FALL 2020

Prof. Procaccio-Flowers

EVIDENCE OUTLINE

1) INTRODUCTION
a) Goals of Trials & Rules of Evidence
i) Trials are meant to…:
(1) Determine the truth
(2) Produce an accurate result
(3) Be seen as legitimate:
(a) The factual questions must be determined by a ‘lay-jury’
(4) Be limited in the amount of time and money required of the litigants
(5) Further social policies:
(a) Encourage settlement
(b) Victim protection
ii) What is Evidence? à FRE = no definition
(1) CA Evidence Code (CEC § 140) = testimony, writings, material objects, or other things presented
to the senses that are offered to prove the existence or nonexistence of a fact
iii) Jury Instruction on Evidence à
b) Types of Evidence
i) Oral Testimony à witnesses who (take the stand, under oath) respond to questions posed by
attorneys representing both parties during trial; 3 types:
(1) Fact Witnesses = people who perceived facts related to the lawsuit and testify about those facts
(i.e. “eyewitnesses”)
(2) Expert Witnesses = use specialized knowledge to interpret evidence or explain it to a jury
(a) Do not need to have firsthand knowledge about the issue in question
(3) Character Witnesses = offer information about the good or bad character of a party or witness
(a) Do not need perceived facts related to the controversy
(4) Other Groups:
(a) The Parties = individuals or organizations who oppose each other at trial
(b) The Victim = the entity against whom a crime was committed or who suffered damages in a
civil case
ii) Real Evidence à any physical evidence that a party claims played a direct role in the controversy (i.e.
DNA, fingerprints, weapons, etc.)
(1) Must be authenticated = the proponent must offer some proof that the piece of evidence is what
she claims it to be
iii) Documents à any type of writing or recording of information (may be direct or indirect)
(1) Some writings are “self-authenticating”; but a witness almost never may testify orally about the
contents of a document (it’s required to admit the document into evidence)
iv) Demonstrative Evidence à evidence created by a party to illustrate concepts/facts to the jury; not
an object that played a role in the disputed events (sometimes physical)
(1) For example: photos or videos
(2) Could be potentially abused by parties misrepresenting the true nature of the facts
v) Stipulations à when both parties agree on a fact, it can be stipulated as true, but both parties must
agree to its exact language
vi) Judicial Notice à the judge takes notice of a fact that is indisputably true
vii) Direct v. Circumstantial Evidence à the law does not recognize a difference between the two
(1) Direct Evidence = a witness has actual knowledge of a fact directly related to an issue of
consequence
(a) Evidence (witness saw (D) stab victim) à Fact ((D) stabbed the victim)
(b) Main issue:
(i) Do you believe this witness?
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(2) Circumstantial Evidence = any evidence that requires the jury to make an inference connecting
the evidence with a disputed fact [proof of some fact which, if true, affords a reasonable
inference of its existence of another fact]
(a) Evidence ((D) left town after the stabbing) à Inference (guilty people often flee) à Fact ((D)
stabbed the victim)
(b) Two issues:
(i) Do you believe the witness or the evidence?
(ii) Do you accept the inference about the existence of another fact?
c) 4 W’s OF FRE (Why, Who, Where, When)
i) Why do courts follow rules of evidence?
(1) Protect the jury from misleading information
(2) Eliminate undue delay and promoting judicial efficiency
(3) Protect a social interest
(4) Ensure that evidence is sufficiently reliable
ii) Who produces the rules? à an advisory committee
iii) Where are the rules applied (which courts apply the rules)?
iv) When do the rules apply (what kinds of proceedings the rules govern)? à only apply at trial

2) GENERAL RULES (ART. I)

a) FRE 104 / CEC §§ 400—405 à Preliminary Questions of Admissibility
i) How does the Court decide? à Main Points:
(1) The Judge resolves preliminary questions
(2) The Rules of Evidence DO NOT apply to these determinations
(3) BUT the Rules of Privilege apply
(4) The Judge decides issues of law
(a) i.e. What is a crime involving a “dishonest act or false statement” under Rule 609?
(5) All preliminary factual issues are decided by the preponderance standard
(6) The party offering evidence usually has the burden of proof
(7) 2 types of Preliminary Factual Determinations:
(a) The 104(a) Standard
(i) The Judge resolves the factual issue on her own, applying preponderance standard
(ii) These factual questions determine whether a policy reason exists to exclude otherwise
relevant evidence
(iii) Ex: Did repair occur after the injury?
(b) 104(b) Standard
(i) Judge decides whether a reasonable jury could find the disputed fact by a
preponderance of the evidence
(ii) These factual questions relate to relevance
(iii) Ex: Could the eyewitness see the incident
(8) Factual determinations can affect Rule 403 decisions:
(a) Weakly supported facts offer more potential for unfair prejudice
(b) Hotly disputed facts are more likely to confuse or delay the trial
ii) Who makes Preliminary Determinations About Hearsay?
(1) On Questions of Law = The Judge
(2) On Questions of Fact = The Judge à Rule 104(a) standard applies
(a) Preponderance standard
(b) Party offering evidence bears the burden of proof
b) FRE 105 / CEC § à Limiting Evidence [Limiting Instructions]
i) If the court admits evidence that is admissible against a party or for a purpose—but not against
another party or for another purpose à the court (on timely request) must restrict the evidence to
its proper scope and instruct the jury accordingly
c) FRE 106 à Rule of Completeness
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i) If a party introduces all / part of a writing or recorded statement à an adverse party may require the
introduction [at that time] of any other part that in fairness ought to be considered at the same time
(1) To prevent distortion of evidence when only one part is allowed in over another
(2) CEC § 356 à Similar to FRE, EXCEPT a party may introduce part of an act, declaration,
conversation or writing

