EVIDENCE
Making the record
Think on two levels
Try to win the case
In case of appeal, talking to appellate judges and their law clerks, too
Court reporter
Get everything on record
Make sure every piece of evidence is marked, identified, sponsored, introduced into evidence
Must object and give judge, on record, a reason why evidence is inadmissible
Otherwise, waive the objection and will not be able to raise that ground on appeal (for the most
part)
Direct examination – No leading questions, except 1. where talking about undisputed, basic
facts; 2. hostile witnesses (must establish as adverse witness); 3. transitions; 4. very young
witnesses, difficulty testifying, etc. (must ask court for permission).
Foundation – Must establish authenticity and admissibility, i.e. witness has personal knowledge.
Tangible exhibits
Hearsay exceptions – Must lay out elements.
(If parties stipulate, don’t need to go through evidentiary steps.)
Objections
Motions in limine – motion before trial to settle evidentiary issues. Can get instruction not to
introduce certain evidence if get ruling in advance.
Division of responsibility: Generally, judge is responsible for deciding issues of admissibility
and applying the rules of evidence. Trier of fact can give it more or less weight.
Judge admitting doesn’t preclude opponent from introducing contrary evidence.
Preliminary questions of fact
-Proponent has burden of proof
Relevance
Admissibility depends on what the lawyer is trying to prove.
Evidence is relevant when it has some tendency in reason to prove or disprove a proposition that
is properly involved in a case.
1. What proposition is the evidence being offered to prove?
-Who’s offering the evidence?
2. Is that proposition provable in the case?
-Does the law allow me to prove it?
3. If yes, does the evidence have tendency in reason to prove?
“Weight” or “probative value” of evidence
-relative concept
-depends on what you’re talking about, what’s already on the record
(We never ask whether the evidence proves anything; rather, whether it has any tendency to
prove.)
Many cases are proven with circumstantial evidence.
We ask the trier of fact to draw inferences.
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EVIDENCE
Evidence need not be direct to be relevant; may allow jury to make an inference supporting the
proposition.
PROBATIVE VALUE VS. PREJUDICIAL EFFECT
The evidence is relevant, but is its probative value outweighed by unfair prejudice, i.e. would it
interfere with the jury’s ability to resolve the case properly?
Balancing test – trial judge’s discretion
Discretionary – Judge can admit it, but must explain reasons. Instructions to jury will deal with
it, etc. Reverse only if clear abuse of discretion.
Concession of a party is pertinent to discretion.
(Just because prejudicial does not mean unfairly prejudicial.)
Can redact to minimize risk of unfair prejudice.
FRE 403
CEC 352
Ex. Defendant offered stipulation that he had committed a felony and hence fell under statute for
felon in possession of firearm. Government wanted the jury to know that the felony was assault
with a deadly weapon. Court finds that it is prejudicial ‘propensity’/‘bad person’ evidence,
prejudice outweighs probative value.
Note: still discretionary, see above.
Hearsay
A statement, other than one made while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
1. What is the out of court “statement”?
2. What is asserted by the out of court “statement”?
3. Is the statement being offered to prove the matter(s) asserted (directly or by inference)?
Can’t cross-examine declarant -> can’t test reliability of testimony!
Should give jury a chance to see, judge credibility (bias, basis, etc.) of critical evidence! If
introduced through hearsay, jury deprived of this.
Some hearsay problems: ambiguity, insincerity, erroneous memory, faulty perception.
(There are cases where the declarant-centered approach gets it wrong.)
Can be hearsay even though the declarant is on the stand.
[Limiting instruction]
When evidence is capable of two uses, lawyer must request limiting instruction; otherwise
waived. Tells jury the use to which they can put evidence.
FRE 105
CEC 355
When the statement is not offered to prove the truth of the matter asserted, hearsay.
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EVIDENCE
“I’m alive” – what’s important is that he said anything at all (even though you’re trying
to prove he was alive) -> not hearsay.
