A SUMMARY OF THE RULES OF EVIDENCE:

THE ESSENTIAL TOOLS FOR SURVIVAL IN THE COURTROOM

By Vincent DiCarlo
TABLE OF CONTENTS
I. Introduction
II. The Four Types of Evidence
III. General Rules of Admissibility
IV. Real Evidence
V. Demonstrative Evidence
VI. Documentary Evidence
VII. Testimonial Evidence
VIII. Form of Examination
I. The !ay "pinion Rule
. Accreditin# and Discreditin# a $itness
I. %haracter Evidence
II. The Rule A#ainst &earsay
III. 'rivile#es
IV. 'resumptions
V. (udicial )otice and "ther *ubstitutes for Evidence
VI. +a,in# and "pposin# "b-ections
VII. +iscellaneous "ther Rules
VIII. %onclusion
I. INTRODUCTION.
$e can only cover the %alifornia and federal la. of evidence in the short time that .e
have by a ruthless process of selection and compression. $hat .e .ill cover can best be
thou#ht of as that essential ,ernel of the la. of evidence that the trial la.yer must carry
in his head.
"ur tas, .ould be impossible but for t.o important facts. First/ all of you have studied
the la. of evidence before/ either in a course on evidence or in preparation for the bar
exam. Accordin#ly/ most of the rules presented .ill already be familiar to you. $hat .e
.ill do here is to try to revie./ or#ani0e/ and reinforce that la. so that you can apply it
.ith confidence .hen you need it.
*econd/ most of the rules of evidence need not be covered here because they are either so
obvious that you already ,no. all you need to ,no. about them or they apply only in
limited circumstances. For example/ .e .ould surely be .astin# our time if .e indul#ed
in an extended discussion of the rule that evidence should be construed to achieve the
ends of -ustice/ and others li,e it. This and many other rules only state the obvious and
.ill not be covered here. Rules that apply only in limited circumstances include ones li,e
those relatin# to the scope of cross examination of a plaintiff in a case of sexual assault/ a
-uror1s incompetence to impeach his o.n verdict/ and the proof of valuation of property.
Evid. %ode 22 345/ 5567/ 457 et se8.9 Fed. Rules Evid. :5;/ <7<. =ou do not need to
,no. those special rules unless you #et a case .here they apply. $hen that happens/ it
.ill be time enou#h to study them.
$hat is left after you eliminate all the rules that are obvious and all those that have only
limited application are the rules that are used every day in ordinary cases and that are not
trivial or obvious. These essential tools of survival must be thorou#hly mastered. They
.ill enable you to solve the vast ma-ority of evidentiary problems that arise in preparin#
and tryin# your cases.
I do recommend/ ho.ever/ that you ta,e the time to read .hichever codification applies
to your practice so you .ill ,no. .hen you need to study one of the rules of limited
application and so that you can #ain confidence that there are not any #aps in your
,no.led#e. %alifornia1s Evidence %ode is short and the Federal Rules of Evidence are
shorter and/ once .e are done/ I thin, that you .ill have an analytic frame.or, that .ill
allo. you to read them easily and .ith understandin#.
II. THE FOUR TYES OF EVIDENCE.
There are four traditional types of evidence> real/ demonstrative/ documentary/ and
testimonial. *ome rules of evidence apply to all four types and some apply only to some
or one of them. First/ .e .ill cover #eneral rules of admissibility that apply to all
evidence. Then/ .e .ill cover foundational rules that relate to specific ,inds of evidence.
Finally/ .e .ill cover some special topics/ li,e the form of examination/ the hearsay rule/
and the lay opinion rule/ that fre8uently cause problems in the courtroom.
III. !ENERAL RULES OF ADMISSIBILITY.
The basic prere8uisites of admissibility are relevance/ materiality/ and competence. In
#eneral/ if evidence is sho.n to be relevant/ material/ and competent/ and is not barred by
an exclusionary rule/ it is admissible. Evid. %ode 2 ?659 Fed. Rules Evid. :7;.
Evidence is relevant .hen it has any tendency in reason to ma,e the fact that it is offered
to prove or disprove either more or less probable. Evid. %ode 2 ;579 Fed. Rules Evid.
:75. To be relevant/ a particular item of evidence need not ma,e the fact for .hich it is
offered certain/ or even more probable than not. All that is re8uired is that it have some
tendency to increase the li,elihood of the fact for .hich it is offered. Weighing the
evidence is for the finder of fact/ and althou#h a particular piece of evidence/ standin# by
itself/ may be .ea,/ it .ill be admitted unless it is other.ise incompetent or it runs afoul
of an exclusionary rule. For example/ if the fact to be proved is that the defendant bit off
the plaintiff1s nose in a fi#ht/ testimony by an eye.itness to the act .ould clearly be
relevant/ but so .ould testimony by a .itness .ho heard the plaintiff and the defendant
exchan#e an#ry .ords on the day before the fi#ht/ or even testimony by a .itness .ho
sold the defendant a disinfectant mouth.ash shortly after.ards.
Evidence is material if it is offered to prove a fact that is at issue in the case. For example/
if I offer the testimony of an eye.itness to prove that it .as rainin# on the day of the
si#nin# of a contract/ that evidence may be relevant to prove the fact for .hich it is
offered/ yet the fact that it .as or .as not rainin# may be immaterial to any of the issues
in the case/ .hich may turn entirely on .hether one or both parties breached the contract.
The issues in the case are determined by the pleadin#s/ any formal stipulations or
admissions/ and the applicable la.. For example/ if/ in a case of breach of contract/ the
defendant has conceded that the plaintiff performed all his covenants/ proof of that
performance .ould no lon#er be material unless it .ere relevant to some other issue.
@nder both the %alifornia and federal rules/ the concept of materiality is included in the
concept of relevance. Evid. %ode 2 ;579 Fed. Rules Evid. :57.
Evidence is competent if the proof that is bein# offered meets certain traditional
re8uirements of reliability. The preliminary sho.in# that the evidence meets those tests/
and any other prere8uisites of admissibility/ is called the foundational evidence. Evid.
%ode 2 :7;/ :7?. $hen an ob-ection is made that an ans.er to a 8uestion/ a document/ or
a thin# lac,s a proper foundation/ .hat the ob-ector is really sayin# is that a sho.in# of
competence/ or of another prere8uisite of admissibility/ has not yet been made. The
modern trend in the la. is to diminish the importance of the rules of competence by
turnin# them into considerations of .ei#ht. See, e.g./ Evid. %ode 2 3779 Fed. Rules Evid.
<75. The 8uestion of competence .ill be considered belo. for each cate#ory of evidence.
In #eneral/ if competent evidence is offered to prove a relevant and material fact/ it is
admissible even if it .ould have been improper to receive it for another purpose. Evid.
%ode 2 ?66. For example/ .hile evidence of prior bad acts is #enerally not admissible to
sho. that a person acted similarly in the present case/ it may be admissible to sho.
motive/ plan/ intent/ or lac, of mista,e or/ in federal court/ to impeach a .itness1s
credibility. Evid. %ode 2 5575AbB9 Fed. Rules Evid. :7:AbB. $hen evidence is received for
a limited purpose/ the party .ho thin,s a -ury may ma,e improper use of that evidence is
entitled/ upon his re8uest/ to a limitin# instruction. Evid. %ode 2 ?66.
&o.ever/ .here the value of evidence for its proper purpose is sli#ht and the li,elihood
that it .ill be used for an improper purpose by a finder of fact is #reat/ a court may/ in its
discretion/ exclude the evidence even thou#h it .ould other.ise be admissible. Evid.
%ode 2 ?6;9 Fed. Rules Evid. :7?. In this situation/ the probative value of the evidence is
said to be out.ei#hed by its pre-udicial effect.
're-udice means improper harm. The fact that evidence may be extremely harmful to one
party1s case does not necessarily ma,e it pre-udicial. %ourts also have discretion to
exclude other.ise admissible evidence to prevent confusion/ delay/ .aste of time/ or the
needless presentation of cumulative evidence. Evid. %ode 2 ?6;9 Fed. Rules Evid. :7?.
IV. REAL EVIDENCE.
Real evidence is a thin# the existence or characteristics of .hich are relevant and
material. It is usually a thin# that .as directly involved in some event in the case. The
.ritten contract upon .hich an action is based is real evidence both to prove its terms and
that it .as executed by the defendant. If it is .ritten in a falterin# and unsteady hand/ it
may also be relevant to sho. that the .riter .as under duress at the time of its execution.
The bloody bloomers/ the murder .eapon/ a crumpled automobile/ the scene of an
accidentCCall may be real evidence.
To be admissible/ real evidence/ li,e all evidence/ must be relevant/ material/ and
competent. Establishin# these basic prere8uisites/ and any other special ones that may
apply/ is called layin# a foundation. The relevance and materiality of real evidence are
usually obvious. Its competence is established by sho.in# that it really is .hat it is
supposed to be. 'rovin# that real or other evidence is .hat it purports to be is called
authentication. Evid. %ode 2 5:779 Fed. Rules Evid. D75.