3) RELEVANCE (ART. IV)

a) RELEVANCE: Introduction
i) 2 Purposes:
(1) Saves time for all parties involved
(2) Focuses the jurors attention
ii) 4 Themes
(1) Facts proven in the courtroom (“facts in evidence”) are distinct from facts related to the
controversy (“facts of consequence”)
(2) Relevance depends upon the substantive law governing the controversy
(3) As a trial proceeds, a party’s evidence and arguments may generate new issues of facts of
consequence. Evidence that was irrelevant at the start of trial may acquire relevance
(4) Culture affects relevance
b) RELEVANCE: The Basic Rules
i) FRE 401 / CEC § 210 à Test for Relevance = evidence is relevant if:
(1) It has any tendency to make a fact more or less probable than it would be without the
evidence; and
(a) “any tendency” = probativeness (must tend to prove / disprove a fact à BUT very low bar)
(i) Factors include: frequency/remoteness between crimes
(2) The fact is of consequence in determining the action
(a) “of consequence” = materiality (does it matter to the result of the case?)
ii) FRE 402 à Admissibility = irrelevant evidence is not admissible
iii) FRE 403 / CEC § 352 à Balancing Test = court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of:
(1) Unfair prejudice
(a) The jury responding emotionally to current charge based on previous evidence
(2) Confusing the issues, misleading the jury
(3) Undue delay, wasting time, or needlessly presenting cumulative evidence
c) RELEVANCE: Exceptions
i) FRE 407 à Subsequent Remedial Measures
(1) Evidence is not admissible to prove negligence, product defect, lack of warning
(a) UNLESS—there is dispute as to ownership, control or feasibility
(2) CEC § 1151 à doesn’t apply to strict liability or product liability
ii) FRE 408 à Compromise Offers & Negotiations
(1) Evidence not admissible: to prove/disprove validity or amount of disputed claim or to impeach a
prior inconsistent statement
(a) UNLESS—it’s for another purpose (i.e. bias, prejudice, negate a contention of undue delay,
etc.)
(2) 2 Types of Evidence:
(a) Paying / offering to pay an amount/damages to the injured party
(b) Statements / actions made during negotiations of compromise
(3) CEC § 1152 à includes mediation & allows for impeachment
iii) FRE 409 à Offers to Pay Medical & Similar Expenses
(1) Evidence not admissible to prove liability (so not to discourage insurance coverage)
(a) UNLESS—it’s to show another purpose
iv) FRE 410 à Pleas, Plea Discussions, & Related Statements
(1) Evidence not admissible against (D) who made a..:
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(a) Guilty plea, withdrawn later

(b) Nolo contendere plea
(c) Statement during proceedings under Fed. Rule Crim. Pro. 11/comparable state proceeding
(d) Statement during plea discussions with an attorney if no plea resulted from those
discussions
(2) CEC § 1153 à Allowed for impeachment & other witness’ impeachment
v) FRE 411 à Liability Insurance
(1) Evidence not admissible to prove negligence or fault
(a) UNLESS—it’s to prove agency, ownership, control, or bias/prejudice
(2) CEC § 1155 à does not preclude evidence showing lack of insurance
d) CHARACTER EVIDENCE [**inadmissible in CIVIL]
i) Introduction
(1) Question = to what extent may evidence of a person’s character be used to show that in the
particular instance at issue, he acted in conformity with that character?
(2) Relevance Argument = Past actions / character make it more likely that (D) is guilty of conduct
than if he did not show the pertinent character trait in the past
(3) Counter Argument = We do not always act in conformity with our character
(a) Prejudice: A jury is especially likely to punish or reward a party for the kind of person he is
rather than what he did on a particular occasion
ii) FRE 404(a)(1) / CEC § 1101(a) à Character Evidence
(1) Evidence of a person’s character / trait is not admissible to prove that on a particular occasion
that person acted in accordance with the character / trait
(2) Exceptions
(a) 404(a)(2) à For (D) / Victim in a CRIMINAL case [the “Mercy Rule”]
Þ Character trait must be pertinent à depends on the charged offense; examples:
o Murder / Self-defense = (D) trait for peacefulness or nonviolence
o Embezzlement = honesty
o Rape = peacefulness (crime of violence)
Þ (P) may respond, BUT NOT INITIATE; (D) offers first
(i) (A) à (D) can introduce evidence of (D)’s pertinent character
1. and (P) can introduce evidence to rebut it
2. CEC § 1102 à (D) and Govt’ are limited to opinion / reputation evidence in proving
the pertinent character trait of (D)
(ii) (B) à (D) can introduce evidence of Victim’s pertinent character
1. and (P) can introduce evidence to rebut it
2. or (P) can introduce evidence of (D)’s same trait
3. CEC § 1103 à (D) and Gov’t can use opinion, reputation, OR specific acts evidence
in proving the pertinent character trait of the victim
(iii) (C) à “Homicide” Exception
1. (P) may introduce evidence of Victim’s trait of peacefulness to rebut evidence that
Victim was the first aggressor
(b) 404(a)(3) à For a Witness: evidence may be admitted under Rules 607, 608, & 609
iii) FRE 404(b)(1) à Crimes, Wrongs, or Other Acts
(1) Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in accordance with the character
(2) Exceptions
(a) 404(b)(2) à Permitted Uses; Notice in Criminal Case
(i) Evidence may be admitted for another purpose, such as proving:
1. P-I-N-K-O & I-M-P – Plan, Intent, Negate mistake, Knowledge, Opportunity &
Identity, Motive, or Preparation
2. M-I-M-I-C – Motive, Intent, Mistake, Identity, Common scheme/plan
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(ii) (A)-(B) à [in a criminal case, and requested by (D)] requires (P) to provide advance
notice of its intention to offer evidence under the rule
(iii) CEC § 1101(b) à Similar (but not identical) list—provision for good faith in a case of
sexual misconduct

4 Categories of “Character” Evidence

Proof of a Witness’s Propensity to Lie / Tell the Truth - Cross-examine on acts
- Character witness
- Criminal conviction

Proof of Conduct by Propensity - Usually forbidden

- Exceptions

Proof of Character / Reputation as an Element - Proof allowed

405(b)

Proof of Other Acts for NON-Propensity Purposes - Usually allowed

404(b)(2)

iv) FRE 405 à Methods of Proving Character:

(1) (a) By Reputation / Opinion à when character evidence is admissible, it may be proved by:
(a) Testimony about the party’s reputation (on cross, questions about specific instances of
conduct are allowed)
(b) Testimony in the form of an opinion (on cross, questions about specific instances of conduct
are allowed)
(2) (b) By Specific Instances of Conduct à may be admitted when a person’s character / trait is an
essential element of the charge/claim/defense
(a) Examples:
(i) Child Custody
(ii) Defamation / Slander
(iii) Negligent Entrustment
(iv) Entrapment
(b) CEC § 1101(b) à Generally, ALLOWS specific acts to prove character
v) FRE 406 / CEC § 1105 à Habit; Routine practice
(1) Evidence may be admissible to show that on a particular occasion the party acted in accordance
with the habit / routine
(2) Factors suggesting habit (sliding scale)
(a) Specific conduct
(b) Distinctive situation
(c) Regular basis
(d) Lack of moral overtones
e) CHARACTER: Rape Shield Laws
i) FRE 412 à Sex-Offense Cases: The Victim
(1) Evidence is not admissible in a CIVIL or CRIMINAL case involving alleged sexual misconduct:
(a) evidence of a victim engaging in other sexual behavior; or
(b) evidence of a victim’s sexual predisposition
(2) No opinion / reputation evidence
(3) Exceptions:
(a) Criminal Cases:
(i) Prior acts with others to prove the source of semen or injury or other physical evidence
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(ii) Prior acts with (D) to prove consent