In duress, to show reasonable fear for life, terrorists’ threats not hearsay.
Etc.
Independent Legal Significance
i.e. promise, gift (“I give this to you as a gift…”)
What’s important is that the words were spoken.
“Operative conduct” is never hearsay.
Conduct as a “statement”
Question: Does the actor intend to communicate a message?
Assertive conduct – intends to communicate a message
i.e. pointing to suspect to i.d.
Non-assertive conduct – no intent to communicate anything; a person acting in accordance with
a belief.
i.e. person opens umbrella
(Rothschilds anecdote – what looked like non-assertive conduct was meant to
communicate!)
When one party destroys evidence, and other party finds out and wants to introduce the
conduct as proving party is guilty, not hearsay.
Directions, e.g. “Place a bet on x.” (Not assertions.)
Pay-owe sheets, to prove apartment was used for drug dealing.
In Rhodes, the fact USSR agents kept file and exchanged it secretly (problematic case)
“Non-conduct” can be non-assertive conduct, e.g. lack of complaints, so not hearsay.
Testimony that depends on the assertions of others may be hearsay.
U.S. v. Brown – tax fraud; IRS agent’s testimony must depend on tax-payers’ assertions.
(What about tax-payers’ credibility??)
“Non-human evidence”
Machines and animals do not make statements.
Show accuracy of machine/animal.
Photographs are not hearsay unless there is intent to communicate, etc.
Exceptions to Hearsay Rule
DYING DECLARATIONS
We assume sincerity is supplied by person’s knowledge/belief they’re about to die.
No cross/exam and no opportunity to observe/evaluate credibility of person
On the other hand, reliability and necessity
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EVIDENCE
Preliminary questions of fact for judge:
1. Decl sense impending death?
2. personal knowledge?
FRE 104
CEC 403, 405
FRE 804(b)(2)
CEC 1242
CEC any criminal case
1. only where re: cause/circumstance of death
2. must show personal knowledge
3. must think about to die (sense impending death)
4. ***person must actually die!***
FRE 804b2 only in homicide cases, or in civil cases
Cause/circs of “believed impending death”
Believed impending death (*need not actually die*)
[“unavailable” witness if: outside of compulsive process, or too ill (mentally or physically) to
testify, or can show you can’t find person, or person invokes constitutional right not to testify
and the court grants]
[comment: if person really believed about to die, same reliability. Necessary if witness
unavailable. -> admissible]
EXCITED UTTERANCE
Not reflective. Reacting. But can’t a lack of reflection affect perception?
[Can’t bootstrap in CA. Can bootstrap in fed ct per FRE 104, i.e. when judge makes preliminary
ruling of fact, not bound by rules of evidence. So, can use statement itself to prove some
exciting event occurred, etc.]
Declarant operating under stress of exciting event. No specific time limit—could be 2 hours
later. Doesn’t apply if declarant had the ability to reflect.
Indicators of ability to reflect: ability to perform normal tasks (like driving home from
work), etc.
Judge must be able to determine by preponderance of evidence the likelihood that the statement
was made under the stress of event.
PRESENT SENSE IMPRESSION
Hearsay statement is made as declarant perceiving event or condition -> admissible. (FRE)
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EVIDENCE
Describing event as it is occurring.
(More reliable than excited utterance.)
May not matter if don’t know declarant’s identity. (State v. Jones)
Corroboration not required, either.
Contemporaneousness (can be bootstrapped)
***CA does not have present sense impression exception.
CEC 1241
If statement offered “to explain, qualify, or make understandable conduct of the declarant”.
Not if offered to prove truth of matter asserted as such.
ADMISSIONS
The most invoked exception.
Rationale depends on the nature of the adversary system, not reliability or necessity.
A statement of a party against the party -> not excluded.
FRE: Admission defined as NOT hearsay.
An “exemption”; don’t call it an “exception” in federal court! (But it’s hearsay on the
hearsay portion of the exam for this class!)
In CA, it’s an “exception”.
