July 2015 California Bar Exam

gaagoots
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Re: July 2015 California Bar Exam

Postby gaagoots » Fri Jul 24, 2015 7:36 pm

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Last edited by gaagoots on Wed Sep 02, 2015 9:10 pm, edited 1 time in total.

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Tiago Splitter
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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Fri Jul 24, 2015 7:39 pm

redblueyellow wrote:Evidence - Non-hearsay - Impeachment:

Rule: A prior inconsistent statement can be used to impeach a witness via extrinsic evidence. A prior inconsistent statement that was under oath, such as in a trial, deposition, hearing, and affidavit is also admissible for its truth. The witness must first be given the opportunity to explain or deny the prior inconsistent statement during cross-examination.

So first thing, does an affidavit count as "under oath" for substantive purposes? My assumption is NO--there's no ability to cross-examine.

Second, how do you allow for the witness to first be given the opportunity to explain or deny without introducing the extrinsic evidence first?

Would the defense attorney on cross ask the P's W something like "hey, did you ever practice law in another state without being authorized to do so?" The W would respond "no way." Then would the defense attorney said "lol, are you sure about your answer? we have another witness here that says you did! what do you have to say to that?" Then the W would have a chance to deny or explain.

Is there any alternate way or order to do this? I'm having trouble thinking of how the W would be able to admit or deny without being initially confronted with a specific act by the defense atty first, having a chance to respond, then the defense atty accepts the answer, and then places a defense witness on the stand to provide a specific act about P's W [this would be the extrinsic evidence].

Yes an affidavit won't be allowed in substantively, but not because of the inability of the other side to cross-examine. That's the former testimony exception to hearsay. The reason the affidavit can't get in is because it was not made during a legal proceeding.

By the way in California prior inconsistent statements are always allowed in substantively even if not made under oath.

To your question about only being able to ask about specific instances on cross, the FRE considers it cross examination when you are impeaching your own witness.

Keep in mind you can only introduce evidence on a matter relevant to the case. So if the case was about whether the D killed someone and you didn't think the witness was an honest guy, you could ask on cross whether he had ever practiced without a law license, but you couldn't introduce evidence to that effect.

Where you could introduce extrinsic evidence is if that same defendant was on trial for murder, the witness earlier said he saw it happen, and now on the stand he says he never saw it happen. If that prior statement was made under oath, you could introduce it as substantive evidence that W saw D commit the murder. If it was not under oath you could still introduce it, but only to show W is not telling the truth. For example if he told his friend he saw it happen, you could call the friend to the stand to testify that the guy told a different story, but the jury can't use that to assume D actually did it, only that W was lying.

Calicakes
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Re: July 2015 California Bar Exam

Postby Calicakes » Fri Jul 24, 2015 7:47 pm

brotherdarkness wrote:Anyone know anything about reverse Van Camp and reverse Pereira (sp?)? I don't remember Barbri teaching me any of this, but some Kaplan/Themis kids are talking about it.



I have flashcards from LECC and there is one for this.

For appreciation of CP efforts AFTER SEPARATION Pereira and Van Camp are applied in reverse.

Periera( reverse). The legal rate of interest would be the CP portion of the increase in value, classifying the remaining appreciation as post separation effort and consequently, SP.

Van Camp(reverse) An increase in value attributable to one's labor, efforts and skill while the spouses are living separate and apart would be deemed the SP of the earner spouse. Any additional increase is CP due to the natural appreciation of the asset.

Holy Crap, I hope this doesnt come up.

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Pleasye
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Re: July 2015 California Bar Exam

Postby Pleasye » Fri Jul 24, 2015 7:50 pm

redblueyellow wrote:Evidence - Non-hearsay - Impeachment:

Rule: A prior inconsistent statement can be used to impeach a witness via extrinsic evidence. A prior inconsistent statement that was under oath, such as in a trial, deposition, hearing, and affidavit is also admissible for its truth. The witness must first be given the opportunity to explain or deny the prior inconsistent statement during cross-examination.

So first thing, does an affidavit count as "under oath" for substantive purposes? My assumption is NO--there's no ability to cross-examine.

Second, how do you allow for the witness to first be given the opportunity to explain or deny without introducing the extrinsic evidence first?