Real evidence may be authenticated in three .aysCCby identification of a uni8ue ob-ect/
by identification of an ob-ect that has been made uni8ue/ and by establishin# a chain of
custody. =ou only have to be able to use one of these .ays/ thou#h it is prudent to
prepare to use an alternate method in case the court is not satisfied .ith the one you have
chosen.
The easiest and usually the least troublesome .ay to authenticate real evidence is by the
testimony of a .itness .ho can identify a uni8ue ob-ect in court. For example/ the curator
of a museum may be able to testify that he is familiar .ith/ say/ 'icasso1s EDames de
Avi#nonE and that .hat has been mar,ed as exhibit soCandCso is in fact that seminal
.or,. It is important to remember/ ho.ever/ that many more mundane ob-ects may be
amenable to this ,ind of identification. A uni8ue contract/ or one that has been si#ned/
may be authenticated by a person .ho is familiar .ith the document or its si#natures. A
rin# may have an inscription by .hich it can be identified. Even a manufactured ob-ect/
li,e a .allet/ may be identifiable by its o.ner after years of use have #iven it a uni8ue
personality.
The second methodCCidentification in court of an ob-ect that has been made uni8ue/ is
extremely useful since it sometimes allo.s a la.yer or client to avoid the pitfalls of
provin# a chain of custody by exercisin# some forethou#ht. If a .itness .ho can
establish an ob-ect1s relevance to the case mar,s it .ith his si#nature/ initials/ or another
mar, that .ill allo. him to testify that he can tell it from all other ob-ects of its ,ind/ that
.itness .ill be allo.ed to identify the ob-ect in court and thus to authenticate it. "ften/ if
a member of the la.yer1s staff or another person early in the chain of custody mar,s the
evidence/ bi# problems can be avoided if a later lin, in the chain turns out to be missin#.
The third and least desirable .ay to authenticate real evidence is by establishin# a chain
of custody. Establishin# a chain of custody re8uires that the .hereabouts of the evidence
at all times since the evidence .as involved in the events at issue be established by
competent testimony.
The proponent of the evidence must also establish that the ob-ect/ in relevant respects/ has
not chan#ed or been altered bet.een the events and the trial. This can sometimes be a tall
order/ or can re8uire the testimony of several .itnesses. If there is any time from the
events in 8uestion to the day of trial durin# .hich the location of the item cannot be
accounted for/ the chain is bro,en. In that case/ the evidence .ill be excluded unless
another method of authentication can be used.
V. DEMONSTRATIVE EVIDENCE.
Demonstrative evidence is -ust .hat the name impliesCCit demonstrates or illustrates the
testimony of a .itness. It .ill be admissible .hen/ .ith accuracy sufficient for the tas, at
hand/ it fairly and accurately reflects that testimony and is other.ise unob-ectionable.
Typical examples of demonstrative evidence are maps/ dia#rams of the scene of an
occurrence/ animations/ and the li,e. Fecause its purpose is to illustrate testimony/
demonstrative evidence is authenticated by the .itness .hose testimony is bein#
illustrated. That .itness .ill usually identify salient features of the exhibit and testify that
it fairly and accurately reflects .hat he sa. or heard on a particular occasion/ such as the
location of people or thin#s on a dia#ram.
For some time in %alifornia/ there .as a controversy over .hether photo#raphs .ere only
demonstrative in nature or .hether they had evidentiary value independent of the
testimony of the .itness .ho authenticated them. This problem .as particularly pressin#
.hen there was no .itness .ho could confirm .hat the camera sa. as/ for example/
.here crucial identifyin# photo#raphs .ere ta,en by automatic cameras.
Fortunately/ the courts in this state seem to have reached the only sensible solution/ .hich
is that photo#raphs can be either real or demonstrative evidence dependin# on ho. they
are authenticated. $hen a photo#raph is authenticated by a .itness .ho observed .hat is
depicted in it and can testify that it accurately reflects .hat he sa./ the photo#raph is
demonstrative evidence. $hen it is authenticated by a technician or other .itness .ho
testifies about the operation of the e8uipment used to ta,e it/ it is real evidence and is/ in
the lan#ua#e of the courts/ a Esilent .itness.E
VI. DOCUMENTARY EVIDENCE.
Documentary evidence is often a ,ind of real evidence/ as for example .here a contract is
offered to prove its terms. $hen a document is used this .ay it is authenticated the same
.ay as any other real evidenceCCby a .itness .ho identifies it or/ less commonly/ by
.itnesses .ho establish a chain of custody for it. &o.ever/ because they contain human
lan#ua#e/ and because of the historical development of the common la./ documents
present special problems not presented by other forms of real evidence/ such as .hen
they contain hearsay.
$hen dealin# .ith documentary evidence/ it is a #ood idea to as, yourself four
8uestions>
5. Is there a parol evidence problemG
;. Is there a best evidence problemG
?. Is there an authentication problemG
:. Is there a hearsay problemG
The parol evidence rule/ .hich bars the admission of extrinsic evidence to vary the terms
of a .ritten a#reement/ is usually considered a matter of substantive la./ not of rule of
evidence. Accordin#ly/ .e .ill not deal .ith it here.
As has been noted above/ documents can be authenticated the same .ay as any other real
evidence. Evid. %ode 2 5:77/ 5:75/ 5:57C5:5<. +aterial alterations must be accounted
for. Evid. %ode 2 5:7;. There are also specifically approved methods of authenticatin#
documents listed in the Evidence %ode/ includin# the submission to the finder of fact of a
,no.n exemplar of a si#nature for comparison .ith the si#nature on a disputed
document/ Evid. %ode 2 5:53/ authentication by evidence of a reply/ Evid. %ode 2 5:;7/
and authentication by content/ Evid. %ode 2 5:;5.
In addition/ some documents/ such as certified copies of public records/ official
documents/ ne.spapers/ periodicals/ trade inscriptions/ ac,no.led#ed documents to
prove the ac,no.led#ment/ certificates of the custodians of business records/ and certain
commercial paper and related documents are/ to one extent or another/ self authenticatin#
under either %alifornia la. or the federal rules. Evid. %ode 2 5:67 et se8./ 56?7 et se8./
56<;9 Fed. Rules Evid. D75/ D7;.
$e .ill cover the hearsay rule as a separate topic.
The best evidence rule provides that/ .here a .ritin# is offered in evidence/ a copy or
other secondary evidence of its content .ill not be received in place of the ori#inal
document unless an ade8uate explanation is offered for the absence of the ori#inal. Evid.
%ode 2 5677 et se8.9 Fed. Rules Evid. 577;. In %alifornia/ testimonial and other
secondary evidence of the document1s content is also #enerally forbidden. Evid. %ode 22
5677/ 5674.
The best evidence rule arose durin# the days .hen a copy .as usually made by a cler, or/
.orse/ a party to the la.suit. %ourts #enerally assumed that/ if the ori#inal .as not
produced/ there .as a #ood chance of either a scrivener1s error or fraud. )o. that EcopyE
usually means Ephotocopy/E the chance of a copy bein# in error/ as opposed to simply
ille#ible/ is sli#ht. In addition/ courts are reluctant to re8uire needless effort and delay
.here there is no dispute about the fairness and ade8uacy of a photocopy.
Accordin#ly/ both %alifornia la. and the federal rules allo. the use of mechanically
produced duplicates unless a party has raised a #enuine 8uestion about the accuracy of
the copy or can sho. that its use .ould be unfair. Evid. %ode 22 5677 et se8.9 Fed. Rules
Evid. 577?. &o.ever/ there is al.ays a dan#er of a party 8uestionin# a document/ so it is
important to remember that/ unless you have a stipulation to the contrary/ or your
document fits one of the exceptions listed in the statute/ you must be ready to produce
ori#inals of any documents involved in your case or to produce evidence of .hy you
can1t.
@nder both %alifornia la. and the federal rules/ compilations or summaries of
voluminous records may be received .here the ori#inals are available for examination by
the other parties. Evid. %ode 2 567D.
VII. TESTIMONIAL EVIDENCE.
Testimonial evidence is the most basic form of evidence and the only ,ind that does not
usually re8uire another form of evidence as a prere8uisite for its admissibility. *ee Evid.
%ode 2 37;AbB9 Fed R. Evid. <7;. It consists of .hat is said in the court at the proceedin#
in 8uestion by a competent .itness.
In #eneral/ a .itness is competent if he meets four re8uirements>
5. &e must/ .ith understandin#/ ta,e the oath or a substitute. Evid. %ode 22 357/ 3759
Fed. Rules Evid. <7?.
;. &e must have personal ,no.led#e about the sub-ect of his testimony. In other .ords/
the .itness must have perceived somethin# .ith his senses that is relevant to the case.
Evid. %ode 2 37;9 Fed. Rules Evid. <7;.
?. &e must remember .hat he perceived.
:. &e must be able to communicate .hat he perceived. Evid. %ode 2 375AaBA5B.