Court doesn’t care if the statement is even based on personal knowledge, so long as it’s against
the party. (After statement admitted, party can go on the stand…)
Assumption: people won’t say things against themselves unless they believe them to be true. ?
If person makes the statement in form of statement of fact, treated as admission.
*If person qualifies it “I heard…”, “This is what I was told” (reporting what someone else said),
then NOT an admission.
Silence can be treated as an admission.
Mere silence in the fact of accusation is not enough.
Reasonable person in D’s position to say not true if not true. Must be sure person heard the
statement, there can be no impediment to denial (physical or otherwise), Constitutional right to
remain silent (in custody), etc.
If you have an explanation for your silence, you can rebut your admission since you’re a party.
CEC 1220
As individual or representative
CEC 1221
“by words or other conduct manifested adoption or belief in its truth”
FRE 801
[Careful: admissions don’t have to be “against interest”; they are merely statements offered
against a party.]
Whether D’s conduct was an adoption of the truth is for judge to resolve.
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EVIDENCE
Proponent has burden of showing by preponderance of evidence.
Application of evidence policy.
(Some courts give to the jury, but not for this class!)
“Authorized admission”
Cannot use statement of employee or agent to prove against company, unless authorized.
Within company, is declarant authorized to make admissions on behalf of company?
Must have proof of authorization, i.e. to admit liability, etc.
CA retains this principle
*FRE – Authorization is not required. If employee is speaking about something in course and
scope of employment, And is still an employee -> Statements admissible against employer!
*No balancing test for admissions!
Admissions of a co-conspirator:
When engaged in a conspiracy, agents for each other -> Statement in furtherance of conspiracy is
admissible as against all co-conspirators!
CEC 1223: Admission of co-conspirator
(a)
(b) prior to or during time party participating
[No FRE 104(a) – If offered to prove the existence of the conspiracy, it is hearsay! Must lay
foundation with admissible evidence to make the statement admissible.]
Under FRE, can introduct the statement itself – preliminary questions of fact.
FRE 802(d)(2)(E)
[Are the statements really “in furtherance of the conspiracy”? Not idle chatter? Even if multiple
interpretations, sustained as long as reasonable basis for concluding statement furthered the
conspiracy. U.S. v. Doerr (1989)]
Bourjaily v. U.S. (1987)
Must show: both declarant and defendants were members of conspiracy, and that statement was
in furtherance of conspiracy. Preponderance of evidence standard. Judge can rely on out-ofcourt statements themselves per FRE 104(a). (But not in Cal.)
[*FRE 801(d)(2) subsequently modified – There must be some additional admissible evidence
for elements – probably not for the “furtherance of” element, though.]
FORMER TESTIMONY
Under oath, cross-examined.
Applies when the declarant is unavailable.
Same motive and interest in discrediting witnesses as in the present case?
Identity of issues is critical.
[“unavailable” – invokes right not to testify, dead, outside compulsory process (proponent must
show reasonable effort to procure), physically or mentally unable to testify, loss of memory…]
Cannot secure unavailability of your own witness!
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EVIDENCE
CEC 1290
CEC 240
CEC 1291(a) same party in both cases, right and opportunity to cross-examine, interest and
motive. If you called witness, stuck with them in new proceeding.
CEC 1292 against person not a party to former proceeding
Identity of issues
Limitation – applies only when new proceeding is a civil proceeding.
FRE 804 – requires unavailability. Failure/lack of memory is also a form of unavailability.
Must show judge the person cannot recall (i.e. they must be in court!).
804(b)(1): admissible against “successor in interest”
“Predecessor/successor in interest”: received right/title/interest/obligation that is at issue in the
current litigation.
DECLARATIONS AGAINST INTEREST
Reasoning: People don’t make statements against their interest unless they are true.
Problems: What are the circumstances? Mental states? What are their “interests”?
Requirement:
1. Declarant must be unavailable
2. Must be within their knowledge
(If they lack technical knowledge about it, might not be against their interest?)
