize admission of records containing
opinions.
Here, it does not appear that the bystander or Dan or Paula were under a business duty to transmit
the details of the accident to Officer. Thus, the level of hearsay consisting of the bystander’s state-
ment would have to fall within a separate exception. Although the officer does have a business
duty to observe the skid marks at the accident scene and to record witness statements, the CEC
version of the business records exception does not authorize admission of opinions. Thus, the part
of the record in which the officer ventures an opinion as to who caused the accident would also be
inadmissible under this exception.

EVIDENCE 57.
Official Records
Under the CEC, a record of an act, condition, or event made by a public employee, such as a police
report, is admissible as a hearsay exception if: (i) making the record was within the scope of the
public employee’s duties; (ii) the record was made at or near the time of the matters described; and
(iii) the sources of information and the time of preparation indicate trustworthiness.
Making a report of an accident is within the scope of Officer’s duties, and Officer prepared the
report shortly after the accident, so it is likely that the record itself could qualify as a public
record. On the other hand, this would not make admissible the level of hearsay consisting of the
bystander’s statement since the bystander is not a public employee and does not have the duty of
such an employee to be accurate in his out-of-court statements. The remainder of the report will
be admissible as long as circumstances indicate that the record is trustworthy.
The admissibility of the bystander’s statement under another hearsay exception is discussed below.
Inner Hearsay—Statement of Bystander
The unnamed bystander did not comment on her own conduct, but on Dan’s; furthermore, the
comment was not contemporaneous with the occurrence of Dan’s conduct, but was made three
minutes later. Therefore, the bystander’s statement would not be admissible under the contempora-
neous statement exception.
The facts state that the bystander spoke to Officer three minutes after the accident. The facts
are unclear as to whether the bystander’s statement was made under the stress of witnessing the
accident. However, it is possible that she still was feeling stress from having witnessed such a
startling event only three minutes earlier; if so, her statement to Officer could be admitted as a
spontaneous statement.
b. OFFICER’S CONCLUSION AND ITS BASIS
LAY OPINION
Opinion testimony by a layperson is generally inadmissible, except when the opinion is: (i) rationally
based on the perception of the witness; (ii) helpful to a clear understanding of her testimony or to the
determination of a fact in issue; and (iii) not based on scientific or otherwise specialized knowledge.
Here, Officer had three bases for his opinion that Dan caused the accident: (i) the skid marks; (ii)
interviews with Paula and Dan; and (iii) the bystander’s statement, discussed above.
Officer’s conclusion that Dan caused the accident is not a proper lay opinion. It is only partly
based on his perceptions, i.e., the skid marks, and skid mark analysis probably requires the
specialized knowledge of an expert. Even though a lay witness generally may testify as to the
speed of a car, Officer did not actually see the car speeding. Furthermore, the interviews with
the persons involved are not described. Additionally, the third basis for Officer’s conclusion—the
unnamed bystander’s statement—might be inadmissible hearsay as described above.
Thus, the portion of the accident report regarding Officer’s conclusion and its basis is inadmissible
lay opinion evidence.
EXPERT OPINION
An expert may state an opinion if (i) the subject matter is one where scientific, technical, or other
specialized knowledge would help the trier of fact determine a fact in issue—that is, if the opinion

is relevant and the methodology used to arrive at the opinion is reliable; (ii) the witness has
special knowledge, skill, experience, training, or education sufficient to qualify him as an expert
on the subject to which his testimony relates; (iii) the witness has reasonable certainty regarding
the opinion; and (iv) the opinion is supported by a proper factual basis. The expert’s opinion may
embrace the ultimate issue in a civil case.
While technical knowledge of the skid mark would assist the fact finder in this case, and Officer’s
opinion was partly based on his own observation of the skid marks, there is nothing in the facts
to indicate that Officer was qualified as an expert; he was not even available to testify. Nor did he
indicate that he was reasonably certain of his opinion. Therefore, Officer’s conclusion of fault and
its basis do not carry the weight of expert testimony.
4. HANK’S GREETING CARD
RELEVANCE
Hank’s statement on the greeting card that Paula should “hurry” home does tend to make it more
likely that Paula was speeding. However, there is no indication that Paula took the message liter-
ally and drove too fast. She could have hurried home without driving negligently. There is also
no evidence that Paula read the card, or that the card was given to Paula on the same date as the
accident. On the other hand, all these issues go to diminish probative value, but do not make the
evidence irrelevant. Furthermore, it is unlikely that the evidence will confuse the jury or cause
unfair prejudice since all the matters that go to diminish probative value are easily understood.
Thus, the card is both logically and legally relevant.
AUTHENTICATION
To be admitted into evidence, a writing first must be authenticated by proof that the writing is
what the proponent claims it is. Only enough evidence to support a jury finding of genuineness
is required. In this case, the paramedic testified that he found the card in Paula’s pocket at the
scene and that it was signed “Hank.” While no specific evidence has been offered to authenticate
the signature, there is circumstantial evidence to authenticate. Paula had already testified that
her husband was named Hank. Moreover, the card says “hurry home.” This would be sufficient
testimony to support a jury finding that the greeting card was from her husband, Hank, and the
card was found in Paula’s pocket; therefore, the card was properly authenticated.
HEARSAY
Hank’s statement in the greeting card is not hearsay because it is not being offered to show that
Paula and Hank needed to get an early start on their weekend. Rather, the primary reason to offer
the statement is to show that Paula had motivation to drive negligently.
Statements Offered to Show Effect on Reader
A statement offered to show the statement’s effect on the reader is not hearsay. Here, the prosecu-
tion introduced the greeting card to show that Hank’s statement therein led Paula to drive too fast.
Therefore, the card does not violate the hearsay rule.
Although the greeting card is relevant and does not violate the hearsay rule, it should probably
be excluded due to the marital communications privilege. Under this privilege, either spouse may
refuse to disclose, or may prevent another from disclosing, a confidential communication between
the spouses while they were married. Communications between spouses are presumed to be confi-
dential.
Here, Paula referred to Hank as her “husband” at trial, so it is likely that they were married when
Hank gave Paula the card. The intimate nature of the message and the fact that Paula kept the

EVIDENCE 59.
card in her pocket suggest that the communication was meant to be confidential. There are no
facts suggesting that Dan will be able to rebut this presumption. Although the paramedic read the
card, Paula did not disclose it voluntarily—the paramedic removed it from Paula’s pocket while
treating her. Thus, the disclosure will not destroy the privilege.
Because the card appears to have been a confidential communication between spouses, the court
probably should have excluded it as privileged.
5. WILMA’S NOTE
RELEVANCE
Wilma’s statement that Paula was speeding and was negligent would tend to prove that Paula was at
fault in the accident; therefore, her statement would be logically relevant. Furthermore, the risk of
unfair prejudice to Paula would not be substantially outweighed by the highly probative nature of
evidence that she was speeding; the jury is capable of determining the weight to give the statement.
However, Wilma’s assertion that Paula was “definitely negligent” may be excluded as overly preju-
dicial because this is the legal issue in the case. It is unknown whether Wilma understood what
“negligent” means in a legal setting or whether she would be qualified to draw such a conclusion.
Authentication
Dan’s testimony that the note was the same one that Wilma handed to him at the scene will be
sufficient to authenticate the note.
LAY OPINION
The rules regarding lay opinion have been discussed above. Wilma states that she saw the whole
incident; therefore, her opinion is rationally based on her perception. Moreover, the opinion as to
speeding is helpful to the understanding of a material issue, that is, the cause of the accident.
A lay witness may testify as to the speed of a moving object, and may state that a car was
“speeding.” Thus, this portion of Wilma’s note is a proper lay opinion.
Paula might argue that the portion of the statement in which Wilma says that Paula is negligent is
a conclusion that is impermissible subject matter for a lay opinion. This argument would succeed
because an opinion consisting of a legal conclusion is not helpful to the trier of fact.
HEARSAY
Wilma’s statement is a classic example of hearsay, as it is being offered to prove both that Paula
was speeding and that she was negligent. Therefore, an exception must apply for the statement to
be admissible.
Wilma’s statement refers to Paula’s conduct, not her own, and thus is not admissible under this
exception.
According to the exception for spontaneous statements, discussed previously, a statement must
be made while the declarant is still under the stress of excitement caused by a startling event in
order to be admissible. Here, the facts state that Wilma handed Dan the note immediately after the
accident. It is possible that she still was feeling stress from having witnessed such a startling event.
The facts do not indicate, however, why Wilma took the time to write out her statement rather than
speaking. The time and presence of mind it took to gather paper and a writing instrument seems
to point to the statement not having been made during the stress of the event; therefore, the court
probably should have found that the spontaneous statement exception did not apply in this case.
Therefore, the court erred in allowing Wilma’s note, as it constituted inadmissible hearsay.
Furthermore, the portion of the note regarding Paula’s negligence was overly prejudicial.

QUESTION 5
RELEVANCE
1
Rule: For evidence to be admissible under the CEC, it must be (i) logically relevant (has any tendency
to prove or disprove a disputed fact of consequence), and (ii) legally relevant (court has discretion
in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair
prejudice, confusion of issues, and the like) (one point for each enumerated statement; must include
explanation for credit and not simply name each type of relevance) 2
DAN’S STATEMENT REGARDING INSURANCE
RELEVANCE
Analysis and Conclusion: Dan’s statement that he has “plenty of insurance” to cover Paula’s injuries
tends to show that Dan was at fault in causing those injuries; thus, it is relevant 1
EVIDENCE REGARDING LIABILITY INSURANCE
Issue: Whether Dan’s statement falls within the public policy exclusion for statements of liability
insurance 1
Rules: Evidence that a person had liability insurance is inadmissible to show whether the person acted
negligently 1
Liability insurance may be admitted for a purpose other than negligence, such as (i) to prove ownership
or control, (ii) for the purpose of impeachment, or (iii) as part of an admission (one point for any
enumerated exception) 1
Analysis and Conclusion: Dan’s statement is likely being offered to show fault; thus, it falls within the
exclusion 1
Rule: Bonus: Offers to pay medical expenses and accompanying admissions of fact are inadmissible to
prove liability for the injury 1
Analysis: Dan’s statement can be interpreted as an offer to pay Paula’s expenses
1
Conclusion: Dan’s statement is also inadmissible on this basis
1
HEARSAY
Rules: Bonus: Hearsay is an out-of-court statement offered to prove the truth of the matter asserted,
and is inadmissible unless it falls within an exception to the rule 1
Analysis: (i) Bonus: Dan’s statement is not hearsay because it is not being offered to show that Dan has
plenty of insurance, but to show that Dan implicitly admitted fault in the accident. (ii) Bonus: If Dan’s
statement was offered for its truth, it would qualify as an admission by a party-opponent. (one point for
Conclusion: Bonus: Dan’s statement is not barred by the hearsay rule
1

EVIDENCE 61.
Overall Conclusion: Dan’s statement regarding his insurance is inadmissible 1

