Evidence Outline – Uelman – Fall 2009

Types of Evidence
Direct: Evidence that involves no inferences. This includes real evidence or witness’
testimony.
Circumstantial: Evidence that requires an inference based on indirect evidence.
Real/Demonstrative: Physical evidence relating to the matter, it may be direct or
circumstantial. (real is tangible that gave rise to litigation (like gun used),
demonstrative is a tangible object that serves as an aid (a gun of the same model))
Testimonial: In-court testimony by a witness
Testimonial Competence:
1. The witness must have personal knowledge on the matter
2. The witness must declare, by oath, that she will testify truthfully
The judge determines competency
Documentary: Written or recorded evidence relating to an event or fact.

Prop 8 Exceptions:
1. Constitution
2. 2/3 vote
3. Privileges
4. Hearsay
5. 352
6. 782 & 1103 (Rape)
7. Rights of press

German Rules = exclude everything but make exceptions

French Rules = let everything in but make exceptions to exclude certain evidence

I. General Relevancy
A. According to the doctrine of limited admissibility, evidence may be admissible for one
purpose without being admissible for another
B. For evidence to be relevant, it must be probative of a fact that is material to the case.
1. Evidence is probative if it makes the existence of a fact more or less probably than it
would be without this evidence.
2. Relevant evidence is admissible unless it is excluded for some other reason.
C. Relevant evidence may be excluded when the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice, confusion, or misleading the
jury, or by considerations of undue delay, waste of time, or needless presentation of
cumulative evidence.
1. Gruesome photos
2. Body parts
D. A piece of evidence is relevant if it has any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.
E. Demonstrative evidence such as drawings or pictures, does not need to be
authenticated by the person who created the piece of evidence.
 F. CA Differences
1. Under CEC 1151, evidence of subsequent remedial measures for
negligence involving strict liability is admissible, while SRM evidence is
not admissible for regular negligence. Under FRE 407 SRM evidence is
always inadmissible.
2. Under FRE 411, evidence of insurance (to show liability) is inadmissible.
But under CEC 1155, evidence of NO insurance is admissible.
3. Under FRE 410, evidence of a plea bargain cannot be admitted in
criminal or civil, but Prop 8 abrogates 1153, which is the same as 410. So
evidence of a plea bargain may be admitted in criminal cases.
4. FRE 401 does not require a fact to be in dispute, CEC 210 requires the
fact to be in dispute. FRE 403 is used to get rid of facts not in dispute.
5. Under FRE 104(a), when a preliminary fact is determined by the judge,
the judge can consider inadmissible hearsay in making the preliminary
ruling. Under 104(b), the jury requires admissible evidence to be
introduced sufficient to support a finding of the condition. Under CEC
405, regardless of who decides the preliminary issue, it must be proved
by admissible evidence. (The advisory committee noted the drafters of
the CEC rejected a proposal where the judge could use inadmissible
evidence).
 Under CEC the following are determined by the Jury (FRE by judge):
(i) That a party was authorized to make a particular statement
(ii) A particular statement was within the scope of employment
(iii) A particular statement was in furtherance of a conspiracy
6. FRE 403 says probative value must be substantially outweighed by the
danger of prejudicing, confusion or mistake, or misleading the jury. 403
also permits considerations of undue delay, waste of time, or needless
presentation of cumulative evidence, while 352 only speaks of undue
consumption of time.
 Also, under 352 probative value must be substantially outweighed
by substantial danger of … (the 2 dangers means the danger must
be greater)
7. Under the FRE a judge may ask for proof / voir dire at any time. Under
the CEC a party may require the establishment of expert and personal
knowledge before testimony.
8. Under the FRE the prosecution must accept the stipulations when the
defendant admits a conviction, under the CEC no stipulation needs to
occur, but the prosecution still may not say what the felony was.

G. Rules
1. FRE
 101 – Scope of Rules
 102 – Purpose of Rules
 103 – Cannot say error occurred unless
 o Substantial right affected, timely objection, (and Prejudicial in
CA)
 104 – Conditional Relevance,
o (a) – when the preliminary fact is determined by the judge,
Judge may consider inadmissible hearsay -> Bootstrapping
o (b) – When the preliminary fact determined by jury, there is no
bootstrapping, you need evidence to support a finding of
fulfillment of condition
 401 – must be probative, must be material, need not be indispute
 402 - Relevant evidence is admissible unless it is excluded for some other
reason.
 403 – Evidence whose probative value is substantially outweighed by (unfair
prejudice, confusion, misleading the jury, or causing undue delay)may be
excluded
 407 – Remedial Measures
 Subsequent remedial measures are inadmissible on charges of
negligence
 If the remedial measure is made after manufacture but before injury it
is admissible
 408 – If proving liability, evidence of negotiations or offers are inadmissible.
 Evidence of negotiations or offers may be offered to show bias or undue
delay
 409 – Promise to pay medical bills
 Humanitarian geustures inadmissible for medical, hospital, or similar
expenses.
 Accompanying statements are admissible (I’m sorry, my fault, etc)
 410 – Cannot use a plea bargain in criminal or civil
 411 – Evidence of insurance is inadmissible to show negligence or wrongdoing,
but it can be used to show bias / ownership.
 1101 – applicability of rules
2. CEC
 140 – Definition of evidence
 210 – Relevant evidence means evidence relevant to the credibility of a witness
or hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.

 353 –
 400 – definition of preliminary fact
 401 – proffered evidence
 402 -
  403 – (a) The proponent of the proffered evidence has the burden of producing
evidence as to the existence of the preliminary fact, and the proffered evidence
is inadmissible unless the court finds that there is evidence sufficient to sustain
a finding of the existence of the preliminary fact, when:
(1) The relevance of the proffered evidence depends on the existence of
the preliminary fact;
(2) The preliminary fact is the personal knowledge of a witness
concerning the subject matter of his testimony;
(3) The preliminary fact is the authenticity of a writing; or
(4) The proffered evidence is of a statement or other conduct of a
particular person and the preliminary fact is whether that person made
the statement or so conducted himself.
 405 –
 1151 – Excludes evidence of Subsequent remedial measures
 SRM evidence is admissible in strict liability cases, because strict liability
is not culpable conduct (AULT)
 1152 – Cannot use statements from negotiations for claims of liability.
 (a) – evidence that a person has, for humanitarian reasons, offered
money or anything is inadmissible
 1153 – cannot use plea bargain in civil, but prop 8 allows plea bargains to be
brought in in Criminal
 1154 – Cannot use evidence of acceptance or offer if the claims are to a
disputed amount
 1155 – Evidence of insurance is inadmissible
 Evidence of NO insurance is admissible

H. Cases (9)

Case Tanner v. United States

Topic General Relevancy – Juror testimony
Rule Juror testimony may not be used to impeach a verdict unless the
testimony relates to an outside influence that affected the jury.

Case Cox v. State

Evidence introduced that motive was revenge
Topic General Relevancy – Conditionally relevant evidence
Rule Evidence that is relevant only if another fact is proven will be admissible

Case State v. Bocharski

Photos of victim’s body were introduced
Topic General Relevancy – Inflammatory Evidence
Rule Relevant evidence should not be admitted if the only effect of the
evidence would be to inflame the jury
 Case Commonwealth v. Serge
Introduced computer generated animation
Topic General Relevancy – Computer Animation
Rule Animation is admissible if it is a fair and accurate, relevant, and probative
value is not outweighed

Case U.S. v. James

Gave gun to daughter claiming self defense, she wanted to introduce the
victim’s past homicides
Topic General Relevancy – Unfair Prejudice
Rule Evidence that is unfairly prejudicial to either party should be excluded

Case U.S. v. Myers

Topic General Relevancy – Evidence of Flight
Rule Evidence of flight is admissible if it supports inferences 1) from d’s
behavior, 2) flight to consciousness of guilt, 3) guilt to guilt of crime
charged, and 4) guilt of crime charged to actual guilt.
Flight evidence has only marginal probative value.

Case People v. Collins

Probability of couple matching description
Topic General Relevancy – Stats require foundation
Rule Statistical evidence will not be admitted unless it has foundation in
evidence and statistical theory

Case U.S. v. Jackson

Robbed bank in NY, then arrested in Georgia for false ID. Arrest in Georgia
was excluded for admitting he was in Georgia and used false ID.
Topic General Relevancy – Stipulations may be used
Rule Exclusion of evidence may be conditioned on a stipulation that
acknowledges

Case Old Chief v. United States

Charged with assault with a dangerous weapon, had previously been
convicted of assault causing serious bodily injury. Court says they may
only refer to it as a felony.
Topic General Relevancy – Juror testimony
Rule Court abuses its discretion if it rejects an offer to stipulate a prior
conviction when a prior conviction is an element of the offense charged.

II. Specialized Relevancy Rules

A. Value of item of personal property
  May be established by evidence of the selling price of similar items as long as
the goods are substantially similar and the sales are sufficiently recent.
B. Similar happenings (negligence)
 Evidence of similar happenings is admissible only where the factual
circumstances surrounding the two events are substantially similar.
Courts Reluctant to allow it
C. Statements made during settlement negotiations and offers to settle are inadmissible to
prove negligence.
D. Under rule 409, the statement of an offer to pay medical bills is inadmissible to prove
liability for the injury
 Any accompanying statements such as, “I’m sorry – I wasn’t watching. It’s my
fault” are admissible
E. Liability insurance
 The fact that a defendant has liability insurance may not be admitted into
evidence on the issue of negligence or wrongdoing.
 However, under 411, issues other than negligence, wrongdoing, or ability to pay
a judgment may be proven through the existence of liability insurances.
 Bias
 Ownership
 Life insurance is different, and may be admitted. Evidence that an accused is the
beneficiary of a life insurance policy of a murder victim would be relevant
evidence of motive.
F. Remedial measures are not admissible in negligence cases unless to prove other things
(407)
G. Plea Bargains –
 FRE – not admissible by prosecution in criminal or civil (only the defendant can
bring evidence in) (usually of not accepting a plea bargain)
 CEC – not admissible in civil. Prop 8 allows statements made during the plea
bargaining in criminal cases to be brought in, however no one has ever done
this, and it would probably be thoroughly challenged if someone were to bring
this evidence in.

H. CA Differences
 CEC 1150 allows evidence of statements or conduct in the jury room, but
excludes evidence of the effects of such statements or conduct upon a juror’s
mental process. FRE 606 excludes a juror’s testimony as to any matter during
deliberations as well as the effect of anything
 CEC 1151 excludes evidence of remedial precautionary measures unless the
cause of action is based upon strict liability. FRE 407 rejects the strict liability
exception.
 FRE 408 is broken down into CEC 1152 and 1154 (compromises of claims of
liability, and claimes which are disputed as to amount). Under the FRE it may be
 offered for other purposes, but not clear under CEC.
 The CEC also states that a mediator may not testify due to competancy
 However it is not an absolute preclusion of mediator testimony, since it
is phrased as competency and not privilege. If both P and D waive their
confidentiality protection, the mediator could not refuse to testify.
 Under 1152, statements made in settlement negotiations of civil claims may be
admitted in subsequent criminal trials because 1152 only applies to civil liability.
Even if it applied to criminal liability, it would be abrogated by Prop 8.
 FRE 411 excludes evidence of liability insurance, and extends to evidence that a
person was or was not insured, while CEC 1155 only includes evidence that a
person was insured. If an admission of liability includes a reference to insurance
the statement will be excluded.
 1153, unlike FRE 410, allows evidence from guilty pleas in criminal cases to be
admitted. Also, 1153 precludes entry of plea bargains by any party, not just the
defendant as in 410. (no one can bring in evidence of guilty pleas under 1153)

I. Rules
 FRE
 407 – Remidial measures
 Remedial measures taken after an actual injury that if taken
previously would have made the injury less likely is not
admissible as evidence of negligence, culpability, defect in a
product or design, or need for warning or instruction; But not to
prove other things, such as ownership, control, or feasibility of
remedial measure, if controverted, or to impeach
 408 – (a) Evidence is not admissible when offered to prove liability, or
to impeach a prior statement
 (1) accepting an offer
 (2) conduct during negotiations
 409 – Evidence of furnishing or offering or promising to pay medical,
hospital, or similar expenses occasioned by injury is not admissible to
prove liability for the injury.
 410 – evidence of the following is not, in any civil or criminal
proceeding, admissible against the defendant who made the plea or
was a participant in the plea discussions:
 (1) a plea of guilty which was later withdrawn;
 (2) a plea of nolo contendere;
 411 – Evidence that a person was not insured against liability is not
admissible upon the issue whether the person acted negligently or
otherwise wrongfully. This rule does not require the exclusion of
evidence against liability when offered for another purpose, such as
proof of agency, ownership, or control, or bias or prejudice of a witness.
 CEC
  1151 – Remedial measures (in CA doesn’t apply to measures taken after
occurrence of event)
 1152 – Liability negotiations
 1153 – Plea Bargaining
 Evidence of a plea of guilty, later withdrawn, or of an offer to
plead guilty to the crime charged or to any other crime, made
by the defendant in a criminal action is inadmissible in any
action or in any proceeding of any nature, including proceedings
before agencies, commissions, boards, and tribunals.
(Abrogated by prop 8)
 1154 – Acceptance / offer
J. Cases (4)

Case Tuer v. McDonald

Wanted to include evidence of change in medical protocol after husband’s
death
Topic Special Relevancy – Subsequent Remedial Measures
Rule Evidence of remedial measures taken after an allegedly negligent act is
not admissible

Case Bank Card America v. Universal Bancard Systems

Bankcard sued Universal for breach of contract, and Universal tried to
introduce evidence of a settlement to show they relied on the settlement
Topic Special Relevancy – Settlement Negotiations
Rule Evidence of settlement negotiations is admissible for purposes other than
showing liability

Case Williams v. McCoy

Wanted to introduce evidence of insurance
Topic Special Relevancy – Insurance
Rule Evidence of liability insurance is inadmissible only when the evidence is
offered to show that the insured acted negligently or wrongfully.