3. Clearly not in their interest
Pecuniary/money or proprietary/property
Exposure to civil liability is sufficient
(Look at penalty of the infraction – having one joint might not be against one’s
interest, but having a trunk full of cocaine might.)
When it was said did the declarant think it was against their interest?
4. No motive to falsify
CA – same as federal rule except: such a risk to make declarant a subject of ridicule is an
additional interest!
CEC 1230
Federal only – Penal interest must be recognized in addition to Pecuniary and Proprietary so long
as there is some corroboration.
Civil interest negate a claim for liability or expose to civil liability.
Additional test: Reasonable person in declarant’s position would not have made the statement
unless they believed it was true. (?)
Contrast with admissions: Admissions doesn’t require unavailability. Admissions doesn’t
require it to be against interest. If you see a statement by a party against a party, don’t use
statement against interest.
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EVIDENCE
STATE OF MIND
No memory issue, since it is a present/then-existing state of mind.
Perception doesn’t matter, since own state of mind.
Assume people as a general rule are telling the truth when making such statements.
Falls under this exception when the issue is the declarant’s state of mind.
Hillmon doctrine: Species of state of mind evidence, can be used for the inference that he acted
in accordance with intention.
“I’m going to CC w/ H” -> he went -> W’s body.
*Limit on Hillmon doctrine – only if the state of mind points to the future (Shepard).
Can’t look back.
Federal and California have same limitation.
(If evidence indirectly shows state of mind, it’s not hearsay and don’t need exception.)
CEC 1250 – follows Hillmon and Shepard
CEC 1251 – allows intro of evidence of declarant’s past state of mind.
e.g. wife unavailable, statement: “I found him distasteful 2 months ago.”
Does not undercut Shepard.
1252 – restriction
State of mind inadmissible if made under circumstances such as to indicate lack of
trustworthiness.
FRE 803(3) + notes
U.S. v. Pheaster: “Im going to meet Angelo for some free pot.”
[Alcalde (1944) – Statement by victim that she’s going out with D on night she was murdered
not a problem in Cal.]
Declarant states own state of mind; happens to implicate someone else.
FRE Notes: improper to use these statements to implicate actions of anyone other than the
declarant.
*In California, Pheaster is the rule!
Under FRE, follow House Committee Report.
(Zippo case – survey was compilation of out of court statements of survey respondents; state of
mind exception to hearsay rule. Presently existing state of mind, confusion was an issue in the
case.)
STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR
TREATMENT
[Statements of present physical condition admissible under FRE, made to anyone if physical
condition at issue – present state of mind.]
[Cal. – covered if unavailable.]
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FRE create separate exception: Statement to physician, etc., for diagnosis/treatment.
Some overlap, e.g. “My head hurts.”
FRE 803(4)
Problem: Going to physician for purposes of litigation
FRE: ok
To physician, nurse, receptionist, EMT, intake specialist -> admissible.
CA does not have this exception!
1253 – only to alleged victim of child abuse.
But do have present physical condition (and past, if unavailable.)
Careful – only admit to the extent helps physician to assess cause of injury. Not, e.g. statement
about fault/causation in general.
Exception for children (e.g. “Buzzy burned me.”)
[CA: child under 12]
[FRE: young child]
PRIOR IDENTIFICATION
i.e. lineup “He’s the one.”
Closer in time to original incident
Less suggestive circumstances than courtroom identification.
FRE: Not hearsay.
FRE 801(d)(1)
Cal. Hearsay exception
CEC 1238
Cal:
1. requires identification made at time incident fresh in declarant’s mind
2. witness must be available and say that identification was accurate when he made it, must
have personal knowledge.
(Court can infer freshness in declarant’s mind, e.g. if close enough in time, e.g. 1 day.
FRE – Declarant must be available, testify he made declaration, and must be subject to crossexamination.
(Don’t have to show based on personal knowledge, or was made when fresh in
declarant’s mind!)
Don’t have to remember whom you identified.
But must at least remember making the identification.