PAULA’S STATEMENT TO THE PHYSICIAN
RELEVANCE
Analysis and Conclusion: Paula’s statement is relevant because it tends to make it more likely that (i)
Paula has been injured, and (ii) Dan’s failure to yield the right-of-way was the cause of Paula’s injuries
(one point for each enumerated statement) 2
HEARSAY
Issue: Whether Paula’s statement is barred by the hearsay rule

1
Analysis and Conclusion: Paula’s statement was made out of court and is being offered for its truth—
that Paula’s right leg was injured in the accident as a result of Dan’s failure to yield the right-of-way;
thus, it is hearsay 1
PRESENT BODILY CONDITION EXCEPTION
Rule: Under the CEC, a declarant’s statement as to her present bodily condition is admissible as a
hearsay exception 1
Analysis: Paula’s comment about the pain in her leg relates to her physical condition, but the comment
about Dan’s failure to yield does not 1
Conclusion: Only Paula’s comment about the pain in her leg falls within this exception
1
Bonus: The examinee identifies the contemporaneous statement hearsay exception and concludes it does
not apply (because Paula’s statement does not relate to her own conduct) 1
Bonus: The examinee identifies the spontaneous statement hearsay exception and concludes it does not
apply (because Paula probably was not under the requisite excitement) 1
Overall Conclusion: (i) The court properly admitted Paula’s statement as to the pain in her right leg,
(ii) but erred in allowing the part of her statement regarding Dan’s failure to yield the right of way (one
OFFICER’S ACCIDENT REPORT
RELEVANCE
Analysis and Conclusion: Officer’s police report makes it more likely that Dan drove into Paula’s car
and caused the accident; thus, it is relevant 1
AUTHENTICATION
Bonus: (i) Nothing in the facts indicates either that a custodian or other qualified witness was called to
authenticate or that the record was properly certified so as to be self-authenticating; (ii) if the report
was not properly authenticated, it should not have been admitted (one point for each enumerated
statement) 2
HEARSAY

Issue: Whether the accident report is barred by the hearsay rule

1
0
A hearsay statement that includes other hearsay within it is admissible only if both hearsay statements
independently fall within an exception 1
Analysis: (i) The police report written by Officer is one layer of hearsay, because it concludes that Dan
caused the accident and it is being offered for its truth. (ii) The bystander’s statement contained in the
report is a second layer of hearsay, being offered for its truth—that Dan pulled into the path of Paula’s
car. (one point for each enumerated statement) 2
Conclusion: The written report and the bystander’s statement must each fall within a hearsay exception
to be admitted 1
OUTER HEARSAY—THE REPORT ITSELF
Rules: A writing that is made as a memorandum or record of an event is admissible in evidence as

proof of that event if (i) it was made in the regular course of any business; (ii) it was the regular course
of such business to make it at the time of the event or within a reasonable time thereafter; and (iii) the
business record consists of matters within the personal knowledge of the entrant or within the personal
knowledge of someone with a business duty to transmit such matters to the entrant (one point for two
enumerated requirements; two points for all three enumerated requirements) 2
The CEC version of the business records exception does not authorize admission of records containing
opinions 1
Analysis: (i) The portion of the record containing the officer’s opinion is inadmissible under this
exception. (ii) Bonus: Because neither the bystander, Dan, nor Paula were under a business duty
to transmit the details of the accident to Officer, the level of hearsay consisting of the bystander’s
statement would not be admitted under this exception. (one point for each enumerated statement) 2
Conclusion: The police report will not be admissible under the business records exception
1
OFFICIAL RECORDS EXCEPTION
Rule: A record of an act, condition, or event made by a public employee is admissible as a hearsay
exception if: (i) making the record was within the scope of the public employee’s duties; (ii) the record
was made at or near the time of the matters described; and (iii) the sources of information and the time
of preparation indicate trustworthiness (one point for one enumerated requirement; two points for two
or three enumerated requirements) 2
Analysis: (i) Making an accident report is within the scope of Officer’s duties. (ii) Officer made the
report shortly after the accident. (one point for each enumerated statement) 2
Conclusion: The report itself is admissible under the official records exception
1
INNER HEARSAY—STATEMENT OF BYSTANDER
SPONTANEOUS STATEMENT EXCEPTION
Rule: A statement concerning the immediate facts of a startling event made while the declarant is still
under the stress of excitement caused by a startling event is admissible as an exception to the hearsay
rule 1

EVIDENCE 63.
Analysis: It is possible that the bystander was still feeling stress from having witnessed such a startling
event (the accident) only three minutes earlier 1
Conclusion: The bystander’s statement may fall within the spontaneous statement exception
1
OTHER EXCEPTIONS
Bonus: The examinee identifies the contemporaneous statement hearsay exception and concludes it
does not apply (because the bystander’s statement did not relate to her own conduct and was not made
contemporaneously with the conduct) 1
OFFICER’S CONCLUSION AND ITS BASIS
Issue: Whether Officer’s conclusion is proper opinion testimony

1
LAY OPINION
Rule: Opinion testimony by a layperson is only admissible when it is: (i) rationally based on the
perception of the witness; (ii) helpful to a clear understanding of her testimony or to the determination
of a fact in issue; and (iii) not based on specialized knowledge (one point for each enumerated
statement) 3
Analysis: Officer’s conclusion that Dan caused the accident is only partly based on his perceptions (the
skid marks), and skid mark analysis probably requires the specialized knowledge of an expert 1
(i) Officer did not actually see the car speeding; (ii) the interviews with the persons involved are not
described; and (iii) the unnamed bystander’s statement might be inadmissible hearsay as described
above (one point for each enumerated fact) 3
Conclusion: The officer’s conclusion was inadmissible lay opinion
1
EXPERT OPINION
Bonus: (i) There are no facts indicating Officer was qualified as an expert; and (ii) he is not a testifying
witness (one point for each enumerated statement) 2
Overall Conclusion: (i) The bystander’s statement may be admissible; but (ii) the portion of the
accident report regarding Officer’s conclusion and its basis is inadmissible lay opinion evidence (one
HANK’S GREETING CARD
RELEVANCE
Analysis and Conclusion: Hank’s statement on the greeting card that Paula should “hurry” home tends
to make it more likely that Paula was speeding; thus, it is relevant 1
AUTHENTICATION
Issue: Whether the greeting card can be authenticated

1
Rule: To be admitted into evidence, a writing first must be authenticated by proof sufficient to support a
jury finding that the writing is what the proponent claims it is 1
Analysis: The student discusses one or more facts supporting authentication: the paramedic testified
that he found the card in Paula’s pocket at the scene; Paula had already testified that her husband was
named Hank; the card says “hurry home” 1

Conclusion: There is probably enough circumstantial evidence to authenticate the card

1
HEARSAY RULE—STATEMENTS OFFERED TO SHOW EFFECT ON HEARER
Issue: Whether the greeting card constitutes hearsay

1
0
A statement offered to show the statement’s effect on the reader is not hearsay
1
Analysis: (i) Hank’s statement in the greeting card is not being offered for its truth—i.e., to show that
Paula and Hank needed to get an early start on their weekend; (ii) rather, the prosecution introduced
the greeting card to show that Hank’s statement therein led Paula to drive too fast (one point for each
Conclusion: The card is not hearsay
1
Issue: Whether the greeting card is privileged
1
Rule: Under the marital communications privilege, either spouse may prevent the disclosure of
confidential communications between the spouses during the marriage 1
Analysis: (i) The facts suggest Hank and Paula were married when Hank gave Paula the card; (ii) the
communication was probably intended to be confidential; and (iii) Paula did not disclose the
communication voluntarily—the paramedic removed it from her pocket (one point for each enumerated
statement) 3
Conclusion: The card is likely privileged
1
Overall Conclusion: The court likely erred in admitting the greeting card
1
WILMA’S NOTE
RELEVANCE
Analysis: (i) Wilma’s statement would tend to prove that Paula was at fault in the accident; but (ii)
Wilma’s assertion that Paula was “definitely negligent” may be excluded as overly prejudicial because
this is the legal issue in the case (one point for each enumerated statement) 2
Conclusion: The statement regarding negligence is overly prejudicial
1
AUTHENTICATION
Issue: Whether the note can be authenticated

1
Rule: See authentication rule above
0
Analysis and Conclusion: Dan can testify that the note was the same one that Wilma handed to him at
the scene; this will be sufficient to authenticate the note 1
LAY OPINION
Issue: Whether Wilma’s statement regarding the speed of the car is proper lay opinion
1

EVIDENCE 65.
Rules: See rule regarding lay opinion above

0
A lay witness may testify as to the speed of a moving object
1
Analysis and Conclusion: Wilma testified that a car was “speeding”; this is a proper lay opinion
1
HEARSAY
Issue: Whether the statement is barred by the hearsay rule

1
0
Analysis and Conclusion: Wilma’s statement was made out of court and it is being offered for its
truth—to prove that Paula was speeding and that she was negligent; thus, it is hearsay 1
HEARSAY EXCEPTIONS
Rule: See rule regarding the spontaneous statement exception above

0
Analysis: This time and presence of mind it took Wilma to gather writing materials indicates the
statement not having been made during the stress of the event 1
Bonus: The examinee also identifies the contemporaneous statement hearsay exception and concludes it
does not apply (because Wilma’s statement related to Paula’s conduct, not her own) 1
No other hearsay exception applies
1
Conclusion: Paula’s statement is inadmissible hearsay
1
Overall Conclusion: The court erred in allowing Wilma’s note
1
PASSING SCALE
32 - 47 Passing 60, 65


EVIDENCE 67.
QUESTION 6
Vicky was killed on a rainy night. The prosecution charged Dean, a business rival, with her
murder. It alleged that, on the night in question, he hid in the bushes outside her home and
shot her when she returned from work.
At Dean’s trial in a California court, the prosecution called Whitney, Dean’s wife, to testify.
One week after the murder, Whitney had found out that Dean had been dating another
woman and had moved out, stating the marriage was over. Still angry, Whitney was willing
to testify against Dean. After Whitney was called to the stand, the court took a recess.
During the recess, Dean and Whitney reconciled. Whitney decided not to testify against
Dean. The trial recommenced and the prosecutor asked Whitney if she saw anything on
Dean’s shoes the night of the murder. When Whitney refused to answer, the court threat-
ened to hold her in contempt. Reluctantly, Whitney testified that she saw mud on Dean’s
shoes.
The prosecution then called Ella, Dean’s next-door neighbor. Ella testified that, on the
night Vicky was killed, she was standing by an open window in her kitchen, which was
about 20 feet from an open window in Dean’s kitchen. She also testified that she saw Dean
and Whitney and she heard Dean tell Whitney, “I just killed the gal who stole my biggest
account.” Dean and Whitney did not know that Ella overheard their conversation.
Dean called Fred, a friend, to testify. Fred testified that, on the day after Vicky was killed,
he was having lunch in a coffee shop when he saw Hit, a well-known gangster, conversing at
the next table with another gangster, Gus. Fred testified that he heard Gus ask Hit if he had
“taken care of the assignment concerning Vicky,” and that Hit then drew his index finger
across his own throat.
Assuming all appropriate objections and motions were timely made, did the court properly:
1. Allow the prosecution to call Whitney? Discuss.
2. Admit the testimony of:
(a) Whitney? Discuss.
(b) Ella? Discuss.
(c) Fred? Discuss.