Case United States v. Biaggi

Court did not allow evidence that D refused immunity offer
Topic Special Relevancy – Rejected offers to show innocence
Rule Rejected offer of immunity is admissible to show D’s innocent state of
mind

III. Character Evidence

A. Evidence of a person’s character or a trait of character is generally not admissible for the
circumstantial purpose of proving action therewith.
  Character evidence is how a person generally behaves, it is not evidence of
habit.
B. Character evidence can be established by
 Specific acts
 Proof of specific acts may only be made
 During cross examination
 When evidence is not being used to establish action in
conformity therewith (such as opportunity to plan, or when the
character is an essential element of a charge)
 Opinion
 Reputation
C. Character is admissible when it is in issue
 Character is in issue when it is an essential element of a charge, claim, or
defense.
 Examples:
 Defamation (evidence of P’s character to prove truth of what D said)
 Negligent entrustment (to prove character of parents)
 Insanity defense
 Entrapment (to prove D was predisposed)
 Character of the decedent in wrongful death cases (when computing
damages for emotional loss to survivors)
 Self-Defense (regarding victim’s knowledge of attacker’s violent nature)
D. Habit Evidence
 Habit evidence describes a person’s regular response to a repeated situation.
 Character is a generalized description, whereas habit is more specific.
 Under 406, habit evidence, unlike character evidence, is freely admissible to
prove that a person acted in conformity with his habit on a certain occasion.
 Evidence of an organization’s routine practice is treated identically to evidence
of a person’s habit.
 The evidence can be used to show that the person or organization acted
in conformity with that habit or practice on a particular occasion.
E. In sexual assault and other criminal sex-offense cases, evidence offered to prove that an
alleged victim engaged in other sexual behavior or has a certain sexual predisposition is,
with limited exceptions, inadmissible.
 In civil cases relating to sex, evidence of an alleged victim’s past sexual conduct
or sexual predisposition is admissible only if the probative value of such
evidence substantially outweighs the danger or harm to the victim and unfair
prejudice to a party. Evidence of the victim’s sexual reputation is admissible only
if it has been placed in controversy by the alleged victim.
F. Child molestation
  Under 414, the prosecutor may introduce evidence of similar crimes of child
molestation, which may be considered “of its bearing on any matter that is
relevant”
 Evidence may consist not just of convictions , but also of “bad acts” evidence not
involving a testimony (e.g., testimony by W that D admitted the molestation)
G. Hypnosis
 Statements made by someone who has undergone hypnosis are not admissible.
After being abrogated by Prop 8, 795 was reenacted with 2/3 vote. Statements
made before hypnosis are ok if there are proper safeguards. A defendant may
still testify due to his constitutional right to testify.
H. People v. Beagle
 The court identified 5 circumstances to be considered in balancing the probative
value of prior convictions offered pursuant to CEC 788 against the potential for
prejudice.
 Convictions with little bearing on veracity should be excluded
 Veracity excluded if remote in time
 If conviction involves conduct identical or similar to what witness is
accused of, it should be excluded
 If convictions are numerous, the court should restrict the number used
 Convictions should be excluded if they will deter the witness from
testifying, and the judge concludes it is more important to let the jury
have the benefit of the testimony
I. Exceptions
 A criminal defendant may introduce evidence of his own favorable character
traits (if pertinent), and the prosecution may then rebut with evidence of
negative character traits
 This is known as the mercy rule
 Important to note that once the door is open, the prosecutor may cross
examine with questions about specific acts, as well as reputation and
opinion testimony
 A criminal defendant may introduce evidence of the pertinent traits of the
alleged victim, and the prosecution may then rebut with the same kind of
evidence
 In homicide cases, the prosecution may introduce evidence of the peacefulness
of the victim (and violent nature of the defendant) to rebut evidence that the
victim was of violent temperament and thus was probably the aggressor
 Character evidence may be introduced for impeachment purposes
Purpose
the Reputation or Opinion Evidence Evidence of Specific Acts
evidence is
offered
Fed
Civil Cal Civil Fed Crim Cal Crim Fed Civil Cal Civil Fed Crim
Cases Cases Cases Cases Cases Cases Cases Cal Crim Cases
Character is
directly in issue Yes Yes Yes Yes Yes Yes Yes Yes
To show
something
other than
character
(Preparation,
intent,
knowledge,
opportunity,
identity,
motive, plan,
to negate
accident or
mistake) No No No No Yes Yes Yes Yes
Yes, for sexual Yes, for sex
Yes (good - Yes (good No, except assault, child offenses, domestic
bad) or - bad) or sexual No, molestation, violence, rebuttal of
rebuttal of rebuttal of assault or except and cross- attack on victim's
propensity No, except attack on attack on child loss of exam of character, and
of loss of victim's victim's molestatio consortiu character cross-exam of
defendant No consortium character character n m witness character witness
propensity Yes
of non-rape (Bad- Yes (Bad- Yes(Bad- Yes (Bad- Cross Yes (Bad- Cross Exam
victims Good) Good) Good) Good) Exam Only Good) Only Yes (Bad-Good)
propensity No
of rape No (Except (Except No (Except
victims No No No No with def) with def) with def) No (Except with def)
Felony or
dishonesty Felony Felony or
conviction convictio dishonesty
s, or non- ns only. convictions, or
To show Yes conviction No non non- Moral Turpitude
credibility (Bad- Yes (Bad- Yes (Bad- Yes (Prop s on cross- convictio convictions on convictions and non
of witness. Good) Good) Good) 8) exam ns. cross-exam convictions. (Prop 8)

J. Rules
 FRE
 404 – Character evidence not admissible, exceptions, and other crimes
  (b) Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident
 405 – Methods of proving character
 (a) Reputation or opinion
 (b) Specific instances of conduct
 406 – Habit
Evidence of the habit of a person or of the routine practice of an
organization, whether corroborated or not and regardless of the
presence of eyewitnesses, is relevant to prove that the conduct
of the person or organization on a particular occasion was in
conformity with the habit or routine practice.
 412 – sex cases, relevance of victim’s past behavior
 (a) generally inadmissible
 (b) Exceptions
 Behavior by victim to prove someone else was the
source of semen, injury
 Specific instances to prove consent
 413 – Similar crimes in sexual assault cases
 414 – Similar crimes in child molestation cases
 CEC

 170 – Proof of personal knowledge may be required before testimony in
CA only.
 701 – General test of competency – a witness must be competent to
express what they are saying and for people to understand them. Also,
they must understand the consequences of lying.
 702 – Personal knowledge is a jury question
 765 -
 782 –
 783 –
 795 – Statements made by someone who has undergone hypnosis are
not admissible. After being abrogated by Prop 8, 795 was reenacted
with 2/3 vote. Statements made before hypnosis are ok if there are
proper safeguards. A defendant may still testify due to his constitutional
right to testify.
 1100 – if character in issue
 1101 – introduced to show preparation, intent, planning, or motive
  1102 – propensity
 1103 –
 1104 – Habit
 1105 - Habit
 1106 –
 1108 -
 1109 –

K. Cases (9)
Case People v. Zackowitz (1930)
Charged with murder, evidence that he possessed guns
Topic Character Evidence -
Rule Evidence of a particular character trait is inadmissible to show that a
person acted in conformity with the trait

Case US v. Trenkler (1995)

Charged with building a bomb, evidence was introduced of another bomb
he had built.
Topic Character Evidence – Evidence of other criminal acts
Rule Evidence of other criminal acts is admissible to show the identity if there
is a high degree of similarity between the other act and the charged crime

Case US v. Stevens
Accused of robbery and wanted to introduce evidence that someone else
who committed a second robbery committed the crime
Topic Character Evidence –Evidence that they didn’t commit crime
Rule Evidence that a defendant did not commit similar crimes may be used to
show the D didn’t commit the crime

Case US v. DeGeorge
D engaged in transactions to increase the value of a yacht before
intentionally sinking it. He previously lost 3 boats and had to do the
transactions to boost the insurance value.
Topic Character Evidence –Prior bad acts
Rule Evidence of prior acts is intertwined with a charged offense and may be
admitted when it serves as the basis for the criminal charge.

Case Huddleston v. US
Charged with selling stolen video tapes. P wanted to introduce evidence
of his other sales of allegedly stolen property
Topic Character Evidence – Similar Acts
Rule Evidence of similar acts may be admitted if there is sufficient evidence to
support a finding by the jury that the defendant committed similar acts

Case Lannan v. State

 Convicted of molestation after jury heard evidence that he had molested
other girls
Topic Character Evidence –Depraved sexual instinct
Rule Evidence of prior sexual conduct is inadmissible to prove that a defendant
had a tendency to commit a sexual assault.

Case State v. Kirsch

Charged with molestation
Topic Character Evidence – Evidence of other crimes
Rule Evidence of other acts or crimes is not admissible to show a predilection
for committing a certain crime

Case US v. Guardia (1998)

Doctor accused of assaulting 2 women, P submitted allegations made by
other students. Evidence here was confusing. Intro of evidence of other
examinations would make it difficult to separate charged conduct with
uncharged conduct.
Topic Character Evidence – When evidence of prior sec may be excluded
Rule Evidence of other sexual conduct will only be admitted when the
probative value outweighs the danger of undue prejudice, confusion of
the issues, misleading the jury, undue delay, waste of time, and the
needless presentation of cumulative evidence.

Case US v. Mound (1999)

Mound tried for sexual sex assault & assault of a child. State wanted to
introduce evidence of sexual abuse to a child.
Topic Character Evidence – Admission of other sexual assaults is ok
Rule Rule 413 is ok, and does not violate equal protection or due process.

Case Michelson v. US (1948)

Michelson called character witnesses who were asked by prosecution
whether they had heard of his arrest
Topic Character Evidence – What they heard, not what they know
Rule Character evidence is evidence of knowledge of a reputation, not
evidence regarding specific acts

Case Halloran v. Virginia Chemicals (1977)

Denied he was injured by using a coil to heat cans. D claimed he always
used coil.
Topic Character Evidence – Evidence of Habit
Rule Evidence of a person’s habit is admissible to show that he acted according
to that habit on a particular occasion.

IV. Impeachment and Character for Truthfulness

A. Court Examination
 Parties may not be excluded from the court-room in a civil case
 A leading question is one that suggests to the witness the desired answer
 You can use leading questions when you examine a hostile or adverse
witness, so most are limited to cross-examination
 Except as may be necessary (in direct examination) has been construed to
mean leading questions are permitted in:
 Child witnesses
 Examining an expert
 To ascertain uncontested preliminary information
 If the question suggests a whole subject rather than a specific answer
 If the witness’ memory is exhausted and requires jogging
 Redirect examination is normally limited to material matters first addressed
on cross examination
 If a witness has been impeached on cross-examination, he may be
rehabilitated on redirect with
 Explanations of responses on cross-examination
 Testimony of other witnesses as to the principal witness’ reputation for
truthfulness
 Prior consistent statements when used to defeat a charge of bias or
recent fabrication (if made before the alleged motive to fabricate
arose)
 If a witness has been impeached by evidence of prior inconsistent statements,
he normally may not be rehabilitated with consistent statements.
 However, under 801(d)(1)(B), prior consistent statements may
rehabilitate a witness if the witness was impeached through a charge
of bias of recent fabrication.
 All types of materials may be used to refresh memory, including leading
questions, documents, and objects.
 May not be used unless the witness’ present memory is exhausted
 The object used to elicit memory is not considered evidence (and
therefore doesn’t need to be authenticated, comply with best evidence
or hearsay)
 Cross examination is limited to (under 611(b)):
 Credibility of a witness, and
 Matters brought up in direct examination and interferences therefrom
 A party may impeach his own witness under 607
 Impeachment by intrinsic evidence is testimony that discredits the witness,
elicited solely from the witness himself on cross-exam
 No foundation must be made under the FRE before the witness is cross
examined about the prior inconsistent statement
 The 5 basic ways a witness may be impeached are:
 Bias or conflicting interest
 Prior inconsistent statements
 Only 2 requirements for admitting extrinsic evidence of prior
inconsistent statements:
 The witness must be given the opportunity to explain
or deny the statement
 The opposing party must be given a chance to
interrogate the witness about the extrinsic evidence
 Bad character, especially for dishonesty
 Prior convictions
 FRE 609(a) – misdemeanors involving dishonesty, and
any felony; conviction may not be more than ten years
old unless court finds probative value substantially
outweighs prejudicial effect
 Bad acts not amounting to a conviction (most jx: relate to
veracity, extrinsic evidence prohibited)
 Bad reputation
 Sensory deficiencies (eyesight, memory, mental disability)
  Contradiction
 Under FRE 609(a) the admissibility of a witness’ prior criminal convictions for
impeachment purposes depends on whether that witness is not also the
criminal defendant.
 If the witness is the accused in a criminal case, then:
 Any crime, felony, or misdemeanor involving dishonesty or
false statement must be admitted to impeach D regardless of
the balance between probative and prejudice to exclude
 Any felony not involving dishonesty or false statement must be
admitted only if the court determines the probative value of
admitting the evidence outweighs the prejudicial effect (if close
exclude it)
 If in a civil case they are the same except:
 Non veracity related (crimen falsi) must be admitted unless
the danger of prejudice, time wasting, etc substantially
outweighs the probative value
 Under 609(b) old convictions (10 years) are not admissible unless:
 The court determines that the probative value of the conviction
substantially outweighs the prejudicial effect
 The proponent gives the adverse party sufficient advance notice that it
will use the conviction to impeach, so the adverse party may contest
its use
 10 years = 10 years since date of conviction or 10 years since date of
release. Whichever is later (more recent).
 Prior bad acts not amounting to a criminal conviction may be introduced if
the examiner meets the following requirements
 The act or conduct must be probative of truthfulness, not merely of
good character (so dishonesty qualifies, but not violence usually)
 The evidence must be brought out solely in cross-examination of the
witness (no extrinsic evidence may be used)
 Both reputation and opinion evidence may be used to impeach a witness
 Collateral Issue
 W2 may not be used to discredit W1 by
 Testifying to unconvicted bad acts
 Testifying that W1’s testimony was wrong on some point that
is not independently relevant to the case
 Testifying that W1 made a prior statement that is inconsistent
 W2 may be used to discredit in non collateral ways:
 W1 had prior criminal convictions
 W1 has a bad character for truthfulness (reputation or opinion,
not specific instances)
 W1 is biased
 W1 has a sensory or mental defect
B. Rules
 FRE
 611 – Mode and order of interrogation
 (a) control by court
The court shall exercise reasonable control over the
mode and order of interrogating witnesses and
presenting evidence so as to (1) make the interrogation
and presentation effective for the ascertainment of the
truth, (2) avoid needless consumption of time, and (3)
protect witnesses from harassment or undue
embarrassment.
 (b) Scope of cross examination
 Cross-examination should be limited to the subject
matter of the direct examination and matters affecting
the credibility of the witness. The court may, in the
exercise of discretion, permit inquiry into additional
matters as if on direct examination.
 (c) Leading Questions
Leading questions should not be used on the direct
examination of a witness except as may be necessary to
develop the witness' testimony. Ordinarily leading
questions should be permitted on cross-examination.
When a party calls a hostile witness, an adverse party,
or a witness identified with an adverse party,
interrogation may be by leading questions.
 607 – Who may impeach – any party
 608 – Evidence of character or conduct (R/O admissible, SA
admissible if felony / dishonesty conviction. If no conviction only
admissible on cross exam
 609 – Impeachment by evidence of conviction of crime
 (a) - evidence that a witness other than an accused has been
convicted of a crime shall be admitted
 (b) - not admissible if a period of more than ten years has
elapsed since the date of the conviction or of the release of the
witness from the confinement imposed for that conviction,
whichever is the later date, unless the court determines, in the
interests of justice, that the probative value of the conviction
supported by specific facts and circumstances substantially
outweighs its prejudicial effect. However, evidence of a
conviction more than 10 years old as calculated herein, is not
admissible unless the proponent gives to the adverse party
sufficient advance written notice of intent to use such evidence
to provide the adverse party with a fair opportunity to contest
the use of such evidence.
 (c) – evidence of conviction not admissible if pardoned
 (d) - juvenile adjudications is generally not admissible
 (e) - pendency of an appeal therefrom does not render
evidence of a conviction inadmissible
 CEC
 788
 790

C. Cases (4)

Case US v. Whitmore (2004)

Whitmore ran from crowd with a gun, and Officer Soto chased him. Soto
introduced 3 wtinesses who would testify Whitmore was dishonest: a
reporter, a defense attorney, and a former acquaintance. Whit more
wanted to introduce records from the DMV showing Soto didn’t report a
suspended license or child support payments. The court let in Soto’s
evidence, but not the 3 witnesses
 Topic Impeachment – Witnesses must really know someone
Rule Rule 608(a)
A party may introduce reputation or opinion evidence of a witness’s
character for truthfulness only if the character witness is acquainted with
the witness, his community, and the circles in which he has moved.