(PRESENT RECOLLECTION REFRESHED)
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If witness has trouble remembering, can use anything to refresh his memory. The stimulus is not
evidence. Refreshing will take place outside the presence of the jury. (Good lawyers refresh
witness’s memory before trial, want jury to think that witness has a good memory.)
Statutes say if something is used to refresh memory during trial, opposition must be allowed to
see it. Also, can waive privilege!
CEC 771
FRE 612
PAST RECOLLECTION RECORDED
CEC 1237
Statement would have been admissible if made while testifying.
Foundational requirements:
1. must be personal knowledge
2. writing occurred while fresh
3. writing made by witness at his/her direction, or made by someone with purpose of
recording witness’s statement
4. witness must testify statement as recorded was true
5. writing must be authenticated as accurate record of statement made
Proponent cannot introduct writing into evidence, can only read to jury.
The opponent may introduce it into evidence, however.
FRE 803(5)
Writing made by or adopted by witness while fresh in memory.
Must accurately reflect
Can only be read…unless adverse party…
Must have witness there to make admissible, to testify she can’t remember.
BUSINESS RECORDS
Because business itself relies on document, it’s reliable.
“that are kept in the regular course of business”
e.g. a receipt is a written assertion
“Business” defined extremely broadly.
Custodians of records testify to foundational elements
Method of record-keeping
The person who actually made the record need not testify for the record to be admissible.
CA – has procedure for custodian to certify record
CA 1270-1272
Record of action/condition/event
Made in the regular course of business
Made at/near time
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EVIDENCE
(Custodian must testify to method)
Custodian or other qualified witness testifies to identity and mode or preparation
Sources, time, etc. trustworthy
FRE 803(6), (7)
Difference: Allows statements of opinions and diagnosis
Reliability comes from duty to report and reliance; bystanders have no such business or official
duty. Watch out for multiple levels of hearsay, e.g. a police report with bystanders’ statements.
Must have business/official duty to report.
(Codified in CA.)
Where one is seeking to prove D was, e.g. sender of money, by means of records of cash
transmittal filled out by D/signed, etc., can be an admission if there is a verification requirement.
e.g. must show driver’s license
Preponderance of evidence
Multiple hearsay
FRE 805
CEC 1201
[Don’t follow the result in U.S. v. Duncan! There, insurance company’s record contained
business records of hospitals, which were admitted without calling custodian of hospital records.
Foundational requirements were not met there! Court should not have admitted.]
[Hypo: Newspaper reporter’s notes admissible as business record? Notes based on statements of
third parties who have no duty…]
No court admits newspaper articles or reporter’s notes as business records!
(Newspaper article – ancient documents exception?)
[Case: hospital record, P offered to show injuries, etc., but D wants to use the part of the record
re: how P said the accident occurred.]
Fed: The part of the record not relied on by the hospital, i.e. not germane to diagnosis/treatment
does not fall under the business records exception.
Cal. would admit (as long as falls under other exception).
Computer-generated business records
No special requirements, but there may be a problem if “significant selection and interpretation
of data” is involved.
If the report is prepared primarily/exclusively in anticipation of litigation, not admissible as a
business record.
But if multiple purposes, can still be admitted even if one purpose is litigation.
Proponent must show by preponderance of evidence.
(Palmer v. Hoffman and Lewis v. Baker decisions.)
Both Fed and Cal.
Exception: Yates v. Bair Transport, Inc. – Several doctor reports prepared in anticipation of
litigation. Plaintiff could offer insurance company doctors’ reports (made for defendant), but
not plaintiff doctor reports or “mystery” report. Opposition can introduce it.
(Plaintiff could still call own doctors to the stand.)
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EVIDENCE
Cal. has a distinction: doctor’s diagnoses admissible as business record; prognosis -> opinion,
not admissible.
OFFICIAL/PUBLIC/GOVERNMENT RECORDS
Some government records contain information that’s reliable but doesn’t meet the business
records requirements.