1. WHITNEY CALLED TO TESTIFY
SPOUSAL IMMUNITY
Under the California Evidence Code (“CEC”), the spouse of a party to any kind of proceeding
may not be called as a witness by the adverse party and may not be compelled to testify against
his spouse in that proceeding. The privilege belongs to the witness-spouse only, and can be
claimed only during the marriage.
In this case, Whitney could have claimed spousal immunity even though she had stated that the
marriage was over. As long as they remained married, the privilege belonged to her. Although
Whitney stated that the marriage was over, Whitney is still referred to as Dean’s “wife” at trial
and it does not seem that they ever divorced. However, Whitney waived this privilege because
Whitney was willing to testify when she was called as a witness. Thus, it was proper to call her to
the stand.
2.(a) WHITNEY’S TESTIMONY
RELEVANCE
Under Proposition 8, all relevant evidence is admissible in a criminal case, subject to certain
exceptions. In cases involving hearsay or privilege, for example, ordinary rules of evidence apply
rather than Proposition 8.
To be admissible, evidence must be logically relevant as well as legally relevant. Logically relevant
evidence is evidence having any tendency to make the existence of any disputed fact that is of
consequence to the determination of an action more or less probable than it would be without the
evidence. However, a trial judge has broad discretion to exclude even logically relevant evidence if
it is not legally relevant. Legal relevance means that the probative value of the evidence may not
be substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading
the jury, undue delay, waste of time, or needless presentation of cumulative evidence.
In the present case, Whitney’s testimony was logically relevant. Her statement that Dean had mud
on his shoes makes it more likely that he was outside hiding in bushes by Vicky’s house on the
rainy night of the murder, which tends to show that he was the one who killed her. Therefore, the
evidence is logically relevant. Furthermore, although the testimony is slightly prejudicial to Dean,
the prejudice is not unfair and the testimony is not likely to confuse or mislead the jury. There-
fore, Whitney’s testimony is legally relevant as well.
NONRESPONSIVE ANSWER
A witness’s answer may be stricken as nonresponsive if it goes beyond the scope of the specific
question that has been asked. When a question calls for a “yes” or “no” answer, any additional
testimony is subject to being excluded as nonresponsive. Here, Whitney’s response that there was
mud on Dean’s shoes is objectionable and should have been stricken as nonresponsive, because it
goes beyond a simple “yes” and therefore was beyond the scope of the question asked.
CONFIDENTIAL MARITAL COMMUNICATIONS

The privilege for confidential marital communications belongs to both spouses and survives the
marriage. However, it applies only to the disclosure of confidential communications made during

EVIDENCE 69.
the marriage, and does not prevent a spouse from being called to testify generally. Thus, while
Whitney was properly called to the stand, she could invoke the privilege for confidential marital
communications to refuse to testify as to communications that were made between Whitney and
Dean that relied on the intimacy of the marital relationship.
In this case, Whitney was asked if she saw anything on Dean’s shoes. Her answer would not relate
to a marital communication, but only to an observation she made concerning Dean’s shoes. There-
fore, this evidence is not inadmissible on the basis of this privilege.
SPOUSAL IMMUNITY
Although it was proper for the prosecution to call Whitney to the stand initially, the privilege of
spousal immunity as discussed above would have allowed her to refuse to testify after the recess
if she wished to invoke the privilege. In other words, while Whitney originally was willing to
waive this privilege, she was entitled to retract that waiver. Here, the facts show that she refused to
answer the prosecutor’s question until she was threatened with a contempt charge. It appears that
she did wish to invoke the privilege but that the court compelled her to testify by threatening to
hold her in contempt. Accordingly, the court erred and Whitney should not have been required to
testify after invoking the privilege of spousal immunity.
The court erred in admitting Whitney’s testimony.
(b) ELLA’S TESTIMONY
RELEVANCE
Applying the rules of relevance previously discussed, Ella’s testimony would be logically relevant.
Dean’s statement that he just killed the person who stole his biggest account makes it highly
probable that he was the one who killed Vicky. Her testimony is very likely to cause prejudice
to Dean; however, the prejudice would not be unfair, and the risk would not be substantially
outweighed by the probative value of the evidence. Otherwise, any testimony regarding an admis-
sion of guilt would always fail for lack of legal relevance. Therefore, the court properly allowed
Ella’s testimony as relevant.
HEARSAY
Hearsay is a statement by a declarant, other than one made while testifying at the current trial or
hearing, offered in evidence to prove the truth of the matter asserted. Hearsay is excluded from
Proposition 8, and so ordinary rules of evidence apply to hearsay in criminal cases. If a statement
is hearsay, it is inadmissible and must be excluded unless an exception to the rule applies.
In the present case, Ella’s testimony regarding Dean’s out-of-court statement is being offered to
prove the truth of the matter asserted therein: that Dean had just killed the person who stole his
biggest account. Thus, the statement is hearsay and will be inadmissible unless it falls within an
exception.
Admission by a Party-Opponent
Under the CEC, any statement made by a party and offered in evidence against that party is
admissible as an exception to the rule excluding hearsay. Such statements are traditionally referred
to as “admissions.” Dean’s own out-of-court statement is now being offered against him by the
prosecution. Consequently, his statement would qualify as a party admission.
A statement of a person, now unavailable as a witness, may be admissible if it was against that

person’s pecuniary, proprietary, or penal interest when it was made. This is an exception to the
rule against hearsay. In order to be admissible under the statement against interest exception: (i)
the statement must have been against pecuniary, proprietary, or penal interest when made; (ii) the
declarant must have had personal knowledge of the facts; (iii) the declarant must have been aware
that the statement is against his interest and must have had no motive to misrepresent at the time
of the statement; and (iv) the declarant must be unavailable as a witness.
Here, Dean’s statement about killing someone was clearly against his penal interest when made
because murder is illegal. Dean would have had personal knowledge of whether he killed
someone, and he would have been aware that the statement was against his interest. It is not clear
from the facts whether he would be considered unavailable; there is no indication that he has
testified or will testify in his own defense, but it is likely that he would invoke his right against
self-incrimination and refuse to testify, which would make him unavailable. As such, his state-
ment would qualify as an admissible statement against interest. However, the better answer is that
Dean’s statement is admissible as a party admission.
qualify, or make understandable his own conduct, and the statement must be made while the
Dean’s statement here appears to explain his conduct. That he killed the person who stole his
biggest account implies that his conduct was for the purpose of revenge. However, the statement
must have been made at the very time of the conduct, which would not be the case under these
facts. Therefore, his statement would not be admissible under the contemporaneous statement
exception to the rule against hearsay.
The CEC recognizes an exception for spontaneous statements made while the declarant is still
under the stress of excitement caused by a startling event.
The facts here indicate that Dean stated that he had “just” killed someone. If the murder was
close enough in time to the statement that Dean remained under the stress of the excitement of the
event, his statement could qualify as a spontaneous statement. Because the facts do not provide
enough information on this point, such as how much time had elapsed or whether he was agitated
when he made the statement, the better answer is that this exception should not apply, and the
court should have held that the statement was not admissible on this basis.

As previously discussed, both spouses jointly hold the privilege for confidential marital commu-
nications. Either spouse can prevent the other spouse or any other person from disclosing the
confidential communication. Communications between spouses are presumed to be confidential.
However, communications are not intended to be confidential, and are not privileged, if made
under circumstances where the spouses knew or should have known that they could be overheard
by a third person.
The prosecution might argue that this communication was not meant to be confidential, because
it was made near an open window. Moreover, the spouses undoubtedly knew that a window into

EVIDENCE 71.
Ella’s house was just 20 feet away. They also should have known the volume at which they were
speaking and whether their conversation could carry 20 feet. There is no evidence, however,
suggesting that they knew Ella’s window was open or that she was standing at her window.
Furthermore, the conversation took place in Dean’s kitchen, not in a public place. As a result, it
is not clear whether Dean could invoke the privilege for confidential marital communications to
exclude Ella’s testimony about his statement.
(c) FRED’S TESTIMONY
RELEVANCE
The relevance of Fred’s testimony is suspect because the meaning behind both parts of the conver-
sation is ambiguous. For example, even though he was a “well-known gangster,” Gus could have
been referring to the firing of Vicky from a job when he said “assignment.” Hit’s gesture, then,
could have meant that he did in fact terminate Vicky’s employment. From the facts given, it is not
even apparent that the Vicky in the conversation is the same Vicky who is the victim in this case.
On the other hand, the conversation occurred the day after Vicky’s murder and drawing a finger
across one’s throat is a gesture commonly associated with death and killing. As a result, while
Fred’s testimony is of limited probative value, it does make it less probable that Dean is the killer.
Moreover, the evidence is not likely to confuse the jury or cause unfair prejudice in that the jury is
likely to understand the limits on the probative value of that evidence. Thus, the evidence is both
legally and logically relevant.
GUS’S QUESTION—HEARSAY
Hearsay “Statement”
A “statement” is either a person’s (i) oral or written assertion, or (ii) nonverbal conduct intended
as an assertion. Here, Gus asked a question, but did not make an assertion, except to suggest
that there was an “assignment” regarding Vicky. Taken in isolation, what Gus has to say means
nothing in the context of this case. Because hearsay is a statement that is offered to prove the truth
of the matter contained therein, the portion of Fred’s testimony relating to Gus’s question is not
hearsay.
Effect of Statement on Hearer

Even if Gus’s words amount to a statement, a statement is not offered to prove the truth of the
matters asserted (and thus is not hearsay) when admitted merely to show the statement’s effect on
the hearer or reader. Fred could testify as to what Gus said in order to show its effect on Hit and
the meaning of the gesture he made in response.
HIT’S CONDUCT—HEARSAY
As noted above, a “statement” is a person’s (i) oral or written assertion, or (ii) nonverbal conduct
intended as an assertion. In this case, Hit’s action in drawing his finger across his throat in
response to Gus’s question probably qualifies as a gesture intended to be an assertion. As such,
because it is being offered by Dean to prove the truth of the matter asserted—that Hit, not Dean,
killed Vicky—it is hearsay and inadmissible unless it falls within an exception.

The requirements of the statement against interest exception are discussed above. The gesture
by Hit—drawing his index finger over his throat in response to the question about an assignment
concerning Vicky—is a gesture that could be interpreted as a statement that he killed Vicky.
This would mean that Hit’s gesture was against his penal interest when made, because he was

implying that he had committed an act of murder. This gesture was made according to Hit’s
personal knowledge of the pertinent facts, and he surely knew the statement he was making with
the gesture was against his interest when he made it. While it is not clear from the facts whether
Hit is unavailable as a witness, it is likely that he would invoke his right against self-incrimination
if called to testify, which would make him unavailable.
Accordingly, under these circumstances, Hit’s gesture would be admissible under the statement
against interest exception to the rule against hearsay. However, if Hit testifies, his gesture would
be inadmissible hearsay.