Would the defense attorney on cross ask the P's W something like "hey, did you ever practice law in another state without being authorized to do so?" The W would respond "no way." Then would the defense attorney said "lol, are you sure about your answer? we have another witness here that says you did! what do you have to say to that?" Then the W would have a chance to deny or explain.

Is there any alternate way or order to do this? I'm having trouble thinking of how the W would be able to admit or deny without being initially confronted with a specific act by the defense atty first, having a chance to respond, then the defense atty accepts the answer, and then places a defense witness on the stand to provide a specific act about P's W [this would be the extrinsic evidence].

______

For all you evidence/crim people out there:

D commits a crime against Plaintiff, Mary. Plaintiff calls the cops, etc etc, now the Prosecution is handling the case. The plaintiff is removed from being the actual "plaintiff" because it is a criminal case and only prosecutors can bring a crim case. If the prosecutor wishes to place Mary on the stand for questioning, what is Mary's title? Witness? Plaintiff?

If the prosecutor wishes to place the defendant on the stand to ask him some questions, what is his title?

I ask because my outlines list out impeachment of the Witness, but never "impeachment of the defendant." Does it work the same way?

1. Affidavit does not count as under oath for the purposes of a prior inconsistent statement because it wasn't made at a legal proceeding.

2. The witness does not FIRST have to be given a chance to explain or deny - there is no requirement that this be done in a certain order. The witness must be given a chance to explain or deny the statement at some point during the trial.

As to your evidence/crim question: the defendant who is testifying is a witness and the victim who is testifying is a witness. Anyone testifying on the witness stand is a witness. There aren't really special rules about questioning the defendant and if you're thinking of one it probably has to do with the D's constitutional rights.

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Re: July 2015 California Bar Exam

Postby gaagoots » Fri Jul 24, 2015 7:52 pm

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Last edited by gaagoots on Wed Sep 02, 2015 9:08 pm, edited 1 time in total.

redblueyellow
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Re: July 2015 California Bar Exam

Postby redblueyellow » Fri Jul 24, 2015 7:58 pm

Pleasye wrote:

1. Affidavit does not count as under oath for the purposes of a prior inconsistent statement because it wasn't made at a legal proceeding.

2. The witness does not FIRST have to be given a chance to explain or deny - there is no requirement that this be done in a certain order. The witness must be given a chance to explain or deny the statement at some point during the trial.

As to your evidence/crim question: the defendant who is testifying is a witness and the victim who is testifying is a witness. Anyone testifying on the witness stand is a witness. There aren't really special rules about questioning the defendant and if you're thinking of one it probably has to do with the D's constitutional rights.[/quote]

Thanks!

For 1, does an affidavit count for anything substantive at any point in time during a trial? Or is it basically just used for impeachment purposes? I guess it wouldn't be admissible under hearsay if the declarant is available, because then they'd just have the declarant testify under personal knowledge. It wouldn't make sense to admit it if hearsay is unavailable because it wasn't written during a proceeding.

2. If the witness does not have to given the opportunity FIRST, does that mean you could have witnesses trading going up and off the witness stand to answer a question about the other and then the other one being given an opportunity to explain/deny?

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Re: July 2015 California Bar Exam

Postby redblueyellow » Fri Jul 24, 2015 8:00 pm

I've been reading the megathread on reddit as well, and this question came up:

"Essentially, there was a statutory interpleader action in question 1 and I missed the answer b/c I forgot about nationwide PJX. Question 2 (unrelated) had the same statutory interpleader action, and it was about venue. I applied the personal JX analysis in my head when I answered the question.
A trustee (state X) for a decedent's estate (state X citizenship) filed a statutory interpleader action (in state X) against person 1 (state Y), person 2 (state Z), and person 3 (state A).

Question was which of the following statements is correct:

Answer was: Case is subject to motion to dismiss under 12(b)(3) because venue in a statutory interpleader action is only proper in a district where one of the claimants reside."

If there is personal jurisdiction nationwide, doesn't that make venue appropriate everywhere? Why is venue only proper where the claimants reside?

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Tiago Splitter
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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Fri Jul 24, 2015 8:01 pm

redblueyellow wrote:For 1, does an affidavit count for anything substantive at any point in time during a trial? Or is it basically just used for impeachment purposes? I guess it wouldn't be admissible under hearsay if the declarant is available, because then they'd just have the declarant testify under personal knowledge. It wouldn't make sense to admit it if hearsay is unavailable because it wasn't written during a proceeding.