Case US v. Brewer (1978)

Charged with kidnapping and GTA, moved to suppress evidence of prior
felony convictions
Topic Impeachment – Evidence of prior crime is admissible only under certain
circumstances
Rule Before evidence is admitted, the court must determine whether the
probative value of admitting the evidence outweighs the prejudicial
effect. The 10 years begins to run at the time of the final release from
custody. To balance the probative value against the prejudicial effect, the
court will look at five factors:
1) Nature of crime
2) Time of conviction and subsequent history
3) Similarity between past crime and charged crime
4) Importance of defendant’s testimony
5) Centrality of the credibility issue

Case Luce v. United States (1984)

When D found out prior convictions were admissible, he decided not to
testify. He did not get appellate review.
Topic Impeachment – Non-testifying defendants cannot seek appellate review
of certain rulings
Rule A defendant who does not testify may not seek appellate review of a
ruling that allows admission of impeachment evidence.

Case Ohler v. United States (2000)

After court ruled prior convictions would be admissible for impeachment,
she took the stand and testified about the prior convictions on direct
examination.
Topic Impeachment – Party who introduces disputed evidence cannot later
argue against its admissibility
Rule A party who introduces evidence waives the right to seek appellate
review of admissibility of that evidence.

V. The Rape Shield Law

A. CA Differences
 Under CEC 1108, evidence of all prior sexual assaults are
admissible in all sex offense cases, but under FRE 414 evidence
of sexual assaults against adults are inadmissible in child
molestation cases
B. Rules
 FRE
 412 – rape shield
 413 – Sexual Assault Cases
 All prior sexual assault cases are admissible
 414 – Child molestation cases
 In child molestation cases, evidence of other child molestations
are admissible, but not evidence of other sexual assaults against
adults
 CEC
 782 –
 1103 -
 1108 – All sex offenses
 Must be enumerated in 1108 (d)(1)


C. Cases (6)

Case People v. Abbot (1838)

Accused of rape and wanted to bring in evidence that victim was a
prostitute
Topic Rape Shield Law
Rule Evidence that a prosecutrix in a rape action had prior sexual activities is
relevant to show consent

Case State v. Sibley (1895)

Accused of rape, state introduced evidence of his bad character
Topic Rape Shield Law – Discriminatory old case
Rule Evidence of a man’s bad character and poor reputation for chastity is
inadmissible in a rape prosecution to impeach the character of a witness.
“It is well known that a man’s bad character for chastity does not affect
his character for truth as it does a woman’s character for truth.

Case State v. Smith (1999)

D accused of indecent behavior with juvenile and tried to introduce
evidence that victim had made previous allegations she later withdrew
Topic Rape Shield Law
Rule Evidence that a victim has made prior false allegations of sexual assault is
not barred by the rape shield law

Case Olden v. Kentucky (1988)

 Accused of rape and was denied permission to cross-examine the victim
regarding her cohabitation with another man
Topic Rape Shield Law – Shield laws are limited by the 6 th amendment
Rule He should have been able to cross-examine victim about where she lived
& who with, especially if she lied

Case Stephens v. Miller (1994)

D claimed that an attempted rape accusation against him was fabricated
because the victim was angry he asked about her sexual activity with
another man. The court said it was ok to exclude statements.
Topic Rape Shield Law
Rule A defendant’s right to testify in his own behalf is not absolute and may be
limited to protect other legitimate interests.

Case United States v. Knox (1992)

Knox accused of rape and attempted to introduce evidence about the
victim’s prior sexual history to show that he was reasonably mistaken as
to her consent. Either she was asleep or not. Her sexual history did not
matter.
Topic Rape Shield Law – Evidence of prior sexual activity must be relevant to be
admissible
Rule Evidence of prior sexual behavior is not admissible to show mistake
regarding consent if there is no real possibility that there was such a
mistake.

VI. The Rule Against Hearsay

A. Hearsay in General
 Under rule 801(c), Hearsay is 1) a statement; 2) made by the declarant outside of
the trial or hearing; 3) offered to prove the truth of the matter asserted in that
statement.
 If a statement is hearsay and doesn’t fit any exception to the hearsay rule and the
other party objects to its admission, the statement must be excluded.
 Hearsay is excluded because it is considered unreliable. If the declarant doesn’t
appear in court, the trier of fact has no way to evaluate his memory, perception,
sincerity, and ability to communicate. Additionally, admission of hearsay deprives
the opponent of the opportunity to cross-examine the declarant.
 Exclusion vs. Exception
i. A hearsay exclusion applies to evidence that meets the three requirements
of hearsay, but is defined as non-hearsay for policy reasons.
1. If the evidence falls within a hearsay exclusion, then it is treated as
not hearsay and can be admitted to prove the truth of its contents
(801)
 2. Two categories of evidence fall within the hearsay exclusion
a. Prior statements made by a witness
b. Admissions (statements made by or imputed to a party-
opponent that are offered against that party)
ii. Evidence falls within a hearsay exception if it meets the three requirements
of hearsay but is nevertheless admitted under an exception created in either
the FRE 803 or 804.
iii. (If it falls within an exclusion, the evidence is admitted because it is not
hearsay, if an exception the evidence is admitted because it falls within a
recognized exception)
 Hearsay will be admissible usually because there are circumstances indicating that
the out-of-court declaration is reliable, thus eliminating to some extent the need for
cross-examination.
B. Hearsay Exclusions
 Party Admissions
i. Under 801(d)(2), admissions made by a party-opponent are deemed not to
be hearsay. (exclusion).
ii. Admissions excluded from the definition of hearsay include: (802(d)(A)-(E))
1. The party’s own statement (whether spoken, written, or made
nonverbally)
2. An adoptive admission, i.e., a statement of which the party has
manifested an adoption or belief in its truth
3. A statement by a person authorized by the party to make a
statement concerning the subject
4. A statement by the party’s agent or servant concerning a matter
within the scope of, and during, the agency or employment,
whether or not the speaker was authorized to make such a
statement
5. A statement by a party’s co-conspirator during the course of, and in
furtherance of, the conspiracy
iii. The statement does not have to be against interest
iv. Silence can be an adoptive admission when three conditions are met:
1. The declarant heard the accusatory statement;
2. The declarant was capable of denying the statement; and
3. Under the same circumstances, a reasonable person would have
denied the statement if it were not true.
 Prior statements made by testifying witnesses are non-hearsay:
i. Prior inconsistent statements while given testifying under oath under
penalty of perjury in a prior proceeding or in a disposition (801(d)(1)(A))
ii. Prior consistent statements offered to rebut an express or implied charge of
improper motive/influence or recent fabrication (801(d)(1)(B))
 iii. Statements of prior identification of a person made after perceiving the
person (801(d)(1)(C))
C. Hearsay Exceptions
 803 exceptions don’t care if declarant is unavailable
i. For dying declarations, the person must know of their imminent death, they
don’t have to die
D. Present Sense Impression (803(1))
 Under FRE 803(1), a statement of present sense impression is
admissible if:
i. It describes or explains an event or condition; and
ii. It is made while the declarant is perceiving the event or
condition (or immediately thereafter)
 Availability to testify it immaterial
E. Excited Utterance - 803(2)
 Under 803(2), a statement must satisfy three conditions to be
admissible as an excited utterance:
i. The statement relates to an event or condition
ii. The event or condition was startling; and
iii. The statement was made while the declarant was still under
the stress of excitement caused by the event or condition
 An excited utterance, unlike a present sense impression, doesn’t
require that the statement be made contemporaneously with the
event; it only requires that the stress or excitement caused by the
event or condition not have dissipated by the time the statement
was made.
 Availability to testify is immaterial
F. State-of-mind statements - 803(3)
 May be offered to prove
i. The declarant’s state of mind itself where state of mind is in
issue and material (e.g., intent, attitude, mental feeling,
pain, etc.)
ii. Declarant’s later conduct following through on that state of
mind
 State of mind is trustworthy because there are no perception
problems or memory defects
G. Statement regarding present physical condition need not be made to a
doctor
H. Statements for medical diagnosis or treatment
 Under 803(4), the statements must meet three conditions:
i. It must be made for purposes of medical diagnosis or
treatment, and
 ii. It must describe medical history, or past or present
symptoms, pain, or sensations, or the inception or general
character of the cause or external source; and
iii. The description referred to in part 2 must be reasonably
pertinent to diagnosis or treatment
I. Past recollection recorded
 Under 803(5), a document (recorded recollection) will qualify for
the recorded recollection hearsay exception if five conditions are
met:
i. The witness had firsthand knowledge of the events
contained in the document
ii. The witness made the document, or the document was
adopted by the witness
iii. The document was made when fresh in the memory of the
witness
iv. The witness’ recollection of the facts is impaired (if the
document revives the witness’ memory, enabling him to
testify without it, the document is inadmissible); and
v. The witness verifies that the document correctly reflected
the witness’ knowledge when it was made
 In state and Fed, the proponent must read it out loud. Not given
greater weight than oral testimony. BUT, the adverse party may
submit it to the jury.

Present Recollection Refreshed Past Recollection Recorded

A document used to refresh a witness’ Offered into evidence as an exception to the
recollection is merely a stimulus to the hearsay rule (and so its contents are admitted
witness’ memory. to prove the truth thereof)
A party who takes notes of an incident but can’t remember them, may
use as a present recollection refreshed, and if that fails it may be used
as a past recollection recorded.
J. Business Records
 Under 803(6), a business record is admissible hearsay if 4 elements
are present:
i. The record concerns a business activity (includes non-
profits, but not personal activities)
ii. The record was made in the regular course of a business
(the record was regularly kept, rather than made in
anticipation of litigation)
iii. The record was made by, or with information from, a
person with personal knowledge of the matters recorded;
and
 iv. The record was made at or near the time of the matter or
event recorded
 Once a document qualifies for this exception, it must be
authenticated before it is admissible either by
i. Testimony from a witness who describes the circumstances
under which the record was made; or
ii. By a written declaration by a person with knowledge,
certifying that the document meets the four requirements
of 803(6)
 Courts can still exclude the record if it lacks trustworthiness
 Like other exceptions under 803, the availability of the recorder
under the business records exception is immaterial
K. Public Records
 Under 803(8), any record, report, statement, or data compilation
from a public office or agency is admissible insofar as it sets forth:
i. The activities of the office or agency
ii. Matters observed pursuant to duty imposed by law as to
which matters there was a duty to report (except in criminal
cases, matters observed by police and law enforcement
personnel); or
iii. Factual findings resulting from an investigation made under
authority of law (but not if used by the government against
a criminal defendant)
L. Ancient Documents
 Statements in a document in existence for twenty years or more.
M. Market Reports
 Exception for market quotations, tabulations, lists, directories, or
other published compilations, generally used and relied upon by the
public or by persons in particular occupations.
N. Treatises
 Statements in a published treatise, periodical or pamphlet on
history, medicine, or other science or art may be read into evidence,
but not admitted as an exhibit, as long as:
i. An expert witness relies on it on direct examination, or it’s
called to his attention on cross-examination; and
ii. It’s established as reliable authority by the witness’ own
testimony or admission, other expert testimony, or judicial
notice

 804 exceptions require a declarant to be unavailable

i. A witness is unavailable when
 1. Exempted on the ground of privilege
2. Refuses to testify despite an order of the court to do so
3. Testifies to a lack of memory of the subject matter
4. Is unable to be present to testify at the hearing because of death,
infirmity, or
5. Is absent from the hearing, and the proponent of the statement has
been unable to procure the declarant be process or other
reasonable means
O. In order for a statement to come within the former testimony exception of
804(b)(1)
i. Declarant must be unavailable; and
ii. The former testimony must have been made during a
hearing
iii. The party against whom the statement is offered must have
had an opportunity to examine the declarant in the prior
proceeding (grand jury testimony is out)
iv. The party against whom the testimony is now offered must
have had a similar motive to develop the testimony in the
former proceeding by direct, cross, or redirect examination.
v. NOTE: In civil cases, the party against whom the testimony
is now being offered need not be the same party against
whom it was offered in the original proceeding – there only
needs to be identity of interest and motive and an
opportunity and motive to cross-examine (predecessor in
interest must have been present in, or same interest and
motive to cross-examine)
Also, a witness’s testimony against a defendant in a criminal
case may be used against the same person in a civil case as
long as the witness is unavailable to testify and as long as
the defendant then had a similar motive to examine the
witness. (similar motive usually means the same issue was
involved)
vi. NOTE: if criminal, the rules are the same, but the former
testimony must be offered against a defendant who was
actually a party to the prior proceeding
P. The declaration against interest exception is given for a statement by an
unavailable declarant which was at the time of its making so far contrary to
the declarant's pecuniary or proprietary interest, or so far tended to subject
the declarant to civil or criminal liability, or to render invalid a claim by the
declarant against another, that a reasonable person in the declarant's
position would not have made the statement unless believing it to be true.
And when a statement that is contrary to the declarant’s penal interest is
 offered in a criminal case to exculpate the defendant, it is admissible only if
(corroborating circumstances that clearly indicate its trustworthiness).