Rather than have custodian come in, record itself is admissible if it is certified by the appropriate
official (e.g. Secretary of State).
If it has a seal, admissible (though may have to redact).
FRE 803(8)
(A) – corresponds to bus/rec, “activities of office or agency” (payroll, etc.)
(B) Excluding in criminal cases matters observed by police and other law enforcement, matters
observed pursuant to duty imposed by law as to which matters there was a duty to report. May
not be in “ordinary course”, e.g. FEMA observing in TX, LA.
(C) Factual findings resulting from investigation made pursuant to authority granted by law.
If government official makes conclusions, admissible!
Civil
In criminal, as against the government
Unless sources of information or other circumstances indicate lack of
trustworthiness.
If totally reliant on observations of persons with no duty to report, the conclusion is not
admissible. If only partially, the conclusion is admissible.
[Bus/rec exception: Opinions are admissible. This language is not in pub/rec exception, but
opinions still admissible. No clear line between fact and opinion. Beech Aircraft Corp. v.
Rainey (1988).]
Cal. Official Records exception
CEC 1280-1284
Within scope of employee’s duty
At or near time of occurrence
Trustworthiness – sources, method, time
Conclusions must be based on statements by people with duty to report. (Harder to get in
conclusions based on statements of bystanders with no duty.)
Fed: In a criminal case, against defendant, cannot introduce public records by law enforcement
under some other hearsay exception! (803 legislative purpose, Right to Confront…)
[Must argue intent, not language – i.e. that doesn’t fit underlying purpose.]
Cal.: In appropriate case, police report is admissible against criminal defendant.
(In anticipation of litigation? Must find a way around Palmer.)
However, police records are admissible if they relate to routine, non-adversarial matters
(under either the official records or business records exceptions.)
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EVIDENCE
e.g. U.S. v. Grady: records of Dept of Industrial and Forensix Science of Ministry of
Commerce and Royal Ulster Constabulary, recording serial numbers. What Congress was
concerned about was officers reporting observations of crimes.
803(10) Absence of a public record/entry to prove absence… No limitation regarding criminal
prosecutions -> admissible!
PRIOR CONVICTION
CEC 1300
Limitation to felony
Limited to use in civil proceeding
Nolo pleas admissible.
FRE 803(22)
Admissible in criminal if same defendant
Nolo pleas not admissible.
[Don’t follow Stroud v. Cook, in which misdemeanor convictions were slipped in under the
public records exception!]
TREATISES
Commercial lists
CEC 1340, 1341
Relied on as accurate in the course of business
e.g. Blue Book, stock listings
Historical, science, art, maps only if to prove facts of general notoriety.
FRE 803(17) Commercial lists
803(18) Treatise – must use in connection with an expert witness
Can’t admit the treatise itself.
FAMILY HISTORY
CEC 1310-1316
1310 – If declarant unavailable, evidence of family history from family member admissible
unless circumstances untrustworthy.
1311 – Relative/close family friend if declarant unavailable, and declarant closely related to
witness.
FRE 804
804(11), (12)
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EVIDENCE
VITAL STATS RECORDS
Death Certificates – 803(9) and official records
Vital stats records
Return to Relevance
STATISTICAL EVIDENCE
Proper foundation:
1. Fact basis for statistics
2. Method for calculating accepted in relevant scientific community
i.e. Experts agree on a number to plug into Bayes Theorem in a given case, etc.
Present to jury in a form in which it will be readily understood.
CHARACTER
1. in issue
2. circumstantial
If character is directly in issue (“essential element” of a claim or a defense), can use:
1. reputation
2. opinion
3. specific acts evidence
If circumstantial, law is extremely restrictive.
Character evidence inadmissible in civil cases, generally.
In criminal cases, allowed in limited circumstances, i.e.
Only if defendant places his or victim’s character in issue.
Then, may only use reputation or opinion.
Unfairly prejudicial?
If reputation is an issue, can examine witnesses as to poor reputation. Can cross-examine
witnesses as to good reputation.