EVIDENCE 73.
QUESTION 6
RELEVANCE
Issue: Whether the evidence is relevant 1
Rule: For evidence to be admissible under the CEC, it must be (i) logically relevant (has any tendency
to prove or disprove a disputed fact of consequence), and (ii) legally relevant (court has discretion
in excluding relevant evidence if its probative value is substantially outweighed by a risk of unfair
prejudice, confusion of issues, and the like) (one point for each enumerated statement; must include
explanation for credit and not simply name each type of relevance) 2
CALLING WHITNEY TO TESTIFY
SPOUSAL IMMUNITY
Issue: Whether a wife can be called to the stand to testify against her husband
1
Rules: (i) Under the California Evidence Code (“CEC”), the spouse of a party to any kind of
proceeding may not be called as a witness by the adverse party and may not be compelled to testify
against his spouse in that proceeding. (ii) The privilege belongs to the witness-spouse only. (iii) The
privilege can be claimed only during the marriage. (one point for each enumerated statement) 3
Analysis: (i) Although Whitney stated that the marriage was over, Whitney is still referred to as Dean’s
“wife” at trial and it does not seem that they ever divorced; (ii) however, Whitney waived this privilege
because Whitney was willing to testify when she was called as a witness (one point for each enumerated
statement) 2
Conclusion: It was proper to call Whitney to the stand
1
WHITNEY’S TESTIMONY
RELEVANCE
Analysis and Conclusion: Whitney’s testimony that Dean had mud on his shoes makes it more likely
that he was outside hiding in bushes by Vicky’s house on the rainy night of the murder, which tends to 1
show that he was the one who killed her; thus, the testimony is relevant
NONRESPONSIVE ANSWER
Issue: Whether the form of Whitney’s testimony was improper

1
Rule: A witness’s answer may be stricken as nonresponsive if it goes beyond the scope of the specific
question that has been asked 1
Analysis and Conclusion: Whitney’s response that there was mud on Dean’s shoes went beyond a
simple “yes”; thus, it was nonresponsive and objectionable 1
Issue: Whether Whitney’s statements constitute confidential communications

1

Rule: There is a privilege for confidential marital communications that applies to the disclosure of
confidential communications made during the marriage 1
Analysis and Conclusion: Whitney’s answer to the question about Dean’s shoes would relate to her
own observation, and not to a marital communication; thus, this privilege does not apply 1
SPOUSAL IMMUNITY
Issue: Whether Whitney can refuse to testify against her husband
1
Rule: See spousal immunity rule above
0
Analysis: Whitney held the privilege and invoked it on the stand
1
Conclusion: Whitney should not have been required to testify after invoking the privilege of spousal
immunity 1
Overall Conclusion: The court erred in allowing Whitney’s testimony
1
ELLA’S TESTIMONY
RELEVANCE
Analysis: Dean’s statement that he just killed the person who stole his biggest account tends to show
that he was the one who killed Vicky 1
Conclusion: Ella’s testimony regarding Dean’s statement is relevant
1
HEARSAY
Issue: Whether Ella’s statement is barred by the hearsay rule

1
Rule: (i) Hearsay is an out-of-court statement offered to prove the truth of the matter asserted, and
is inadmissible unless it falls within an exception to the rule. (ii) Bonus: Hearsay is excluded from
Proposition 8, and so ordinary rules of evidence apply to hearsay in criminal cases. (one point for each
Analysis and Conclusion: Dean’s out-of-court statement is being offered to prove the truth of the
matter asserted therein—that Dean had just killed the person who stole his biggest account; thus, the
statement is hearsay 1
ADMISSION BY PARTY-OPPONENT
Rule: Under the CEC, any statement made by a party and offered in evidence against that party is
admissible as a hearsay exception 1
Analysis and Conclusion: Dean’s own out-of-court statement to Ella is now being offered against him
by the prosecution; thus, it is a party admission 1
Bonus: The examinee identifies the statement against interest exception and concludes that it will only
apply if Dean is unavailable to testify at trial 1
Bonus: The examinee identifies the contemporaneous statement exception and concludes that it does not
apply because it was not made while Dean was engaged in the conduct 1

EVIDENCE 75.
Bonus: The examinee identifies the spontaneous statement hearsay exception and concludes it does
not apply because there is no indication as to how much time had elapsed since the murder or whether
Dean was agitated when he made the statement 1
Issue: Whether Dean’s statement was a confidential communication

1
Rules: See confidential marital communications privilege rule above
0
Marital communications are not intended to be confidential (and thus do not fall under the privilege) if
made under circumstances where the spouses knew or should have known that they could be overheard
by a third person 1
Analysis: The examinee mentions facts that go against privilege: (i) Ella’s house was just 20 feet
away; (ii) the spouses should have known the volume at which they were speaking and whether their
conversation could carry 20 feet (one point for each enumerated fact) 2
The examinee mentions facts supporting privilege: (i) There are no facts suggesting Dean knew Ella’s
window was open or that she was standing at her window; (ii) the conversation took place in Dean’s
kitchen, not in a public place (one point for any enumerated fact) 1
Conclusion: It is not clear whether Dean could invoke the privilege for confidential marital
communications to exclude Ella’s testimony about his statement (a more definite conclusion as to the
privilege is also acceptable) 1
Overall Conclusion: Ella’s testimony regarding Dean’s statement is admissible unless the confidential
marital communications privilege applies (a more definite conclusion as to admissibility is also
acceptable) 1
FRED’S TESTIMONY
RELEVANCE
Analysis: (i) The relevance of Fred’s testimony is suspect because the meaning behind both parts of the
conversation is ambiguous. (ii) However, the conversation occurred the day after Vicky’s murder and
drawing a finger across one’s throat is a gesture commonly associated with death and killing. (iii) Fred’s
testimony does make it less probable that Dean is the killer. (one point for each enumerated statement) 3
Conclusion: Fred’s testimony is relevant
1
GUS’S QUESTION
HEARSAY
Issue: Whether Gus’s question constituted a “statement” for hearsay purposes

1
0
For purposes of the hearsay rule, a “statement” is either a person’s (i) oral or written assertion, or (ii)
nonverbal conduct intended as an assertion (only prong (i) is needed for full credit) 1
Analysis: Gus asked a question, but did not make an assertion
1
Conclusion: Gus’s question is probably not a “statement” for hearsay purposes
1

EFFECT OF STATEMENT ON HEARER
Rule: A statement is not hearsay when offered to show the statement’s effect on the hearer
1
Analysis: Even if Gus’s question qualified as a “statement,” Fred could testify as to what Gus said in
order to show its effect on Hit and the meaning of the gesture he made in response 1
Conclusion: Gus’s question is admissible for this nonhearsay purpose
1
HIT’S CONDUCT
HEARSAY
Issue: Whether Hit’s gesture is barred by the hearsay rule

1
Rule: See hearsay rules above
0
Analysis: Hit’s action in drawing his finger across his throat in response to Gus’s question probably
qualifies as a gesture intended to be an assertion 1
Hit’s conduct is being offered by Dean to prove the truth of the matter asserted—that Hit, not Dean,
killed Vicky 1
Conclusion: Hit’s conduct is hearsay 1
STATEMENT AGAINST INTEREST EXCEPTION
Rule: In order to be admissible under the statement against interest exception: (i) the statement must
have been against pecuniary, proprietary, or penal interest when made; (ii) the declarant must have had
personal knowledge of the facts; (iii) the declarant must have been aware that the statement is against
his interest and must have had no motive to misrepresent at the time of the statement; and (iv) the
declarant must be unavailable as a witness (one point for one or two enumerated requirements; two
points for three or four enumerated requirements) 2
Analysis: (i) Hit’s gesture could be interpreted as a statement that he killed Vicky—a clear statement
against his penal interest. (ii) If Hit is unavailable as a witness (i.e., he may invoke his right against self-
incrimination if called to testify), Hit’s gesture would be admissible under the statement against interest
exception. (iii) But if Hit testified at trial, the statement against interest exception would not apply, and
his statement would be inadmissible hearsay. (one point for each enumerated statement) 3
Conclusion: Hit’s statement is admissible under this exception only if he is unavailable to testify at trial
1
Overall Conclusion: The admissibility of Fred’s testimony depends on whether Hit is available to
testify at trial 1
PASSING SCALE
22 - 33 Passing 60, 65

EVIDENCE 77.
QUESTION 7
Officer Will, a police officer, stopped Calvin, who was driving a rental car at five miles an
hour over the speed limit. Calvin gave legally valid consent to search the car. Officer Will
discovered a substantial quantity of cocaine in the console between the two front seats and
arrested Calvin. After being given and waiving his Miranda rights, Calvin explained that
he was driving the car for his friend, Donna. He said that Donna was going to meet him
at a particular destination to collect her cocaine, which belonged to her. Hoping to obtain
a favorable plea bargain, Calvin offered to cooperate with the police. The police then
arranged for Calvin to deliver the cocaine. When Donna met Calvin at the destination,
she got into the car with Calvin. She was then arrested. Each was charged with and tried
separately for distribution of cocaine and conspiracy to distribute cocaine.
Donna’s trial began while Calvin’s case was still pending.
At Donna’s trial, the following occurred:
(1) The prosecutor called Officer Will, who testified to Calvin’s statements after his
arrest concerning Donna’s role in the transaction.
(2) The prosecutor then called Ned, an experienced detective assigned to the Narcotics
Bureau, who testified that high level drug dealers customarily use others to transport their
drugs for them.
In the defense case, Donna testified that she was not a drug dealer and that she knew
nothing about the cocaine. She stated that she was merely meeting Calvin because he was an
old friend who had called to say he was coming to town and would like to see her.
(3) Donna further testified that when she was in the car with Calvin, she found a receipt
for the rental car, which showed that Calvin had rented it six months prior to his arrest. She
offered a copy of the receipt into evidence. The court admitted the document in evidence.
(4) On cross-examination, the prosecutor asked Donna whether she had lied on her
income tax returns.
The prosecutor had no evidence that Donna had lied on her income tax returns, but believed
that it was likely on the basis that drug dealers do not generally report their income. Donna
denied lying on her income tax returns.
Assuming that, in each instance, all the appropriate objections were made, should the
evidence in numbers 1, 2, and 3 have been admitted, and should the cross-examination in 4
have been allowed? Discuss.