Declaration against interest Admission

 Made by either party or non-party
 Declarant must be unavailable
 Against declarant’s interest when
made
 Made by a party
 Declarant need not be unavailable
 Must be offered against the
declarant party
 Need not be against the declarant’s
interests when made

Q. Residual Exception
a. Out-of-court statements may be admissible under the catch all
(residual) exception of FRE 807.
b. In order to fall under 807, all of the following must occur:
 The evidence must be shown to have circumstantial
guarantees of trustworthiness that are “equivalent” to the
guarantees inherent in the listed exceptions;
 The evidence must be offered as evidence of a material fact
 The evidence must be more probative on the point than
other reasonably procurable evidence; and
i. The opponent must be notified before trial of the statement
to be introduced to give him an opportunity to prepare
R. Family History of Statements of Pedigree
 Under 804(b)(4), a statement of personal or familial history or
pedigree is admissible provided that:
i. The declarant is unavailable to testify and EITHER
1. The statement concerns the declarant’s own birth,
adoption, marriage, divorce, legitimacy, relationship
by blood, adoption, or marriage, ancestry, or other
similar fact or personal or family history, regardless
of declarant’s personal knowledge, OR
2. The statement concerning one of the above matters
as to someone other than declarant is made by a
member of the family or someone intimately
associated with the family (e.g., a family physician)
S. Wrongdoing
 Under FRE 804(b)(6) – there is a declarant unavailable hearsay
exclusion for a statement offered against a party that has engaged
or acquiesced in wrongdoing that was intended to, and did, procure
the unavailability of the declarant as a witness
 i.
 Major exceptions
i. Business records
ii. Declarations against interest* (See F)
iii. History or pedigree of family*
iv. Ancient documents
v. Medical treatment or diagnosis
vi. Former testimony* (See D)
vii. Excited utterances
viii. Dying declarations* (See E)
ix. Present sense impressions
x. Recorded recollections
xi. Official (public) records
xii. Market reports
xiii. Present physical or mental state
xiv. Treatises
* = exception is contingent upon declarant’s unavailability
T. CEC Differences
 No essential difference in definition
 CEC 1220 is identical to 801(d)(2)(A) – Party admissions
 CEC 1222 exception for authorized admissions
i. While FRE 801(d)(2)(C) includes statements made by an authorized agent to
anyone (including the principal), CEC 1222 only extends to situations where
the agent is speaking “for” the principal to third persons.
ii. Also, FRE 801(d)(2)(C) does not extend to apparent authority, 801(d)(2)(D)
does.
iii. Under 1222, it is treated as a 403 issue of conditional relevancy, and the
statement itself may not be used to establish that it is authorized, the
proponent must first offer admissible evidence. Under FRE 801(d)(2)(C),
however, the issue of authority is resolved by the judge pursuant to FRE
104(a). The statement itself can by considered, but the statement alone is
not sufficient to establish authority.
 When a prior inconsistent statement is offered substantively (trying to use what
was said to prove something), FRE 801(d)(1)(A) requires it have been given under
oath. However, CEC 1235, the statement does not need to be given under oath.
(In CA a pawn shop owner IDed someone to police. When on trial he said he
couldn’t remember. Since it wasn’t under oath it was admitted in CA but not in
Fed)
 If a prior consistent statement is may be admitted as long as it was made before
any bias to do otherwise (like a DA’s offer) under CEC 791.
 Prior Identifications are allowed under 1238 and may be admitted without a
previous challenge to the witness.
 Anything can be used to refresh a witness’ recollection whether prepared by the
witness or not. CEC 771 and FRE 612 give the adverse party a right to inspect
writings and cross exam a witness. FRE 612, unlike CEC 771, makes no distinction
 between writings used while testifying and those used prior to testifying. 612
gives the judge greater discretion to limit production of those used prior to
testifying. Also unlike the FRE, 771 mandates striking testimony if the writing is
not produced.
 Past recollection recorded under CEC 1237 does not require the witness to adopt
the statement (like FRE 803(5). So in CA a statement given to a cop can be
admitted if W testifies that it is true, and it is authenticated as an accurate record
even when the witness did not adopt the statement.
 Declarant’s previous state of mind is allowed under CEC 1251, but not under FRE
803(3). There, only then existing states of mind are admitted.
 Statements of memory about declarant’s will are admissible under CEC 1260, just
like 803(3). But CEC requires the declarant to be unavailable.
 No broad exception for medical diagnosis under the CEC like in 803(4). 1253 is
allows statements made during medical diagnosis or treatment for minor victims
of child abuse. CEC 1250 and 1251 however create broad exceptions for
statements describing mental feeling, pain or bodily health, that might be
required by a physician. Neither exception requires diagnosis or treatment be the
purpose of the statement. Unlike 803(4), these exceptions would not extend to
statements describing the inception or general character of the cause or external
source of the symptoms.
 CEC 1271 exception for business records is generally the same as FRE 803(6).
Business is defined more broably in CEC 1270 than in the FRE to include
governmental activity. Unlike FRE 803(6), 1270 does not explicitly include
opinions or diagnoses. But CA courts take a more restrictive approach limiting
opinions to readily observable acts. A more complex opinion such as psychiatric
diagnosis will be excluded.
i. CEC 1271 makes it clear that police arrest and accident reports cannot be
admitted to show observations of people who have no business to report to
the police, but where officers have a duty to report, their statements will be
admissible.
ii. CEC 1280 for records by public employees is identical to CEC 1271 for
business records, but CEC 1280 does not require a witness to testify to the
identity of the record and its mode of preparation, allowing the court to
take judicial notice of the trustworthiness of the records.
iii. Unlike FRE 803(8), the CEC has no explicit exclusion in criminal cases for
matters observed by law enforcement. (like drug identification).
iv. 1560 – 62 allow routine business records without requiring actual physical
appearance by custodian of records as long as they are accompanied by an
affidavit.
 The unavailability exceptions are scattered throughout the CEC unlike FRE 804
 Former testimony (CEC 1290 – 1292)
 Dying declarations
 Declarations against interest
 Statements of family history
 Forfeiture by wrongdoing
 Additional CA unavailability exceptions
 Previously existing mental or physical state
  Statement regarding a will
 Unavailability requirements (CEC 240)
 Privilege
 Disqualified
 Dead or unable to attend due to then existing physical or mental illness
 Absent from hearing and unable to compel by court’s process
 Absent and the proponent exercised diligence but is unable to procure
attendance
 NOTE: The CEC does not include the statement of a witness who refuses to
testify despite a court order to do so (In Rojas, they said this fear was due to
mental illness and got it in)
 Under 1350, hearsay admissible for wrongdoing. There, it is broader than the
FRE, and permits prior statements if they were recorded or notarized.
 Dying declaration in FRE 804(b)(2) is limited to homicide prosecutions. Under
CEC 1242 the is no limitation. (“no rational basis” for it)
 Statement against interest
 Must be unavailable in both FRE 804(b)(3) and CEC 1230. Example is sexual
harassment, and after admitting it the boss commits suicide. Not available
as dying declaration, but statement against interest.
 SODDI – some other dude did it
 FRE 804(b)(3) requires a corroborating statement if someone in jail said
a statement against interest, then took the 5th to be unavailable. In CEC
the jury is not informed that he took the 5 th.
 CA courts are distrustful of exculpatory confessions by unavailable
witnesses, and impose a requirement that a declaration be trustworthy.
If the statement subjects a third party to greater criminal liability than
the declarant, it will be rejected.
 FRE 804(b)(1) includes former testimony at another hearing of a different case,
as well as depositions in the same or different case. But, CEC 1290 does not
include a deposition taken from the same case. Its admissibility is governed by
the CCP. (It allows it when the witness is unavailable or over 150 miles away).
 Both can be used in criminal cases if the same party against whom the
testimony is offered had an opportunity to cross-examine the witness, with
a similar motive.
 Where the testimony was offered in evidence by the party against whom it
is now offered, the FRE still requires a similar motive, but the CEC does not.
 1291 also allows for a party who is a successor in interest to the party who
offered it in the former proceeding.
 Broader in civil cases, since there is no right to cross-examine
 Both allow for new hearsay. FRE has residual exception. CEC allows new
decisional law. (CA allows hearsay from child abuse victims who testify in child
dependency cases (was allowed in criminal in 1360, this extended it to civil)).
 CA added 1350, 1360, 1370, and 1380 to the hearsay laws (all but 1370 are
limited to criminal cases) (no prop 8 problem in these restrictions since
hearsay exceptions do not exclude evidence)
 1350 is forfeiture by wrongdoing
 Requires that the statement of the unavailable declarant have been
 recorded or written by law enforcement and notarized in his presence
 Also requires imposes requirement that it be made under sicumstances
that indicate trustworthiness
 1360 creates a hearsay exception for children under 12 describing an act of
child abuse or neglect. If the child is unavailable to testify, there must be
evidence of the child abuse or neglect that corroborates the statement
 1370 – threat of infliction of injury
 Evidence by declarant admissible over hearsay when it describes the
infliction or threat of physical injury upon the declarant. The declarant is
unavailable. Statement made near the time (5 YEARS). Statement has
indication of trustworthiness. Statement made in writing, or made to
physician, paramedic, law enforcement.
 Statements of trustworthiness are determined by
 Made in contemplation of litigation
 Is there bias
 Whether corroborated
 Court of appeals has split on whether this violates the confrontation
clause
 1380 – statements by victims of elder abuse
 Hearsay exception for the videotaped statement of an elderly victim
who becomes unavailable. Admission requires trustworthiness, and
supported by corroborative evidence.

Hearsay Exception FRE CEC CA Difference Example

W denies making a
statement when
Inconsistent 1235, Prior statements need not statement may impeach
statements 801(d)(1)(A) 770 be under oath him

Consistent 1236, Must be made before

Statemets 801(d)(1)(B) 791 May be abrogated by prop 8 bias arises

Witness must vouch for prior

Identification 801(d)(1)(C) 1238 identification
Party admission 801(d)(2)(A) 1220
Adoptive
admission 801(d)(2)(B) 1221

Authorized Authorization must be

admission 801(d)(2)(C) 1222 independently proven
Admissibility based on At scene of accident
vicarious liability as well in employee says
agent admissions 801(d)(2)(D) 1224 CA something
 Membership in conspiracy
must be independently
coconpirator proven and is question of
admissions 801(d)(2)(E) 1223 conditional relevance
Present sense Declarant must be engaged
impression 803(1) 1241 in conduct
Startling event must be Cannot have heard over
Excited utterance 803(2) 1240 perceived by declarant the phone
Existing mental Separate exception for wills
condition 803(3) 1250 in section 1260

No medical diagnosis, but if

declarant is unavailable and
a prior condition is in issue
statements regarding health
(1251, may be admitted in child
Medical diagnosis 803(4) 1253) abuse cases
Past recollection Memo need not have been
recorded 803(5) 1237 made or adopted by witness
Opinions not explicitly
excluded. Police reports not
Business records 803(6) 1271 excluded
Absence of entry
in business record 803(7) 1272
No exclusion of police
Official Records 803(8) 1280 reports
Absence of entry
in official record 803(10) 1284
Invoking provilege 804(a)(1) 240(a)(1)
No
exception Treated as mental infirmity
Refusal 804(a)(2) in CA in Rojas
No
exception Treated as mental infirmity
Lack of memory 804(a)(3) in CA in Rojas
Death or sickness 804(a)(4) 240(a)(3)
unable to procure 240(a)(4),
attendance 804(a)(5) (5)
For deposition in same case
the CCP is used. If testimony
previously offered by party, Objections on relevance
need not have same interest and hearsay can be
Prior testimony 804(b)(1) 1290 - 92 and motive. asserted later
 Use in criminal cases is not
limited to homicdes.
Personal knowledge
Dying declaration 804(b)(2) 1242 expressly required.
Includes social disgrace;
exculpatory statements in
criminal cases do not require
Declaration coroboration, but subject to
against interest 804(b)(3) 1230 case law limitations
1310,
Family history 804(b)(4) 1311
Limited to serious felony
cases; statement must be
Forfeiture by tape recorded or notarized,
wrongdoing 804(b)(6) 1350 and corroborated.

