Transcript Outline – Objections Based on California Evidence Code

1. Objection – Relevance
a. Evidence which is not relevant is not admissible. (CEC 350)
i. Normally, past felonies are NOT relevant under FRE, but due to Prop. 8, Defendants
cannot force stipulation to agree that past felonies occurred. People v. Hall
ii. A trial court’s relevance decision cannot be overturned unless the evidence cannot
possibly lead to admission of relevant evidence or be useful in trial preparation.
iii. Sentencing evidence cannot be heard in the same trial phase as determination of guilt
evidence.
b. Prop 8 in Criminal trials: No relevant evidence can be made inadmissible except:
i. Evidence for which the US Constitution requires exclusion
1. See 6th Amendment Confrontation Clause
2. OR, 4th or 5th Amendment guarantees
ii. Legislation by a super-majority of 2/3
iii. Rules of evidence relating to privilege
iv. Rules of evidence relating to hearsay
v. CEC 352 – when the judge feels it is outweighed substantially by prejudice, delay,
misleading the jury, or confusion of the issues.
vi. CEC 782 and 1103 – the rape shield laws
vii. Existing rules relating to the press and certain immunities applied to reporters.
c. CEC 352 – The court, in its discretion, may exclude evidence if its probative value is
substantially outweighed by probability that admission of the evidence will consume undue time,
or create a substantial danger of undue prejudice.
i. Examples of prejudicial outweighing relevance:
1. Flight from arrest
2. Grisly crime scene photos
3. Some statistical evidence, but not usually DNA evidence.
a. People v. Collins – prosecutor manipulated numbers to argue that the
likelihood that the particular defendants were statistically the
perpetrators.
ii. Judge’s options under 352:
1. Exclude all or part of the evidence
2. Decide that other evidence minimized the probative value and therefore exclude
it.
3. Admit the evidence with a limiting jury instruction. (using CEC 355)
d. Character evidence
i. Propensity evidence – CEC 1101(a): “evidence of a person’s character or trait of
character (whether in the form of an opinion, evidence of reputation, or evidence of
specific instances of his or her conduct) is inadmissible when offered to prove his
conduct on a specified occasion.” BUT, there are exceptions to this prohibition:
1. Under 1102:
a. The accused may introduce evidence of his good character to show his
innocence of the alleged crime, provided such character trait is
relevant.
b. BUT, once the defendant opens the door, the prosecution may admit
character evidence to rebut and show likelihood of guilt. This is limited
to character traits that the defendant has chosen to argue; Prosecution
can’t admit evidence as to different traits.
2. Under 1103:
a. The defendant may introduce evidence of the character of the victim of
the crime where the conduct of the victim in conformity with his
character would tend to exculpate the defendant
 b. BUT, once the defendant “attacks” the victim, the prosecution may
introduce evidence of the victim’s good character, AND if defendant
characterizes victim as “violent” allows prosecution to attack violent
character of the defendant.
3. Under 1108 – in a criminal action in which the defendant is accused of a sexual
offense, evidence of the defendant’s commission of another sexual offense or
offenses is admissible as character evidence.
a. Subject to CEC 352
b. Includes any sexual offense, defined by code and extended by
definition in Rule.
 Any past sexual offense can be used against current
4. Under 1109 – in a criminal action in which the defendant is accused of an
offense involving domestic violence, evidence of the defendant’s commission
of other domestic violence is admissible as character evidence.
a. Subject to CEC 352
b. Includes abuse of children and elders, but is limited to 10 years prior to
the charged offense.
5. Types of evidence to prove character:
a. Reputation evidence – allowable on both direct and cross examination
 Cross-examination questions must be in the form of “Have
you heard…?”
b. Opinion evidence as to character – allowable on both direct and cross
examination.
 Cross-examination questions must be in the form of “Did
you know…?”
c. Evidence of specific acts indicating character – Prop. 8 allows specific
acts to be brought to light in both direct and cross-examination.
6. Character for truthfulness
a. CEC 790 – reputation or opinion evidence of truthful character of a
witness is only admissible after the witness’ character has been
attacked, but specific acts are never admissible in civil case.
 In criminal cases, all types of evidence are OK, but subject
to 352 if probative value is substantially outweighed.
 Can also use extrinsic evidence to impeach for credibility.
i.e. witness denies wrongdoing in questioning, but then
evidence showing inconsistency can be entered.
b. CEC 788 – a past felony can be used to attack the credibility of a
witness unless:
 (a) he has been pardoned based on his innocence
 (b) a certification of pardon based on rehabilitation
 OR, it’s more than 10 years old.