No it won't be substantive. But prior inconsistent statements are an exception to the hearsay rule altogether so they can always come in regardless of availability.

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Re: July 2015 California Bar Exam

Postby redblueyellow » Fri Jul 24, 2015 8:07 pm

Tiago Splitter wrote:By the way in California prior inconsistent statements are always allowed in substantively even if not made under oath.

Keep in mind you can only introduce evidence on a matter relevant to the case. So if the case was about whether the D killed someone and you didn't think the witness was an honest guy, you could ask on cross whether he had ever practiced without a law license, but you couldn't introduce evidence to that effect. Ah, true, no ability to introduce extrinsic evidence on collateral matters, only pertinent matters.

Where you could introduce extrinsic evidence is if that same defendant was on trial for murder, the witness earlier said he saw it happen, and now on the stand he says he never saw it happen. If that prior statement was made under oath, you could introduce it as substantive evidence that W saw D commit the murder. If it was not under oath you could still introduce it, but only to show W is not telling the truth. For example if he told his friend he saw it happen, you could call the friend to the stand to testify that the guy told a different story, but the jury can't use that to assume D actually did it, only that W was lying.


'Thanks! I actually did not know that in CA, PIS was always allowed substantively (my outlines don't mention this). Is this under the CEC or Prop 8 for crim cases?

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Pleasye
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Re: July 2015 California Bar Exam

Postby Pleasye » Fri Jul 24, 2015 8:09 pm

redblueyellow wrote:Thanks!

For 1, does an affidavit count for anything substantive at any point in time during a trial? Or is it basically just used for impeachment purposes? I guess it wouldn't be admissible under hearsay if the declarant is available, because then they'd just have the declarant testify under personal knowledge. It wouldn't make sense to admit it if hearsay is unavailable because it wasn't written during a proceeding.

2. If the witness does not have to given the opportunity FIRST, does that mean you could have witnesses trading going up and off the witness stand to answer a question about the other and then the other one being given an opportunity to explain/deny?

It would be used for impeachment purposes and not substantively because it doesn't fall under the exception that it be under oath during a legal proceeding. Unless this was a CA essay and in that case you can use it substantively even if it isn't under oath. But unavailability of the declarant is not required for prior inconsistent statement. I don't understand the last sentence of your post.

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Re: July 2015 California Bar Exam

Postby redblueyellow » Fri Jul 24, 2015 8:11 pm

Pleasye wrote:
redblueyellow wrote:Thanks!

For 1, does an affidavit count for anything substantive at any point in time during a trial? Or is it basically just used for impeachment purposes? I guess it wouldn't be admissible under hearsay if the declarant is available, because then they'd just have the declarant testify under personal knowledge. It wouldn't make sense to admit it if hearsay is unavailable because it wasn't written during a proceeding.

2. If the witness does not have to given the opportunity FIRST, does that mean you could have witnesses trading going up and off the witness stand to answer a question about the other and then the other one being given an opportunity to explain/deny?

It would be used for impeachment purposes and not substantively because it doesn't fall under the exception that it be under oath during a legal proceeding. Unless this was a CA essay and in that case you can use it substantively even if it isn't under oath. But unavailability of the declarant is not required for prior inconsistent statement. I don't understand the last sentence of your post.


Thanks! Don't worry about the last sentence, lol. Taigo got it when he mentioned that a witness must be given the opportunity at SOME time during a trial to explain/deny a specific act/etc.

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Tiago Splitter
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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Fri Jul 24, 2015 8:12 pm

redblueyellow wrote:
Tiago Splitter wrote:By the way in California prior inconsistent statements are always allowed in substantively even if not made under oath.

Keep in mind you can only introduce evidence on a matter relevant to the case. So if the case was about whether the D killed someone and you didn't think the witness was an honest guy, you could ask on cross whether he had ever practiced without a law license, but you couldn't introduce evidence to that effect. Ah, true, no ability to introduce extrinsic evidence on collateral matters, only pertinent matters.