U. Rules
c. FRE
 801 – Definitions
 (a) – Statement
 an oral or written assertion or
 nonverbal conduct of a person, if it is intended
by the person as an assertion
 (b) – Declarant – person who makes the statement
 (c) – Hearsay - statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted
 (d) – Statements which are not hearsay
o (1) – Prior statement by witness - The declarant testifies at the
trial or hearing and is subject to cross-examination concerning
the statement, and the statement is
 (A) – inconsistent with the declarant's testimony, and
was given under oath subject to the penalty of perjury
at a trial, hearing, or other proceeding, or in a
deposition,
 (B) –consistent with the declarant's testimony and is
offered to rebut an express or implied charge against
the declarant of recent fabrication or improper
influence or motive
 (C) – one of identification of a person made after
perceiving the person
o (2) – Admission by party opponent
  (A) – party’s own statement
 (B) – adopted statement
 (C) – statement by authorized person
 (D) – by party’s agent within scope of employment
 (E) – statement of conspirator
 802 – Hearsay Rule
 803 – Hearsay Exceptions – availability of declarant immaterial
 1) Present sense impression
 Admissible if
 Describes event / condition and
 Made while perceiving or right after
 2) Excited utterance
 Relates to event / condition
 Was startling
 Made while under stress
 Must be non-testimonial (not in preparation for litigation)
 3) Then existing mental, emotional, or physical condition
 May be used to prove
 State of mind
 Later conduct (Hillmon)
 4) Statements for purposes of medical diagnosis or treatment
 Made for diagnosis or treatment
 Describes history or symptoms
 Reasonably pertinent to diagnosis
 5) Recorded recollection
 W had firsthand knowledge
 W made document
 Document made while fresh in memory
 W does not remember
 W verifies document (NOT in CA)
 6) Records of regularly conducted activity (Business Records)
 Business activity
 Made in regular course of business
 Made by person with knowledge
 Made near time
 Cannot lack trustworthiness
 7) Absence of entry in records of regularly conducted activity
 8) Public records and reports
 Must set forth
 Activities of office,
 Matters observed, or
  Findings of investigation
 9) Records of vital statistics
 10) Absence of public record or entry
 11) Records of religious organizations
 12) Marriage, baptismal, and similar certificates
 13) Family records
 14) Records of documents affecting an interest in property
 15) Statements in documents affecting an interest in property
 16) Statements in ancient documents
 20 years
 17) Market reports, commercial publications
 18) Learned treatises
 If relied upon by expert
 19) Reputation concerning personal or family history
 20) Reputation concerning boundaries or general history
 21) Reputation as to character
 22) Judgment of previous conviction
 23) Residual exceptions covered by rule 807
 804 – Hearsay Exceptions – declarant unavailable
 (a) – Unavailable includes situations where
o (1) – exempted by ruling of the court on the ground of privilege
from testifying concerning the subject matter of the declarant's
statement
o (2) - persists in refusing to testify concerning the subject matter
of the declarant's statement despite an order of the court to do
so
o (3) - testifies to a lack of memory of the subject matter of the
declarant's statement
o (4) - unable to be present or to testify at the hearing because of
death or then existing physical or mental illness or infirmity
o (5) - is absent from the hearing and the proponent of a
statement has been unable to procure the declarant's
attendance
 (b) – Exceptions
 (1) – Former testimony
 (2) – Dying declaration
 (3) - Statement against interest - A statement which was at
the time of its making so far contrary to the declarant's
pecuniary or proprietary interest, or so far tended to
subject the declarant to civil or criminal liability, or to
render invalid a claim by the declarant against another, that
 a reasonable person in the declarant's position would not
have made the statement unless believing it to be true.
 (4) – Statement of personal or familial history
 (5) - Residual exceptions covered by rule 807
 (6) - Forfeiture by wrongdoing. A statement offered against
a party that has engaged or acquiesced in wrongdoing that
was intended to, and did, procure the unavailability of the
declarant as a witness
 807 – Residual Exception
 1) – Guarantee of trustworthiness
 2) – evidence of material fact
 3) – be more probative than other procurable evidence
 4) – Opponent must be notified of planned use
b. CEC
 225 –
 240 – Circumstances establishing unavailability
 Does not include W who refuses to testify (although if caused by
fear they may blame mental illness)
 770 – Extrinsic evidence about witness shall be excluded unless they are
given a chance to testify and they are not excused from giving further
testimony
 771 -
 791 – Prior Consistent statement of witness
 Conditions for setting admitting a witness’ prior consistent
statements
 Evidence that is consistent with a former testimony is inadmissible
unless
 (a)statement to rebut attack on credibility and statement
made before alleged inconsistent statement
 Charge has been made that W’s testimony at the hearing is
fabricated or influenced by bias, and the statement was
made before bias, motive for fabrication, or other improper
motive is said to have arisen
 1200 –
 1220 – Party admissions - Same as 801(d)(2)(A)
 1221 –
 1222 - exception for authorized admissions
 1223
 1224
 1230 – Statement against interest.
 Must be unavailable
  “so far contradictory to the declarant’s pecuniary or proprietary
interest, or subjected him to liability”
 1235 – Evidence of a previous statement will not be made inadmissible if
offered in compliance with 770.
 1236 –
 1238 – Prior Identification
 Statement previously made by W is admissible if the statement
would have been admissible if made by him while testifying and
 The statement was an ID of a party
 The statement was fresh in the memory
 The W say he made the ID and that it was a true reflection
of his opinion
 1240 – Excited utterance – same as 803(2) but requires declarant to
perceive the exciting event. The statement must narrate, describe, or
explain what was perceived. In class example given was someone learning
of exciting event on the phone – utterances may be admissible under FRE,
but not CEC
 1241 – requires contemporaneous statements (present sense) to explain,
qualify, or make understandable conduct in which declarant was engaged
(similar to 803(1))
 1242 –
 1250 – statements of a declarant’s then existing mental or physical state –
 conduct during an excited utterance can only be used to prove
conduct in conformity with the expressed intent, it can only be used
to show what the declarant will do in the future, not others.
 1251 – Statements of declarant’s previously existing mental state
 Must be unavailable
 Unlike 803(3), allows a statement of memory of a prior state of
mind which is in issue
 Like depression, previous confusion
 1253 -
 1260 – Memory of declarant’s statements about his will are admissible.
Must be unavailable.
 1270 – business activities – CEC includes government activities
 1271 – business / official records
 Does not explicitly include opinions or diagnoses (People v. Reyes),
requires witness to testify to the identity of the record and its mode
of preparation
 CEC includes governmental activities
 1272 – absence of business records
 1280 – public records by public employees
  no exclusion of police reports
 CEC includes governmental records
 1290 –
 1291 –
 1292 –
 1310 – family history
 1311 – family history
 1350 – Forfeiture by wrongdoing is limited to serious felony cases,
statements must be recorded or notarized and corroborated


V. Cases (22)
Case Mahlandt v. Wild Canid Survival & Research Center (1978)
P claimed he was injured by a wolf kept by D, and attempted to introduce
statements by D that wolf injured P
Topic Hearsay – Declarations of agent are admissible
Rule Statements made by an agent or employee that concern a matter within
the scope of the agency or employment and that are made during the
existence of the relationship are admissible, even if those statements are
not made to third parties.

Case Bourjaily v. US (1987)

Topic Hearsay – Co-Conspirator statements
Rule Statements made by co-conspirators during the course of the conspiracy
are admissible if the existence of the conspiracy is proven by a
preponderance of the evidence, which may include the statements
themselves.

Case US v. Barrett (1976)

Not allowed to introduce evidence that a witness who implicated him had
said earlier that D was not involved in the crime.
Topic Hearsay – prior inconsistent statements
Rule Prior inconsistent statements of a witness are admissible to impeach the
credibility of that witness.
It was evidence that the fact was different from the testimony of the
witness.

Case US v. Ince (1994)

P introduced a statement from a witness that said that D confessed to the
crime
Topic Hearsay – Hearsay of inadmissible confession
Rule Prior inconsistent statements may not be introduced if their only purpose
is to circumvent the hearsay rule and admit an otherwise inadmissible
confession
Case Fletcher v. Weir (1982)
D was asked on cross-examination why he did not tell the police officers
who arrested him that he acted in self defense (stabbing), he only said he
acted in self defense at trial.
Topic Hearsay – Post-Arrest Silence (before Miranda)
Rule A defendant may be cross examined about his post-arrest silence if no
Miranda warnings were given

Case Tome v. US
D claimed that sexual abuse charges against him were fabricated, and the
government introduced consistent statements made after the motive to
fabricate those statements arose.
Topic Hearsay – Consistent statements made after motive to fabricate
Rule Prior consistent statements are admissible to rebut a charge of fabrication
only if the consistent statements were made before the motive to
fabricate arose

Case Commonwealth v. Weichell (1983)

Tried for Murder 1 (shooting in park), and a sketch prepared from a
witness’s memory was admitted
Topic Hearsay - Sketches
Rule The record of a witness’s out of court description of a person is
admissible.

Case US v. Owens (1988)

CO beaten with pipe, blamed Owens. But he made statement in hospital
indicating it was someone else. On the stand he said he didn’t remember
making the statement.
Topic Hearsay – when you can’t remember
Rule 801(d)(1)(C)
Admission of an out of court ID if the declarant testifies at trial is subject
to cross examination. Memory loss does not prevent a witness from being
cross examined.

Case US v. DiNapoli (1993)

Defendants sought to introduce evidence made by others at another
hearing. There they denied knowledge of a bid rigging scheme, and the
prosecutor did not introduce wire tap of them lying although he could
have.
Topic Hearsay – Testimony from another hearing
Rule 804(b)(1)
Allows former testimony of an unavailable witness given in a different
proceeding. Not hearsay if the party who its offered against had an
opportunity and similar motive to develop the testimony.
The test for whether a party has the same motive in developing evidence
is not whether the questioner was on the same side of the same issue in
 both proceedings, but also whether the questioner had a substantially
similar interest in asserting that side of the issue.

Case Lloyd v. American Export Lines, Inc. (1978)

P did not appear in his action, and his testimony at a Coast Guard hearing
arising out of the same incident was admitted at trial.
Topic Hearsay – Testimony from another hearing.
Rule 804(b)(1)
Testimony at a prior hearing will be admissible if the party with a like
motive to cross-examine the witness as a party in the present proceeding
would have been given adequate opportunity to cross examine the
witness.

Case Williamson v. United States (1994)

Harris transporting cocaine in GA, confessed out of court about him and
D, but refused to record or sign anything or testify at trial. D wanted
Harris’s statements kept out. They were.
Topic Hearsay – Statement against interest
Rule 804(b)(3) allows statements against oneself. Not others.
The fact that a person is making a broad confession does not make the
parts of his statement that are not incriminating credible. Only the parts
that implicate himself.

Case Shepard v. United States (1933)

Dying lady asked nurse to test whiskey bottle for poison, and then said D
poisoned her. The nurse had told her she had 3.5 weeks to live, so not
dying declaration.
Topic Hearsay – Dying Declaration
Rule In order to be admissible as a dying declaration, a statement must have
been made while the declarant had no hope of recovery and knew that
death was imminent.

Case US v. Gray (2005)

P sought to introduce statements made by D’s late husband, who had
been murdered by D
Topic Hearsay – Defendants cannot kill witnesses to prevent testimony
Rule A defendant who wrongfully and intentionally renders a declarant
unavailable as a witness in any proceeding forfeits the right to exclude, on
hearsay grounds, the declarant’s statements at that proceeding and any
subsequent proceeding.

Case Mutual Life Insurance Co. v. Hillmon (1892)

Hillmon brought suit to recover on three life insurance policies, and
Mutual Life attempted to introduce letters written by the man they
claimed was the actual decedent. (He told his wife he was traveling with
Hillmon)
 Topic Hearsay – statements expressing present intent
Rule Out of court statements that express a declarant’s present intent are
admissible to prove what that intention was. When the existence of a
person’s intent is a fact to be proved, expression of that intent is direct
evidence.

Case Shepard v. United States (1933)

Poisoned whiskey case with dying wife again. P attempted to introduce
nurse’s statements to prove the wife didn’t want to commit suicide, they
introduced them as dying declarations. The court said no, they are offered
to show state of mind, and you can’t use them.
Topic Hearsay – Declaring someone else’s state of mind
Rule A declaration of a person’s state of mind is inadmissible to prove the
actions of someone other than the declarant

Case US v. Iron Shell (1980)

Assault with intent to commit rape, and doctor testified about what the
victim told him had happened.
Topic Hearsay – Exception for statements made for medical diagnosis
Rule Admission of statements made for medical diagnosis or treatment
depend on whether the declarant’s motive in making the statement was
consistent with the purpose of the exception and on whether it was
reasonable for the physician to rely on the statement for diagnosis or
treatment.
This rule relies on a patient’s strong motive to tell the truth because the
treatment depends on what is said.

Case Johnson v. State (1998)

Taylor witnessed a murder and made a statement, but was unable to
recall giving a statement when testifying.
Topic Hearsay – Witness must vouch for recorded recollection
Rule In order for a recording of a past recollection to be admissible, the
witness whose recollection is refreshed must testify that the recording is
accurate. Note: Its ok if they just remember their signature. The
statement may not, however, verify itself.

Case Palmer v. Hoffman (1943)

Involved in an accident with a train, and railroad sought to introduce
accident reports.
Topic Hearsay - Accident reports are not business records
Rule The report of an accident is not made in the regular course of business,
and so is not admissible under the business records exception to the
hearsay rule.

Case US v. Vigneau (1999)

Sent money to D for illegal drugs and records of money transfers with D’s
 name on them were introduced
Topic Hearsay – statements by outsiders to a business are inadmissible
Rule The business records exception does not include statements in a record
that were made by someone not a part of the business if those
statements are offered for their truth.

Case Beech Aircraft Corp. v. Rainey (1988)

D introduced an official report that said pilot error was the cause of
airplane crash.
Topic Hearsay – Factual findings resulting from an investigation
Rule 803(8)(C)
Investigatory reports are not inadmissible if they set out a conclusion or
opinion. The rule makes reports that set out factual findings admissible.

Case Dallas County v. Commercial Union Assurance Co. (1961)

Insurer introduced old newspaper article to show that P’s courthouse had
been damaged by fire 50 years earlier
Topic Hearsay – HSY may be admissible if Reliable and necessary
Rule Hearsay evidence may be admissible if there is no other way of proving
the facts in the hearsay statement and if there are circumstances that
show the evidence is trustworthy enough without the need for cross-
examination.

Case US v. Laster
Accused of making meth, and records showing one of the components of
the drug were bought by him were introduced.
Topic Hearsay – Reliable hearsay evidence admissible even if not under an
exception
Rule 807
The residuary hearsay exception allows the admission of hearsay if there
is no indication that the evidence is not reliable, if the hearsay is more
probative on the point for which it is offered than any other evidence, and
if its admission serves the best interests of justice.

VII. Confrontation and Compulsory Process

A. Confrontation Clause
 The confrontation clause is intended to guarantee a criminal defendant the right
to be confronted with the witnesses against her. It provides certain procedural
guarantees at trial, including the right to be present at trial, the right to learn
what evidence is being offered against her, and the right to cross-examine
witnesses.
 Applies to both state and federal trials
  Only applicable to criminal trials, not civil trials
 The supreme court has construed the Confrontation Clause to preclude the
admission of those hearsay statements that are deemed “testimonial” unless
the criminal accused has been afforded the opportunity to cross examine the
declarant either
 At the time the out of court declaration was made or
 At trial
 A declaration is deemed testimonial when the investigation’s primary purpose is
to prove the occurrence of past events that are potentially relevant to a
subsequent criminal prosecution
Testimonial Non-Testimonial
Excluded unless the accused had an Can be admitted as long as it falls
opportunity to cross-examine the within a hearsay exception
declarant (absent wrongdoing)

B. Compulsory Process Clause

 The Compulsory Process Clause gives the criminal defendant the right to have
compulsory process for obtaining witnesses in his favor. This gives a criminal
defendant the right to subpoena defense witnesses; however, the clause has
been more broadly interpreted to entitle a defendant to obtain and present all
evidence helpful to his defense
 The Compulsory Process Clause is an inclusionary tool (allowing a defendant to
gain admission of the otherwise inadmissible evidence), while the confrontation
clause is exclusionary (allowing a defendant to exclude certain types of
damaging evidence from witnesses he may not confront)
C. Rules
D. Cases (7)

Case Mattox v. US (1895)

2 witnesses died before a third trial
Topic Confrontation – 1 opportunity to cross-examine is enough
Rule A defendant’s rights under the confrontation clause are satisfied if the
defendant has once had the opportunity to see a witness face to face and
subject that witness to cross-examination

Case Crawford v. Washington (2004)

Convicted of assault & attempted murder after non-testifying wife’s tape
recording was admitted. Court overrules and says there was no chance to
cross-examine.
Topic Confrontation – out of court statements inadmissible hearsay
Rule Sixth A confrontation clause demands that in order for an out of court
statement to be admitted into evidence, the witness must be unavailable
and the defendant must have had a prior opportunity to cross-examine
 the declarant. The

Case Davis v. Washington / Hammon v. Indiana (2006)

Out of court statements to a 911 operator
Topic Confrontation – admissibility of out of court statements depends on if
they were testimonial or non testimonial
Rule Non-testimonial (and admissible) if the primary purpose of the
interrogation is to enable police to meet an ongoing emergency.
Testimonial (and inadmissible) if there is no ongoing emergency and the
primary purpose of the interrogation is to establish or prove past events
potentially relevant to a later criminal prosecution.