(b) Civil Cases: evidence of a victim’s sexual behavior / predisposition if its probative value
substantially outweighs the danger of harm to any victim and unfair prejudice to any party
(4) CEC § 1103(c) à evidence of sexual conduct not admissible to prove consent unless it is with (D)
(a) Manner of dress not admissible to prove consent
(b) May cross examine victim to rebut evidence
ii) FRE 413 à Similar CRIMES in Sexual Assault Cases
(1) Evidence of any other sexual assault committed by (D) may be admitted in a criminal sexual
assault case against the same (D)
(a) This evidence must be disclosed to (D) 15 days before trial
(2) Allows specific act evidence by prosecutor for “any” purpose including propensity—no
arrests/convictions needed
(3) Still subject to FRE 403 Balancing Test
(4) CEC § 1108 à Sexual Offense Cases
(a) In a criminal case, prosecution may offer evidence of specific/similar acts committed by (D)
in case in chief for propensity (incl. uncharged acts)
iii) FRE 414 à Similar CRIMES in Child Molestation Cases
(1) Evidence of any other instances of child molestation committed by (D) may be admitted in a
criminal child molestation case against the same (D)
(a) This evidence must be disclosed to (D) 15 days before trial
(2) Allows specific act evidence by prosecutor for “any” purpose including propensity—no
arrests/convictions needed
(3) Still subject to FRE 403 Balancing Test
iv) FRE 415 à Civil Cases of Sexual Assault / Child Molestation
(1) Evidence of any other instances of child molestation or sexual assault committed by (D) may be
admitted in a civil case against the same (D) for alleged child molestation or sexual assault
(a) This evidence must be disclosed to (D) 15 days before trial
(2) Allows specific act evidence by prosecutor for “any” purpose including propensity—no
arrests/convictions needed
(3) Still subject to FRE 403 Balancing Test
v) CEC § 1109 à Domestic Violence Cases
(1) In a criminal case, prosecution may offer evidence of specific/similar acts committed by (D) in
case in chief for propensity (incl. uncharged acts)

4) WITNESSES (ART. VI)

a) EXAMINING WITNESSES
i) FRE 601 à Competency to Testify
(1) Everyone is competent to be a witness, unless the rules say otherwise
(a) BUT in a CIVIL case—state law governs witness’s competency
ii) FRE 602 à Need for Personal Knowledge
(1) Witness must have personal knowledge à information based on seeing, hearing, or sensing
(a) Not direct, eyewitness knowledge
(b) Ask: What does this witness know?
iii) FRE 603 à Oath or Affirmation to Testify Truthfully
iv) FRE 604 à Interpreters
(1) CEC §§ 750-757 à More detailed provisions on the qualifications and use of interpreters
v) FRE 605 à Judge’s competency as a witness
(1) Prohibits presiding judge from testifying as a witness
(a) No objection required
(2) CEC § 703 à allows presiding judge to testify as a witness if no party objects
vi) FRE 606 à Juror’s competency as a Witness
(1) A juror may not testify before other jurors at trial
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(2) CEC § à Generally, jurors not allowed to testify but may do so if there is no objection
vii) FRE 610 à Religious Beliefs / Opinions
(1) Evidence not admissible to attack / support a witness’s credibility
viii) FRE 611 à Mode/Order of Examining Witnesses & Presenting Evidence
(1) 611(a) / CEC § 765 à Control by the Court; Purposes: the court shall exercise reasonable control
over examining witnesses to:
(a) (1) make procedures effective for determining truth
(b) (2) avoid wasting time; and
(c) (3) protect witnesses from harassment & undue embarrassment
(2) 611(b) à Cross-Examination: shouldn’t go beyond subject matter of direct / witness’s credibility
(3) 611(c) à Leading Questions: allowed on cross & for a hostile witness/adverse party
(a) not allowed on direct, EXCEPT when necessary to develop witness’s credibility
(4) CEC à more detailed than FRE
(a) § 760 – Direct
(b) § 761 & § 773 – Cross
(c) § 762 & § 774 – Redirect
(d) § 763 – Recross
(e) § 764 & § 767 – Leading Questions
(f) § 766 – Responsive Answers
(g) § 772 – Order
(h) § 776 – Examination by an Adverse Party
ix) FRE 614 / CEC § 775 à Court Examining a Witness
(1) Judge may call a witness (rarely occurs)
(2) Judge may question witnesses (often occurs)
(3) Must object as soon as the jury isn’t present
x) FRE 615 / CEC § à Excluding Witnesses
(1) Upon request, court must exclude witnesses so they cannot hear other witness’s testimony
(2) EXCEPTIONS:
(a) Parties to the case
(b) Representative of a corporate / organizational party
(c) Witness essential for preparation [not in CA]
(d) Person authorized by statute [not in CA]
b) REFRESHING RECOLLECTION
i) FRE 612 à To refresh a witness’s recollection:
(1) While testifying
(2) Before testifying if the court decides that justice requires it
c) IMPEACHMENT
i) 10 Tactics to Discredit a Witness: [Offensive, Defensive, Refereeing]
(1) Rebut the Evidence
(2) Complete the Story
(3) Clarify the Ambiguous Testimony
(4) Introduce Expert Testimony
(5) Show Impairment of Perception or Recollection
(6) Demonstrate Inconsistencies
(7) Show Bias
(8) Attack the Witness’s Character for Truthfulness
(9) Exclude the Evidence under a Specific Rule
(10) Exclude the Evidence by Demonstrating Unfair Prejudice, Confusion, or Delay
ii) FRE 607 à Any party may impeach a Witness
iii) FRE 608 à Witness’s Character for Truthfulness / Untruthfulness
(1) (a) Reputation / Opinion à a witness’s credibility may be attacked / supported by:
(a) Testimony about reputation of truthful/untruthful character
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(b) Opinion about truthful/untruthful character