Where you could introduce extrinsic evidence is if that same defendant was on trial for murder, the witness earlier said he saw it happen, and now on the stand he says he never saw it happen. If that prior statement was made under oath, you could introduce it as substantive evidence that W saw D commit the murder. If it was not under oath you could still introduce it, but only to show W is not telling the truth. For example if he told his friend he saw it happen, you could call the friend to the stand to testify that the guy told a different story, but the jury can't use that to assume D actually did it, only that W was lying.


'Thanks! I actually did not know that in CA, PIS was always allowed substantively (my outlines don't mention this). Is this under the CEC or Prop 8 for crim cases?

That one is under the CEC, so it works in civil cases too.

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Re: July 2015 California Bar Exam

Postby redblueyellow » Fri Jul 24, 2015 8:31 pm

Tiago Splitter wrote:That one is under the CEC, so it works in civil cases too.


I did not find that information in any of the my materials. If you hadn't brought it up, I wouldn't have known. Thank you!

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SpAcEmAn SpLiFF
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Re: July 2015 California Bar Exam

Postby SpAcEmAn SpLiFF » Fri Jul 24, 2015 8:33 pm

Is it possible to get compensatory and restitution damages in breach of contract actions? I know you can't get both with tort actions. Stupid conviser mini review is mum on the subject :?

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brotherdarkness
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Re: July 2015 California Bar Exam

Postby brotherdarkness » Fri Jul 24, 2015 8:36 pm

I didn't know this either.

Just to make sure I've got things straight:

FRE -- Prior inconsistent statement not made under oath at a prior proceeding can come in for impeachment purposes, but not for substantive purposes. Prior inconsistent statement made under oath at a prior proceeding can come in for both impeachment and substantive purposes. (And, while we're at it, prior testimony given under oath can come in substantively if the witness is now unavailable.)

CEC -- Prior inconsistent statement, whether or not made under oath at a prior proceeding, can come in for both impeachment and substantive purposes.

Sound about right?

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Tiago Splitter
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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Fri Jul 24, 2015 8:44 pm

brotherdarkness wrote:I didn't know this either.

Just to make sure I've got things straight:

FRE -- Prior inconsistent statement not made under oath at a prior proceeding can come in for impeachment purposes, but not for substantive purposes. Prior inconsistent statement made under oath at a prior proceeding can come in for both impeachment and substantive purposes. (And, while we're at it, prior testimony given under oath can come in substantively if the witness is now unavailable.)

CEC -- Prior inconsistent statement, whether or not made under oath at a prior proceeding, can come in for both impeachment and substantive purposes.

Sound about right?

Yep. CA's exception is weird where they say if it's for impeachment purposes it's not even hearsay at all, but if it's for substantive purposes it is hearsay but comes in under the prior inconsistent statement exception. But in practice it works exactly the same way; regardless of whether made under oath at prior proceeding or not it gets in for impeachment and substantive purposes.

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Re: July 2015 California Bar Exam

Postby redblueyellow » Fri Jul 24, 2015 8:48 pm

SpAcEmAn SpLiFF wrote:Is it possible to get compensatory and restitution damages in breach of contract actions? I know you can't get both with tort actions. Stupid conviser mini review is mum on the subject :?


I don't think so. The P has to select which applies best to him (which one pays out more). Restitutionary damages usually apply in cases with a quasi-contract, or where there's a breach and a party has received an unjust enrichment, so to cure the unjust enrichment, only the value of services are reimbursed. I think if both were granted, then the P would come out way ahead.

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Re: July 2015 California Bar Exam

Postby redblueyellow » Fri Jul 24, 2015 8:50 pm

Tiago Splitter wrote:
brotherdarkness wrote:I didn't know this either.

Just to make sure I've got things straight:

FRE -- Prior inconsistent statement not made under oath at a prior proceeding can come in for impeachment purposes, but not for substantive purposes. Prior inconsistent statement made under oath at a prior proceeding can come in for both impeachment and substantive purposes. (And, while we're at it, prior testimony given under oath can come in substantively if the witness is now unavailable.)

CEC -- Prior inconsistent statement, whether or not made under oath at a prior proceeding, can come in for both impeachment and substantive purposes.

Sound about right?

Yep. CA's exception is weird where they say if it's for impeachment purposes it's not even hearsay at all, but if it's for substantive purposes it is hearsay but comes in under the prior inconsistent statement exception. But in practice it works exactly the same way; regardless of whether made under oath at prior proceeding or not it gets in for impeachment and substantive purposes.