Case Bruton v. United States (1968)

Confession from Co-D admitted at trial, and jury ordered to consider
confession only against the Co-D
Topic Confrontation – Confessions of Co-D are inadmissible in joint trial
Rule Violates a joint D’s rights under Confrontation Clause, even if a limiting
instruction to jury

Case Cruz v. New York (1987)

D confessed to a friend that he was involved in a murder, his brother and
Co-D made a confession that was introduced at joint trial
Topic Confrontation – Interlocking confessions of Co-D’s are admissible
Rule Confessions of non-testifying co-defendants are inadmissible, even if they
interlock

Case Gray v. Maryland (1998)

Co-D gave confession that implicated D, and when introduced at trial D’s
name was replaced by “deleted”
Topic Confrontation – Redacted confessions of codefendants are not admissible
Rule A redacted confession of a co-defendant that replaces a defendant’s
name with an obvious indication of deletion is inadmissible. If a redaction
carefully omits any reference to a Co-D, the redacted confession should
not incriminate the Co-D.

Case Chambers v. Mississippi (1973)

D said someone else killed the police officer. He had witnesses who heard
the confession of the other person, but couldn’t call them. The Court said
he should have been able to.
Topic Confrontation -
Rule State evidentiary rules may not be applied in such a manner as to deny a
defendant the right to present witnesses in his or her own defense.

VIII. Lay Opinions and Expert Testimony

A. Lay Witness Opinions
  As a general rule, lay witnesses may not offer opinions
 It is rationally based on the witness’ perception and
 It is helpful to a clear understanding of the witness’ testimony
 Examples:
 Physical appearance of a person (weight, age, height, drunkness)
 Recognition (looks, voice, handwriting)
 Emotional state of another (angry, happy)
 Speed, distance, temperature (approximations)
 Value of one’s own goods or services
 Visible signs of irrational behavior, and
 Odors
 Lay witness cannot express opinions on technical matters
B. Expert Testimony
 Under 702, expert testimony must meet five requirements
 Must be the case that scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to
determine a fact
 The witness must be qualified as an expert by knowledge, skill,
experience, training, or education
 The testimony must be based upon sufficient facts or data
 The testimony must be the product of reliable principles and methods,
and
 The witness must have applied these principles and methods reliably to
the facts of the case
 To determine whether a particular scientific evidence is scientifically valid
under the Daubert standard, the court looks at
 Whether the theory or technique has been or can be reliably tested
 Whether it has been subjected to peer review
 The size of the potential error rate
 Whether the technique has been generally accepted (the sole factor in
the Frye standard)
 Whether the technique grows naturally out of work that the testifying
expert was conducting independently of the litigation
 Note: The Daubert standard was expanded in Kumho Tire to include all
expert testimony, not only scientific testimony.
 An expert may rely on things a reasonable expert in the field normally relies on
(703).
 Thus, an expert may rely on hearsay and opinion that couldn’t be
admitted into evidence
 An expert is not required to explain the facts or data upon which she relied.
  But if the adversary wants to disclose that data, it can through cross-
examination of the expert witness
CEC Differences
 CEC 800 was identical to FRE 701 prior to the FRE’s amendment in 2000. The
amendment added 701(c) which prevented evasion of 702 by presenting a
witness in the guise of a layperson.
 CEC 801 – must assist trier of fact - and 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 been raped or abused.
 Qualification is a question for the judge
 Under CEC 720 a party has a right to insist that the qualifications of experts be
shown before the witness testifies. There is no similar limit upon the judge’s
discretion as to order of proof under the FRE.
 A challenge to the expert’s qualifications is not an attack on his character. So
they are not prohibited by rules of character evidence. They may include
specific acts of misconduct, prior negligence, but are offered for the limited
proof of assessing the credibility and weight to give his opinions.
 CEC 813 defines who is permitted to give opinions regarding the value of
property (witnesses qualified to express such opinions, owner or spouse,
employee of corporation that is the owner of the property).
 CA does not follow the Daubert standard for scientific and technical evidence
embodied in FRE 702. Cal still uses the general acceptance test developed in
Frye v. US, known as the Kelly-Frye test based upon its explication in Kelly (The
court ruled that the evidence was inadmissible because the scientific
principles upon which the procedure was based were not "sufficiently
established to have gained general acceptance in the particular field in which
it belongs."). The Daubert standard was explicitly rejected by the Cal Supreme
Court in Leahy.
 Just like FRE 703, CEC 804 permits an expert to base his opinion upon hearsay
information (must be a type reasonably relied on). Under CEC 804, however,
the adverse party may call and cross-examine another person whose
statement or opinion is relied upon by the expert. CEC 352 may limit hearsay
by experts where there is substantial danger that the hearsay will be misused.
 Both 704 and 805 permit opinions on the ultimate conclusion, but may be
objectionable as conclusory if not rationally based upon the observations of
the lay witness, or the expertise of the expert witness. (A physician testifying
whether he observed rape trauma cannot testify as to the ID of rapist)
 CEC 805 does not contain the FRE 704 exception to allow opinions on ultimate
issues of psychiatrists in criminal cases opining whether the defendant had
the requisite mental state. (Assasination of Ronald Reagan). CEC 805 does not
contain the exception, but it is found in section 29 of the Cal Penal Code. The
Cal exception was also motivated by a high profile case – Dan White
assassination of Moscone and Milk using the twinkie defense.
 The CEC originally imposed more stringent limitations on treatises and texts
used by experts. However it was amended (CEC 721(b)) to include
publications established as reliable by the expert witness. (If its to show that
the witness is unfamiliar with the opinions of other experts in his field, these
 limitations may be ignored).
 CEC 722(b) permits inquiry into the compensation paid to an expert
 A lawyer can elicit the expert’s opinion at the outset of his testimony, then
elicit the reasons for testimony. They do not need to lay a factual assumption.
(This is true both in fed and CA)

C.
D. Rules
 FRE
 701 – Opinion by lay witnesses
If the witness is not testifying as an expert, the witness'
testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (a) rationally based on
the perception of the witness, and (b) helpful to a clear
understanding of the witness' testimony or the determination
of a fact in issue, and (c) not based on scientific, technical, or
other specialized knowledge within the scope of Rule 702.
 702 – Testimony by experts
If scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the
form of an opinion or otherwise, if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied
the principles and methods reliably to the facts of the case.
 703 – Bases of opinions by expert
Opinions by expert may be those perceived by or made known
to the expert at or before the hearing. The facts or data need
not be admissible in evidence in order for the opinion or
inference to be admitted. Facts or data that are otherwise
inadmissible shall not be disclosed to the jury
1) CEC
 720 – Qualifications as expert witness - to qualify as expert witness must
have special knowledge, skill, experience, training or education,
sufficient to subject to which his testimony relates to.
 The opposing party has a right to have qualifications shown before
testimony
 Challenges can include Specific Acts of misconduct, but not attack
character
 721 – Cross exam of expert witnesses about
 (a)(1)Qualifications
  (a)(2)Subject matter to which his or her expert testimony relates
 (a) (3)Matter upon which his or her opinion is based and the reasons
for that opinion
 (b) Cannot be cross-examined in regard to content of scientific
publication unless
 Witness referred to publication
 Publication admitted into evidence
 Publication has been established as a reliable authority
 722 – Credibility of witness
 May tell the jury he’s an expert
 May tell the jury his compensation as relevant to the credibility of
the witness and weight of his testimony
 800 – no limitation as in 701, thus, 800 allows expert witnesses to be
presented in guise of layperson
 801 – Also requires testimony of expert to assist trier of fact
 Like FRE 703, permits expert to base opinion on hearsay info that
reasonably may be relied upon by expert in forming an opinion that
relates to that testimony
 802 – witness on direct may state reasons for his opinion unless
precluded by law for using such reasons for his opinion. The court in its
discretion may require witness before testifying to be examined on
matter which opinion is based
 803 - court can exclude testimony in form of opinion if no proper basis
 805 – Allows opinions by experts as to conclusion. But can be objected
to if not rationally based on the observations of the witness, or
testimony of expert witness.
E. Cases (12)

Case US v. Ganier (2006)

Moved to exclude testimony about a report analyzing searches ran on
computers because it was expert testimony that had not been
summarized in writing
Topic Lay Opinions & Expert Testimony - Computer Software is expert, not lay
testimony
Rule Testimony is expert if it is based on knowledge of a field that goes
beyond the knowledge of the average layperson.

Case US v. Johnson (1978)

Witness gave his opinion to the geographic origin of some marijuana, and
his opinion was based on knowledge he gained as a user and seller of
marijuana
Topic Lay Opinions & Expert Testimony - Expert by experience
Rule 702 – experience may be obtained by experience, as well as formal
 education or training
A witness may be qualified as an expert if the witness’s expertise is
derived entirely from experience in a particular area.

Case Jinro America v. Secure Investments (1978)

D called a witness to testify on the general practices and ethics of Korean
businesses. He didn’t have the legal, business, or financial expertise to
evaluate the substance of the transaction at issue.
Topic Lay Opinions & Expert Testimony - Must have expertise
Rule Expert testimony must be confined to the area of the witness’s expertise.

Case Hygh v. Jacobs (1992)

Expert witness testified that a police officer’s actions constituted force
that was not justified and totally improper.
Topic Lay Opinions & Expert Testimony - Conclusions
Rule Expert testimony is not allowed on legal conclusions that are to be
reached by the jury.

Case State v. Batangan (1990)

An expert witness testified that D’s daughter behaved in a manner
consistent with being sexually abused.
Topic Lay Opinions & Expert Testimony - Expert testifying about credibility
Rule An expert may not offer an opinion that a witness is telling the truth.

Case US v. Hines (1999)

ID’d by an eyewitness as the man who robbed a bank, and he introduced
evidence on the reliability of the eyewitness cross-racial identification. It
can be admitted.
Topic Lay Opinions & Expert Testimony - May be used to counter erroneous
inferences
Rule Expert testimony may be introduced on matters ordinarily within the
understanding of the jury if the inferences the jury may draw on the
subject could be erroneous. Since the science testimony does not attempt
to predict whether a particular witness is accurate or mistaken, it is
admissible.

Case Frye v. US (1923)

D offered the testimony of an expert on the results of a lie detector test,
and the testimony was ruled inadmissible.
Topic Lay Opinions & Expert Testimony - Must be based on generally accepted
scientific principles
Rule An expert opinion that is based on a scientific principle will be admitted
only if the scientific principle is sufficiently established so that it has
gained general acceptance in its particular field. Lie detector tests have
not gained the recognition that would justify admitting the results into
evidence.
Case Daubert v. Merrell Dow Pharmaceuticals (1993)
Court did not consider evidence on the ground that it was of a type not
generally accepted. (child birth defects)
Topic Lay Opinions & Expert Testimony - Fry Test is rejected
Rule General acceptance is not a precondition to the admissibility of scientific
evidence as long as an expert’s testimony rests on a reliable foundation
and is relevant to the issues in the case.

Case Daubert v. Merrell Dow Pharmaceuticals (1995)

Topic Lay Opinions & Expert Testimony - Daubert test is enunciated
Rule Expert testimony must reflect scientific knowledge and must be relevant
to the proposing party’s case.
Look to whether the matters grow out of independent research, or
whether they have developed opinions expressly for the purpose of
testifying. If the proffered expert testimony is not based on independent
research, the party who proffers it must come forward with objective,
verifiable evidence that the testimony is based on scientifically valid
principles.

Case US v. Crumby (1995)

D passed a polygraph exam and moved to introduce the results.
Topic Lay Opinions & Expert Testimony - Polygraph is admissible
Rule Polygraph evidence will be admitted for the limited purpose of
impeaching or corroborating the credibility of a defendant who testifies.

Case Kuhmo Tire Co. v. Carmichael (1999)

Expert offered testimony that a defect in the manufacture or design of a
tire was the cause of a blowout that injured Carmichael. The issue was
whether Daubert applied to non-scientific matters.
Topic Lay Opinions & Expert Testimony - Daubert applies to all expert
testimony
Rule All expert testimony must be evaluated to determine if it has a
connection to the relevant inquiry and a reliable basis in the knowledge
and experience of the relevant discipline.

Case State v. Kinney (2000)

At trial for rape government introduced evidence regarding rape trauma
syndrome.
Topic Lay Opinions & Expert Testimony - Courts may rely on other court’s
decisions
Rule Trial courts may admit expert testimony if the reliability of the evidence
equals that of other technical evidence held to be admissible and the
evaluation of other courts allowing admission of the evidence is complete
and persuasive. It is enough that the trial court analyzed the testimony to
determine that its reliability equaled that of other evidence that has been
 found admissible.

IX. Authentication, Identification, and the Best Evidence Rule (6 cases)

A. Documentary evidence faces three main problems
 Authentication
 Best evidence rule
 Hearsay
B. The best evidence rule provides that when a party wants to prove the content of a
writing, the original writing must be produced.
 Original includes a duplicate, such as a photocopy under FRE 1003
 Imperfect copies and oral testimony concerning the writing’s contents are only
permissible on a showing of the original’s unavailability that is not the result of
proponent’s serious misconduct. (1002 – 1004)
 The judge decides the threshold of whether the document is unavailable
 The best evidence rule may be waived if the opposing party does not timely
object to admission of the secondary evidence
 The best evidence rule does not require the proponent to offer the best (most
probative) evidence. It only applies when:
 The contents of a writing are being proven, or
 The witness is relying on the writing for his testimony
 If the words are not legally operative (contract, will,
defamation), the writing must still satisfy the hearsay rule
 The document is not covered by the best evidence rule if it involves a collateral
matter – something not closely related to the controlling issue (1004)
 The FRE does not recognize degrees of secondary evidence, it’s all equal for
purposes of Best Evidence
 Pre-Trial authentication is permissible via depositions, stipulations, and requests
for admission of genuineness
 Newspapers and periodicals are self authenticating
 Some additional means of authentication is required beyond a signature to
determine the authenticity of a document
 Anyone with knowledge of an individual’s handwriting also is qualified
to testify as to its authenticity, as long as the familiarity was not
acquired for purposes of litigation.
 An expert or trier of fact may identify handwriting by merely comparing
the sample in question with an authenticated sample during litigation
 The reply doctrine is a means of authenticating writings by circumstantial
evidence. Under the doctrine, a letter may be authenticated by the fact that its
contents suggest that it is a reply to a previous communication known only to a
few people. (901)
 For an audio tape to be admitted the proponent must establish
  The speaker’s identity
 That the conversation was not staged, and
 That there was no subsequent editing
 The proponent must also disclose how and when the tape was made
 Voice may be authenticated by any person who recognizes it (901(b)(5))
CA Differences
 Authentication
 FRE 901 requires authentication of any tangible evidence, while CEC 1400 refers
only to the authentication of a writing.
 Under CEC 1400, a preliminary showing of relevance is required for the
admission of any tangible object.
 Authentication = writing; identification = tangible objects
 Evidence of telephone call or email requires witness to identify caller and
describe how she knew identity
 Both FRE and CEC regard authentication as conditional relevance, and going
to the jury
 The CEC does not provide for self-authentication as in FRE 902. CEC 1410 – 1421
provide means for authenticating writings. (testimony of a witness who saw the
writing being made (1413), handwriting analysis evidence (1415-19 (trier of fact,
familiar person, expert), evidence that contents thereof are likely to be unknown
by anyone other than the author (1421). An admission of the party against whom
the evidence is offered will suffice (1414).
 Authentication is not a hearsay exception, one must still be found. Unless the
writing is a party admission.