(c) BUT evidence of truthful character allowed only after witness’s truthful character is attacked
(2) (b) Specific Instances of Conduct à Extrinsic evidence to prove specific instances of witness’s
conduct [to support/attack witness’s character] is not admissible
(a) BUT, on cross, the court can allow further inquiries if they are probative of
truthful/untruthful character of…:
(b) (1) the witness; or
(c) (2) another witness whose character the witness being cross-examined has testified about

iv) FRE 609 à Criminal Convictions

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v) FRE 613 à Prior Inconsistent Statements

(1) (a) Showing/Disclosing Statement During Examination à a party doesn’t need to show a
witness the prior statement, BUT, on request must show opposing party’s attorney
(2) (b) Extrinsic Evidence of Prior Inconsistent Statement à admissible, only if witness is given
opportunity to explain, opposing party is allowed to examine witness, or if justice so requires
(3) Not hearsay when used to impeach a witness
(a) The statement isn’t offered for the truth of the matter asserted à it’s offered to show that
the witness has said different things at different times

5) HEARSAY (ART. VIII)

a) INTRODUCTION: Foundational Principles
i) Hearsay = “an out of court statement only offered to prove the truth of the matter asserted”
ii) “The Hearsay 4”
(1) Is the witness referring to a statement that occurred outside the courtroom?
(2) Are you sure it’s a “statement”?
(3) Is a party offering the statement to prove the truth of the matter asserted?
(4) Does an exception apply?
iii) The Truth of the Matter Asserted [TOMA]
(1) Not Hearsay à using an out-of-court statement as part of the witness’s personal knowledge
(2) Hearsay à using the statement to show something that the out-of-court declarant knew
iv) Why we prefer In-Court Statements, they…:
(1) Reduce risks of error
(2) Assess credibility
(3) Cross-examine
(4) Oath & Formality
b) HEARSAY: Generally
i) FRE 801 / CEC § 1200 à Definitions; Exclusions from Hearsay
(1) 801(a) à Statement = if intended as an assertion, a person’s oral / written assertion or
nonverbal conduct
(a) Declarant [Human] + Assertion [Intentional Communication]
(b) NOT considered statements:
(i) No HUMAN declarant
(c) Machine Generated Communications
(i) Fully automatic processes = not a statement
(ii) Information / signal originating from a human = statement
(2) 801(b) à Declarant = person making statement out of court
(3) 801(c) à Hearsay = a statement that:
(a) (1) the declarant does not make while testifying at the current trial or hearing; and
(b) (2) a party offers in evidence to prove the truth of the matter asserted in the statement
ii) FRE 802 à Rule Against Hearsay
(1) Hearsay is not admissible
(a) Unless otherwise allowed under a federal statute, these rules, or other rules prescribed by
the Supreme Court
c) HEARSAY: Exceptions [4 Categories]
i) FRE 801(d) à “Not” Hearsay
(1) Prior Statements by Declarant-Witnesses
(a) 801(d)(1)(A) à Prior Inconsistent Statement
(i) Declarant testifies at trial & is subject to cross
(ii) Prior statement is inconsistent with courtroom testimony
(iii) Prior statement given under penalty of perjury
1. If NOT under oath à comes in to impeach only, not as substantive evidence
(iv) Prior statement given during a proceeding
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1. A 3rd party is present

(v) CEC §§ 769, 770, 1235 à Prior statement need not be under oath to be admitted as
substantive evidence
(b) 801(d)(1)(B) / CEC §§ 791, 1236 à Prior Consistent Statement
(i) Declarant testifies at trial & is subject to cross
(ii) Prior statement is consistent with courtroom testimony
(iii) Witness’s credibility has been attacked
(iv) Statement probative for rehabilitation
(c) 801(d)(1)(C) à Prior Identification
(i) Declarant testifies at trial & is subject to cross
(ii) Prior statement was identification of person
(iii) CEC § 1238 à more restrictive than FRE; requires:
1. Statement of identification
2. Of a person
3. Made at a time when fresh in Witness’s mind
4. Witness must testify at trial that: Witness made ID & it was a true reflection of
opinion at the time
(2) Statements by Opposing Parties
(a) 801(d)(2) à “Opposing Party Exemption”
(i) Very broad exemption à Reasoning = a party can’t deny their own statements
1. Applies in CIVIL cases too
2. Good Legal Advice to Client = “Don’t discuss the case with anyone unless it’s a
privileged conversation (w/ lawyer, spouse, therapist)”
(ii) Requirements:
1. Applies to any statement by a party [to the proceeding] at any time
a. Doesn’t have to be under oath
b. Doesn’t matter if it’s in anticipation of litigation
2. Statement does not have to be an admission
a. Can be a “party admission”
3. Party’s availability is immaterial
a. Doesn’t matter if they’re dead
(iii) 2 Limitations:
1. Declarant must be a party
a. NOT a victim in criminal prosecution
2. Statement must be offered against the party/declarant
a. The Party may not introduce her own statement
b. No self-serving statements allowed
(iv) Expanding the Exemption:
1. Adopted statements
2. Silence as adoption
a. In CRIMINAL cases, examine the circumstances carefully
3. Statements of Agents or Employees
4. Statements by authorized speakers
(v) CEC §§ 1220-1222 à Generally the SAME as FRE
1. § 1220 à Admission of a Party
2. § 1221 à Adoptive Admissions
3. § 1222 à Authorized Admissions
(b) Statements by Multiple Parties [FRE 801(d)(2) & CEC §§ 1220-1222 cont’d…]
(i) Parties on the Same Side à Can one party introduce a statement against another party
on the same side of the litigation? (i.e. Can a Plaintiff introduce statements of a Co-
Plaintiff?)
1. Courts have been inclined to allow it
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2. In this scenario, there could be other exceptions that apply