There are other rules of competence that relate to special circumstances/ such as the rule
that a -uror is #enerally incompetent to impeach his o.n verdict or that/ at least in federal
court/ a -ud#e is not competent to testify in a trial over .hich he is presidin#/ but these
and other rules li,e them rarely come up in practice. Evid. %ode 22 5567/ 37?9 Fed. Rules
Evid. <7</ <76.
In addition/ in ,eepin# .ith the modern trend to vie. issues that .ere previously thou#ht
to involve 8uestions of competence/ .hich could result in the exclusion of evidence/ as
presentin# instead 8uestions of .ei#ht for the finder of fact to evaluate/ the rules of
competence are very liberally construed and .ill rarely result in the exclusion of
evidence. For example/ the re8uirement that a .itness ta,e the oath or a substitute
permits virtually any ,ind of affirmation by .hich the .itness/ in effect/ promises to tell
the truth. Evid. %ode 2 5<6. The Eunderstandin#E of the oath or affirmation that is
re8uired can be that of a small child or mentally disabled person. Evid. %ode 2 375/ 3579
'eople v. +cIntyre A5D<3B ;6< %al.App.;d 4D:/ 4D49 <: %al. Rptr. 6?7/ 6??. The
communication that is re8uired may be in .ritin# or throu#h an interpreter/ .hether of
spo,en or of si#n lan#ua#e. Evid. %ode 2 375/ 36;/ 36:9 Fed. Rules Evid. <7:. In
addition/ deficiencies in ,no.led#e #enerally affect only .ei#ht/ so lon# as the .itness
perceived somethin# relevant.
Even if a .itness for#ets .hat he is supposed to be testifyin# about/ the la. allo.s you to
supplement his memory in at least four .ays. First/ you can as, for a recess so that the
.itness can .al, around and calm his nerves. *econd/ you can as, a leadin# 8uestion to
try to refresh his recollection. This is an exception to the usual rule a#ainst the use of
leadin# 8uestions durin# direct examination.
Third/ you can attempt to refresh the .itness1s recollection in another .ay. This method is
commonly called Epast recollection refreshed.E Fefore you can try to refresh the .itness1s
memory he must say that he can1t remember the fact you are tryin# to elicit. Then he must
say that the refreshin# ob-ect mi#ht help him remember. Anythin# that the .itness says
mi#ht help him may be usedCChis o.n notes/ notes or documents prepared by others/ a
videotape of events/ the smell of a decedent1s perfume/ a snoCcone/ or a recordin# of the
Feach Foys sin#in# E*urf %ity @*A.E
If the memory refresher is a .ritin#/ it must be provided to opposin# counsel. This is true
.hether the .itness loo,s at it on the stand or before he testifies/ as for example/ durin#
preparation by counsel. In %alifornia/ the unexcused failure to produce .ritin#s that have
been used by a .itness to refresh his memory .ill result in his testimony bein# stric,enH
Evid. %ode 2 335. The .itness is permitted to loo, at/ smell/ listen to/ touch/ or taste the
memory refresher. $hen he is done/ you .ithdra. it from him and as, .hether he can
no. remember the fact you are interested in. If/ after all this/ the .itness remembers .hat
you are after/ he is permitted to ans.er. Fed. Rules Evid. <5;.
The memory refreshin# thin# is not evidence and cannot be received as such/ thou#h it
must be made available to the opposin# party and may be used by him for cross
examination or for any other proper purpose/ includin# the introduction of portions of it
that relate to the .itness1s testimony. Fed. Rules Evid. <5;. $ith present recollection
refreshed/ it is the ans.er of the .itness/ after his memory has been refreshed/ that is
evidence. "f course/ your adversary may comment on the frailty of your .itness1s
memory .hen he ar#ues about the .ei#ht to be attached to the testimony.
Even if your efforts to fan the embers of memory .ith memory refreshers fail to produce
a flame/ there is still hope. If the .itness has previously recorded/ directed the recordin#
of/ or verified the accuracy of a .ritin# or other portrayal of the fact you are interested in/
you can use the fourth method of aidin# or supplementin# his memory by offerin# the
.ritin# as a past recollection recorded. Evid. %ode 2 5;?3. First/ the .itness must say
that he no lon#er remembers the fact. Then you try to refresh the .itness1s memory .ith
the .ritin# or other recordin# you intend to use. If you can refresh the .itness1s memory/
he .ill be permitted to ans.er the 8uestion. If the .ritin# fails to refresh the .itness1s
memory/ he must identify it as one that he made or sa. .hen he did remember the fact in
8uestion and that he ,ne. then that the .ritin# .as accurate. Evid. %ode 2 5;?3. $ith
past recollection recorded/ the .itness never ans.ers the 8uestion and the .ritin# is the
evidence.
Fecause it is an out of court statement that is offered to prove the truth of its content/ a
past recollection recorded is hearsay. &o.ever/ it is admissible under its o.n exception to
the hearsay rule. Evid. %ode 2 5;?3AaB9 Fed. Rules Evid. 47?A6B. In addition/ li,e any
other documentary evidence/ a past recollection recorded must meet the re8uirements of
the best evidence rule. @nli,e other documentary evidence/ .hile a past recollection
recorded may be read into the record/ it may not be sho.n to the -urors or ta,en .ith
them .hen they retire to deliberate. Id.
Fias/ interest/ pre-udice/ and other #rounds to doubt the credibility of a .itness #o only to
the .ei#ht of his testimony and do not affect his competence. In particular/ it is not a
valid ob-ection to say that a statement by a .itness is EselfCservin#.E 'resumably/ most or
all statements by party .itnesses are or are intended to be self servin#.
VIII. FORM OF E"AMINATION.
"n direct examination/ you are #enerally not permitted to as, leadin# 8uestions. Fed.
Rules Evid. <55AcB. Direct examination is 8uestionin# by the la.yer .ho calls the .itness
to testify concernin# matters that into .hich he is the first party to in8uire. Evid. %ode 2
3<7. A leadin# 8uestion is one that su##ests an ans.er or substitutes the .ords of the
la.yer for those of the .itness. These are 8uestions li,e E=ou told the defendant that you
.ere relyin# on him for advice/ didn1t youGE
Iuestions that call for an ans.er of EyesE or EnoE are not necessarily leadin#. For
example/ most courts .ould allo. you to as, a 8uestion li,e EDid you ever tell the
defendant that you .anted the #oodsGE &o.ever/ 8uestions that call for a yes or no
ans.er can be leadin# if they form a pattern that leads the .itness throu#h his testimony
or reduces the .itness to adoptin# the descriptions of his la.yer. For example/ the
follo.in# is clearly leadin#>
I> $hen you entered the room did you see the defendant thereG
A> =es.
I> $as he visibly a#itatedG
A> =es.
I> Did you as, him .hether he intended to deliver the #oods you had orderedG
A> =es.
I> Did he tell you that he had no intention of doin# soG
A> =es.
"ther cases are not so clear>
I> $hen you met the defendant that ni#ht/ .hat .as his physical conditionG
A> &e .as s.ayin# from side to side.
I> Did he seem to you to be drun,G
A> =es.
As you can see/ in many .ays/ leadin# is a matter of de#ree/ and borderline cases are
matters of -ud#ment and .ithin the court1s discretion/ as is the 8uestion of .hen to allo.
such leadin# 8uestions on direct. +ost of the time/ .hen an ob-ection is sustained to a
leadin# 8uestion/ it is not difficult to rephrase the 8uestion to ma,e it unob-ectionable>
I> $hen you sa. the defendant that ni#ht/ .as he drun,G
%ounsel> "b-ection. !eadin#.
%ourt> *ustained.
I> $hat .as the defendant1s physical condition .hen you sa. himG
A> &e .as drun, as a s,un,.
As this last exchan#e sho.s/ not only is elicitin# testimony .ith nonleadin# 8uestions
proper/ it is also usually more effective to let the .itness tell the story if he can.
!eadin# 8uestions are permitted on direct in several circumstances. $e have already
discussed the propriety of a leadin# 8uestion to refresh a .itness1s recollection. !eadin#
8uestions are also usually permitted in dealin# .ith matters of bac,#round/ or to direct
the .itness1s attention to a particular time and place or to a particular aspect of a
situation. For example/ the follo.in# should usually be permitted>
I> $ere you at *loppy !ouie1s on the evenin# of the t.enty fifth of (anuaryG
A> =es.
I> Did you see the defendant1s car par,ed outsideG
A> =es.
I> $as there anyone inside the carG
A> =es.
I> $hoG
A> The defendant/ that dirty rotten s,un,.
%ounsel> I move to stri,e everythin# after Ethe defendantE as unresponsive/ irrelevant/
incompetent/ immaterial/ and pre-udicial.
%ourt> *o stric,en.
In the example above/ .hile part of the .itness1s answer .as ob-ectionable for other
reasons/ the questioning .ould probably not be considered improper/ althou#h the first
three 8uestions mi#ht be considered leadin#.
!eadin# 8uestions may be allo.ed .here/ in the -ud#e1s sound discretion/ they .ill help
to elicit the testimony of a .itness .ho/ due to tender a#e/ incapacity/ or limited
intelli#ence/ is havin# trouble communicatin# his evidence. Fed. Rules Evid. <55AcB.