 Best Evidence and Secondary Evidence Rules

 No rule that requires a party to present the best (strongest) evidence available.
CEC 412 says that evidence should be viewed with distrust if stronger evidence
was available. But best evidence only applies to writings.
 The CEC replaces best evidence to secondary evidence to shift the burden to the
opposing party to exclude evidence of a writing.
 Under 1523, Oral testimony not admitted to prove the content of a writing unless
 (a) no possession and original not destroyed with fraudulent intent
 Secondary evidence rule adopted by 2/3, so prop 8 doesn’t apply
 Not an issue of conditional relevance, decided by the judge pursuant to
CEC 405
 Biggest difference is when original is unavailable. Under FRE 1004, the proponent
must show that all originals are lost or destroyed before offering secondary
evidence other than a duplicate. A duplicate is admissible unless the opponent
raises a genuine question as to the authenticity of the original, or it would be
unfair to admit the duplicate.
 Under CEC 1521 no distinction is made between duplicates or other secondary
evidence. Any secondary evidence will be admitted, unless the opponent
raises a genuine question as to the terms of the writing and justice requires its
exclusion.
 An additional limitation of secondary evidence is in criminal cases by CEC 1522.
 Since narrower discovery rules apply to criminal cases, CEC 1522 precludes the
use of secondary evidence if the original is in possession of the proponent, and
the proponent has not made it reasonably available for inspection. This rule does
not apply to a duplicate
 A duplicate (CEC 260 and FRE 1001(4)), is a counterpart produced by the same
impression as the original, or from the same matrix, or by means of photography
or mechanical or electronic recording or chemical reproduction.

 Evidentiary Objections
 Counsel must ask the court to specify the grounds for a sustained objection, and
make an offer of proof.
 Objection should be asserted to a question, if the question has been answered,
the objection should be accompanied by a motion to strike, and a request that
the jury be instructed to disregard the answer.
 An objection to an answer may be made by the examining attorney, but can be
met with an argument that he “opened the door” by his question.
 Failure to request a limiting instruction ordinarily waives any error in failure to
give it.
 Motion in Limine can be brought by either side to obtain an advance ruling of the
admissibility of evidence. No need to renew the objection if an in limine ruling
addressed the admission of particular evidence.
 Fed courts waive objections if counsel brings it in themselves. They used to use
motions in limine to determine if convictions would be admissible, then take the
sting out by telling the jury themselves. But under Ohler, the objection is waived,
so attorneys do not bring objections as motions in limine. CA has not addressed
the question of ohler type waivers.
 For character evidence, a mere relevancy objection will not work. It must specify
improper character.
 Section 352 objections will be waived if not explicitly asserted.
 CEC 767 - Objections to leading questions are only appropriate on direct and
redirect examination. (A judge’s permission to admit a leading question is limited
to special circumstances where the interest of justice requires and with children
under 10 in child abuse cases)
 CEC 765 handles objections to leading questions
 CEC 766 permits EITHER party to object to a non-responsive answer and move to
strike. At common law its only the examining party.
 CEC 744 – when testimony becomes repetitive an objection that the question
was asked and answered may be appropriate
 Argumentative comparisons deserve argumentative objections
 When one side opens the foor by eliciting inadmissible evidence, it can be
rebutted with evidence of the same character. Frequently a lawyer wants to do
this rather than objecting.
 An objection that it violates rights under the state or federal constitutions must
be explicitly asserted. (especially during hearsay objections where the
constitutional right to confrontation is challenged)
 There is no rule against collateral impeachment under the CEC. Evidence to
contradict a witness’ testimony and to show a fact he testified to is always
 relevant, but the judge may exclude it under 352. Thus collateral impeachment is
made as a 352 objection.
 A defendant must raise federal claims in state court (such as due process), in
order to exhaust the claim.
 Always include 352 objections with relevancy objections
 A mantra motion is filled out at the outset of the trial to secure the court’s
agreement to a simplified form of making objections. Usually every hearsay,
relevance, or 352 objections are also made under the due process clause of the
5th and 14th amendments.
 A prosecution error objection includes the assertion that the prosecutor’s
comment is irrelevant, inflammatory and prejudicial. And violates the right to a
fair trial.

C. Rules
 FRE
 1002 – Requirement of original
Original is required
 1003 - admission of duplicates
Duplicate admissible unless authenticity raised or it would be
unfair in lieu of the original
 1004 – Admissibility of other evidence of contents
Original not required if
 Originals lost or destroyed
 Original not obtainable
 Original in possession of opponent
 Collateral matters
 901 – Requirement of authentication
 902 – Self authentication
 CEC
 250 – Definition of writing – all tangible expression, including pictures
and sound recordings
 353 – Erroneous admission of evidence; effect
 A verdict shall not be set aside by reason of erroneous
admission of evidence unless
 (a) objection / motion to strike timely made and stated
the specific ground of the objection; and
 (b) the court which passes think the admitted evidence
should have been excluded and the errors resulted in a
miscarriage of justice
 354 – Erroneous exclusion of evidence; effect
 Verdict shall not be set aside unless
  (a) substance, purpose, and relevance of the excluded
evidence was made known to the court
 (b) the rulings of the court made (a) futile
 The evidence was sought be questions asked during
cross or recross-examination
 355 – Limited admissibility
 When evidence is admissible as to one party for one purpose,
and inadmissible to another party for another purpose, the
court upon request will restrict the evidence to its proper scope
 356 – Entire act, declaration, conversation, or writing, to elucidate part
offered
 When part of an act, declaration, conversation or writing is
given, the whole may be inquired into by an adverse party
 764 – Leading question is a question that suggests to the witness the
answer that the examining party desires
 765 – Court to control mode of interrogation – no narrative questions
 766 – Responsive answers – witness must give responsive answers to
questions, and answer not responsive shall be stricken
 767 – leading questions not permitted on direct or redirect
 1400 - Authentication - preliminary showing of relevance is necessary
for any tangible object
 1401 – authentication required before it may be received as evidence
 1402 – an authentication of an altered writing must account for
alteration
 CEC doesn’t provide for self-authentication

 1520 – Secondary evidence rule, content of writing may be proved by

admissible original
 1521 – rule, cont - content of writing content may be proved by
otherwise admissible secondary evidence. court shall exclude secondary
evidence of the content of writing if: genuine dispute exists concerning
material terms of the writing and justice requires exclusion, admission
of secondary evidence is unfair.
 *Oral testimony not admissible to prove the content of writing
if the testimony is inadmissible under CEC 1523
 1522 – in addition to 1521, in a criminal action the court shall exclude
secondary evidence if court determines that original is in proponents
possession and proponent hasn’t made it reasonably available for
inspection at trial
 1523 – Oral testimony not admissible to prove content of writing unless
otherwise provided for – i.e., admissible if proponent doesn’t have
 possession of copy of writing and original is lost or destroyed with
fraudulent intent


D. Cases (6)

Case US v. Stelmokas (1997)

Documents from Germany showed that D participated in the murder of
Jews in a proceeding to revoke D’s citizenship.
Topic Authentication – Physical evidence must be authenticated by sufficient
proof
Rule The requirement that a document be authenticated before it may be
admitted into evidence is satisfied by evidence sufficient to support a
finding that the document is what its proponent claims it to be

Case State v. Small (2007)

Evidence of telephone call introduced on basis that person who answered
had accent like D, identified himself as D, and spoke about a debt owed to
D.
Topic Identification – Content of telephone calls may be admissible
Rule A voice over the telephone may be identified as being that of a particular
person if there is evidence that shows the person identified is the only
one who could have uttered the speech under the circumstances. A call
can be authenticated by calling a particular number, or that the voice is
recognized.

Case Simms v. Dixon (1972)

P was not allowed to introduce photos of her car taken after a collision
Topic Authentication – Photographs admitted if photos are accurate
Rule A photo is authenticated for evidentiary purposes if a witness with
knowledge of the facts is able to testify that the photograph is a correct
portrayal of those facts. It is not necessary for the photographer to lay
the foundation for the photographs.

Case Wagner v. State (1998)

Videotape of D selling drugs to an informant was introduced
Topic Authentication – Pictures admissible if process is accurate
Rule Pictorial evidence is admissible if there is an adequate foundation
attesting to the accuracy of the process that produced the image.
The evidence may be admitted when the trial judge determines it to be
reliable, after consideration of :
1) Evidence establishing the date and time of the recorded
occurrence
2) Any evidence of editing or tampering
3) The operating condition and capability of the equipment as it
relates to the accuracy and reliability of the image
 Case Seiler v. Lucasfilm (1987)
P claims Lucas infringed his copyright in characters he created, but he was
unable to produce the originals of the characters that were allegedly the
subject of the infringement.
Topic Authentication – Contents of writings must be proved by the originals
Rule When the contents of a written document or the equivalent are at issue,
the contents must be proved by the original document unless the original
is unavailable for some reason that is not eh fault of the proponent.
Loss must not be the fault of the proponent to be admissible.

Case US v. Jackson (2007)

Moved to bar introduction of copy and paste notes that allegedly
recorded parts of online chats D participated in.
Topic Best Evidence Rule – Chat logs must be accurately recorded
Rule In order to prove the contents of a writing or recording, the best evidence
rule requires the introduction of either the original or an accurate
duplicate of the original.
The Court found the document offered by US did not accurately reflect
the contents of the original.

X. General Privileges

A. To receive privilege, the following circumstances should be met:

 There is an appropriate relationship between the communicants
 There was a communication
 The relationship existed at the time of communication
 The communication was made in confidence
 An appropriate person is claiming the privilege (Client or patient, not attorney or
doctor)
 Privilege has not been waived (via contract or in court); and
 There is no reason privilege should not control (e.g., legal advice sought for
future wrongdoing; medical advice not in the course of treatment)
B. Patient – Doctor Privilege
 The privilege belongs to the patient’s estate after he dies

CA Differences
 Privileges survive prop 8. Newly enacted privileges do not, unless they are
enacted by 2/3 vote.
 If a court overrules a witness’s privilege , the parties have no standing to claim it
was erroneous. But if sustained, the party can only challenge on appeal.
 With joint holders a waiver by one does not affect the rights of the other.
 Privilege is not waived if disclosure is coerced. CEC 918.
 Availability is a preliminary matter decided by the judge.
  Some privileges require the judge to balance the need for confidentiality and
need for disclosure.
o Official information
o Identity of informant
o Trade secrets
o Attorney work product
o A judge may require an in camera proceeding from which the parties
are excluded
 If eavesdropper intercepts privilege it can still be asserted to prevent disclosure.
But communication where others could easily overhear is evidence that the
communication was not meant to be confidential.
 No adverse inference is permitted by the trier of fact with regard to the
credibility of witness or anything else
 A sustained claim of privilege would render the witness unavailable to the court.
But a contemptual refusal to testify would not, unless it was a product of mental
illness or infirmity. (Rojas)


C. Rules
 FRE
 501 - governed by principles of common law as they may interpreted by
courts of US in light of reason and experience.
 - in civil action and proceedings, with respect to element of
claim or defense as to which State law supplies rule of decision,
shall be determined in accordance with State law.
 CEC
 901 – definition of proceeding
 905 – who a presiding officer is
 911 - no one as privilege to refuse: to be a witness, refuse to disclose
any matter etc and can't prohibit someone else from being a witness or
preventing them from producing something. Unless provided otherwise
by statute.
 912 - privilege is waived if the holder discloses a significant part of the
communication or has consented to such disclosure by someone else
without coercion.
 -waiver of privilege by one does not affect the right of another
holder to claim the privilege.
 915 – disclosure of info in ruling on claim of privilege
 916 – if holder isn’t party or witness, officer may still recognize a
privilege and exclude info subject to the privilege
 917 - if privilege claimed on grounds that matter was made in
confidence within a recognized relationship, communication assumed to
 be made in confidence and opponent of claim of privilege has burden of
proof to establish that communication wasn't confidential.
 918 – if privilege asserted by witness and court overrules the privilege
and orders witness to testify; parties can't say that the ruling was
wrong.
 *If privilege sustained, the party deprived of relevant evidence
can challenge ruling on appeal
 919 - protects holder of privilege from detriment that he could suffer in
later proceeding if in prior proceeding, presiding officer erroneously
overruled claim of privilege. Also assures inadmissibility of evidence of
prior disclosure made when coerced in subsequent proceeding.

Case Jaffee v. Redmond (1996)

Sought Psychiatrist after being involved in a shooting and claimed the
records were privileged
Topic General Privileges – Psychotherapist-Patient privilege is recognized
Rule Evidentiary privileges are justified by an imperative need for confidence
and trust in a relationship, if that privilege also will serve public ends.
Effective psychotherapy depends upon an atmosphere of trust.

Case In Re: Grand Jury Subpoena, Judith Miller (2005)

Valarie Plame case
Topic General Privileges – Journalists must reveal their sources to Grand Juries
Rule There is no first amendment privilege that protects journalists from
providing evidence to a grand jury

Case Morales v. Portuondo (2001)

P convicted of murder, but the true killer had told a priest and a lawyer
that Morales was not involved in the crime
Topic General Privileges – Due process may defeat claims of privilege
Rule An assertion of privilege may not bar the admission of evidence if the
exclusion of thee otherwise privileged evidence would be fundamentally
unfair.