 Beagle give five factors to consider in 352 balancing
(mandatory in civil cases, guidance in criminal):
1. Convictions with little bearing on veracity
2. Remote in time and the witness has behaved since
3. Conduct identical or similar to the current conduct
should be excluded as risk of using it as propensity
4. Restrict excessive number of convictions
5. Exclude convictions if it will deter the witness from
testifying and the judge thinks the testimony is
important.
c. CEC 789 – evidence of religious belief or lack thereof to attack or
support a witness’ credibility is off limits in civil cases, but ok in
criminal ones.
 d. Prop. 8 allows prior convictions (felony and misdemeanor) for
impeachment subject to 2 limits:
 If the past crime is a “veracity” it’s fair game
 If it’s not a veracity crime, admission is subject to
1. 352 using Beagle
2. Due Process Clause of the US Constitution
a. Moral turpitude crimes
e. CEC 1202 – allows hearsay declarants to be impeached as if they
were actual witnesses.
ii. Non-propensity evidence – CEC 1101(b) allows use of specific acts or prior
offenses, but NOT reputation/opinion, in several circumstances
1. To show motive, opportunity, intent, preparation, plan, knowledge, identity,
lack of mistake.
a. Requires a 352 balancing test, which includes the limiting instruction’s
effect.
b. Limiting instruction important here to prevent use of past acts as
character evidence against defendant.
2. To show modus operandi – when two acts show a commonality of
distinguishing features that mark them as the handiwork of the same individual.
a. Issue is whether they are sufficiently idiosyncratic.
3. To maintain narrative integrity – evidence of prior acts must be inextricably
entwined with the current crime.
a. Past acts must be part of same transaction or occurrence of current
crime, OR
b. When past acts are necessary for the prosecutor’s coherent and
comprehensible story.
4. Absence of mistake or accident – prior acts that suggest that the party’s excuse
of mistake or accident is less likely because it happened before.
a. i.e., the defendant’s whose second or third wife was “accidentally shot”
5. common scheme or plan – specific acts can be admitted to show a common
scheme or plan
a. i.e. molesting father who was “tucking in” his daughters when he
fondled them.
6. Impeachment purposes
iii. CEC 1105 – Habit or custom to prove specific behavior
1. “Any otherwise admissible evidence of habit or custom is admissible to prove
conduct on a specified occasion in conformity with the habit or custom.”
a. “Intemperate habits” are generally excluded from scope of 1105
b. I think it would also be an issue of conditional relevance under 403
2. CEC 1104 prevents admission of evidence of a trait of a person’s character with
respect to care or skill to prove quality of conduct on specified occasion.
e. Certain things are presumptively irrelevant (Specialized Relevance Rules)– Though
relevant, they are excluded (but not in criminal cases b/c of Prop. 8).
i. Rape Shield – Protects complaining witness of a sexual assault from the admission of
evidence of his or her prior sexual conduct in order to prove consent.
1. CEC 1103(c) – opinion evidence, reputation evidence, and evidence of specific
instances of the complaining witness’ sexual conduct, or any of that evidence, is
NOT admissible by the defendant in order to prove consent.
a. Cross-examination is governed by CEC 782, for when the evidence of
sexual activity is not offered to show consent, but is offered to attack
the credibility of the victim.
b. Generally excludes the manner of dress of the victim to show consent,
and does not apply regarding the victim’s past sexual conduct with the
defendant.
 c. Evidence of prior false accusations by the victim will ordinarily be
admitted.
d. Does not apply to prison rapes, and does not prevent evidence as to
other witness’ sexual pasts if their accusations are not being charged.
e. If prosecutor elicits testimony suggesting a lack of prior sexual
experience by the complaining witness, the defendant may rebut.
2. CEC 1106 – operates the same as CEC 1103(c) but also includes sexual
harassment and can be offered when the victim is alleging loss of consortium.
a. Cross-examination is governed by CEC 783 in same manner as 782
ii. Jury influences – CEC 1150 allows evidence of statements or conduct in the jury room,
but excludes evidence of the effects of such statements or conduct on the juror’s mental
process.
1. Even this might be admissible under Prop. 8
2. Under the FRE, evidence is generally excluded if occurring in the jury room.
iii. Subsequent remedial measures – when repairs have been implemented following an
accident or injury.
1. CEC 1151 prevents evidence of subsequent remedial measures if the evidence is
used to prove negligence, culpable conduct
2. Can be used to prove ownership, control, feasibility of a precautionary design IF
these issues are first put into controversy. Can also be used for impeachment
purposes.
a. Remember to limit use by jury!
b. If a 3rd party takes the subsequent measures, it is admissible because the
defendant is not implicated.