Witness must show sufficient familiarity with defendant (or whomever) and with the relevant
community/work/etc.
The longer you can show witness has known person, more likely
(Shortest Williams has seen: 6 months.)
(Why not opinion? Would open up area for inquiry exponentially.)
[Note: reputation is whatever people talk about – arrest or conviction, true or false, etc.]
(Control for abuse by hearing in chambers to ask prosecutor if she has any information
backing up what she’s asking about.)
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EVIDENCE
FRE 404 (a)
Except: (1) character of accused – only in criminal case
D must open it up, prosecutor can only introduce evidence in rebuttal.
Character of victim can be brought up by D; prosecutor can rebut.
(2) character of victim
FRE 405 (a) reputation and/or opinion
(b) specific instances of conduct where character is essential element in issue.
CEC 1100 admissible
1101(a) inadmissible when offered to prove conduct on specified occasion
1102 In criminal action, D’s character not inadmissible if: offered by D, then by prosecutor to
rebut.
1103 Character of victim
Opinion, reputation, and specific instances of conduct!
If D brings up; by prosecutor to rebut.
(b) D can put his character for violence in issue by bring up victim’s character for violence.
Then, opinion, reputation, specific instances of conduct!
Not in Fed!
1100-1104: Note distinctions! FRE 404, 405
1101(b) Not character evidence!
Other acts evidence.
Can introduce something that looks like character evidence to show motive, etc. (long list…)
Prosecutor can bring it up as part of case-in-chief.
e.g. to show D assassinated president, show that murdered police during routine traffic stop.
Can be used in civil or criminal cases. 1101(b).
e.g. intent in civil fraud case
Couldn’t use to show D’s character in civil case.
Not character evidence
FRE 404(b)
Only major difference – if in criminal case, prosecution must give defense notice upon request of
accused.
Signature crime
With passage of time, begin to worry about copycats.
Acquittal doesn’t mean can’t be brought up in subsequent case as other acts evidence. Criminal
law standard higher than preponderance of evidence.
“Habit” evidence – A regular reaction to particular set of circumstances, e.g. going up stairs 2
steps at a time, person always rolls through stop sign, etc.
[Note: Perrin v. Anderson is the outer limits of “habit”.]
CEC 1105
FRE 406
Conformity of conduct on specific occasion
Habit of organization
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EVIDENCE
RAPE SHIELD LEGISLATION
Evidence of victim’s character is inadmissible to show consent.
Evidence of prior sexual relations between victim and defendat, however, is so relevant
that it cannot be Constitutionally barred!
FRE 412
(a) generally inadmissible
(b) exceptions
(1) (A), (B), (C)
(c) procedure to determine admissibility
Be careful:
1. If the evidence is offered to impeach the victim, not a rape shield problem!
2. If the evidence is sufficiently probative, Constitutionally must let it in.
FRE 413-415: Allow evidence of sexual history of D in civil cases!
Deliberate departure by Congress
For “sexual predators”
[Congress enacted over opposition of the Bar…]
Past act must be demonstrated by specificity and be sufficiently similar to the type of sexual
assault alleged.
SIMILAR HAPPENINGS
Negligence/defective condition
Timing doesn’t matter, e.g. fell after P
Unless conditions changed
“Safety history evidence”
Notice
Only if before the subject of litigation
Sufficiently similar? (Showing upon objection?)
SUBSEQUENT PRECAUTIONS
Policy: Where there’s an incident, a party takes precautions/correct
 Not admissible to prove negligence.
(Isn’t this admission by conduct? But if there was a potential problem, we want people to
improve it, not be deterred.)
There are exceptions.
FRE 407
Impeachment exception
Ownership, control, feasibility – only if disputed!
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EVIDENCE
CEC 1151
Impeachment
No mention of ownership, control, feasibility
(There is some case law, but limit to impeachment for this class…)
Strict Liability/Products
FRE: Not admissible in strict liability cases
CA: Rule doesn’t apply to strict liability cases; balance tips in favor of allowing evidence in –
won’t deter improvements.