XI. The Lawyer-Client privilege and the privilege against self incrimination

A. Alll rules are same except CEC difference for employees that witness matters and make
a statement.

CA differences
 Client is the holder of the privilege , and lawyer is required to assert pricilege
 Privilege also protects fact that document was communicated to the client by
his lawyer
  Crime or fraud exception only applies where the services of the attorney were
sought to assist in the perpetration of the crime or fraud
 Disclosure under CEC 956.5 (intention to commit crime that results in GBH) is
voluntary. Although may subject lawyer to liability.
 Survives death, but can only be claimed if a holder is in existence.
 Ends when estate is distributed and representative is discharged
 Under the FRE, Corporate counsel communications includes interviews and
questionnaires of all employees conducted by corporate counsel. The CEC is not
so broad. In Chadborne, the Court held that when an employee has been a
witness to matters requiring communication to corporate counsel, and has no
connections with those matters other than as a witness, he is an independent
witness, and a statement made for transmittal to corporate counsel does not
make the statement subject to the attorney client privilege.
o A corporate decision to waive protection of privilege can result in full
disclosure of communications among corporate officers, employees or
counsel. So it is important that the corporate lawyer does not mislead
employees into believing he is their lawyer.
 An exception occurs when the communication is relevant to an issue of breach,
by either the lawyer or the client, of a duty arising from the lawyer-client
relationship. CEC 958.
o Thus, if a client sues a lawyer for malpractice, or challenges a criminal
conviction based on incompetence of counsel, there is no privilege for
communications relevant to the dispute.
o Same for breach of duty by client. If a lawyer is seeking to collect unpaid
fees he can attach assets of which he became aware in confidential
communications.
 2 clients on a matter of common interest is precluded normally. But this can be
waived by the client. If it is, neither client can claim the attorney-client privilege
against the other in litigation between them. CEC 962.

B. Rules
 FRE
 CEC
 950 – 962 – lawyer client privilege
 950 – lawyer
 951 – client
 952 – Confidential communication
 953 – Holder of privilege
 954 – lawyer client privilege
 956 – Exception: Crime or fraud
 956.5 – reasonable belief that disclosure by lawyer is necessary to
prevent criminal act that will result in great bodily harm or death
 962 – Exception: Joint clients

Case People v. Gionis (1995)

 D made incriminating statements to an attorney who did not represent D.
They were admitted.
Topic Lawyer-Client Privilege – Privileged statements are those made to obtain
legal advice
Rule The attorney-client privilege applies only to statements made to an
attorney in his or her professional capacity, for the purpose of seeking
legal advice.

Case Howell v. Joffe (2007)

D sought protective order against the introduction of comments with a
client she left on P’s voicemail accidently after she meant to hang up. The
comments were IIED
Topic Lawyer-Client Privilege – Not all statements made to lawyer are
confidential
Rule A conversation is protected by the attorney client privilege if the
conversation originated in confidence that it would not be disclosed, was
made to an attorney in his legal capacity to secure legal advice or services,
and was kept confidential.
Look at the reasonableness of the precautions taken to prevent the
disclosure.

Case Koch Foods of Alabama v. GE (2008)

Koch foods included in a privileged email in a response to a discovery
request, and GE claimed that Koch inadvertently waived the privilege.
Topic Lawyer-Client Privilege – Inadvertent waiver of privilege depends on
totality of circumstances
Rule Court uses a balancing test that looks at the reasonableness of the
precautions taken to prevent disclosure, the time taken to correct the
error, the scope of discovery, the extent of the disclosure, and the
overriding issue of fairness.
Three approaches
1) Strict liability: A party is responsible, and must pay the price
2) Intent of party to waive rights.
3) Balancing test. Potects conversations that the client intended
would remain confidential, but does not relieve those claiming
the privilege of the consequences of their carelessness.

Case Swidler & Berlin v. US (1998)

D claimed that notes of a meeting with a deceased client were privileged.
Topic Lawyer-Client Privilege – No posthumous exception to the AC privilege
Rule The AC privilege survives the death of the client.

Case US v. Zolin (1989)

US urged the court to take an in camera review of evidence before
making ruling that evidence was protected. The tapes could only be
reviewed if a fraud or crime was found on them to get by the AC privilege.
 Topic Lawyer-Client Privilege – In camera reviews of evidence may determine if
it is privileged
Rule The court should undertake an in camera review of evidence to determine
if the crime-fraud exception will bar a claim of attorney client privilege,
only if there is support that a review of materials may reveal evidence
that establishes the claim that the exception applies. It does not apply to
communications that involve past fraud or crimes.

Case In Re: Grand Jury Investigation [Rowland] (2005)

Former counsel for the governor claimed AC privilege and refused to
testify about the substance of her conversations with the governor.
Topic Lawyer-Client Privilege – Communications with government attorneys are
protected
Rule The AC privilege applies to government attorneys to the same extent that
it applies to private attorneys.

Case US v. Hubbell (2000)

D produced documents pursuant to a subpoena and a grant of immunity,
and P used information in those documents to indict D for other crimes.
Topic Lawyer-Client Privilege – Deciding what documents to produce may itself
be a testimony
Rule The 5A privilege against self-incrimination protects a witness both from
being compelled to answer questions about the existence of sources of
potentially incriminating evidence and from responding to a subpoena
that seeks discovery of those sources.

XII. Familial Privileges

A. 2 types of spousal privileges

 Adverse testimony privilege
 Also referred to as the spousal immunity and applicable only to criminal
cases where one spouse is the defendant, gives a witness the right to
refuse to testify against his spouse. It covers all adverse testimony, even
where the testimony refers to occurrences prior to the marriage. In
federal courts, only the testifying spouse holds this privilege (so he may
testify even if the other spouse objects). The privilege doesn’t apply to
crimes against the witness spouse or against a child of either witness or
the defendant.
 Marital confidences privilege
 This privilege, applicable in both criminal and civil cases, gives a witness
the right to refuse to testify about confidential communications made
during the course of the marriage. So confidences prior to the marriage
aren’t covered. Unlike the spousal testimony privilege, both spouses
hold the confidential communications privilege, according to most
 courts. The witness may only testify if the non testifying spouse
consents to the witness spouse giving testimony.
CA Differences

 2 marital privileges
o Protection of confidential communications
 Communications during marriage
 Survives marriage
o Privilege to not testify
 Does not survive the marriage
 Extends to crimes committed before the marriage
 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 or formal charge prior to the marriage

B. Rules
 FRE
 CEC
 954 – attorney client rule, ends when dead and estate is distributed and
representative discharged
 953 – client is holder of privilege, if dead then representative holds
 955 - lawyer who received or made communication subject to privilege
is required to assert the privilege on client's behalf whenever he is
present when disclosure is sought.
 956 – crime/fraud exception to attorney-client privilege only applies
where the services of the attorney were sought to assit in the
perpetration of crime/fraud.
 mere fact that that client discloses his intent to commit a crime
or fraud in future doesn't bring communication within the
exception.
 exception to the exception is 956.5- if client reveals intention to
commit a crime, and lawyer believes that its likely to result in
death or serious bodily harm to another and disclosure is
necessary, then lawyer can. (disclosure is voluntary and not
subject to professional discipline. Whether attorney would be
subjected to liability for failure to disclose under Tarasoff is an
open question.
 958 – exception to privilege arises when communication is relevant to
an issue of breach, by either lawyer or client, of a duty arising from the
lawyer-client relationship.
 962 - concurrent representation of two clients upon a matter of
common interest is usually precluded by ethical prohibition against
representation of conflicting interests, but that protection can be
 waived by client. If waived then neither client can claim the privilege
against the other in litigation between them.
 970 – Spouse’s privilege not to testify against spouse; exception
 971 – Privilege not to be called as a witness against spouse
 972 – exceptions
 When one spouse brings action against other

Case Tilton v. Beecher (1875)

Topic Familial Privileges – Marital privilege protects the marriage relationship

Rule No Decision spelled out.

Case Trammel v. US (1980)

Wife voluntarily chose to testify against him at his trial for drug smuggling
and conspiracy.
Topic Familial Privileges – Spouses may testify against each other
Rule A witness may be neither compelled to testify or barred from testifying
against his or her spouse.

Case US v. Rakes (1998)

D prosecuted for perjury and claimed the marital privilege barred his wife
from testifying about their conversations.
Topic Familial Privileges – Spousal privileges protects statements made during
the course of marriage
Rule The privilege for marital communications permits an individual to refuse
to testify, and prevent a spouse or former spouse from testifying,
regarding any confidential communication made by the individual to the
spouse during the course of marriage.

Case In Re Grand Jury Proceedings (1997)

Father called to testify against his son, and daughter was held in
contempt for refusing to testify against father.
Topic Familial Privileges – Parent-Child communications are not protected
Rule There is no testimonial privilege for parent-child communications.

XIII. Presumptions

A. CEC 600 – 670

B. A presumption is a mandatory inference.
 Mandatory can mean a judge is required to make inference on a directed
verdict, or jury is required to
 C. To say a presumption is rebuttable means that evidence can be offered to show the
inferred fact is not true.
D. A conclusive presumption is not rebuttable.
E. There are only three conclusive presumptions in the CEC (622-624)
 CEC recognizes 2 types: presumption affecting burden of producing evidence
and a presumption affecting the burden of proof.
 Bursting bubble
 AKA Thayer type of presumption
 Affecting burden of producing evidence
 Requires the fact finder to find that the presumed fact is true
once the predicate fact is proven, unless the opposing party
produces some evidence to rebut the presumed fact. If he does,
then the presumption disappears, or bursts. The finder of fact
then weighs the inference against the countering evidence, with
the burden of proof unaffected and the presumption no longer
having any effect.
 The Morgan Type
 Affecting burden of proof
 Shifts burden of disproving fact to the opposing party.
 Facts recited in written instrument
 Estoppel by own statement or conduct
 Estoppel of tenant to deny title of landlord
 A tenant is not permitted to deny the title of his landlord at the time of
the commencement of the relation
F. Conclusive presumptions must be declared by law to be conclusive.
G. Presumptions affecting burden of producing evidence are not established to promote
public policy.
H. Presumptions affecting the burden of proof are established to implement some public
policy which is extrinsic to the dispute, such as promoting marriage and family
relationships or the security of property rights
I. In criminal cases, presumptions cannot undercut the prosecutions butden of proving the
case beyond a reasonable doubt. Thus, a burden shifting presumption cannot be applied
in a criminal case unless the predicate fact is found beyond a reasonable doubt. CEC
607.

XIV. Judicial Notice

 A. Judicial notice is the court’s recognition of a fact as true without requiring formal
presentation of evidence.
B. They may be made at any stage of the trial
C. The judge’s personal knowledge is immaterial
 Need only be common knowledge or capable of verification through readily
accessible, undeniably accurate sources (FRE 201(b))
D. Federal and state laws, and official regulations are subject to mandatory judicial notice

E. Judicial notice allows a fact to be deemed established with no evidence.

F. No predicate fact.
G. No evidence to rebut it.
H. Jury must accept fact.
I. 2 forms
 Mandatory judicial notice
 Matters established by constitution
 Statutes
 Rules of the state or US
 Meaning of words
 CEC 451
 Discretionary judicial notice
 Available for the laws of other states
 Court records
 Common knowledge facts
 Capable of immediate and accurate determination by resort to sources
of reasonable indisputable accuracy
 CEC 452
 A court must take judicial notice if a party gives sufficient notice of the
request and furnishes the court with sufficient information to enable it
to take judicial notice (CEC 453)

XV. Judge and Jury

A. An appeals court will reverse the trial court’s decision improperly admitting evidence
when
 Either
 The opposing party must have timely objected to the evidence’s
admission, or
 The admission must have been so serious as to amount to plain error
 The evidence must have been actually inadmissible due to the grounds given in
the objection; and
  The opposing party must have suffered an impairment of a substantial right
from the improper admission (FRE 103(a))
B. An appeals court will reverse a trial court judge’s improper exclusion of evidence when:
 An offer of proof was made at trial;
 The evidence was not excludible on any grounds (it’s not enough that the judge
was wrong in believing the evidence was excludible on the grounds stated by
the objector); and
 The exclusion was prejudicial
C. Preliminary facts are facts that must be resolved before determination of the
admissibility or exclusion of evidence may be made.
 For example, for a dying declaration to be admitted, it must be proven that the
declarant believed he was about to die.
 Under FRE 104, the judge decides many preliminary facts
 Whether evidence is competent
 Whether a privilege exists
 The standard of trustworthiness for hearsay
 If business records are in the regular course of business
 If a document under the best evidence rule is unavailable
 The qualifications of an expert
 The voluntariness of confessions
 The jury decides others
 Agency
 Relevancy of evidence
 Authenticity of evidence
 Credibility
D. The burden of persuasion refers to a party’s duty to produce sufficient evidence to
convince the trier of fact that the party should prevail.
 The burden of persuasion does not shift throughout the trial; as to any issue,
substantive rules allocate the persuasion to one party for the whole trial.
E. The burden of going forward (or burden of production), on the other hand, requires that
a party introduce enough evidence on an issue such that a reasonable jury could infer
the fact alleged.
F. The standard of proof applicable to most civil cases is a preponderance of the evidence
(or more likely than not)
G. A aprty adversely affected by a presumption has the burden of going forward to rebut
the presumption.
H. Once the party has produced substantial evidence to rebut the presumed fact, the
presumption loses its effect.
I. Where a conclusive presumption has been established, the opposing party may always
challenge the presumption by challenging the existence of one of the foundational facts.
J. CEC difference
 Under CEC 1150, Juror testimony is admissible for statements or conduct on
jury room but not for juror’s mental process. while FRE 606 excludes juror
testimony as to statements and juror’s mental process
K. CA Differences
 CEC 1150 allows evidence of statements or conduct in the jury room, but
excludes evidence of the effects of such statements or conduct upon a juror’s
mental process. FRE 606 excludes a juror’s testimony as to any matter during
deliberations as well as the effect of anything

L. Rules

 FRE
 606 – excludes Juror Testimony as to “any matter or statement” and
“anything” upon juror’s mental process
 103 - a)error can't be found upon a ruling which admits/excludes
evidence unless a substantial right of the party was affected AND
 1) objection
 2)offer of proof- no need to renew an objection if an in limine
ruling addressed the admission of a particular item of evidence
 b)record of offer and ruling
 c) hearing of jury
 d) plain error
 CEC
 1150 – No evidence is admissible to show the effect of such statement,
conduct, condition, or event upon a juror either in influencing him to
assent to or dissent from the verdict or concerning the mental
processes by which it was determined.
 353 – if evidence is erroneously admitted, ruling will be sustained
(upheld) on appeal if objection didn't specify the grounds for objection.
Not specifying the grounds is insufficient to preserve the issue for
appeal.
 354 – if general objection sustaineed, the ruling excluding evidence will
be upheld if there is any ground to sustain it. * thus counsel should
request the court to specify the grounds for the ruling, and make an
offer of proof.
 355 – if evidence admitted for a limited purpose then court is required
to give limiting instruction to jury. (instruction most effective when
given when evidence is admitted; failure to request instruction
ordinarily waives any error in failing to give it.
 *motion in limine is like FRE 103(a)(2)
 764 – leading question suggests the answer that counsel seeks, answer
is usually in form of yes/no.
 765 – objection that a question calls for a narrative answer.
 766 - witness must give responsive answers to questions, and answers
not responsive shall be stricken on motion of any party.
 767 – leading questions permitted on cross and recross examination.
Judge has discretion to allow leading questions on direct under special
circumstances where interests of justice require; think kids under 10 for
child abuse cases or with a person with a substantial cognitive
impairment.