3. Does not apply to strict liability (i.e. product design) in California
iv. Compromise and offers to compromise
1. CEC 1152 – evidence that a person has, in compromise or from humanitarian
reasons, offered or furnished money or anything else to victim can’t be used to
prove that the person was liable for the reason they offered to pay.
2. CEC 1154 – evidence that a person has accepted or offered to accept payment or
other consideration in exchange for dismissal of claim can’t be used as a defense
to a claim.
3. But, certain uses are acceptable:
a. Offers in regard to civil claims can be used in criminal proceedings
b. Facts that arise from negotiations can be used (i.e. “I’m sorry I hit you,
can I pay for that,” is admissible)
v. Payment or offers to pay for medical or other expenses
1. Only in FRE 409, otherwise, try to use CEC 1152 or 1154?
vi. Plea bargaining
1. CEC 1153 – prevents admission into evidence of offers to plead guilty, pleas of
guilty, or nolo contendere in civil cases only. (Prop. 8 allows all relevant
evidence in criminal cases).
2. CEC 1153 is stricter than FRE 411, but Sirhan shows that some potential use
might be allowable. There, Sirhan stated that he would plead guilty, and then
“forgot” that he shot Robert Kennedy, but appeals court upheld use of admission
against him.
vii. Existence of liability insurance
1. CEC 1155 – prevents use of evidence to prove negligence or other wrongdoing
that a person was, at the time a harm was suffered by another, insured.
2. BUT, evidence that a person had life insurance is relevant and admissible if
showing potential motive for crime.
2. Objection – Lack of foundation
a. Preliminary Question (CEC 403) – regards the qualification of the evidence, not the relevance of
the evidence; a legal determination for the judge.
i. Examples:
1. Qualification of an expert witness
2. Existence of a claimed privilege
ii. Preliminary questions are required to be proven with admissible evidence in
California, but may be bootstrapped in FRE.
iii. Either party may request consideration of preliminary questions to be outside of presence
of the jury.
b. Conditional Relevance – relates to the relevance of the evidence, and is decided by the jury. (CEC
405)
i. Examples:
1. Whether witness has/had personal knowledge
2. Authenticity of a writing, i.e. whether the offered writing, photo, email,
video/audio recording is legitimate
3. Relevance of proffered evidence depends on the preliminary fact.
c. Presumptions (CEC 600) – Assumptions of fact that the law requires to be made from another fact
or group of facts found or established.
i. CEC 601 – presumptions are either conclusive or rebuttable
1. Conclusive presumptions:
a. 622 – facts recited in a written instrument are presumed true, except for
recitation of considerations
b. 623 – when a party, by statement or conduct, intentionally leads
another to believe something to be true and that person acts upon it, the
party cannot contradict it in ensuing litigation.
c. 624 – a tenant cannot deny the title of a landlord at the time of the
commencement of the relationship.
ii. CEC 607 – in criminal cases, there are only rebuttable presumptions, and all must be
proved beyond a reasonable doubt.
3. Objection – Incompetent Witness
a. Unless excepted, every person is qualified to be a witness. CEC 700
b. CEC 701 – a witness is disqualified if they are:
1. Incapable of expressing themselves so as to be understood directly or through an
interpreter, OR
2. Incapable of understanding the duty of a witness to tell the truth.
ii. (This is a preliminary question for determination by the judge under 405 by
preponderance of the evidence).
4. Objection – no showing of personal knowledge
a. CEC 702 – a witness must have personal knowledge of the facts to which they testify.
i. Whether the witness has personal knowledge is a matter of conditional relevance to be
determined by the jury. Following an objection, prior to the actual testimony, the personal
knowledge must be shown. Personal knowledge MUST be proven prior to testifying.
ii. Personal knowledge may be shown by any admissible evidence, including his own
testimony.
b. Hypnosis?
i. CEC 795 – In a criminal proceeding only, hypnotically refreshed testimony is sometimes
admissible. See the rule for more guidance.
5. Objection – Hearsay
a. CEC 225 – “Statement” means (a) oral or written verbal expression or (b) nonverbal conduct of a
person intended by him as a substitute for oral or written verbal expression.
b. CEC 1200 – “Hearsay evidence” is evidence of a statement that was made other than by a witness
while testifying at the hearing and that is offered to prove the truth of the matter stated.
i. Hearsay is not admissible except as provided.
ii. Silence can act as hearsay if the silence is intended to communicate an assertion.
c. Non-hearsay uses for out of court statements that are admissible make the credibility of the
declarant an unimportant issue, so there is no need for cross-examination:
i. When the making of the statement has some operative legal effect
1. i.e. words of agreement to a contract,
ii. When it shows prior knowledge of the declarant because of what he said, or
otherwise proves his state of mind.