(ii) Statements that are Admissible Against one Party but NOT the Other
1. CIVIL Case Solutions
a. Redact the statement
b. Show adoption, agency, or authorization
c. Identify another hearsay exception
d. Instruct the jury to consider the statement only with respect to one (D)’s
liability
2. In a CRIMINAL Case
a. 6th Amendment: (D) has a right to confront the witnesses
b. Confrontation = Cross-examination
c. If Declarant is a “Witness” à (D) must have an opportunity to cross-examine
d. Solutions:
i. Redact the statement
ii. Show adoption, agency, or authorization
iii. Identify another hearsay exception
iv. Give limiting instruction, but ONLY IF subject to cross-examination
v. Forget the statement or sever trials
(c) Statements by Co-Conspirators
(i) Admissible if…
1. Statement made by co-conspirator
2. During the conspiracy
3. In furtherance of the conspiracy to commit a crime
ii) FRE 803 à Exceptions to the Rule Against Hearsay [Availability Immaterial]
(1) 803(1) à Present Sense Impressions
(a) Description of an event only (not commentary)
(b) Made while perceiving event or immediately thereafter
(c) Ex: Sports caster giving a ‘play-by-play’ of a game
(d) Rationale:
(i) Accuracy = declarant wasn’t relying on memory
(ii) Sincerity = it’s hard to lie quickly
(iii) Utility = declarant may be unavailable OR the contemporaneous statement may have
particular meeting
(e) CEC § 1241 à Narrower than FRE
(i) Covers only a statement by a declarant explaining his/her conduct made while declarant
was engaged in that conduct
(2) 803(2) / CEC § 1240 à Excited Utterances
(a) Declarant spoke while excited by an event [subjective standard]
(b) Statement related to the event
(c) Ex: Someone who swears while driving
(d) Rationale:
(i) Accuracy = declarant wasn’t relying on memory
(ii) Sincerity = it’s hard to lie when excited
(iii) Utility = declarant may be unavailable OR the excited utterance may have particular
meeting

Present Sense Impression Excited Utterance

As impression occurs or immediately thereafter While subjectively excited by event
Description, no analysis Relates to event; may include analysis

(3) 803(3) / CEC §§ 1250-1252, 1260 à State of Mind

(a) Declarant’s then-existing state of mind (motive, intent, plan) OR
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(b) Declarant’s emotional, sensory or physical condition (mental feeling, pain, bodily health)
(i) Not a statement describing events / reason for state of mind
1. i.e. “I’m hungry” = state of mind; “because I only had salad for lunch” = not covered
(ii) Forward Looking Statements (or statements of planned criminal activity)
(iii) Plans that include others
(4) 803(4) à Medical Diagnosis / Treatment
(a) Statement made about medical diagnosis / treatment AND
(b) Describes medical history, past/present symptoms, their inception or general cause
(i) Can refer to statements in the past
(ii) Exception includes statements made by people other than the patient
(iii) Psychologist testimony also included under this exception
(c) Abuse Prosecutions
(i) Patient describes abuse to doctor à Patient refuses to testify in court à Statements
made to doctor by patient ARE admissible under this exception
1. BUT Prosecutors can’t necessarily use those same statements to identify the abuser
(d) CEC § 1253 à Limited to statements made by minors about acts of child abuse / neglect
(i) Technically, no equivalent to FRE
(5) 803(5) à Recorded Recollection
(a) A record/document that Witness:
(i) made /adopted (i.e. signed)
(ii) once had personal knowledge of
(iii) made / adopted the record when that knowledge was fresh
(iv) testifies that info was accurate
(v) has forgotten
(b) Document cannot be introduced into the record, but the Witness can read the document
into the record
(i) Adverse party can introduce document into the record if they desire
(c) CEC § 1237 à Past Recollection Recorded: [added provision (a)(2)ii] provides that record
could be made by someone for purposes of recording the witness statement at time it was
made
(6) 803(6) à Business Records
(a) 4 Steps to admit:
(i) Need a “business” and the business needs records
1. Nonprofits count as businesses
(ii) Need a qualified witness / certification to lay foundation
(iii) Need to lay foundation when calling witness:
1. Made by a person with knowledge
2. At or near the time
3. In the course of a regularly conducted business activity
4. It was the business’s regular practice to make a record
(iv) Need to rebut any showing that circumstances indicate a lack of witness’s
trustworthiness [adverse party must show it is untrustworthy]
1. Documents prepared in preparation of an impending lawsuit probably not
admissible because of a lack of trustworthiness
(b) Statements by 3rd parties require a separate hearsay exception (i.e. hearsay within hearsay)
(c) Reasoning
(i) “Businesses” have a strong self interest in keeping accurate records, especially for
regularly conducted activities
1. If business has regular practice of keeping record, fabrication is less likely and live
testimony is difficult to arrange
(d) Medical Notes as Business Records
(i) Doctor’s notes are admissible as business records (but NOT a police officer’s statements)
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(e) CEC §§ 1270-1271 à Same as FRE, but doesn’t refer to opinions/diagnosis (though courts
will admit simple opinions and diagnosis)
(i) Similarities:
1. Both define business broadly
2. Both require entry to be made at or near the time
3. Both dispense with need to call witness
4. Both require info to be given by one with firsthand knowledge and a duty to report
(ii) Differences:
FRE 803(6) CEC §§ 1270-1271
Regular practice of the business to It was created in the regular course of
create the record business
Opponent must show it is Proponent must show the record is
untrustworthy trustworthy
Opinion / diagnosis can qualify as an Does not explicitly state that opinions
admission will be admitted
Rule allows for opinions including CA Courts take restrictive approach and
psychiatric opinions limit opinions to observable acts

(7) 803(8) à Public Records

(a) Make sure you have a public record
(b) It must satisfy 803(8), not just 803(6)
(c) Records of the office’s activities generally are admissible
(d) Observations pursuant to duty are generally admissible
(i) Except matters observed by law enforcement personnel are not admissible against
criminal (D)
1. UNLESS the observation was ministerial
(e) Results of an investigation by any public office are not admissible against a criminal (D)
because it could be too adversarial
Police & Law Enforcement Other Public Offices
Ministerial Observation Admissible against all Admissible against all
Other Observation Not admissible against (D) Admissible against all
Investigation Not admissible against (D) Not admissible against (D)

(f) “Factual Findings” resulting from an investigation include opinions and conclusions
(g) Records are not admissible if they lack trustworthiness
(h) Statements by 3rd parties require a separate hearsay exception (i.e. hearsay within hearsay)
(i) CEC § 1280 à Proponent must show the record is trustworthy, opinions are limited to
observable acts, events, or conditions, and information must be given by one with firsthand
knowledge and a duty to report
(8) 803(7) & (10) / CEC § 1272 à Absence of (Public/Business) Records
(a) Evidence or testimony that a matter is NOT included in a public record or was NOT disclosed
in a diligent search may be admissible if:
(i) It’s admitted to prove that the record/statement/matter doesn’t exist or didn’t occur
(ii) A record was normally kept for this kind of matter
(iii) The opponent doesn’t show that the source of information is untrustworthy
(9) 803(16) / CEC § 1331 à Ancient Documents
(a) Document has existed for 20+ years
(b) Authenticity established
(c) Potential for hearsay within hearsay
(10) 803(17) / CEC § 1340 à Market Reports & Similar Commercial Publications
(a) Data Compilation
(b) Generally relied on
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(11) 803(18) / CEC § 1341 à Learned Treatises