1. TESTIMONY OF OFFICER WILL
RELEVANCE
Under the Federal Rules of Evidence (“FRE”), logically relevant evidence is evidence having
any tendency to make the existence of any fact that is of consequence to the determination of an
action more or less probable than it would be without the evidence. The California Evidence Code
(“CEC”) is in accord, but also specifically requires that the fact be disputed. Here, Officer Will
wishes to testify as to Calvin’s statements that he was driving the car to meet Donna so she could
collect cocaine that belonged to her. This evidence makes it more likely that Donna distributed
cocaine, and whether Calvin’s statement is true is certainly disputed by Donna. Therefore, Officer
Will’s testimony is logically relevant under the FRE and CEC.
Even logically relevant evidence may be excluded if it is not legally relevant. Legal relevance
means that the probative value of the evidence may not be substantially outweighed by the danger
of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or
needless presentation of cumulative evidence.
The court is unlikely to find that unfair prejudice would result from Officer Will’s testimony,
particularly when weighed against the highly probative nature of the evidence. Therefore, Officer
Will’s testimony is legally relevant.
HEARSAY
Donna will argue that Officer Will’s testimony regarding Calvin’s statements is barred by the
hearsay rule. Hearsay is a statement, other than one made by the declarant while testifying at the
current trial or hearing, offered in evidence to prove the truth of the matter asserted. If a statement
is hearsay, it can be admitted only if an exception to the rule applies.
In this case, Calvin’s statements are a classic example of hearsay. The statements were made
out of court and are being offered to prove the truth of the matter contained therein, that is, that
Calvin was on his way to meet Donna, who owned the cocaine. As a result, the statements will be
admitted only if they fall within an exception.
Co-Conspirator Admission
Under the FRE, a statement by an opposing party (traditionally called an “admission”) is consid-
ered nonhearsay, and certain vicarious admissions fall within this rule. An admission by one
conspirator, made to a third party in furtherance of a conspiracy to commit a crime, while the
declarant was a participant in the conspiracy, may be admitted against a co-conspirator. Similarly,
in California, such a statement is admissible as an exception to the hearsay rule.
Here, however, Calvin’s statement regarding Donna’s ownership of the drugs was made during
police questioning, not in furtherance of a conspiracy or while Calvin was participating in a
conspiracy. Therefore, Calvin’s statement is not admissible as a co-conspirator admission.
A statement may be admissible under the statement against interest exception to the hearsay rule,
if: (i) the statement was against the declarant’s pecuniary, proprietary, or penal interest when
made; (ii) the declarant had personal knowledge of the facts; (iii) the declarant was aware that the
statement was against his interest and had no motive to misrepresent at the time of the statement;
and (iv) the declarant is unavailable as a witness. In a criminal case, the FRE also require the
existence of corroborating circumstances indicating the trustworthiness of the statement.

EVIDENCE 79.
Here, Calvin’s statement appears to be against his penal interest; he admitted that he knew he was
transporting cocaine. The facts do not indicate that Calvin is unavailable as a witness. However,
it is possible that if called to the stand, he could invoke his right against self-incrimination,
rendering him unavailable. Alternatively, Calvin may strike a deal with the prosecution and
testify against Donna. Regardless, Donna has an argument that the statement is not against the
penal interest of Calvin. While he admitted knowing about the cocaine, he was attempting to
move primary responsibility for the drugs to Donna by identifying her as the owner. Therefore,
the statement against interest exception likely would not apply, and Officer Will’s testimony is
inadmissible hearsay.
CONFRONTATION CLAUSE
Under the Confrontation Clause, even if a hearsay statement comes under an exception, it will not
be admitted in a case where: (i) the statement is offered against the accused in a criminal case; (ii)
the declarant is unavailable; (iii) the statement was testimonial in nature; and (iv) the accused had
no opportunity to cross-examine the declarant’s statement before trial. A statement made during
police interrogation, when the main purpose of the interrogation is to establish facts that may be
relevant to a later criminal prosecution, is considered to be testimonial in nature.
Here, Calvin’s statement clearly was testimonial, as it was in response to police questioning done
with an eye toward prosecution. The facts do not indicate that Donna had any opportunity to
cross-examine Calvin regarding the statement prior to trial. Therefore, if Calvin became unavail-
able by invoking his privilege against self-incrimination, the Confrontation Clause would require
that Officer Will’s testimony be excluded.
As discussed above, Calvin’s statement probably does not fall within a hearsay exception and
therefore Officer Will’s testimony regarding the statement is inadmissible. If a hearsay exception
did apply, it is possible that the statement would be barred by the Confrontation Clause if Calvin
is unavailable to testify.
2. TESTIMONY OF DETECTIVE NED
RELEVANCE
The fact that high-level drug dealers customarily use others to transport their drugs for them does
tend to make it slightly more likely that Donna owned the cocaine and was having Calvin deliver
the cocaine to her. Thus, Ned’s testimony would be logically relevant in this case. However,
Donna has an argument that the evidence is not legally relevant, as there is a risk of unfair preju-
dice that may substantially outweigh the probative value of the evidence. In this case, evidence
of the habits of other high-level drug dealers may be unfairly prejudicial compared to its useful-
ness in proving that Donna was herself a high-level drug dealer. The court has broad discretion to
make this determination.
EXPERT TESTIMONY
Qualification of Expert Witness

To be qualified as an expert, a witness must have special knowledge, skill, experience, training,
or education sufficient to qualify him as an expert on the subject to which his testimony relates.
Furthermore, the witness must have reasonable certainty regarding the opinion. In this case, the
facts indicate that Ned is an experienced narcotics detective; therefore, it is likely that he would
qualify as an expert in the behavior of drug dealers. It is also likely that Ned had reasonable
certainty in his opinion.

Subject Matter of Expert Testimony

An expert may state an opinion if the subject matter is one where scientific, technical, or other
specialized knowledge would help the trier of fact determine a fact in issue. This test of assistance
to the trier of fact subdivides into two requirements: (i) the opinion must be relevant; and (ii) the
methodology underlying the opinion must be reliable.
Here, Ned testified that high-level drug dealers customarily use others to transport their drugs
for them. This opinion is relevant because it supports the prosecution’s theory that Donna asked
Calvin to transport cocaine. The prosecution will argue that the behavior of drug dealers is a
subject about which specialized knowledge would assist jury members who have no familiarity
with the drug trade. In response, Donna may argue that this fact is one of common knowledge and
is not specific enough to assist the jury at all.
Basis of Expert’s Opinion

To be admissible, the expert’s opinion must be based upon (i) facts that the witness knows from
his own observation; (ii) facts presented in evidence at trial and submitted to the expert; or (iii)
facts not in evidence that were supplied to the expert out of court, and which are of a type reason-
ably relied upon by experts in the particular field in forming opinions on the subject. Here, Ned’s
opinion was based on his years of experience as a narcotics detective. The facts regarding Donna’s
transaction with Calvin were also likely submitted to Ned to compare so he could compare
Donna’s behavior to that of a drug dealer.
Although Donna can plausibly argue that the testimony is overly prejudicial and not helpful to the
jury, there is no clear indication that the expert testimony is inadmissible. Thus, it is likely that
Ned’s expert testimony was properly admitted.
3. CAR RENTAL RECEIPT
RELEVANCE
The receipt tends to prove that the car was in Calvin’s possession for the past six months, making
it less likely that Calvin was driving the car “for Donna,” and leading to the inference that
the cocaine belonged to Calvin rather than Donna. Therefore, the receipt is logically relevant.
Furthermore, there is no apparent risk of unfair prejudice that would substantially outweigh the
evidence’s probative value. Thus, the receipt is legally relevant as well.
BEST EVIDENCE RULE/SECONDARY EVIDENCE RULE

Under the FRE and CEC, when seeking to prove the terms of a writing in the case where the
terms are material, the original must be produced. This is called the best evidence rule under the
FRE and the secondary evidence rule under the CEC. One situation in which these rules apply is
where the knowledge of a witness concerning a fact results from having read it in the document.
Here, Donna knew that Calvin rented the car six months earlier because of what she read on the
receipt. Thus, the best evidence rule and secondary evidence rule apply.
However, under both rules, an exact copy of an original, such as a photocopy, is admissible to the
same extent as an original unless (i) a genuine question is raised about the original’s authenticity,
or (ii) under the circumstances, it would be unfair to admit the duplicate in place of the original.
Here, there is no indication that a genuine question has been raised about the authenticity of the
original receipt, or that it would be unfair to admit the copy of the receipt in place of the original.

EVIDENCE 81.
Thus, the receipt will meet the requirements of the best evidence rule and the secondary evidence
rule.
HEARSAY
As previously stated, hearsay is a statement, other than one made by the declarant while testifying
at the current trial or hearing, offered in evidence to prove the truth of the matter asserted.
Here, the receipt is hearsay because it is being offered to prove the truth of the matter asserted
therein, that is, that Calvin rented the car six months prior to his arrest. Therefore, to be admis-
sible, the receipt must fall within an exception.
Business Records
A writing or record that is made as a memorandum or record of any transaction, is admissible in
evidence as proof of that transaction, if made in the regular course of any business; and if it was
the regular course of such business to make it at the time of transaction or within a reasonable
time thereafter. The receipt, if authentic, presumably would be a document made in the ordinary
course of the car rental office’s business. Therefore, if the receipt can be authenticated, that is, if it
can be shown to be what the proponent of the evidence claims it to be, then it would be admissible
under the business records exception.
AUTHENTICATION
The authenticity of the record must be established. The usual method of authentication is to have
the custodian or other qualified witness testify to the identity of the record and the mode of its
preparation. Under the FRE, a foundation witness is not necessary to authenticate the record (i.e.,
the record will be self-authenticating) if the custodian or other qualified person certifies in writing
that the record meets the requirements of the business records exception.
The facts do not indicate that a qualified witness testified as to the authenticity of the receipt, or
that the receipt was certified in writing.
Thus, because the receipt was not properly authenticated, it should not have been admitted into
evidence.
4. CROSS-EXAMINATION REGARDING DONNA’S TAX RETURN
RELEVANCE
If Donna lied on her tax return, it would cast doubt on her credibility as a witness. Thus, it is
relevant for that purpose. The evidence is also relevant to show that Donna has the character
of someone who would be willing to commit a serious crime, like lying as to her taxes, and,
thus, might also be willing to deal in drugs. But such evidence has low probative value since
the conduct alleged (drug dealing) is very different from the conduct that is the subject of the
evidence (tax fraud). Moreover, the evidence may be unfairly prejudicial since the jury might
decide to punish Donna for her tax fraud regardless of her guilt in this case.
CHARACTER EVIDENCE
In general, a prosecutor cannot initiate evidence of the bad character of a defendant in order to
show that the defendant was likely to have committed the crime with which she is charged. If the
defendant introduces evidence of her own good character, however, the prosecutor may introduce
evidence to rebut the defendant’s character evidence. In this case, the facts state that the prose-
cutor asked Donna about lying on her income tax return on cross-examination. Nothing in the
facts, however, indicates that Donna raised the issue of her good character first.

Furthermore, prior bad acts or crimes are generally inadmissible as substantive evidence unless
independently relevant to some issue other than character (e.g., to show motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident). Here,
the prosecutor asked Donna about a specific prior act of lying. There is no indication that this is
independently relevant to the current drug charge.
Therefore, the prosecutor’s question should not have been allowed as substantive evidence of
Donna’s character, although the prosecutor could argue that the question was appropriate as a
method of impeachment.
IMPEACHMENT BY SPECIFIC INSTANCES OF MISCONDUCT

The prosecutor may have attempted to impeach Donna’s credibility by asking her about an act
of misconduct on cross-examination. Under the FRE, a witness may be interrogated upon cross-
examination regarding any specific instance of conduct involving lying because such evidence
is probative of truthfulness. But the cross-examiner must make the inquiry in good faith, having
some reasonable basis for believing that the witness may have committed the particular miscon-
duct at issue.
Here, lying on an income tax return would certainly be an act that would be probative of truth-
fulness and therefore appropriate for cross-examination to impeach Donna’s character. However,
Donna can argue that the prosecutor did not ask the question in good faith. The facts state that the
prosecutor had no evidence that Donna lied, but that he believed it was likely true because “drug
dealers do not generally report their income.” This bootstraps the basis for the inquiry on the
assumption that Donna is a drug dealer, which has not been proven. Thus, the prosecutor’s attempt
to impeach Donna was improper.
The court should have excluded the question regarding Donna lying on her tax return.