1. The statement could be used to show the manner of speech:
a. E.g. slurred speech
2. The statement could be used to show declarant was alive at the time he made the
statement.
iii. When it shows the effect of the statement on the listener
1. i.e. the statement shows the effect it had on a listener that explains subsequent
behavior by the listener
iv. To impeach the declarant based on later, in-court statement
d. Hearsay Exceptions (Unavailability Irrelevant)
i. Party Admissions – all these require that the party be present in court.
1. CEC 1220 – The party’s own statement is not hearsay if offered against (and
only against) the party
a. This includes statements made by representatives or agents
b. BUT, a party can’t offer their own out of court statement (CEC 356),
unless only a portion of the statement is introduced by the opposing
party. THEN, the party might be able to admit the whole statement to
put it in context.
 BUT, the statement is then open to impeachment under CEC
1202
c. CEC 1230, which allows statements against self-interest, can only be
used if the party is unavailable.
2. CEC 1221 – a statement which the party has manifested an adoption or
belief in can be admitted against them.
a. An adoption occurs when someone says something and by silence or
some other conduct, the party shows that they have accepted it.
 Could be question about silence in regard to Miranda
b. If there is ambiguity about whether it is “adopted”, the statement will
be admitted upon introduction of evidence sufficient to sustain a
finding of that fact. This means a 403 preliminary question for the
judge.
3. CEC 1222 – a statement by a person authorized by the party to make a
statement can be admitted against the party.
a. This doesn’t include an authorized statement made to the party by the
authorized speaker. It has to be to a 3rd party on behalf of the party.
b. The evidence offered to sustain a finding of authority is a conditional
relevance issue (405) for the jury to determine.
c. Three differences between 1222 and FRE 801(d)(2)(C):
 No 3rd party requirement in FRE
 FRE does not include “apparent agency”
 FRE treats it as a preliminary question, not conditional
relevance issue.
 4. CEC 1224 + 1222 – statements made within an agent to the party’s scope of
employment, during the existence of the relationship (i.e. not after being fired)
can be admitted against the party.
a. 1224 only admits apparent agency statements in civil liability cases
b. FRE 801(d)(2)(D) – allows equivalent of this in federal system.
c. If it’s a criminal issue, use the scope of the conspiracy exception.
5. CEC 1223 – statements made by a co-conspirator prior to or during the course
of, AND in furtherance of the conspiracy can be admitted against the party.
a. Three questions of conditional relevance are required:
 Conspiracy in fact existed, but there does not need to be a
conspiracy charge; only that there was agreement to
participate.
 The conspiracy included both the declarant and the party
against whom the statement is offered
 The statement was in furtherance of the conspiracy,
meaning that statements to police are usually post-
conspiracy and not in furtherance.
b. FRE equivalent (801(d)(2)E)) relies on preliminary questions for judge,
and allows bootstrapping by judge. CEC 1223 requires admissible
evidence to prove conspiracy under CEC 403
ii. Prior Statements of a Witness
1. CEC 770 – use of past statements/extrinsic evidence of a witness to impeach
their current testimony.
a. Examiner must first give the witness opportunity to explain or deny the
statement
 If he admits making the statement, no “extrinsic” evidence
is needed, but if he denies making the statement, the
examiner can then offer evidence that it was in fact made.
 “extrinsic evidence” is usually a police officer who testifies
that they heard the witness make the inconsistent statement.
b. Examiner doesn’t have to show the inconsistent statement to the
witness prior to asking about it. CEC 769
2. CEC 1235 – past statements of a witness can be admitted substantively if they
are inconsistent with a witness’ present testimony.
a. Unlike FRE 801(d)(1)(A), prior statement does not need to be under
oath to be presented against witness.
b. What if the witness “doesn’t remember” on the stand?
 Under 770, witness gets the opportunity to explain situation.
 Judge determines genuine “memory loss” under 405
 If genuine, the past statement is not inconsistent, and
therefore inadmissible, but if not, it can be admitted.
3. CEC 791 – prior consistent statements are admissible to “rehabilitate” a
witness who has been impeached, either by a prior inconsistent statement or by
an express or implied charge of recent fabrication or influence of bias.
a. The consistent statement has to have been made before (timewise) the
inconsistent statement, or before the bias or improper motive arose.
b. Can be admissible if made prior to EITHER option: before prior
inconsistent statement OR before improper motive arose.
c. CEC 791 is likely abrogated in criminal trials (Prop 8).
4. CEC 1238 – Prior identifications are admissible under three requirements:
a. The prior identification is of a party or another person who participated
in a crime or other occurrence
b. It was made while fresh in the declarant’s memory
c. AND, the witness first testifies that he made the identification and that
it was a true reflection of his opinion at the time.