(a) May come from any field
(b) Offer substantive evidence
(c) As long as accepted as reliable authority
(d) 2 Peculiarities:
(i) Must accompany expert witness
(ii) Read excerpts into record, can’t be admitted as an exhibit

Categories of Exceptions to Hearsay

“Witness in the “Immediacy” “Self Interest” Misc. 803 Exceptions
Courtroom” Exceptions Exceptions [declarant Exceptions [declarant
unable to formulate a has strong reasons to
lie due to timing of be truthful]
statement]
• Prior Inconsistent • Present Sense • Statements for • Absence of
Statement Impression medical diagnosis Records
• Prior Consistent • Excited Utterance or treatment • Ancient
Statement • State of Mind • Business Records Documents
• Identification • Public Records • Market Reports
• Recorded • Treatises
Recollection

iii) FRE 804 à Hearsay Exceptions; Declarant Unavailable

(1) Introduction—Unavailability under FRE
(a) 5 bases:
(i) Privilege
(ii) Refusal to Testify
(iii) Lack of Memory (real or feigned) [Not in CA]
(iv) Death or Illness
(v) Absence
(b) If Declarant is unavailable, is unavailability the proponent’s fault?
(i) Can’t use wrongdoing to procure unavailability
(ii) Make efforts to procure, especially in a civil case
(iii) May have to take witness’s deposition
(c) CEC § 240 à Unavailability in CA:
(i) 6 Bases:
1. Privilege
2. Disqualified [Not under FRE]
3. Dead or unable to testify from mental or physical condition
4. Court cannot compel presence
5. Unable to subpoena
6. Persistent refusal
(ii) CEC specifically states if unavailability is a requirement within the exceptions; i.e.:
1. § 1291 à Former Testimony = unavailability is required
2. § 1230 à Declarations against Interest
3. § 1242 à Dying Declaration = doesn’t state that unavailability is required, but it
may require declarant to be dead (split)
(2) 804(b)(1) à Former Testimony
(a) 4 Requirements
(i) Declarant is unavailable
(ii) Prior statement was given at a trial, hearing, or deposition
(iii) Opponent [predecessor, in civil cases] had opportunity to develop testimony
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(iv) Opponent had similar motive to develop testimony

Prior Inconsistent Declarant on the stand, Prior inconsistent statement, made

Statements subject to cross under penalty of perjury, in a
801(d)(1)(A) examination proceeding
Former Testimony Declarant Unavailable Prior testimony, made in a
804(b)(1) proceeding (oath), with opportunity
& motive to develop

(b) Plea Allocution = not admissible as former testimony

(c) CEC Differences
(i) § 1290 à Defines former testimony
1. Only allows depositions from different case, doesn’t allow depositions from the
same case
(ii) § 1291 à Against former party
1. In a CRIMINAL case
a. Declarant unavailable
b. Person who offered it in former proceeding
c. May be offered ONLY IF against same party with opportunity and similar
motive to cross
i. (a)(1): May be offered against party who offered it earlier or successor in
interest
(iii) § 1292 à Against one not a party
1. In a CIVIL case:
a. Declarant unavailable, AND
b. Allows former testimony against party if similar motive and interest to cross
c. No legal relationship between parties required
(3) 804(b)(2) à Dying Declarations
(a) 4 Requirements:
(i) Declarant is unavailable [but does NOT have to be dead]
(ii) Applies to homicide prosecutions and civil proceedings [generally does NOT apply to
other criminal prosecutions]
(iii) Declarant subjectively believed death was imminent [in the “shadow of death”]
(iv) Statement concerns cause or circumstances of death [not other matters]
(b) CEC § 1242 à Differences from FRE:
(i) Not limited to homicide cases
(ii) Must be a “dying person” so must be dead at trial
(iii) Must speak under immediacy of impending death
(iv) Must have personal knowledge
(v) Must relate to cause or circumstances of death
(4) 804(b)(3) à Statement Against Interest
(a) 4 Requirements:
(i) Declarant unavailable
(ii) Statement was against interest
(iii) At the time it was made
(iv) Corroboration for statements against penal interest when offered in criminal case; how
to determine corroboration:
1. Judge decides whether corroboration suffices
2. Wide range of factors (look in textbook)
a. Trustworthiness of declarant / truth of the statement
3. Reluctant to admit these statements
(b) What is “interest”?; 3 types:
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(i) Pecuniary / Proprietary Interest

(ii) Civil / Criminal Liability
(iii) Render invalid a claim
(c) Moral & Physical interests do not count -AND- the statement must be one that no
reasonable person would have made unless it was true
(d) Examples of when this comes up:
(i) Cases that have an unavailable Informant
(ii) Exculpatory statements in criminal trials = “(D) didn’t steal the money. I did.”
1. Criminal (D) offers statement by a 3rd party that exculpates the (D) by indicating
someone else committed the crime
(e) CEC § 1230 à Requirements in CA:
(i) Declarant is unavailable
(ii) Declarations against SOCIAL INTEREST are included as well as other interests
(iii) Does not require corroboration, but does require trustworthiness (People v. Duarte)
(iv) Limited to portions disserving Declarant’s __________ ONLY
(5) 804(b)(6) à Forfeiture
(a) Basic idea: People can’t kill off/coerce witnesses to not testify à if a party does this, it
allows the opponent to introduce prior statements by the missing witness
(b) 4 Requirements:
(i) Declarant unavailable
(ii) Other party engaged or acquiesced in wrongdoing
1. There must be “wrongdoing” à persuasion and begging aren’t “wrongdoing”
2. Standard of Proof: must prove wrongdoing by a preponderance of the evidence
(iii) Intended to cause unavailability
1. The opposing party must specifically intend to make declarant unavailable
(iv) Wrongdoing caused unavailability
1. When intent and wrongdoing are present, courts construe acquiescence broadly
(esp. in context of a conspiracy)
(c) Forfeiture in Abuse Cases:
(i) Spouse/child reports abuse but refuses to testify at trial à won’t admit to intimidation
1. Does prior abuse show intimidation? à Judge makes preliminary determination
(d) CEC § 1390 à allows Judge discretion to exclude the declaration if Judge deems it
untrustworthy and unreliable
(i) § 1350 à older provision with more restrictions
iv) FRE 805 / CEC § 1201 à Hearsay within Hearsay [Multiple Hearsay]
(1) Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined
statements conforms with an exception to the rule
(a) i.e. A statement that contains multiple levels of hearsay is admissible if each level of hearsay
fits into an exception to hearsay
v) FRE 806 à Attacking the Declarant’s Credibility [Impeachment] via Hearsay
(1) When a hearsay statement has been admitted into evidence à Declarant’s credibility may be
attacked / supported by any admissible evidence as if declarant was a witness
(a) Court may admit evidence of declarant’s inconsistent statement/conduct regardless of:
(i) When it happened; or
(ii) Whether declarant had an opportunity to explain/deny it
(b) The adverse party may call the declarant as a witness and cross examine the statement
(2) CEC § 1202 à Similar but slightly different
vi) FRE 807 à Residual Exception [UPDATED Dec. 2019]
(1) Hearsay evidence may still be admitted [even if it does NOT fall under an exception] if…:
(a) The statement is supported by sufficient guarantees of trustworthiness—after considering
totality of circumstances and any corroborating evidence
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(b) It is more probative on the point for which it is being offered than any other evidence the
Party can reasonably obtain
(2) Notice—the statement is admissible only if the Party gives the opposition reasonable notice of it
being offered in writing before/during the trial