They are also allo.ed .hen examinin# an adverse or hostile .itness. Evid. %ode 2 33<9
Fed. Rules Evid. <55AcB. $itnesses are adverse or hostile .hen their interests or
sympathies are li,ely to lead them to resist testifyin# forthri#htly or .ho fall into certain
defined cate#ories. Generally/ an adverse party or a .itness identified .ith an adverse
party is considered hostile for the purposes of this rule. Evid. %ode 2 33<9 Fed. Rules
Evid. <55AcB.
The converse of a leadin# 8uestion is one that calls for a narrative ans.er. Iuestions that
re8uire a .itness to tell a story .ithout respondin# to specific 8uestions deprive your
opponent of the opportunity to interpose an ob-ection before the .itness says somethin#
that is inadmissible. They often also elicit rambles that .aste the time of the court and the
parties. The follo.in# is an example>
I> $hat happened nextG
A> Then *mittie told me about ho. he had seen the defendant attac, the plaintiff from
behind .ith a baseball bat.
%ounsel> I move to stri,e that entire ans.er as hearsay.
%ourt> *o stric,en. The -ury is instructed to disre#ard the last ans.er.
"f course/ the dama#e may already be done.
The problem .ith the Eleadin#E rule and EnarrativeE rule is that/ if they are both
interpreted broadly/ they can completely prevent any meanin#ful examination. This is an
area .here the advocate must be alert to the -ud#e1s preferences.
"n cross examination/ leadin# 8uestions are #enerally permitted and often necessary or
desirable. Evid. %ode 2 3<39 Fed. Rules Evid. <55AcB. &arassment of the .itness is not.
Evid. %ode 2 3<69 Fed. Rules Evid. <55AaB.
%ross examination is only permitted to in8uire into sub-ects that .ere raised upon direct/
includin# credibility. Evid. %ode 2 3<59 Fed. Rules Evid. <55AbB. If the cross examiner
strays into a ne. area/ the -ud#e has the discretion to permit him to do so/ in effect
permittin# him to present part of his case out of turn for the sa,e of efficiency or other
#ood cause. Evid. %ode 2 ?;7/ 33;9 Fed. Rules Evid. <55AbB. &o.ever/ for the purposes
of elicitin# the ne. matter/ the .itness is considered to have been adopted by the cross
examiner and counsel is therefore re8uired to confine himself to the ,ind of 8uestionin#
permitted for direct examination. Id. If/ on redirect/ the ori#inal sponsor of the .itness
explores the ne. sub-ects/ he is permitted the same latitude that is allo.ed in a normal
cross examination.
I". THE LAY OINION RULE.
$itnesses are re8uired to #ive their ans.ers in the form of statements of .hat they sa./
heard/ felt/ tasted/ or smelled. They are #enerally forbidden to express opinions or dra.
conclusions. As anyone .ho #ives this matter any thou#ht soon discovers/ this distinction
bet.een fact and opinion is not al.ays clear. In addition/ many .itnesses find it
impossible to #ive their testimony in the re8uired form/ and certain perceptions are very
difficult to communicate .ithout usin# lan#ua#e that su##ests -ud#ments and opinions.
Osborn v. Mission Ready Mix A5DD7B ;;: %al. App.?rd 57:/ 55;C55?9 ;3? %al Rptr. :63/
:<5C:<;. As a result/ both %alifornia la. and the federal rules have substantially relaxed
the rule a#ainst lay opinions to facilitate the reception of evidence.
In #eneral/ a person .ho is not testifyin# as an expert .ill be allo.ed to testify in the
form of an opinion if the opinion is both rationally based on his perception and helpful to
an understandin# of his testimony. Evid. %ode 2 4779 Fed. Rules Evid. 375. In addition to
this #eneral rule/ opinions by a competent layperson on certain sub-ects are specifically
permitted by rule/ statute/ or cases. *ome of these are>
5. A person1s identity/ .hether identified by appearance/ voice/ or other.ise. orey v.
orey A5D<:B ;?7 %al.App.;d 45?/ 4;</ :5 %al.Rptr. ?3D/ ?439 Fed. Rules Evid. D75AbB
A:BCA<B.
;. A person1s sanity. Evid. %ode 2 437.
?. Iuantities/ such as speed/ distance/ and si0e. Rash v. ity and ounty o! San "rancisco
A5D<;B ;77 %al. App.;d 5DD/ ;7:/ 5D %al.Rptr. ;<</ ;<D.
:. Demeanor/ mood/ or intent. 'eople v. Deacon A5D6?B 553 %al.App.;d ;7</ ;57/ ;66
'.;d D49 #eople v. $arris A5D<DB ;37 %al.App.;d 4<?/ 43;/ 3< %al.Rptr. 5?7/ 5?3
Atestimony that a person .as Etryin#E to brea, up a fi#htB.
6. Intoxication or sobriety. In re %oesph &. A5D37B 3 %al App.?d <D6/ 37:/ 3<:/ 43
%al.Rptr. ;6/ ?5.
<. 'hysical condition of health/ sic,ness/ or in-ury. Waite v. &ood!rey A5D47B 57<
%al.App.?d 3<7/ 3<:/ 5<? %al.Rptr. 445/ 44?.
3. ".nership. Strauss v. 'ubuque "ire ( Marine Ins. o. A5D??B 5?; %al.App. ;4?/ ;D:/
;; '.;d 64;.
4. The value of one1s o.n property. Evid. %ode 2 45?9 Schroeder v. )uto 'riveaway o.
A5D3:B 55 %al.?d D74/ D;5/ 55: %al.Rptr. <;;/ <?7.
D. Identification of hand.ritin#. Evid. %ode
2 5:5<9 Fed. Rules Evid. D75AbBA;B.
"pinion testimony is not ob-ectionable merely because it embraces the ultimate issue to
be decided. Evid. %ode 2 4769 Fed. Rules Evid. 37:AaB. This is true not.ithstandin# a
common misunderstandin# to the contrary amon# some old timers.
Expert opinions have been covered separately in these materials.
". ACCREDITIN! AND DISCREDITIN! A #ITNESS.
A .itness may not be accredited until he has first been impeached. @nder both %alifornia
la. and the federal rules/ any party may impeach any .itness at any time. Evid. %ode 2
3469 Fed. Rules Evid. <73.
A .itness1s credibility could traditionally be impeached by in8uiry into any of nine areas.
The first four of these nine areas relate to the re8uirements of competence. They are>
5. The firmness and sincerity of the .itness1s belief that any violation of his oath .ould
result in his certain and eternal consi#nment to the nether re#ions. This method is
probably no lon#er available. *ee Fed. Rules Evid. <57.
;. The 8uality of .itness1s perception or ability to perceive. Evid. %ode 2 347AcBCAdB
?. The .itness1s ability to remember. Evid. %ode 2 347AcB.
:. The accuracy of the .itness1s communication of .hat he perceived. Evid. %ode 2
347AcB. EIsn1t it a fact that .hen you said that you .ere coerced/ all you meant .as that
my client as,ed you to do itGE
The crossCexaminer may al.ays in8uire into these four areas .ithout havin# any basis
.hatever for believin# that there is any infirmity in the .itness1s testimony. For example/
one could as, a .itness EIsn1t it a fact that .ithout your #lasses you are le#ally blindGE
.ithout havin# any reason to believe that the .itness1s eyesi#ht is anythin# but perfect/
thou#h this mi#ht not be .ise.
In addition/ extrinsic evidence/ .hich in these circumstances is evidence other than the
ans.ers of the .itness .hose testimony is bein# impeached/ may al.ays be offered to
prove facts relevant to these first four methods of impeachment. Thus/ .hether or not you
as, a .itness .hether it .as too dar, for him to see/ and .hether or not he denies it/ you
may call another .itness or offer other evidence to sho. that it .as in fact too dar, for
him to have seen .hat he says he did.
The other five .ays to attac, credibility are to attempt to sho.
5. bias/ pre-udice/ interest/ or corruption/
;. criminal convictions/
?. prior bad acts/
:. prior inconsistent statements/ or
6. untruthful character.
The first four of these methods re8uire that/ before the .itness is 8uestioned concernin#
the relevant facts/ counsel have a #ood faith basis to believe that the facts to be as,ed
about are true. These methods differ .ith respect to .hen extrinsic evidence is permitted
to prove the facts based upon .hich the .itness1s credibility is bein# attac,ed.
It is error not to allo. in8uiry into possible bias/ pre-udice/ interest/ or corruption. Evid.
%ode 2 347 AfB. In addition/ extrinsic evidence of bias is al.ays admissible.
@nder the federal rules/ a .itness may #enerally be 8uestioned about criminal
convictions .hen the crime .as punishable by a sentence of more than a year or involved
fraud or false statement. There are other limits relatin# to the a#e of the conviction/ to a
.itness .ho is also the accused in a criminal case/ and to -uvenile ad-udications that you
should learn before you attempt to offer such evidence.