  If the witness denies the identification, it can be offered as a
past inconsistent statement under CEC 1235.
 Difference between FRE and CEC: identifications are still
OK in FRE, even if witness can’t remember making the ID.
iii. Past Recollection Recorded and Recollection Refreshed
1. CEC 771 – Allows a witness to use a record/writing to refresh their memory
prior to or during their testimony. BUT, it must be produced on demand of the
opposition party or else the content of the testimony for which it was used must
be stricken from the record.
a. Exception to striking the record when the writing is not in possession or
reasonably procurable by the party presenting its use.
2. CEC 1237 – If a witness has insufficient recollection to testify fully and
accurately and the record was made when the witness’ memory was fresh, a
recorded recollection can be read into evidence.
a. Requires that the statement is contained in a writing that:
 Was made when memory was fresh in witness’ mind
 Was made by the witness himself, or by some other person
for purpose of recording witness’ statement
 Is offered after the witness testifies that the statement he
made was a true statement of fact; AND
 Is offered after the writing is authenticated as accurate.
b. Can only be read into evidence, not admitted, unless the adverse party
submits it into evidence.
c. Difference between FRE and CEC is that under FRE, the witness must
prepare the writing himself; can’t be prepared by 3rd party.
iv. Spontaneous & Contemporaneous Statements
1. CEC 1240 – Spontaneous statement
a. Statement that purports to narrate, describe, or explain an act,
condition, or event perceived by the declarant is admissible if it was
made while the declarant was under the stress of excitement caused by
such perception.
b. Unlike FRE, requires declarant to perceive the act AND explain it, not
merely relate to it.
2. CEC 1241 – Contemporaneous statement
a. Statements offered to explain, qualify, or make understandable conduct
of the declarant made while the declarant was engaged in such conduct
are admissible.
 Requires the conduct explained to be that of the declarant
 Otherwise, have to try for spontaneous statement.
3. 1250 – requires that statements offered to prove conduct in conformity with
the expressed intent can only be offered to prove the future conduct of the
declarant, not any other person mentioned in the statement.
 Thus, a limiting instruction must be given if the statement
implies future actions of people other than declarant.
4. CEC 1251 – Then existing mental or physical state
a. Statements of a declarant’s then existing state of mind, emotion, or
physical sensation are admissible if the declarant is unavailable AND
when that declarant’s state of mind is at issue in the action.
5. CEC 1253 – statements for purposes of medical diagnosis or treatment
a. Statements made for the purposes of medical diagnosis that relate to
past or present pain, or the cause of the pain are admissible, but only
for victims of child abuse under age 12.
b. Have to be careful that statements only apply to treatment, and answers
arise in course of treatment.
c. No broad exception for “medical diagnosis” in CEC.
 6. CEC 1260 – statements concerning a declarant’s will
a. Unless circumstances show untrustworthiness, statements regarding a
declarant’s will, if they are unavailable, are admissible.
v. Business and Official Records
1. CEC 1271 – allows admission of writings that record an act, condition, or
event if made in the regular course of business, at or near the time of the
event, a custodian testifies to its identity, and the source of information indicate
trustworthiness.
a. CEC 1270 give a broad definition of business records, including
governmental records.
b. 1271 does not generally allow opinions or diagnoses
c. 1280 is the same as 1271 except that custodian need not appear if
circumstances of preparation of record indicate trustworthiness.
d. 1560-62 – allows admission of records w/o custodian appearance.
2. What about identification of drugs in a lab?
a. CEC 1280 would allow it, but it is likely a confrontation clause issue
after Crawford, since it would be created in light of future prosecution.
e. Hearsay Exceptions (Unavailability) – declarant must be unavailable in order to opt for
these exceptions:
i. CEC 240 –
1. “unavailable as a witness” means:
a. Declarant is exempted or precluded from testifying because of privilege
b. Disqualified from testifying to the matter
c. Dead or unable to attend or testify because of illness/disability
d. Absent and the court is unable to compel his or her attendance.
e. Absent and the proponent has exercised reasonable diligence but cannot
procure attendance.
2. Declarant is not unavailable if they or their proponents caused one of above
conditions
3. Unavailability is decided by the judge under 405.
a. No unavailability for witness who contemptuously refuse to testify.
 Court may find witness who is too afraid to testify “sick”
and thereby excused, but this would not apply to a witness
who refuses to testify for other reasons.
ii. CEC 1242 – Dying declaration
1. Evidence of a statement made by a dying person respecting the cause or
circumstances of their death is admissible if they knew they were dying and
sensed impending demise.