EVIDENCE 83.
QUESTION 7
RELEVANCE
1
TESTIMONY OF OFFICER WILL
RELEVANCE
Analysis and Conclusion: Officer Will’s testimony makes it more likely that Donna distributed 1
cocaine; thus, it is relevant
HEARSAY
Issue: Whether Calvin’s statements are barred by the hearsay rule

1
Analysis: Calvin’s statements were made out of court and are being offered to prove the truth of
the matters therein—that Calvin was on his way to meet Donna, who owned the cocaine; thus, the
statements are hearsay 1
CO-CONSPIRATOR ADMISSION
Rule: An admission by one conspirator, made to a third party in furtherance of a conspiracy to

commit a crime, while the declarant was a participant in the conspiracy, may be admitted against a co-
conspirator 1
Analysis and Conclusion: Calvin’s statement was made during police questioning, not in furtherance
of a conspiracy; thus, it does not qualify as a co-conspirator admission 1
STATEMENT AGAINST INTEREST EXCEPTION
Rule: A statement may be admissible under the statement against interest exception to the hearsay rule
if: (i) the statement was against the declarant’s pecuniary, proprietary, or penal interest when made; (ii)
the declarant had personal knowledge of the facts; (iii) the declarant was aware that the statement was
against his interest and had no motive to misrepresent at the time of the statement; and (iv) the declarant
is unavailable as a witness (one point for one enumerated requirement; two points for three of the
enumerated requirements; three points for all four enumerated requirements) 3
Analysis: (i) Calvin may be unavailable if he invokes his right against self-incrimination; (ii) on the
other hand, Calvin may be available if he strikes a deal with the prosecution to testify at Donna’s trial
The statement may not truly be against Calvin’s penal interest, since he is attempting to shift blame to
Donna 1

Conclusions: The statement is likely not admissible under this exception

1
No other hearsay exception applies
1
CONFRONTATION CLAUSE
Issue: Whether the admission of Calvin’s statements would violate Donna’s right to confront witnesses
against her 1
Rules: Under the Confrontation Clause, even if a hearsay statement comes under an exception, it
will not be admitted where: (i) the statement is offered against the accused in a criminal case; (ii)
the declarant is unavailable; (iii) the statement was testimonial in nature; and (iv) the accused had
no opportunity to cross-examine the declarant’s statement before trial (one point for one enumerated
requirement; two points for three enumerated requirements; three points for all four enumerated
requirements) 3
A statement made during police interrogation, when the main purpose of the interrogation is to establish
facts that may be relevant to a later criminal prosecution, is considered to be testimonial in nature 1
Analysis: (i) Calvin’s statement clearly was testimonial, as it was in response to police questioning
done with an eye toward prosecution. (ii) It does not appear that Donna had any opportunity to cross-
examine Calvin regarding the statement prior to trial. (iii) Calvin may be unavailable, as discussed
previously. (one point for each enumerated statement) 3
Conclusion: If Calvin is unavailable, his statement is barred by the Confrontation Clause
1
Overall Conclusion: Officer Will’s testimony regarding Calvin’s statement is inadmissible
1
TESTIMONY OF DETECTIVE NED
RELEVANCE
Analysis: (i) The fact that high-level drug dealers customarily use others to transport their drugs for
them tends to make it slightly more likely that Donna owned the cocaine; (ii) however, evidence of
the habits of other high-level drug dealers may be unfairly prejudicial (one point for each enumerated
statement) 2
Conclusion: The testimony is likely relevant
1
EXPERT TESTIMONY
Issue: Whether Detective Ned’s testimony meets the requirements for expert testimony
1
QUALIFICATION OF EXPERT WITNESS
Rules: To be qualified as an expert, a witness must have special knowledge, skill, experience, training,
or education sufficient to qualify him as an expert on the subject to which his testimony relates 1
Analysis and Conclusion: Ned is an experienced narcotics detective; thus, he likely will be qualified as
an expert 1
SUBJECT MATTER OF EXPERT TESTIMONY
Rule: An expert may state an opinion if the subject matter is one where scientific, technical, or other
specialized knowledge would help the trier of fact determine a fact in issue 1

EVIDENCE 85.
Analysis: (i) The prosecution will argue that the behavior of drug dealers is a subject about which
specialized knowledge would assist jury members who have no familiarity with the drug trade; although
(ii) bonus: Donna may argue that this fact is one of common knowledge and is not specific enough to
assist the jury at all (one point for each enumerated statement) 2
Conclusion: The subject matter of the testimony is likely acceptable
1
BASIS OF EXPERT’S OPINION
Rule: Bonus: To be admissible, the expert’s opinion must be based upon (i) facts that the witness knows
from his own observation; (ii) facts presented in evidence at trial and submitted to the expert; or (iii)
facts not in evidence that were supplied to the expert out of court, and which are of a type reasonably
relied upon by experts in the particular field in forming opinions on the subject (one point for one or
two of the enumerated requirements; two points for all three) 2
Analysis and Conclusion: Bonus: Ned’s opinion was based on his years of experience as a narcotics
detective, and the facts regarding Donna’s transaction with Calvin were also likely submitted to Ned;
thus, the basis of the testimony was likely proper 1
Overall Conclusion: It is likely that Ned’s expert testimony was properly admitted
1
CAR RENTAL RECEIPT
RELEVANCE
Analysis and Conclusion: The receipt tends to prove that the car was in Calvin’s possession for the
past six months, making it less likely that Calvin was driving the car “for Donna,” and leading to the
inference that the cocaine belonged to Calvin rather than Donna; thus, it is relevant 1
BEST EVIDENCE RULE
Issue: Whether admission of the receipt violates the best evidence rule
1
Rules: (i) Under the best evidence rule, when the terms of a writing in the case where the terms are
material, the original must be produced. (ii) The best evidence rule applies where the knowledge of a
witness concerning a fact results from having read it in the document. (one point for each enumerated
statement) 2
An exact copy of an original, such as a photocopy, is admissible to the same extent as an original unless
(i) a genuine question is raised about the original’s authenticity, or (ii) under the circumstances, it would
be unfair to admit the duplicate in place of the original (one point for each enumerated condition) 2
Analysis: The best evidence rule applies because Donna knew that Calvin rented the car six months
earlier because of what she read on the receipt 1
There is no indication that a genuine question has been raised about the authenticity of the original
receipt, or that it would be unfair to admit the copy of the receipt in place of the original 1
Conclusion: The copy of the receipt is admissible under the best evidence rule
1
HEARSAY
Issue: Whether the receipt is barred by the hearsay rule

1
0

Analysis and Conclusion: The receipt is being offered to prove the truth of the matter asserted
therein—that Calvin rented the car six months prior to his arrest; thus, it is hearsay 1
Rule: A writing that is made as a memorandum or record of an event is admissible in evidence as proof
of that event if (i) it was made in the regular course of any business; (ii) it was the regular course of such
business to make it at the time of the event or within a reasonable time thereafter; and (iii) the business
record consists of matters within the personal knowledge of the entrant or within the personal
knowledge of someone with a business duty to transmit such matters to the entrant (one point for two of
the enumerated requirements; two points for all three of the enumerated requirements) 2
(i) The authenticity of the record must be established, usually by having the custodian or other qualified
witness testify to the identity of the record and the mode of its preparation. (ii) Bonus: Under the
FRE, a foundation witness is not necessary to authenticate a business record if the custodian or other
qualified person certifies in writing that the record meets the requirements of the business records
exception. (one point for each enumerated statement) 2
Analysis: The receipt presumably would be a document made in the ordinary course of the car rental
office’s business 1
The facts do not indicate that a qualified witness testified as to the authenticity of the receipt, or that it
was otherwise authenticated 1
Conclusion: If not properly authenticated, the receipt cannot be admitted as a business record
1
Overall Conclusion: The receipt should not have been admitted
1
CROSS-EXAMINATION REGARDING DONNA’S TAX RETURN
RELEVANCE
Analysis: (i) Donna’s lie would cast doubt on her credibility as a witness and also makes it more
likely that she would be willing to commit a serious crime; (ii) however, the evidence may be unfairly
prejudicial since the jury might decide to punish Donna for her tax fraud regardless of her guilt in this
case (one point for each enumerated statement) 2
Conclusion: The evidence regarding Donna’s tax return may be irrelevant
1
CHARACTER EVIDENCE
Issue: Bonus: Whether the prosecution can introduced evidence of a specific act to show the defendant’s
bad character 1
Rule: Bonus: (i) In general, a prosecutor cannot initiate evidence of the bad character of a defendant
in order to show that the defendant was likely to have committed the crime with which she is charged.
(ii) But if the defendant introduces evidence of her own good character, the prosecutor may introduce
evidence to rebut the defendant’s character evidence. (one point for each enumerated statement) 2
Analysis and Conclusion: Bonus: Donna did not “open the door” to character evidence; thus, the
evidence is inadmissible as substantive evidence of Donna’s character 1
IMPEACHMENT BY SPECIFIC INSTANCES OF MISCONDUCT
Issue: The circumstances in which a prior act of dishonesty can be introduced to impeach a witness’s
credibility 1

EVIDENCE 87.
Rule: (i) A witness may be interrogated upon cross-examination regarding any specific instance of
conduct that is probative of truthfulness; (ii) but the cross-examiner must make the inquiry in good faith
Analysis: (i) Lying on an income tax return would be an act that would be probative of truthfulness and
therefore appropriate for cross-examination to impeach Donna’s character; but (ii) the prosecutor did
not ask the question in good faith because the prosecutor had no evidence that Donna lied, except for his
belief that it was likely true because “drug dealers do not generally report their income” (one point for
Conclusion: The interrogation is improper impeachment evidence
1
Overall Conclusion: The court should have excluded the question regarding Donna lying on her tax
return 1
PASSING SCALE
26 - 38 Passing 60, 65


EVIDENCE 89.
QUESTION 8
Victor had been dating Daniel’s estranged wife, Wilma. Several days after seeing Victor and
Wilma together, Daniel asked Victor to help him work on his pickup truck at a nearby garage.
While working under the truck, Victor saw Daniel nearby. Then Victor felt gasoline splash onto
his upper body. He saw a flash and the gasoline ignited. He suffered secondand third-degree
burns. At the hospital, he talked to a police detective, who immediately thereafter searched
the garage and found a cigarette lighter. Daniel was charged with attempted murder. At
a jury trial, the following occurred:
a. Tom, an acquaintance of Daniel, testified for the prosecution that Daniel had
complained to Tom that Victor had “burned” him several times and stated that he (Daniel)
would “burn him one of these days.”
b. Victor testified for the prosecution that, while Victor was trying to douse the flames,
Daniel laughed at him and ran out of the garage.
c. At the request of the prosecutor, the judge took judicial notice of the properties of
gasoline and its potential to cause serious bodily injury or death when placed on the body and
ignited.
In his defense, Daniel testified that he was carrying a gasoline container, tripped, and spilled
its contents. He denied possessing the lighter, and said that the fire must have started by
accident. He said that he ran out of the garage because the flames frightened him.
d. On cross-examination, the prosecutor asked Daniel, “Isn’t it true that the lighter found
at the garage had your initials on it?”
The prosecutor urged the jury to consider the improbability of Daniel’s claim that he had
accidentally spilled the gasoline.
e. During a break in deliberations, one juror commented to the other jurors on the
low clearance under a pickup truck parked down the street from the courthouse. The juror
measured the clearance with a piece of paper. Back in the jury room, the jurors tried to see
whether Daniel could have spilled the gasoline in the way he claimed. One juror crouched
under a table and another held a cup of water while simulating a fall. After the experiment,
five jurors changed their votes and the jury returned a verdict of guilty.
Assume that, in each instance, all appropriate objections were made.
1. Should the court have admitted the evidence in item a.? Discuss.
2. Should the court have admitted the evidence in item b.? Discuss.
3. Should the court have taken judicial notice as requested in item c.? Discuss.
4. Should the court have allowed the question asked in item d.? Discuss.
5. Was the jury’s conduct described in item e. proper? Discuss.