In %alifornia/ a .itness may #enerally be 8uestioned about criminal convictions only if
the convictions are for felonies and the .itness has not been pardoned for innocence/
been #ranted a certificate of relief from civil disabilities/ or obtained other similar relief.
Evid. %ode 2 344. @nder both sets of rules/ if the .itness denies a criminal conviction/ it
may only be proved by offerin# a certified record of the conviction.
The federal rules allo. 8uestions about prior bad acts of a .itness to impeach credibility
.here/ in the court1s discretion/ they are probative of truthfulness. Fed. Rules Evid.
<74AbB. &o.ever/ if the .itness denies the act/ it may not be proved by other evidence
unless the act to be proved has some relevance to the case that is independent of its
bearin# on credibility. @nder %alifornia la./ in8uiry concernin# prior bad acts that have
not resulted in a criminal conviction is not permitted to attac, the credibility of a .itness.
Evid. %ode 2 343.
Iuestions concernin# prior inconsistent statements are permitted under both federal and
%alifornia la. under the follo.in# conditions>
5. The 8uestioner must have a #ood faith basis for believin# that the inconsistent
statement .as made.
;. The .itness must be reminded of the time/ place/ and circumstances of the statement.
This re8uirement is dispensed .ith in %alifornia. Evid. %ode 2 3<D.
?. In federal court/ if the statement is .ritten/ a copy of it must be provided to opposin#
counsel upon re8uest. Fed. Rules Evid. <5?. In state court/ counsel is only entitled to a
copy if the .ritin# is sho.n to the .itness. Evid. %ode 22 3<4/ 3<D.
If the .itness denies ma,in# the inconsistent statement/ the federal rules allo. other
evidence to be offered to prove it if
5. the .itness has first had an opportunity to explain or deny it and counsel for the other
parties have had an opportunity to as, about it/ and
;. the statement is about a fact relevant to a material issue in the case/ other than
credibility.
Fed. Rules Evid. <5?AbB. %alifornia adds the re8uirement that the .itness not have been
excused and therefore be available for further examination. Evid. %ode 2 337. As has
been said/ if the prior inconsistent statement is not relevant to a material issue in the case/
other than credibility/ extrinsic proof of it is not permitted. In that case/ the courts say that
the proffered proof of the inconsistent statement is Ecollateral.E
The last method of impeachment is to sho. that the .itness has a character of
untruthfulness. This is an exception to the #eneral rule that character may not be proved
to sho. action in conformity .ith it. Evid. %ode 2 5575AcB. There are three possible .ays
to prove a character of untruthfulnessCCtestimony of specific instances of untruthfulness/
the opinion of another .itness .ho ,no.s the tar#et .itness concernin# his honesty/ and
testimony concernin# the tar#et .itness1s reputation in the community for truthfulness.
The federal rules allo. all three methods. Fed. Rules Evid. :76/ <74. %alifornia allo.s
opinion and reputation evidence but not evidence of specific dishonest acts. Evid. %ode 2
5577/ 34<.
After a .itness1s credibility has been attac,ed/ he may be accredited any of three .ays>
5. &e may explain any dama#in# facts.
;. $here the .itness1s character for truthfulness has been impu#ned/ testimony of another
.itness concernin# his opinion of the honesty of the tar#et .itness or of the tar#et
.itness1s reputation in the community for honesty may be offered. Evid. %ode 2 3D79
Fed. Rules Evid. <74AaB.
?. $here the .itness1s testimony has been attac,ed as a recent fabrication/ extrinsic
evidence may be offered of a prior consistent statement made before there .as a motive
to lie. Evid. %ode 2 3D5AbB9 Fed. R. 475AdBA5B. %alifornia also allo.s the use of such a
prior consistent statement .here a prior inconsistent statement has been received to attac,
credibility .henever the consistent statement .as made before the alle#edly inconsistent
statement. Evid. %ode 2 3D5AaB.
The testimony of .itnesses used to impeach the veracity of another .itness may be
impeached in the same .ays as that of other .itnesses. In particular/ .here a .itness has
offered an opinion of the honesty or reputation for honesty of another .itness/ the
character .itness may be as,ed .hether he ,ne. of/ or .hether his opinion .ould have
been influenced by/ ,no.led#e of various alle#ed misdeeds of the tar#et .itness. Fed.
Rules Evid. <74.
"I. CHARACTER EVIDENCE.
Above .e have discussed the impeachment of a .itness throu#h another .itness .ho
testifies concernin# the character for veracity of the first .itness. This is an exception to
the #eneral rule that evidence of character is not admissible to sho. action in conformity
.ith it. Evid. %ode 2 55759 Fed. Rules Evid. :7:.
$hile character cannot be proved to sho. action on a particular occasion in conformity
.ith it/ habit can. Evid. %ode 2 55769 Fed. Rules Evid. :7<. %haracter is a #enerali0ed
8uality usually attributed to a person/ such as truthfulness/ violence/ drun,enness/ and the
li,e. A habit is a specific/ re#ular/ and consistently repeated behavior/ such as a practice
of al.ays loc,in# one1s doors. #eople v. harles &. A5D3DB <6 %al.App.?d <;/ <</ 56<
%al.Rptr. 4?;/ 4?:. "f course/ some 8ualities of character can be associated .ith a habit/
such as a tendency to drun,enness .ith a habit of #ettin# drun, every *aturday ni#ht/ so
this distinction can at times be difficult.
$hile/ in a civil case/ character #enerally cannot be proved to sho. action on a particular
occasion in conformity .ith it/ character may be proved .here it is directly in an issue or
is put in issue in a particular case. Evid. %ode 2 5575AbB. As .e have discussed/ a
.itness1s character for veracity is put in issue .hen he ta,es the stand. A plaintiff1s
character or reputation for violence may be an issue in a case of assault .here the
defendant claims self defense and is tryin# to sho. that he .as in reasonable fear of
harm. A plaintiff1s character and reputation may also be in issue in an action for slander or
libel .here the defendant attempts to sho. that the plaintiff1s reputation .as already so
bad that he could not have suffered any harm from the dispara#in# statement. +any other
such cases could be cited/ but you .ill ,no. it .hen you have one.
%haracter other than character for truthfulness .hen used to impeach or accredit a
.itness may be proved in the same .ays as is character for truthfulness of a .itness/
except that %alifornia1s proscription of proof of specific bad acts .hen impeachin# a
.itness does not apply to proof of character for other purposes. Evid. %ode 2 34</ 5577.
This ,ind of character .itness may be 8uestioned in the same .ays as a .itness to the
character for truthfulness of a .itness and he may be impeached in the same .ays.
The only exceptions to the rule that character may not be proved to sho. action in
conformity .ith it/ other than the exception for impeachin# a .itness/ relate to criminal
cases. The first one is that/ in a criminal case/ a defendant can call character .itnesses to
testify that his character .as inconsistent .ith the acts .ith .hich he is accused. Evid.
%ode 2 557;9 Fed. Rules Evid. :7:AaBA5B. $hen a defendant calls such a character
.itness/ he puts his character for the traits about .hich the character .itness testifies in
issue. Then/ and only then/ the prosecutor may offer his o.n .itnesses to the defendant1s
bad character for the same traits to sho. that he acted in conformity .ith that character.
Evid. %ode 2 557;9 Fed. Rules Evid. :7:AaBA5B. A criminal defendant may also offer
evidence of the character of a victim of a crime to sho. action in conformity .ith it.
Evid. %ode 2 557?9 :7:AaBA;B. $hen he does so/ the prosecutor may respond in ,ind. Id.
The different ,inds of character evidence are a perennial source of confusion/ and care
must be ta,en to ,eep them distinct. The character of truth!ulness of any witness/
includin# a criminal defendant/ is placed in issue .hen he testi!ies/ and is received to
sho. action in conformity .ith it. The character of a criminal de!endant or his alle#ed
victim for other traits of character to sho. action or nonaction in conformity .ith it is
put in issue only .hen the defendant calls a character .itness. The character of other
persons can be in issue in a variety of .ays/ but it cannot be used to sho. action in
conformity .ith it.
"II. THE RULE A!AINST HEARSAY.
The rule a#ainst hearsay is simply stated/ sometimes confusin# to apply/ and riddled .ith
exceptions. Evid. %ode 2 5;77AbB9 Fed. Rules Evid. 47;. =ou all ,no. it. &earsay
evidence is evidence of a statement that .as made other than by a .itness .hile
testifyin# at the hearin# in 8uestion and that is offered to prove the truth of the matter
stated. Evid. %ode 2 5;77AaB9 Fed. Rules Evid. 475AcB. A statement can be in .ords or
conduct that is intended by the actor as a substitute for .ords. Evid. %ode 2 ;;6. The first
step in any analysis of possible hearsay is the determination of .hether the statement
bein# offered is in fact hearsay. If the statement is not hearsay/ the analysis ends. If the
statement is hearsay/ step t.o is a determination of .hether the hearsay statement fits
into one of the exceptions to the hearsay rule.