2. Does not include victims of suicide.
3. Evidence must be based on personal knowledge; statements made without
personal knowledge may be inadmissible without it.
iii. CEC 1230 – Declaration against interest
1. Statements are admissible if, when made, the declarant had personal knowledge
and the content of the statement was so far contrary to declarant’s interest that a
reasonable man would not have made it.
2. Include interests contrary to:
a. Pecuniary or proprietary interests
b. Risk of civil or criminal liability
c. Risk of making him object of ridicule, hatred, or social disgrace in the
community
f. Former Testimony
i. CEC 1290 – defines former testimony.
1. Includes testimony at another hearing of the same or different case, as well as
depositions in other cases, but unlike FRE does not include depositions in the
same case.
ii. CEC 1291 – former testimony exception can be used in criminal cases if the same party
against whom the testimony is offered had an opportunity to cross-examine the witness in
the former proceedings, with a similar motive for cross-examination.
1. Seems to allow admission of testimony offered against a person who offered it
into admission in the former hearing.
a. Argue that it might be a “near miss” hearsay exception!
2. Allows former testimony to be offered against a party who is a “successor in
interest” to the party who offered it in the former proceeding.
a. This is allowed in civil cases where the Constitution CC doesn’t apply
3. Where the parties are generally the same in both proceedings, objections to the
form of the question which were not made in the first proceeding are waived, as
are objections to competency or privilege which existed at the time the former
testimony was given.
iii. CEC 1292 – evidence of former testimony is admissible if the declarant is unavailable as
a witness, the former testimony is offered in a civil action, and the issue in the former
proceeding was similar to that of the current proceeding so that the cross-examination in
the former proceeding substantially reflects the interest of the party in the current
proceeding.
1. The only objections deemed waived in the current proceedings regarding the
testimony in the former proceedings are those for competency or privilege
which existed at the time the former testimony was given.
g. New California Exceptions
i. CEC 1200(b) allows for new exceptions to the hearsay rule. No issue with Prop 8 because
the include more evidence, not exclude it.
ii. CEC 1350 – Forfeiture by wrongdoing - in a criminal proceeding charging a serious
felony, a statement made by an unavailable declarant is admissible if:
1. There is clear and convincing evidence that the party killed/kidnapped/or
otherwise made the party unavailable AND
2. There is no evidence that the unavailability was the fault of the offering party;
AND
3. The statement has been memorialized in a tape recording or a writing by law
enforcement; AND
4. The statement was made under circumstance that indicate trustworthiness.
iii. CEC 1360 – in a criminal prosecution, statements made by a victim under 12
regarding child abuse is not inadmissible hearsay:
1. Requires that the time, content, and circumstances of the statement are
sufficiently reliable.
2. If the child is unavailable, there must be evidence of the child abuse or neglect
to corroborate the statement.
iv. CEC 1370 – in either criminal or civil cases, when a declarant is unavailable:
1. Any statement narrating, describing, or explaining the infliction or threat of
any physical injury on the declarant (Usually DV) is admissible.
a. Requires a statement in writing or a recorded statement, made to a
physician, nurse, paramedic, or law enforcement official
b. Must have been made at or near the time of the infliction or threat and
within 5 years of the proceeding.
2. Must be made under circumstances of trustworthiness.
a. Look to 1370(b):
 Contemplation of litigation?
 Does the declarant have bias or motive?
  Is the statement corroborated by other evidence?
v. CEC 1380 – a videotaped statement of an elderly victim who becomes unavailable is not
inadmissible hearsay.
1. BUT, must be supported by corroborating evidence and indicate trustworthiness.
6. Objection – Unconstitutional under Confrontation Clause
a. This is only implicated when:
i. Statements are offered to prove the truth of what they assert (hearsay); AND
ii. They are offered against a criminal defendant
b. Hearsay statements are admissible under the Confrontation clause when:
i. The declarant appears at trial to be cross-examined
ii. The declarant is unavailable but the defendant had a past chance to cross-examine the
declarant.
iii. The declarant’s statement is not testimonial
iv. The defendant has waived a confrontation clause objection because of wrongdoing aimed
at preventing declarant from testifying.
c. Testimonial statements:
i. Primary purpose test:
1. Testimonial statements occur when circumstances objective indicated that there
is no apparent emergency requiring and the primary purpose of questioning is to
establish or prove past events potentially relevant to later criminal prosecution.
2. Nontestimonial statements occur when circumstances objectively indicate that
the primary purpose of questioning/interrogation is to enable police/medical
assistance in a current emergency.
a. A 911 call is usually not testimonial, but might be if:
 It provides a narrative report w/o imminent danger
 There is some level of formality (calmness?)