1. TOM’S TESTIMONY REGARDING DANIEL
RELEVANCE
To be admitted, evidence must be logically relevant as well as legally relevant. Under the Federal
Rules of Evidence (“FRE”), logically relevant evidence is evidence having any tendency to
make the existence of any fact that is of consequence to the determination of an action more or
less probable than it would be without the evidence. The California Evidence Code (“CEC”) is
in accord, but specifically requires that the fact be disputed. Here, Tom’s testimony regarding
Daniel’s comment that he would burn Victor someday tends to make it more likely that Daniel
committed the act for which he is on trial. Thus, it is logically relevant.
However, a trial judge has broad discretion to exclude even logically relevant evidence if it is
not legally relevant. Legal relevance means that the probative value of the evidence may not be
substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the
jury, undue delay, waste of time, or needless presentation of cumulative evidence.
While it is true that Daniel’s statement has the potential to be prejudicial, it is unlikely that the
court would find the prejudice unfair. Moreover, the highly probative nature of the evidence would
not be substantially outweighed by the risk of unfair prejudice in this case. Therefore, the testi-
mony is legally relevant as well.
HEARSAY
or hearing, offered in evidence to prove the truth of the matter asserted. If a statement is hearsay,
it can be admitted only if an exception to the rule applies. Here, Daniel’s statement meets the
definition for hearsay because his statement was made out of court and it is being offered for its
truth—that he intended to “burn” Victor in the future. Therefore, the statement must fall within a
hearsay exception.

A statement by an opposing party, traditionally called an admission by a party-opponent, is not
hearsay under the FRE. Similarly, the CEC treats such statements as hearsay exceptions. Daniel
made the statement and the prosecution is now offering it against him. Thus, it is admissible as an
opposing party’s statement.
Present State of Mind

A statement of a declarant’s then-existing state of mind, emotion, sensation, or physical condi-
tion is admissible as an exception to the rule against hearsay. Although such a statement may not
be admitted if it expresses a belief or memory of the declarant, when offered to prove the fact
remembered or believed, a declaration of intent that is offered to show a subsequent act of the
declarant is admissible as circumstantial evidence that tends to show that the declarant followed
through with his intent.
In this case, the portion of Daniel’s statement that Victor had burned him several times would not
be admissible, as it is a statement of memory offered to show the facts remembered. The portion
of the statement that he would burn Victor someday, however, would be admissible in that it is a

EVIDENCE 91.
statement of then-existing state of mind (an intention), which permits the inference that Daniel
carried out his intent. Regardless, the better answer is that Daniel’s statement is admissible as an
opposing party’s statement.
2. VICTOR’S TESTIMONY REGARDING DANIEL
RELEVANCE
Victor’s testimony about Daniel laughing as he ran away from the garage would be logically
relevant because it tends to disprove Daniel’s claim that he ran away because he was frightened
by the fire. Furthermore, Daniel’s strange reaction to Victor being caught in a fire makes it more
likely that Daniel committed the act of attempted murder. The counterargument is that Victor’s
testimony does not necessarily tend to prove that Daniel set the fire on purpose, and the evidence
could prejudice the jury against Daniel. However, the risk of prejudice likely does not substantially
outweigh the evidence’s probative value. Thus, Victor’s testimony regarding Daniel is relevant.
HEARSAY
Aside from the relevancy argument, Daniel might also try to argue that Victor’s testimony
regarding Daniel’s laughter is inadmissible hearsay. A “statement” offered to prove the truth of
the matter contained therein includes so-called assertive conduct, that is, conduct intended by the
actor to be a substitute for words. A nod instead of speaking the word “yes” is an example of such
a statement.
Here, whether Daniel’s laughter is subject to the hearsay rule depends on whether it was intended
as an assertion. Certainly, bursts of laughter often are not intended as assertions but are simply
spontaneous reactions. However, because the facts indicate that Daniel laughed “at” Victor before
running away, Daniel’s laughter was arguably meant as an assertion. For example, Daniel may
have been directly expressing his contempt for Victor or his gleeful reaction to Victor’s pain. If
Daniel’s reaction is hearsay, it still would be admissible, as discussed below.

If Daniel’s laughter was found to be a “statement” for purposes of the hearsay rule, it would
be admissible as an opposing party’s statement because Daniel’s out-of-court laughter is being
offered against him by the prosecution.
Therefore, Victor’s relevant testimony is not barred by the hearsay rule, and was properly
admitted.
3. JUDICIAL NOTICE OF PROPERTIES AND DANGER OF GASOLINE
RELEVANCE
Only relevant facts may be judicially noticed. The facts regarding the properties of gasoline and
the potential for bodily injury when gasoline is placed on the body are logically relevant because
they tend to show that Daniel understood the risks of dousing Victor in gasoline and igniting it.
This supports the prosecution’s allegation that Daniel intentionally meant to injure Victor. Daniel
will argue that the evidence is unfairly prejudicial and cumulative because there is no dispute
as to the fact that he was responsible for putting the gasoline on Victor—the issues are simply
whether his act was intentional, and whether Daniel ignited the gasoline.
However, the facts were judicially noticed as part of the prosecution’s case-in-chief, prior to
Daniel’s testimony that he spilled the gasoline accidentally. Furthermore, the dangerous nature of

putting gasoline on someone’s body tends to prove that Daniel acted in a reckless manner. Thus,
the judicially noticed facts were relevant.
MATTERS SUBJECT TO JUDICIAL NOTICE

Judicial notice is the recognition of a fact as true by the court without formal presentation of
evidence. A fact that is not subject to reasonable dispute may be judicially noticed. Matters of
common knowledge in the community, facts capable of certain verification, and certain scientific
principles all are appropriate matters for judicial notice. In a criminal case, the FRE provide that
the jury should be instructed that it may, but is not required to, accept a judicially noticed fact as
conclusive. Under the CEC, the court may, and upon request must, instruct the jury to accept a
judicially noticed fact as conclusive.
Here, the court took notice both of the properties of gasoline and of the possible consequences
of placing gasoline on a body and lighting it. The properties of gasoline are capable of certain
verification in reference materials. Furthermore, it is common knowledge that gasoline, if placed
on the body and ignited, will potentially cause serious injury and death. Although the specific
consequence of gasoline ignition in this particular case would not be proper for judicial notice,
the fact that was judicially noticed was the potential for injury, which would be a notorious fact.
Thus, both of these facts were subject to judicial notice.
4. CROSS-EXAMINATION OF DANIEL REGARDING THE LIGHTER
RELEVANCE
The fact that the lighter has Daniel’s initials on it makes it more likely that Daniel owned the
lighter; therefore, the fact elicited by the question is logically relevant. Furthermore, the evidence
concerning the lighter is highly probative, and although there is some risk of prejudice if the
evidence were to be admitted, it is not substantial and would not outweigh the usefulness of the
evidence in tending to prove the ownership of the lighter. Thus, the subject matter of the question
is also legally relevant.
LEADING QUESTIONS
A leading question is one that suggests the answer to the witness in the question itself. Leading
questions are generally allowed only on direct examination in limited circumstances, but are
allowed in cross-examination. In this case, the prosecutor’s question calls for a “yes” or “no”
answer, which typically makes a question leading. However, because the question is being asked
on cross-examination, there is no problem with it being a leading question.
SCOPE OF CROSS-EXAMINATION
Cross-examination is limited to: (i) matters brought out on direct examination and the inferences
naturally drawn from those matters, and (ii) matters affecting the credibility of the witness (i.e.,
impeachment of the witness). Here, the question regarding Daniel’s initials on the lighter found at
the garage questions the credibility of Daniel’s statement on direct examination that he was not the
owner of the lighter that burned Victor. Thus, it is within the proper scope of cross-examination.
IMPEACHMENT BY CONTRADICTORY FACTS

Extrinsic evidence of facts that contradict a witness’s testimony may sometimes be admitted to
suggest that a witness’s mistake or lie on one point indicates erroneous or false testimony as to
the whole. As stated above, the fact that Daniel’s initials were found on the lighter contradicts his
testimony that he did not own the lighter. Thus, it was proper impeachment evidence.

EVIDENCE 93.
BEST EVIDENCE/SECONDARY EVIDENCE RULE

Under the FRE and CEC, when seeking to prove the terms of a writing in the case where the
terms are material, the original must be produced. This is called the best evidence rule under the
FRE and the secondary evidence rule under the CEC. The question here is whether the lighter
constitutes a writing. While a lighter is not typically a writing, in this case the evidentiary value of
the lighter derives from the fact that it allegedly has Daniel’s initials on it. Thus, the prosecution
seeks to offer evidence as to the contents of a writing. Absent evidence that the “original” lighter
has been lost or destroyed, testimony concerning the letters on it violates the best evidence rule.
Thus, the testimony should not have been admitted.
5. THE JURY’S EXPERIMENT

A judge may permit a demonstration or scientific experiment to be performed in the courtroom
under certain circumstances. However, a jury may not conduct an independent investigation. This
is because such activities would not be subject to the evidentiary safeguards that are in place by
having the court rule on the appropriateness of evidence, and because the party to the case that
would be disadvantaged by the results of such an investigation does not have the opportunity to
cross-examine the results of the investigation. The role of the jury is to weigh the evidence that is
duly presented in court and reach a conclusion based on that evidence and on the burden of proof
that is attached to the particular case. While the jury may review all properly admitted evidence,
it is not meant to consult and use outside evidence to reach a decision.
In this case, the jury conducted an experiment to see whether Daniel could have accidentally
spilled the gasoline in the way he said he did. In doing so, they used a measurement from a truck
that was different from the truck at issue in the case. This means that the jury went outside the
scope of the properly admitted evidence. Thus, the conduct of the jury was not proper in this case.
Furthermore, the investigation caused five jurors to change their votes for the verdict. As a result,
the jury’s conduct was more than harmless error and should be grounds for a mistrial. However,
a juror is generally prohibited from testifying in post-verdict proceedings as to matters occurring
during the course of jury deliberations. Although a juror may testify as to whether “extraneous
prejudicial information” or any “outside influence” was brought to bear on any juror, the improper
experiment was an internal matter between jurors and did not constitute an outside influence.
Thus, the jury’s conduct was improper, but it is unlikely that the verdict will be impeached.