*ince evidence of an out of court statement that is used to prove somethin# other than the
truth of its content is not hearsay/ .hether a statement is hearsay may depend on .hy it is
bein# offered. If a statement has a possible use as hearsay and another nonhearsay
purpose/ it is #enerally admissible sub-ect to a limitin# instruction if re8uested/ and
sub-ect to the court1s discretion to ,eep it out if the -ud#e believes that its pre-udicial
effect out.ei#hs its probative value. As a result/ the follo.in# out of court statements are
not hearsay>
5. E&elpHE &elp is not a statement about a fact/ it is a cry for assistance and cannot be
either true or false. $hether/ even if it .ere hearsay/ it .ould be sub-ect to the exception
for an excited utterance is beside the point.
;. EI accept your offer.E This is also not a statement of fact that can be true or false. In/ a
contract action/ the issue .ould not be .hether these .ords .ere true/ but .hether they
.ere said.
?. E(onesie is a lo. do.n rotten scoundrel.E If offered to sho. that the spea,er had a
motive to ,ill (onesie/ rather than to sho. that (onesie is in fact a lo. do.n rotten
scoundrel/ evidence of this statement .ould not be hearsay. If the evidence .ere offered
to prove that (onesie is a scoundrel/ it would be hearsay/ and probably also ob-ectionable
on other #rounds.
Even if a statement is found to be hearsay/ it may be admissible under one of the many
exceptions to the hearsay rule. The federal rules contain at least ;3 explicit ones/
dependin# on ho. you count. A fe. of them may be used only .hen the declarant is
unavailable/ the remainin# ;: are al.ays available. Fed. Rules Evid. 47?/ 47:. In
addition/ the federal rules arbitrarily define some ,inds of hearsay statements as
nonhearsay. Fed. Rules Evid. 475AdB.
"ne of the federal exceptions is the .ell ,no.n catchall provision. This provision/ .hich
does not re8uire that the declarant be unavailable to testify/ says that evidence of a
hearsay statement not included in one of the other exceptions may nevertheless be
admitted if it has e8uivalent #uarantees of trust.orthiness/ it is offered to prove a material
fact/ it is more probative than other reasonably obtainable evidence/ its admission .ould
serve the interests of -ustice/ and the other parties have been #iven notice of its intended
use. Fed. Rules Evid. 47?A;:B.
%alifornia1s evidence code also reco#ni0es many exceptions to the hearsay rule/ and many
more can be found in the cases. &o.ever/ .hile %alifornia1s appellate courts en-oy the
ri#ht to reco#ni0e ne. exceptions to the hearsay rule/ no catchall provision similar to
Federal Rule 47? has ever been reco#ni0ed.
"bviously/ .e don1t have time to examine the substance of either the federal or state
exceptions in detail/ but you should at least read their descriptions in the federal rules and
the Evidence %ode.
In the federal rules/ the ,inds of statements defined as nonhearsay are>
5. 'rior statements by a .itness that are inconsistent .ith his present testimony and that
.ere made under oath.
;. 'rior statements by a .itness that are consistent .ith his present testimony and are
offered to rebut a char#e of recent fabrication. See also Evid. %ode 2 5;?<.
?. *tatements consistin# of an out of court identification of a person. *ee also Evid. %ode
2 5;?4.
:. A statement by a party opponent/ or a person authori0ed to spea, for or the party/ or an
a#ent of the party concernin# a matter .ithin the scope of the a#ency/ or a statement of a
coconspirator in furtherance of the conspiracy. Also such a statement made by another
.hen adopted by one of the fore#oin#. *ee also Evid. %ode 22 5;;7C5;;?.
Fed. Rules Evid. 475AdB.
The ;: exceptions in the federal rules that do not re8uire a sho.in# that the declarant is
unavailable are listed belo.. Analo#ous provisions in %alifornia1s Evidence %ode are also
noted.
5. *tatements about the declarant1s present sense impressions. Evid. %ode 22 5;67/ 5;6;.
;. Excited utterances or spontaneous statements. Evid. %ode 2 5;:7.
?. *tatements about the declarant1s then existin# mental/ emotional/ or physical condition.
Evid. %ode 22 5;67/ 5;6;.
:. *tatements made by the declarant for the purpose of medical dia#nosis or treatment.
6. 'ast recollections recorded. Evid. %ode 2 5;?3.
<. Fusiness records/ includin# those of a public a#ency. Evid. %ode 22 5;35/ 5;47.
3. Evidence of the absence of a business record or entry. Evid. %ode 2 5;3;.
4. %ertain public records and reports. Evid. %ode 22 5;4;/ 5;4?.
D. Records of vital statistics. Evid. %ode 2 5;45.
57. *tatements of the absence of a public record or entry. Evid. %ode 2 5;4:.
55. Records of reli#ious or#ani0ations concernin# personal or family history. Evid. %ode
2 5?56
5;. +arria#e/ baptismal/ and similar certificates. Evid. %ode 2 5?5<.
5?. Family records concernin# family history. Evid. %ode 2 5?5;.
5:. Recorded documents purportin# to affect interests in land. Evid. %ode 2 5<77.
56. *tatements in other documents purportin# to affect interests in land and relevant to
the purpose of the document. Evid. %ode 2 5??7.
5<. *tatements in authentic ancient documents Aat least ;7 years oldB. Evid. %ode 2 5??5
Aat least ?7 years oldB.
53. +ar,et reports/ commercial publications/ and the li,e. Evid. %ode 2 5?:7.
54. !earned treatises used to 8uestion an expert .itness.
5D. Reputation concernin# family history. Evid. %ode 22 5?5?/ 5?5:.
;7. Reputation concernin# boundaries or #eneral history. Evid. %ode 2 5?;7/ 5?;;.
;5. Reputation of a person1s character. Evid. %ode 2 5?;:.
;;. Evidence of a -ud#ment of conviction for certain purposes. Evid. %ode 2 5?77
Afelonies onlyB.
;?. (ud#ments of a court concernin# personal history/ family history/ #eneral history/ or
boundaries/ .here those matters .ere essential to the -ud#ment.
;:. The catchall rule.
Fed. Rules Evid. 47?.
The federal exceptions that do re8uire proof that the declarant is unavailable are>
5. Former testimony of a .itness offered a#ainst a party .here that party/ or a
predecessor in interest .ith similar motives/ had an opportunity to 8uestion the declarant.
See also Evid. %ode 22 5;D7/ 5;D5/ 5;D;.
;. Dyin# declarations. See also Evid. %ode 2 5;:;.
?. *tatements a#ainst interest. See also Evid. %ode 2 5;;:/ 5;;6/ 5;?7.
:. *tatements by certain persons of personal or family history. See also Evid. %ode 2
5?57/ 5?55. Fed. Rules Evid. 47:.
+ost of %alifornia1s hearsay exceptions are contained in *ections 5;;7 throu#h 5?67 of
the Evidence %ode. =ou should read these sections/ since even .here a similar exception
is reco#ni0ed under both sets of rules there are often differences in the scope of the
exceptions. %alifornia la. does not have exceptions that are as broad as the federal
exceptions for learned treatises or as the catchall provision. &o.ever/ it does have
additional exceptions/ not explicitly found in the federal rules/ for the follo.in#>
5. Evidence of a statement by a minor child if offered in certain actions a#ainst a person
alle#ed to have in-ured the child. Evid. %ode 2 5;;</ 5;;4.
;. Evidence of a statement by the deceased in a .ron#ful death action. Evid. %ode 2
5;;3.
?. )ll prior inconsistent statements of a .itness offered in accordance .ith re8uired
procedures. %al. Evid. 2 %ode 3<D/ 5;?6.
:. *tatements made by the declarant to explain or 8ualify his conduct and made .hile he
is en#a#ed in the conduct. Evid. %ode 2 5;:5.
6. *tatements of the declarant1s prior mental or physical state/ includin# his intentions/ if
the declarant is unavailable and that prior mental or physical state is an issue in the suit.
Evid. %ode 2 5;65/ 5;6;.
<. %ertain statements of a declarant in an action a#ainst his estate. Evid. %ode 2 5;<5.
3. (ud#ments determinin# the liability/ obli#ation/ or duty of a third person to prove the
existence of that liability/ obli#ation/ or duty. Evid. %ode 2 5?7;.
4. *tatements concernin# the family history of another .here the declarant is unavailable
under certain circumstances. Evid. %ode 2 5?55.
D. *tatements concernin# boundaries. Evid. %ode 2 5?;?.
57. %ertain statements in serious felony prosecutions. Evid. %ode 2 5?67.
55. %ertain statements by unavailable declarants concernin# in-uries inflicted on them.
Evid. %ode 2 5?67.
*ometimes a la.yer .ill .ant to present evidence that consists of multiple levels of
hearsay. For example/ suppose I .ant to introduce a patient1s hospital file to sho. that
.hen he .as struc, by the defendant he be#an bleedin# from the head. The hospital1s file/
.hich is .hat I .ant to offer/ has a note by the staff physician on duty sayin# that/ .hen
the patient came to the emer#ency room for treatment/ he told the staff physician that
.hen he .as hit by the defendant he be#an bleedin# profusely from the head. The only
live .itness I have is a records cler, from the hospital.