Alright, Mr. CEC, how about this one:

For Statements Against Interest, under FRE, you need to have corroborating evidence if you intend on using SAI as an exculpatory device. Do you also need the same in CA? I have conflicting information as to whether corroborating evidence is needed or not in CA.

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Tiago Splitter
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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Fri Jul 24, 2015 9:02 pm

redblueyellow wrote:For Statements Against Interest, under FRE, you need to have corroborating evidence if you intend on using SAI as an exculpatory device. Do you also need the same in CA? I have conflicting information as to whether corroborating evidence is needed or not in CA.

Barbri just says the CA rule is the same except you can also use statement against social interest (in addition to the FRE's allowance for statements against financial or penal interest). They note the federal rule requires corroborating evidence for criminal cases but they don't explicitly mention it's the same in CA. I assume it's the same but not 100%.

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Re: July 2015 California Bar Exam

Postby redblueyellow » Fri Jul 24, 2015 9:10 pm

Tiago Splitter wrote:
redblueyellow wrote:For Statements Against Interest, under FRE, you need to have corroborating evidence if you intend on using SAI as an exculpatory device. Do you also need the same in CA? I have conflicting information as to whether corroborating evidence is needed or not in CA.

Barbri just says the CA rule is the same except you can also use statement against social interest (in addition to the FRE's allowance for statements against financial or penal interest). They note the federal rule requires corroborating evidence for criminal cases but they don't explicitly mention it's the same in CA. I assume it's the same but not 100%.


Yup, I have the social interest exception, but can't confirm the other part. BarBri 1 Leansheets 0, I guess.

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Re: July 2015 California Bar Exam

Postby redblueyellow » Fri Jul 24, 2015 10:00 pm

Dumb question, but I'd like to make sure that I'm on the same page.

For Former Testimony, what does "party against whom testimony is now offered" specifically refer to? The FRE rule is that the party against whom testimony is now offered was not a party in the previous proceeding, but was in a privity type relationship, and had the opportunity to cross-examine for a similar interest.

Which parties are which here?

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Re: July 2015 California Bar Exam

Postby robinhoodOO » Fri Jul 24, 2015 10:02 pm

redblueyellow wrote:Dumb question, but I'd like to make sure that I'm on the same page.

For Former Testimony, what does "party against whom testimony is now offered" specifically refer to? The FRE rule is that the party against whom testimony is now offered was not a party in the previous proceeding, but was in a privity type relationship, and had the opportunity to cross-examine for a similar interest.

Which parties are which here?


Just the adverse party. So, if Plaintiff attempts to enter former testimony, he's entering it "against" Defendant. Defendant has to have had a prior opportunity to cross.

Usually comes up in the context of a criminal suit, where victim later brings a civil action.

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Tiago Splitter
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Re: July 2015 California Bar Exam

Postby Tiago Splitter » Fri Jul 24, 2015 10:19 pm

redblueyellow wrote:
Tiago Splitter wrote:
redblueyellow wrote:For Statements Against Interest, under FRE, you need to have corroborating evidence if you intend on using SAI as an exculpatory device. Do you also need the same in CA? I have conflicting information as to whether corroborating evidence is needed or not in CA.

Barbri just says the CA rule is the same except you can also use statement against social interest (in addition to the FRE's allowance for statements against financial or penal interest). They note the federal rule requires corroborating evidence for criminal cases but they don't explicitly mention it's the same in CA. I assume it's the same but not 100%.


Yup, I have the social interest exception, but can't confirm the other part. BarBri 1 Leansheets 0, I guess.

Just found it. Says CA actually does not require corroboration in criminal cases.

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smokeylarue
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Re: July 2015 California Bar Exam

Postby smokeylarue » Fri Jul 24, 2015 11:03 pm

What are the odds California Civil Procedure in an essay? Because I have not given it one second yet....

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robinhoodOO
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Re: July 2015 California Bar Exam

Postby robinhoodOO » Fri Jul 24, 2015 11:06 pm

smokeylarue wrote:What are the odds California Civil Procedure in an essay? Because I have not given it one second yet....


They haven't tested it in 20 years, and if you don't know it yet, well...Shit




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