QUESTION 8
RELEVANCE
1
TOM’S TESTIMONY REGARDING DANIEL
RELEVANCE
Rule: Only evidence that is both (i) logically relevant (tends to prove or disprove a fact that is
of consequence in the action) and (ii) legally relevant (the probative value of the evidence is not
substantially outweighed by the danger of unfair prejudice, confusion of the issues, and the like) will be
admitted (one point for each enumerated statement; must include explanation for credit and not simply
name each type of relevance) 2
Analysis and Conclusion: Tom’s testimony regarding Daniel’s comment that he would burn Victor
someday tends to make it more likely that Daniel committed the act for which he is on trial; thus, it is 1
relevant
HEARSAY
Issue: Whether Daniel’s statement is barred by the hearsay rule

1
Rule: Hearsay is a statement, other than one made by the declarant while testifying at the current trial
or hearing, offered in evidence to prove the truth of the matter asserted, and is admissible only if an
exception applies 1
Analysis and Conclusion: Daniel’s statement was made out of court and it is being offered for its
truth—that he intended to “burn” Victor in the future; thus, it meets the definition of hearsay 1
Rule: A statement made by a party and offered against that party is not hearsay
1
Analysis and Conclusion: Daniel made the statement and the prosecution is now offering it against
him; thus, it is admissible as an opposing party’s statement 1
PRESENT STATE OF MIND EXCEPTION
Bonus: The examinee identifies this exception and concludes that (i) the portion of Daniel’s statement
indicating that he would burn Victor someday is admissible to prove that his intent was carried out, but
(ii) the part of the statement indicating that Victor had burned him many times does not fall within the
exception because it is a statement of memory (one point for each enumerated statement) 2
Overall Conclusion: Tom’s testimony regarding Daniel’s statement is admissible
1

EVIDENCE 95.
VICTOR’S TESTIMONY REGARDING DANIEL

RELEVANCE
Analysis: (i) Victor’s testimony about Daniel laughing as he ran away from the garage tends to disprove
Daniel’s claim that he ran away because he was frightened by the fire; and (ii) Daniel’s strange reaction
to Victor being caught in a fire makes it more likely that Daniel committed the act of attempted murder
Conclusion: The testimony is relevant
1
HEARSAY
Issue: Whether Daniel’s laughter constitutes hearsay

1
0
Assertive conduct is a “statement” for purposes of the hearsay rule
1
Analysis: Because the facts indicate that Daniel laughed “at” Victor before running away, Daniel’s
laughter was arguably meant as an assertion of his contempt for Victor 1
Conclusion: Daniel’s laughter may be considered hearsay
1
Rule: See rule regarding opposing party’s statements above

0
Analysis and Conclusion: If hearsay, Daniel’s statement would be admissible as an opposing party’s
statement because it is being offered against him by the prosecution 1
Overall Conclusion: Victor’s testimony regarding Daniel was properly admitted
1
JUDICIAL NOTICE OF PROPERTIES AND DANGER OF GASOLINE
RELEVANCE
Rule: Only relevant facts may be judicially noticed

1
Analysis: The facts regarding the properties of gasoline and the potential for bodily injury when
gasoline is placed on the body tend to show that Daniel intended to injure Victor; thus, they are relevant 1
Bonus: (i) Daniel will argue that the evidence is unfairly prejudicial and cumulative because it is
undisputed that he put the gasoline on Victor. (ii) However, the facts were judicially noticed as part of
the prosecution’s case-in-chief, prior to Daniel’s testimony that he spilled the gasoline accidentally. (iii)
Furthermore, putting gasoline on someone’s body tends to prove that Daniel acted in a reckless manner.
MATTERS SUBJECT TO JUDICIAL NOTICE
Issue: Whether these facts were subject to judicial notice

1
Rules: Matters of common knowledge in the community, facts capable of certain verification, and
certain scientific principles all are appropriate matters for judicial notice 1

Bonus: In a criminal case, the FRE provide that the jury should be instructed that it may, but is not
required to, accept a judicially noticed fact as conclusive 1
Analysis and Conclusion: These matters were subject to judicial notice because (i) The properties of
gasoline are capable of certain verification in reference materials; and (ii) it is common knowledge that
gasoline, if placed on the body and ignited, will potentially cause serious injury and death (one point for
Overall Conclusion: Both facts were properly judicially noticed
1
CROSS-EXAMINATION OF DANIEL REGARDING THE LIGHTER
RELEVANCE
Analysis and Conclusion: The fact that the lighter has Daniel’s initials on it makes it more likely that
Daniel owned the lighter; thus, it is relevant 1
LEADING QUESTIONS
Bonus: Leading questions are permitted on cross-examination, so there was no problem here
1
SCOPE OF CROSS-EXAMINATION
Issue: Whether the question went beyond the proper scope of cross-examination
1
Rule: Cross-examination is limited to: (i) matters brought out on direct examination and the inferences
naturally drawn from those matters, and (ii) matters affecting the credibility of the witness (one point
for both enumerated statements) 1
Analysis and Conclusion: The question regarding Daniel’s initials on the lighter questions Daniel’s
credibility; thus, it was within the scope of cross-examination 1
IMPEACHMENT BY CONTRADICTORY FACTS
Issue: Whether the cross-examination is proper impeachment evidence

1
Rule: A witness can be impeached with a fact that contradicts his testimony
1
Analysis and Conclusion: The fact that Daniel’s initials were found on the lighter contradicts his
testimony that he did not own the lighter; thus, it is proper impeachment evidence 1
BEST EVIDENCE RULE (CA: SECONDARY EVIDENCE RULE)
Issue: Whether the original lighter needs to be introduced

1
Rule: Under the best evidence rule, when seeking to prove the terms of a writing in the case where the
terms are material, the original must be produced 1
Analysis: The evidentiary value of the lighter derives from the fact that it allegedly has Daniel’s initials
on it 1
Conclusion: (i) Testimony concerning the letters on the lighter violates the best evidence rule, (ii)
bonus: absent evidence that the lighter has been lost or destroyed (one point for each enumerated
statement) 2
Overall Conclusion: The testimony regarding the lighter should not have been admitted
1

EVIDENCE 97.
THE JURY’S EXPERIMENT

Issue: Whether it is proper for jury members to conduct independent experiments
1
Rules: The role of the jury is to weigh the evidence that is duly presented in court; thus, a jury should
not conduct an independent investigation 1
Bonus: A jury is generally prohibited from testifying in post-verdict proceedings as to matters occurring
in the course of jury deliberations 1
Analysis: While conducting an experiment, the jury went outside the scope of the properly admitted
evidence by using a measurement from a truck that was different from the truck at issue in the case 1
Bonus: (i) Because the investigation caused five jurors to change their votes for the verdict, the jury’s
conduct was more than harmless error. (ii) However, the experiment was an internal matter between
jurors and likely did not constitute an “outside influence.” (one point for each enumerated statement) 2
Conclusion: (i) The jurors’ conduct was improper (ii) bonus: but the verdict probably will not be
impeached 2
PASSING SCALE
20 - 28 Passing 60, 65


CAT 12 Evidence

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CAT 12 Evidence

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EVIDENCE

CA 09 et evidence V.indd 1 12/15/21 4:25 PM

ESSAY WRITING APPROACH

Example C—Narrative format

CA 09 et evidence V.indd 1 12/15/21 4:25 PM

EVIDENCE PROBLEM SOLVING APPROACH

CA 09 et evidence V.indd 2 12/15/21 4:25 PM

B. Not Offered for Its Truth/Not Hearsay

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b. Prior consistent statement

CA 09 et evidence V.indd 4 12/15/21 4:25 PM

2. The certified copy of Vic’s three-year-old felony perjury conviction? Discuss.

3. The certified copy of David’s four-year-old misdemeanor simple assault conviction?

Answer according to California law.

CA 09 et evidence V.indd 5 12/15/21 4:25 PM

1. WANDA’S TESTIMONY ABOUT VIC’S STATEMENTS

AUTHENTICATION OF TELEPHONE CALL

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CA 09 et evidence V.indd 7 12/15/21 4:25 PM

Inner Layer—David’s Statement to Vic

Offering David’s Inner Statement for Another Purpose—Effect on Hearer

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2. CERTIFIED COPY OF VIC’S PERJURY CONVICTION

IMPEACHMENT OF HEARSAY DECLARANT

CA 09 et evidence V.indd 9 12/15/21 4:25 PM

3. DAVID’S MISDEMEANOR ASSAULT CONVICTION

David’s misdemeanor assault conviction should not have been admitted.

CA 09 et evidence V.indd 10 12/15/21 4:25 PM

4. DAVID’S TESTIMONY ABOUT THE FIRST FIGHT

NONHEARSAY PURPOSE—EFFECT ON HEARER

Thus, the testimony is admissible for this limited purpose.

5. DAVID’S TESTIMONY ABOUT THE SECOND FIGHT

CA 09 et evidence V.indd 11 12/15/21 4:25 PM

CA 09 et evidence V.indd 12 12/15/21 4:25 PM

Issue: Whether Vic’s statement is barred by a marital privilege

CA 09 et evidence V.indd 13 12/15/21 4:25 PM

SPONTANEOUS STATEMENT EXCEPTION

Rules: California recognizes a hearsay exception for an admission by a party-opponent—a statement

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CA 09 et evidence V.indd 15 12/15/21 4:25 PM

Overall Conclusion: Vic’s conviction should have been admitted

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Conclusion: This is a proper use of character evidence

Issue: Whether David’s testimony is barred by the hearsay rule

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CA 09 et evidence V.indd 18 12/15/21 4:26 PM

1. Vera’s statement? Discuss.

2. The photocopy of Molly’s notes? Discuss.

Answer according to the Federal Rules of Evidence.

CA 09 et evidence V.indd 19 12/15/21 4:26 PM

1. ADMISSION OF VERA’S STATEMENT INTO EVIDENCE

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Present Sense Impression

2. ADMISSION OF MOLLY’S NOTES INTO EVIDENCE

OFFER TO PAY MEDICAL EXPENSES

AUTHENTICATION OF THE PHOTOCOPY

CA 09 et evidence V.indd 21 12/15/21 4:26 PM

BEST EVIDENCE RULE

Impeachment—Prior Inconsistent Statement

CA 09 et evidence V.indd 22 12/15/21 4:26 PM

The Inner Hearsay—Paul’s Statement of Fault

Prior Inconsistent Statement

Statement Against Interest