 Purpose of the call is something other than resolving
emergency.
b. Well-established examples:
 Testimonial: preliminary investigations, grand jury
testimony, former trials
 Non-testimonial: casual remarks to a friend, overheard
remarks, statements in furtherance of a conspiracy, business
records
ii. Determining when a situation is testimonial: (intent to use as testimony is irrelevant)
1. Was it while events were actually happening?
2. Was it a call for help against a bona fide threat
3. Were the statement necessary to resolve an emergency or were they to learn
about events that had already passed?
4. Was there a higher level of formality?
5. What was the purpose of the questioner’s inquiry?
iii. Burton Doctrine:
1. If there are joint defendants in a criminal trial, evidence can’t be introduced
against one defendant if it would violate the other’s Confrontation clause right.
a. Jury instructions don’t cut it.
2. When both defendant’s have confessed though, there is no confrontation clause
issue.
7. Objection – Improper Opinion
a. Lay opinions
i. CEC 800 – Non-expert witnesses are limited in their testimony to opinions including
those rationally based on their perception AND opinions helpful to a clear understanding
of their testimony.
1. If the opinion is based on speculation, it should be stricken
ii. Opinions lacking proper basis shall be excluded. (803)
b. Expert opinions
i. CEC 801 – an expert’s testimony is limited to such an opinion as is:
1. Related to a subject sufficiently beyond common experience such that the
opinion of an expert would assist the trier of fact; AND
2. Based on matter (knowledge, skill, experience, training, and education)
perceived by or personally known to him or made known to him before the
hearing if it is of the type that may reasonably be relied upon by an expert in
forming an opinion.
8. Objection – No foundation for Expert Opinion
i. Testimony must be the product of reliable principles and methods, reliably applied to the
facts of the case (Kelly-Frye standard)
1. requires that the expert’s opinion be based on “generally accepted” methods
in the expert’s field.
a. An expert’s opinion testimony must survive a 352 balancing test in
order to be admitted.
b. The expert can base their opinion on hearsay IF it is what experts in
that field may “reasonably rely on to form an opinion.”
ii. Syndrome testimony:
1. CEC 1107 – “Syndrome” testimony can be used to explain the behavior of the
victim, but cannot be used to identify the perpetrator, or to offer an opinion that
the victim has, in fact, been raped or abused.
iii. Polygraph Evidence:
1. Inadmissible in criminal trials. Period.
2. Otherwise, examiner’s methods must conform to the “generally accepted”
practices of the field.
iv. CEC 721 - The expert can be cross-examined on their qualifications, the subject to which
their testimony relates, or the matter on which their opinion is based.
1. BUT, they cannot be cross-examined on the content of a book unless it has been:
a. Referred to by the expert
b. Admitted into evidence; OR
c. Established as a reliable authority by judicial notice.
2. CEC 804 – an adverse party may call and cross-examine a party whose
statement or opinion is relied upon by the expert.
3. CEC 722 – allows cross-examination to show bias, including sum being paid for
expert testimony.
v. Qualification for experts (CEC 720):
1. A person is qualified to testify as an expert by knowledge, skill, experience,
training, or education .
2. This must be shown with admissible evidence prior to expert testimony.
a. Though a character attack is not relevant on an expert’s qualification,
misconduct or prior negligence might be for questioning their
qualifications.
3. An expert’s qualification is a preliminary question for the judge.
b. Opinions on the Ultimate Issue
i. CEC 805 – permits a witness to testify on their opinion of the ultimate issue.
1. BUT, it cannot be conclusory and must be based on the witness’ perception or
expert opinion.
 2. Psychiatrists can’t opine on whether the defendant had the requisite mental state
in a criminal trial. (section 29 of Cal. Penal Code).
9. Objection – Lack of Authentication
a. CEC 250 – “Writing” means handwriting, typewriting, printing, photostating, photographing, and
every other means of recording upon any tangible thing any form of communication or
representation, including letters, words, pictures, sounds, or symbols, or combinations thereof.”
b. CEC 1400 – Authentication of a writing means:
i. (a) the introduction of evidence sufficient to sustain a finding that it is the writing that the
proponent of the evidence claims it is, OR
ii. (b) the establishment of such facts by any other means provided by law.
c. CEC 1401 – Authentication required
i. You have to authenticate a writing before you can admit it into evidence and before you
can talk about any of its contents.
ii. This is an issue of conditional relevance for the jury
d. Ways to authenticate:
i. Testimony of a witness with knowledge
ii. Non-expert opinion on handwriting – i.e. a familiarity not developed for litigation
iii. Comparison of authenticated specimens by trier of fact.
iv. Distinctive characteristics in conjunction with surrounding circumstances.