6) THE CONFRONTATION CLAUSE [6TH AMENDMENT]

a) 6TH AMENDMENT
i) In all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses
against him…
(1) “Criminal” = Applies ONLY to CRIMINAL cases
(2) “Accused” = Protects accused, not prosecutor
(3) “Confronted” = Ability to cross-examine
(4) “Witnesses” = People who give “testimonial” evidence
ii) 5 Basic Principles
(1) All evidence must satisfy the FRE
(2) Applies only to evidence offered against the accused
(3) If a statement is non-testimonial, it’s okay under the 6th Amend.
(a) “Non-hearsay” or statements admitted to prove a point other than the truth of the matter
asserted are non-testimonial and don’t trigger the Confrontation Clause
(b) i.e. Do not need to consider the Confrontation Clause unless you’ve decided that the
statement is being offered for the truth of the matter asserted
(4) If a statement is “testimonial”, the accused must have a chance to cross-examine the declarant
(a) “Testimonial”
(i) Formal proceeding/solemnity
(ii) Government involvement
(iii) Statement made to prove a fact related to a crime
(iv) DEFINED à Testimonial statements are…
1. “a solemn declaration or affirmation made for the purpose of establishing or
proving some fact”
2. “made under circumstances which would lead an objective witness to reasonably
believe that the statement would be available for use at a later trial”
3. “a primary purpose of creating an out-of-court substitute for trial testimony”
(5) If the accused can’t examine at trial, then the prosecutor must establish:
(a) Unavailability
(b) Prior Opportunity to Examine

7) OPINION & EXPERT TESTIMONY (ART. VII)

a) LAY WITNESS OPINION TESTIMONY
i) FRE 701 / CEC § 800 à Opinions of Non-Experts [Lay Witnesses]
(1) Lay witness opinion must be:
(a) Rationally based on perception
(b) Helpful—to understand testimony / to determine a fact in issue
(c) NOT based on scientific / technical / other specialized knowledge
b) EXPERT TESTIMONY
i) FRE 702 / CEC § 720 à Expert Witness Testimony
(1) An Expert qualified by knowledge/skill/experience/training/education may give their opinion if:
(a) Evidence fits the facts à expert’s scientific/technical/other specialized knowledge is helpful
to the fact finder to understand the evidence or determine a fact in issue;
(b) Qualified à testimony is based on sufficient facts/data;
(c) Reliable principles & methods à testimony is the product of reliable principles and
methods; AND
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(d) Technique reliably applied à the expert has reliably applied the principles and methods to
the facts of the case
ii) FRE 703 à Bases of an Expert’s Opinion Testimony
(1) Factual Bases of Expert Opinions
(a) Personal knowledge
(b) Facts or data admitted into evidence
(c) Inadmissible facts or data if they are the type reasonably relied upon by experts in the
particular field
(i) But if the facts or data would otherwise be inadmissible, the proponent of the opinion
may disclose them to the jury only if their probative value in helping the jury evaluate
the opinion substantially outweighs their prejudicial effect
iii) FRE 705 à Disclosing Facts / Data Underlying an Expert’s Opinion
(1) Expert may state opinion [& give reasons for it] without first testifying to the underlying
facts/data (unless the court says otherwise)
(a) BUT the Expert may be required to disclose those facts/data on cross
iv) CEC § 801, 802, 803
(1) Same as FRE 703 and 705
(2) Give opinion within field for expertise
(3) Inadmissible evidence may be basis of opinion if reasonably relied upon by experts in the field
c) EXPERT TESTIMONY: Limitations
i) FRE 704 à Opinion on Ultimate Issue
(1) May provide opinion on ultimate issue
(2) EXCEPTION: may NOT opine on ultimate issue as to mental state of (D) in a CRIMINAL case
(a) Applies to defense and prosecution
(3) May still present evidence of mental disease or defect
(4) Expert can testify (D) “would” or “could” but not “did”
ii) CEC § 805 à Opinion on the ultimate issue is permitted
(1) No exclusion for CRIMINAL cases (different than FRE)

8) PRIVILEGES (ART. V)
a) GENERALLY
i) Purpose:
(1) Protect the jury from misleading information
(2) Eliminate unnecessary delay and promote efficiency
(3) Protect a social interest
(4) Ensure evidence is sufficiently reliable
ii) FRE 501 à Privilege in General
(1) Privileges are governed by common law
(a) If you practice in federal court, you have to follow federal common law within that
jurisdiction
(2) When state law governs civil claim or defense, state law determines privilege
iii) FRE 502 à Waiver of Attorney-Client Privilege
(1) Attorney-Client Privilege defined:
(a) Communication
(b) Between a client
(i) No requirement to pay an attorney to be protected
(c) And a lawyer
(d) That is confidential
(e) And concerns legal advice
iv) CEC §§ 900 et seq à CA has 5 chapters devoted to privileges
(1) CA Privilege law applies in all proceedings in which testimony can be compelled [CEC §§ 901, 910]
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9) AUTHENTICATION & IDENTIFICATION (ART. IX)