+y evidence in this case consists of double hearsay. The hospital record is an out of court
statement offered to prove the truth of its contentCC.hat the patient told the emer#ency
room physician. In addition/ even if I could call the physician as a .itness/ his testimony
concernin# .hat the patient told him .ould also be hearsay/ since it .ould be offered to
sho. that the patient did in fact start bleedin# .hen the defendant hit him. Thus/ I have
one hearsay declarationCCthe patient1s statement about .hat happened to himCC.rapped in
another hearsay declarationCCthe doctor1s statement about .hat the patient said.
The analysis for multiple hearsay is simple if it is ta,en one step at a time. The rule is
that/ in order for multiple hearsay to be admissible/ there must be an exception to the
hearsay rule that is applicable to each level of the hearsay. Evid. %ode 2 5;759 Fed. Rules
Evid. 476. The best .ay to start the analysis is to ima#ine the ultimate eye.itness on the
stand. In this case it is the patient. &is statement is not hearsay and .ould be admissible
if it is relevant to the case.
)ext/ ima#ine the person .ho forms the next lin, in the chain of hearsay on the stand. In
this case it is the doctor. &is testimony .ould clearly be hearsay. &o.ever/ the doctor1s
ima#inary testimony about the patient1s statement mi#ht .ell be admissible under the
excited utterance exception or/ in Federal %ourt/ the exception for statements made in aid
of medical treatment or/ in state court/ the exception for statements about the declarant1s
prior physical condition. )ext/ ima#ine offerin# the medical record that contains the
doctor1s statement. It may be sub-ect to the hearsay exception for business records and
therefore be admissible to prove that the doctor made the statement if a proper foundation
is laid throu#h the custodian of records.
Thus/ it loo,s li,e the medical record comes in to prove that the patient did start to bleed
from the head .hen he .as struc,. "n the other hand/ if any level of the hearsay fails to
fall .ithin an exception/ the proof .ill not be received. All multiple hearsay problems/ no
matter ho. involved/ .ill ultimately yield to the same type of analysis.
The credibility of a hearsay declarant may be attac,ed in the same .ays as that of any
.itness. Evid. %ode 2 5;7;.
"III. RIVILE!ES.
Evidentiary privile#es are ri#hts held by certain persons that allo. them either to refuse
to provide evidence or to prevent evidence from bein# offered a#ainst them. 'rivile#es
are contrary to the #eneral rules that all relevant and competent evidence is admissible
and that every citi0en has an obli#ation to #ive evidence in a -udicial proceedin#. Evid.
%ode 2 D55. 'rivile#es also hinder the basic function of the -udicial system/ .hich is the
search for truth. Accordin#ly/ privile#es only exist to serve important interests and
relationships/ they are construed narro.ly/ and ne. ones are rarely created/ at least by the
courts.
*ince privile#es are meant to vindicate a private or public interest in confidentiality/ and
since they are disfavored/ they can be .aived by the persons or entities they are meant to
protect. The person or persons .ho can .aive the privile#e are called EholdersE of the
privile#e. $here more than one person holds a privile#e/ sometimes the act of only one is
re8uired to .aive it and sometimes an act of both is re8uired. Evid. %ode 2 D5;. In many
cases/ the nonholder .ho is a party to a privile#ed communication is re8uired to assert
the privile#e on behalf of the holder.
In %alifornia/ no adverse inference may be dra.n from the exercise of a privile#e in any
,ind of case. Evid. %ode 2 D5?. In federal courts/ an adverse inference may sometimes be
dra.n in a civil case or administrative proceedin#. *axter v. #almigiano A5D3<B :;6 @.*.
?74/ ?53 D< *. %t. 5665/ 5663. @nder federal la./ the proponent of the privile#e al.ays
has the burden of sho.in# that a particular communication .as confidential. In
%alifornia/ communications bet.een a la.yer and a client/ a physician and a patient/ a
cler#yman and a penitent/ and a husband and a .ife are presumed confidential/ and the
opponent of the privile#e has the burden of sho.in# that a particular communication .as
not confidential. Evid. %ode 2 D53.
%alifornia1s Evidence %ode deals .ith the la. of privile#e at *ections D77 throu#h 5737.
=ou should at least s,im these sections. The privile#es explicitly created by statute are
the only ones reco#ni0ed in %alifornia and the courts are po.erless to create ne. ones.
Evid. %ode 2 D55. The privile#es included in the Evidence %ode are listed belo.>
5. The privile#e a#ainst selfCincrimination. Evid. %ode 2 D:7 et se8.
;. The attorneyCclient privile#e. This one is held by the client. Evid. %ode 2 D67 et se8.
?. The privile#e of a married person not to testify a#ainst his spouse. Evid. %ode 2 D37.
This one belon#s to the spouse called to testify.
:. The privile#e for confidential marital communications. Evid. %ode 2 D47 et se8. This
one belon#s to both spouses.
6. The physicianCpatient privile#e. Evid. %ode 2 DD7 et se8. This one belon#s to the
patient. Evid. %ode 2 DD?.
<. The psychotherapistCpatient privile#e. Evid. %ode 2 5757 et se8. This one belon#s to
the patient. Evid. %ode 2 575?.
3. The cler#ymanCpenitent privile#e. Evid. %ode 2 57?7 et se8. This one belon#s to both
parties. Evid. %ode 22 57??/ 57?:.
4. The privile#e for sexual assault counselin#. Evid. %ode 2 57?6 et se8. This one belon#s
to both the victim and the counselee. Evid. %ode 22 57?6.</ 57?6.4.
D. The privile#e for domestic violence counselin#. Evid. %ode 2 57?3.5. This one belon#s
to the counselee.
57. The privile#e for official information. Evid. %ode 2 57:7 et se8. This one protects
official information the disclosure of .hich is forbidden by la. or the disclosure of
.hich is a#ainst the public interest because the need to preserve confidentiality out.ei#hs
the necessity for disclosure in the interest of -ustice. Evid. %ode 2 57:7. It belon#s to the
public entity.
55. The informer1s privile#e. Evid. %ode 2 57:5. This one belon#s to the #overnment but
may not be used to prevent the informer from voluntarily revealin# his identity. Id.
5;. The privile#e to protect the secrecy of a vote. Evid. %ode 2 5767.
5?. The privile#e to protect a trade secret. Evid. %ode 2 57<7 et se8.
5:. The ne.sman1s privile#e. Evid. %ode 2 5737.
*ince con#ress couldn1t a#ree on a codification of privile#es .hen it approved the federal
rules/ it left this area completely to the federal courts and the states. @nder Federal Rule
657/ .hen evidence is offered on a federal claim/ the applicable privile#es are determined
by the federal common la.. $hen the evidence is offered on a state claim/ the state1s la.
of privile#e is applied. *ince the federal la. of privile#e is still evolvin#/ and since the
federal courts are much more hostile to privile#es than %alifornia1s le#islature/ I
recommend that you study the list of %alifornia privile#es. If a privile#e didn1t ma,e it
there/ it probably .on1t ma,e it in the federal courts. The reverse is not true.
"IV. RESUMTIONS.
There used to be considerable controversy over the effect of presumptions. *ome courts
held that a presumption .ent a.ay as soon as evidence on the sub-ect it covered .as
received. "thers treated presumptions li,e evidence/ to be .ei#hed either a#ainst the
other evidence in the case or a#ainst the burden of proof. !uc,ily/ these disa#reements
have been lar#ely ended by statute in %alifornia and by rule in the federal system.
In %alifornia/ presumptions are either conclusive or rebuttable. Evid. %ode 2 <75.
Rebuttable presumptions are of t.o ,indsCCthose affectin# the burden of producin#
evidence and those affectin# the burden of proof. +ost presumptions are interpreted to be
rebuttable.
A list of the rebuttable presumptions affectin# the burden of producin# evidence is #iven
startin# at *ection <?5 of the Evidence %ode. They include the presumptions that money
or property delivered is due to the recipient/ that a .ritten obli#ation that has been
surrendered to the debtor has been paid and the reverse/ that .hen a receipt for an
installment on a debt is #iven all previous installments have been paid/ that a possessor of
a thin# is also its o.ner/ that a .ritin# is truly dated/ that a letter correctly addressed and
properly mailed is received in the ordinary course of mail/ that certain ancient documents
are authentic/ that .here the re8uirements of res ipsa lo8uitur are met the defendant .as
ne#li#ent/ and that the facts stated in the return of a process server are true.
@nder %alifornia la. .ith respect to rebuttable presumptions affectin# the burden of
producin# evidence/ and under the federal rules .ith respect to all presumptions/ unless
the statute or rule creatin# them explicitly says other.ise/ a presumption shifts the burden
of #oin# for.ard but not the burden of proof. Fed. Rules Evid. ?75. The presumption
itself is not considered evidence. Evid. %ode 2 <77AaB. &o.ever/ if no evidence is
received to rebut the presumption/ the finder of fact must assume the existence of the
presumed fact if the existence of the basic fact upon .hich the presumption depends has
been established. Evid. %ode 2 <7:.