v. Voice identification – opinion based on hearing it at any time under the circumstances
connecting it with the alleged speaker.
vi. Public records or reports
vii. Ancient documents:
1. Is in such a conditions as to create no suspicion as to its authenticity AND
2. Was in a place where it would likely be found, AND
3. Has been in existence for 20 or more years.
viii. Photos – must be verified by a witness on personal knowledge as a correct representation
of the facts.
e. Authentication is NOT a hearsay exception – you must still qualify it through a hearsay
exception.
f. Proving chain of custody:
i. When something is not clearly authentic (i.e. gun with unique serial number) then chain
of custody must be shown:
1. A chain from when it was seized until it is present in the courtroom.
a. Must be in substantially the same condition as it was at time of seizure.
10. Objection – Secondary Evidence
a. CEC 1521 – the content of a writing may be proved by secondary evidence, but not IF:
i. A genuine dispute exists concerning material terms of the writing and justice requires the
exclusion
1. Most often arises when a witness offers an oral description of the contents of a
writing.
ii. Admission of secondary evidence would be unfair.
b. This is a preliminary question to be determined by the judge under 405.
c. CEC 1522 – in a criminal case the court shall exclude secondary evidence if it determines the
original is in the proponent’s possession and they had not made it reasonably available.
d. CEC 1523
i. Oral testimony is not admissible to prove the contents of a writing EXCEPT:
1. If the proponent does not have possession or control of a copy of the writing and
the original is lost or has been destroyed without fraudulent intent. OR
2. If he does not have control of the original or a copy AND
a. Neither the writing or a copy was reasonably procurable
b. The writing was not closely related to a controlling issue.
11. Objection – Privilege
a. Existing privileges are ok under Prop. 8, but new privileges would have to be passed by
supermajority.
b. CEC 911 – Unless a person has a statutory privilege given to them, they have no right to refuse to
be a witness and no right to refuse to produce any writing, object, or other thing.
c. CEC 912 – if the holder of the privilege, w/o coercion, disclosed part of the communication or
consented to such disclosure, then the privilege is considered waived.
i. Consent can be indicated by a failure to claim the privilege
ii. If there are join holders of the privilege, waiver by one does not affect the rights of the
others.
iii. Disclosure of communications in another privileged relationship is not waiver where the
disclosure is reasonably necessary for the accomplishment of the purpose of the
relationship.
d. CEC 913 – there can be no comment on or adverse inference drawn from a person exercising their
privilege.
e. CEC 917 – communications are presumed (shifting burden) to be privileged when made in
confidence between:
i. Lawyer and client
ii. Physician and patient
1. Only held by patient; doctor can’t assert the privilege
iii. Psychotherapist and patient
1. Only held by the patient; doctor can’t assert the privilege
iv. Clergy and penitent
v. Husband and wife (two different marital privileges)
1. One protects confidential communications between spouses during their
marriage
a. This survives marriage through divorce, but not death of a spouse.
2. Other prevents one spouse from being forced to testify against the other during
the marriage.
a. Extends to crimes committed before marriage, but CEC 972(f) creates
an exception where knowledge of the crime was acquired before the
marriage and the witness knew of the spouse’s arrest prior to the
marriage.
vi. Sexual assault counselor/ DV counselor and victim
f. CEC 918 – Only the holder of the privilege may claim the privilege
i. If a witness who is not a party claims the privilege and the court rejects the claim, that
party has no standing to claim the ruling is erroneous
ii. A disclosure of confidential communications is coerced if there is an erroneous denial of
the privilege, therefore it would not be waived in that situation.
g. CEC 916 – if the holder of the privilege is neither a party nor a witness, the presiding officer can
still exclude the evidence as privileged.
h. CEC 1070 – immunity for a reporter from contempt for non-disclosure of their source is not a
privilege, but they cannot be jailed for refusing to disclose their sources.
12. Attorney Client Privilege
a. CEC 954 – client, whether or not a party, has a privilege to refuse to disclose and prevent another
from disclosing a confidential communication between client and lawyer if the privilege is
claimed by:
i. The holder of the privilege
ii. A person who is authorized to claim the privilege by the holder; OR
iii. The person who was the lawyer at the time of the confidential communication, unless
there is no holder of the privilege living or has been instructed by client to disclose
communication.
b. CEC 954 Crime or Fraud
i. There is no privilege if the services of the lawyer were sought to enable or aid anyone to
commit or plan to commit a crime or a fraud.
ii. CEC 956.5 – if the client reveals his intent to commit a crime and the lawyer believes it is
likely to result in death or serious bodily harm and disclosure is necessary to prevent it,
then there is an exception to the privilege.