a) INTRODUCTION
i) Authentication is rarely in doubt, and is frequently settled before trial by stipulation
ii) 3 Issues where it arises:
(1) Authentication of Handwriting
(2) Handling chain of custody defects in criminal prosecutions
(a) U.S. v. Zink à authentication doesn’t have to be perfect; it just has to be enough that a
reasonable jury could find that the item is what the party says it is
(3) Proving the authenticity of electronic documents
b) RULES
i) FRE 901 à Authenticating / Identifying Evidence
(1) Requires a party to “produce evidence sufficient to support a finding that the item is what the
proponent claims it is.”
(a) Prima Facie Standard = just need enough evidence that some reasonable jury could find that
the [evidence] is [something that shows an event occurred] (a preponderance of the
evidence)
(b) Authentication doesn’t mean proof beyond a reasonable doubt
(2) Examples:
(a) Testimony of a Witness with Knowledge
(b) Nonexpert Opinion about Handwriting
(c) Comparison by an Expert Witness or the Trier of Fact
(d) Distinctive Characteristics and the Like
(e) Opinion about a Voice
(f) Evidence about a Telephone Conversation
(g) Evidence about Public Records
(h) Evidence about Ancient Documents or Data Compilations
(i) Evidence about a Process or System
(j) Methods Provided by a Statute or Rule
ii) FRE 902 à Evidence that is Self-Authenticating [and do NOT require extrinsic evidence of
authenticity to be admitted]:
(1) Domestic Public Documents that are Sealed and Signed
(2) Domestic Public Documents that are Signed but not Sealed
(3) Foreign Public Documents
(4) Certified Copies of Public Records
(5) Official Publications
(6) Newspapers and Periodicals
(7) Trade Inscriptions and the Like
(8) Acknowledged Documents
(9) Commercial Paper and Related Documents
(10) Presumptions under a Federal Statute
(11) Certified Domestic Records of a Regularly Conducted Activity
(12) Certified Foreign Records of a Regularly Conducted Activity
(13) Certified Records Generated by an Electronic Process / System
(14) Certified Data Copied from an Electronic Device / Storage Medium / File
iii) CEC §§ 1400-1401 à “Authentication of a writing means (a) the introduction of evidence sufficient
to sustain a finding that it is the writing the proponent of the evidence claims it is…”
iv) CEC § 1410 à “Nothing in this article shall be construed to limit the means by which a writing may be
authenticated or proved.” à allows the Party offering the evidence to be creative
v) CEC § 1416 à Personal knowledge of handwriting by…
(1) (a) seen supposed writer write,
(2) (b) seen supposed writer’s writing,
(3) (c) received response letters from supposed writer,
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(4) (d) any other means of obtaining personal knowledge

vi) CEC § 1417 à Trier of fact can make comparison against known original
vii) CEC § 1418 à Expert can make comparison against known original

10) THE BEST / SECONDARY EVIDENCE RULE (ART. X)

[CONTENTS OF WRITINGS, RECORDINGS, & PHOTOGRAPHS]
a) GENERALLY
i) Under the FRE
(1) FRE 1001 à Definitions
(a) “Writing” = letters / words / numbers / their equivalent set down in any form
(i) Text messages are considered “writings” and subject to the rule
(b) “Recording” = letters / words / numbers / their equivalent recorded in any matter
(c) “Photograph” = a photographic image / its equivalent stored in any form
(d) “Original” = a writing / recording means the writing / recording itself or any counterpart
intended to have the same effect by the person who executed or issued it.
(i) Electronically stored information = any printout [or other output readable by sight] if it
accurately reflects the information
(ii) Photograph = the negative / a print from it
(e) “Duplicate” = a counterpart produced by a mechanical / photographic / chemical / electronic
/ other equivalent process or technique that accurately reproduces the original
(2) FRE 1002 à Requirement of the Original
(a) An original writing / recording / photograph is required in order to prove its content unless
otherwise provided by law
(3) FRE 1003 à Admissibility of Duplicates
(a) A duplicate is admissible to the same extent as the original UNLESS...
(i) A genuine question is raised about the original’s authenticity OR
(ii) The circumstances make it unfair to admit the duplicate
(4) FRE 1004 à Admissibility of Other Evidence of Content—an original isn’t required, and other
evidence of content is admissible IF…:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that
time put on notice, by pleadings or otherwise, that the original would be a subject of proof
at the trial or hearing; and fails to produce it at the trial or hearing; OR
(d) the writing, recording, or photograph is not closely related to a controlling issue.
(5) FRE 1005 à Copies of Public Records to Prove Content
(a) A Party may use a copy to prove the content of an official record [or of a document that was
recorded/filed in a public office] IF…:
(i) the record or document is otherwise admissible; and
(ii) the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct
by a witness who has compared it with the original. If no such copy can be obtained by
reasonable diligence, then the proponent may use other evidence to prove the content
(6) FRE 1006 à Summaries to Prove Content
(a) A Party may use a summary / chart / calculation to prove the content of voluminous
writings/recordings/photographs that can’t be conveniently examined in court
(i) The originals / duplicates must be available for examination / copying [or both] by other
parties at a reasonable time and place
(ii) The court may order the Party to produce them in court
(7) FRE 1007 à Party Testimony / Statement to Prove Content
(a) A Party can prove content by testimony / deposition / written statement of the party against
whom the evidence is offered
(i) The Party doesn’t need to account for the original
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(8) FRE 1008 à Functions of the Court & Jury—ordinarily, the court determines whether the Party
has fulfilled the factual conditions for admitting other evidence of content BUT in a jury trial, the
jury determines whether:
(a) an asserted writing/recording/photograph ever existed;
(b) another one produced at the trial or hearing is the original; OR
(c) other evidence of content accurately reflects the content
ii) Under the CEC
(1) CEC § 1521(a) à Secondary Evidence Rule in CA
(a) The content of a writing may be proved by otherwise admissible secondary evidence. The
court shall exclude secondary evidence of the content of writing if the court determines
either of the following:
(i) A genuine dispute exists concerning material terms of the writing and justice requires
the exclusion
(ii) Admission of the secondary evidence would be unfair
(2) CEC § 1522(a) à Criminal Cases
(a) “[I]n a criminal action the court shall exclude secondary evidence of the content of a writing
if the court determines that the original is in the proponent’s possession, custody, or control,
and the proponent has not made the original reasonably available for inspection at or before
trial.”
(3) CEC § 1523 à Oral Testimony to Prove Content of a Writing
(a) Oral testimony is not admissible to prove the content of a writing unless the original is lost
or destroyed, the original cannot be obtained by subpoena or other process, or the writing is
not closely related to the controlling issues