If evidence is received to rebut the presumption/ the presumption has no further effect/
but the finder of fact may infer the presumed fact from the basic fact if he believes that
the inference is .arranted. Evid. %ode 2 <7:. Therefore/ evidence of the basic fact that is
the condition of the presumption may be .ei#hed a#ainst any other evidence in the case
in determinin# .hether the burden of proof/ also called the ris, of nonpersuasion/ has
been met.
In addition/ %alifornia also has certain rebuttable presumptions that shift the burden of
proof. %al. Evid. 2 %ode <7<. All rebuttable presumptions that are established to
implement some public policy other than the correct determination of the issues in the
case are put in this cate#ory. %al. Evid. 2 %ode <76/ <<7. A list of some of the rebuttable
presumptions affectin# the burden of proof be#ins at *ection <<; of the Evidence %ode.
They include the presumptions that the le#al o.ner of property is the sole beneficial
o.ner/ that a ceremonial marria#e is valid/ that official duties have been re#ularly
performed/ that a person intends the ordinary conse8uences of his voluntary act/ that a
court of any state or of the @nited *tates .hose -ud#ment is bein# collaterally attac,ed
acted .ithin its -urisdiction/ that a person not heard from in five years is dead/ that a
person doin# an unla.ful act had an unla.ful intent/ that a person .ho causes in-ury by
violatin# a protective provision of la. acted ne#li#ently/ and that there are proper
#rounds for the enactment of certain ,inds of local ordinances restrictin# the occupancy
of buildin#s.
%onclusive presumptions are -ust thatCCconclusive. A presumption .ill not be interpreted
to be conclusive unless the la. creatin# it specifically says that it is. Evid. %ode 2 <;7. A
list of the most common conclusive presumptions is #iven in the Evidence %ode startin#
at *ection <;5. They include presumptions relatin# to le#itimacy/ facts recited in a .ritten
instrument/ and estoppel.
"V. $UDICIAL NOTICE AND OTHER SUBSTITUTES FOR EVIDENCE.
The need for evidence on some issues in a case can sometimes be dispensed .ith by
means of formal admissions/ stipulations/ and -udicial notice.
In %alifornia/ courts must ta,e -udicial notice of facts and propositions of #enerali0ed
,no.led#e that are so universally ,no.n that they cannot be the sub-ect of reasonable
dispute. %al. Evid. 2 %ode :65. %ourts may ta,e -udicial notice of facts that are not
reasonably sub-ect to dispute and that can be immediately and accurately determined by
resort to sources of reasonably indisputable accuracy/ Evid. %ode 2 :6;/ and they must do
so .here a party re8uests such notice/ supplies the court .ith the necessary materials/ and
#ives sufficient notice to his opponent. Evid. %ode 2 :6?.
!i,e.ise/ under the federal rules/ -udicial notice may be ta,en of ad-udicative facts that
are not sub-ect to reasonable dispute because they are either #enerally ,no.n or can be
accurately and readily determined. $here a party re8uests such notice and supplies the
court .ith the necessary information/ the court must ta,e notice and instruct the -ury
accordin#ly. The court may notice eli#ible facts on its o.n motion as .ell. Fed. Rules
Evid. ;75AcB.
In addition/ both state and federal courts can ta,e notice of the la.s of the states and of
the federal system. &o.ever/ if you need to rely on a local statute or ordinance/ a forei#n
la./ or the li,e/ you .ill need to refer to the specific rules to determine .hat you must do
to prove or obtain -udicial notice of their provisions. Evid. %ode 2 :65/ :6;9 Fed. R. %iv.
'. ::/ ::.5.
$here a fact has been -udicially noticed or is the sub-ect of a bindin# admission or
stipulation/ the court may/ and upon re8uest must/ instruct the -ury to accept that fact as
conclusively established. Evid. %ode 2 :63.
"VI. MA%IN! AND OOSIN! OB$ECTIONS.
To preserve the ri#ht to appeal based on an adverse rulin#/ .hen an ob-ection is made the
ob-ector must specify the #round of the ob-ection. Evid. %ode 2 ?6?9 Fed. Rules Evid.
57?AaBA5B. "nly the #rounds stated .ill be revie.ed upon any appeal/ so if you have more
than one #round you need to state them all. This is .hy so many la.yers start out all their
ob-ections .ith E"b-ection. Irrelevant/ incompetent/ immaterial . . . E and so on. In statin#
the #rounds for your ob-ection/ it is best to be as specific and concise as possible/ citin#
the number of the applicable statute or rule if you ,no. it/ althou#h that is not necessary.
*pecifyin# the #round for your ob-ection is different from arguing your ob-ection. =ou
have no ri#ht to ar#ue your ob-ections and should not attempt to do so unless the court
permits or invites it. E"b-ection. &earsay/E is sufficient to preserve your ri#ht to appeal
based upon the erroneous reception of the hearsay. =ou also have no ri#ht to ar#ue your
opposition to ob-ections/ thou#h a -ud#e may permit you to do so.
Fecause of the lac, of a ri#ht to ar#ue ob-ections/ it is important for you to attempt to
anticipate si#nificant evidentiary issues and to brief them in a motion in limine/ .hich is
submitted to the court at the be#innin# of the trial. If you raise an evidentiary issue in a
motion in limine/ you should refer to the motion .hen the evidence in 8uestion comes up/
but doin# so does not relieve you of the obli#ation of specifyin# the #rounds of your
ob-ection at that time and ma,in# an offer of proof if necessary.
If you are offerin# evidence and an ob-ection is sustained/ in order to preserve the
exclusion as a possible #round for appeal you must ma,e an offer of proof. Evid. %ode 2
?6:9 Fed. Rules Evid. 57?AaBA;B. $hen the rulin# is made/ as, the court for an
opportunity to ma,e such an offer. @sually this is done outside the presence of the -ury/
often at the next brea, in the testimony. Evid. %ode 2 :7;9 Fed. Rules Evid. 57?AcB. Thus/
it is important to ,eep a runnin# list of any such offers you need to ma,e since/ if you
for#et/ you .ill not be able to complain of the rulin# on appeal. A proper offer must
include a description of the substance/ purpose/ and relevance of the evidence that you
.ould present if permitted. Evid. %ode 2 ?6:9 Fed. Rules Evid. 57?AaBA;B.
An offer of proof/ can also provide you .ith a means of miti#ate the effect of the rule that
you have no ri#ht to ar#ue evidentiary rulin#s. A .ell formulated offer of proof can
sometimes persuade the court that its initial decision to exclude your evidence .as
incorrect.
"VII. MISCELLANEOUS OTHER RULES.
A list of other commonly encountered rules follo.s>
5. Evidence of subse8uent remedial measures is not admissible to sho. previous
ne#li#ence or culpable conduct. Evid. %ode 2 55659 Fed. Rules Evid. :73.
;. Evidence of mediation or settlement discussions is not admissible to prove liability for
the claims that .ere bein# discussed. Evid. %ode 2 556;/ 556;.69 Fed. Rules Evid. :74.
)or is evidence of the payment of medical expenses to sho. liability. Fed. Rules Evid.
:7D. )or/ in %alifornia/ is evidence of partial satisfaction of any asserted claim to prove
the validity of the claim. Evid. %ode 2 556;. )or is evidence of a #uilty plea that is later
.ithdra.n/ nor any statements made in connection .ith it. Evid. %ode 2 556?9 Fed. Rules
Evid. :57.
?. The court may call its o.n .itnesses and may 8uestion any .itness. Evid. %ode 2 3369
Fed. Rules Evid. <5:.
:. $hen part of an act/ declaration/ conversation/ or .ritin# is #iven in evidence by one
party/ such other parts of the act/ declaration/ conversation/ or .ritin#/ as are necessary in
fairness to a complete understandin# of the parts admitted .ill also be admitted. Evid.
%ode 2 ?6<9 Fed. Rules Evid. 57<.
"VIII. CONCLUSION.
$hile this .hirl.ind summary of the la. of evidence is by no means complete/ if you
have mastered the concepts it contains and read the materials su##ested/ you .ill be able
to deal .ith the vast ma-ority of evidentiary problems that you .ill encounter and .ill
usually have a #ood idea .hen you need to loo, up a rule or statute or to research the
cases. +nowledge of the rules of evidence .ill enable you to put your proof before the
finder of fact and maybe to ,eep some of your opponent1s proof from bein# received.
on!idence in your ,no.led#e of the rules .ill free you to concentrate on the ,ind of
effective presentation and ar#ument that .ill help you to .in your case.
SELECT REFERENCES

5. Federal Rules of Evidence. The federal rules are short/ and you should read them
throu#h/ includin# the notes of the advisory committee and con#ressional committees.
;. F. (efferson/ ali!ornia ,vidence *ench *oo-. +any -ud#es consider this treatise to be
holy .rit. =ou .ill see it on many of their benches.
?. F. $it,in/ ali!ornia ,vidence. The other leadin# treatise on %alifornia1s la. of
evidence.