OFFERS IN COMPROMISE
Policy: 1. Encourage settlement, 2. People have to be able to talk – making admissible
discourages this; must be able to discuss facts.
Discussions about facts in the context of settlement negotiations inadmissible to prove liability.
All jurisdictions!
FRE 408
Both CA and Fed: Offers to pay medical expenses for injury inadmissible to prove liability.
Not a settlement negotiation.
Discussions not protected, under FRE, but the payment is.
CEC 1152: “Humanitarian offers to pay losses” statements inadmissible!
How do we determine when negotiations have begun? How do I begin a negotiation?
Courts wrestle with this all the time (will be clear on exam, though).
FRE 408 now says may not be used to impeach.
(Not admissible on exam.)
Cross-Examination
General rule: May not as leading questions.
CEC 760-767
FRE Conduct of trial – discretion of judge
611(a), (c)
Exceptions: 1. very young witness, 2. substantial difficulty (get permission of judge), 3. qualified
as adverse witness (get permission), 4. background, non-controversial information.
Old common law rule: Can’t impeach own witness.
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EVIDENCE
Now, can impeach own witness.
FRE 607 Advisory Committee Notes
No one “bound by” testimony of a witness.
Is person worth putting on the stand? Preparation, discovery…
Cannot call a witness where the primary purpose is to introduce otherwise inadmissible
impeachment evidence! U.S. v. Hogan.
SCOPE OF CROSS-EXAMINATION
Limited by the scope of direct and FRE 611(b) and CEC 773.
Subject matter of direct and matters affecting credibility of the witness
To establish bias, etc.
“impeach”: “to derogate from credibility”
another use of term: contradiction by another witness
Impeachment by:
1. Cross-examination
2. Introduction of extrinsic evidence
Collateral Matter Rule:
Cannot introduce extrinsic evidence on a collateral matter
Bound by the witness’s answer on cross!
Collateral – fact could not have been shown in evidence for any purpose independently of
contradiction.
CA by statute -> balancing test, matter of policy. No collateral matter rule!
If witness raises issue on direct, open to cross and to extrinsic evidence.
Not limited by collateral matter rule.
[U.S. v. Copelin: Cross-examination, so collateral matter rule doesn’t apply. No extrinsic
evidence. Not a problem that the U.S. Attorney refers to the drug tests.]
Can impeach a witness by showing character for untruthfulness.
Any party can do this with respect to any witness.
FRE 608(a) can introduce evidence re: witness’s character for untruthfulness. Then, the other
party can re: character for truthfulness.
(No other types of circumstantial character evidence, e.g. alcoholism,etc.)
608(b) Can introduce evidence re: witness’s character for truthfulness with reputation, opinion
and with discretion of trial judge may cross-examine re: specific acts of untruthfulness.
Can’t bring in extrinsic evidence of specific acts of untruthfulness.
CA 787: Evidence of specific acts to prove character of witness inadmissible. Can’t even do the
cross-examination. Must use reputation or opinion. If civil case.
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EVIDENCE
(Telling the jury that the witness made an inconsistent statement is not character impeachment!
Don’t care which statement is true.)
If witness unavailable, how to impeach?
Can’t use extrinsic evidence of prior bad acts of hearsay declarants.
(Prior inconsistent statement of hearsay declarant exception.)
CEC 1202
PRIOR CONVICTIONS Impeachment
Original rule: Witness can be impeached by any prior conviction.
Probative on character for truthfulness? Nature of underlying crime.
FRE 609 – Anything punishable by death or greater than 1 year imprisonment
609(a)(1) – “internal” balancing test, only applies when witness is D in criminal prosecution.
Standard for exclusion lower than in normal balancing test (“outweighs” vs. “substantially
outweighs”!)
Rule shifts burden
Prosecution has burden of showing probative value is not outweighed!
(Regular test: burden on opponent to show substantially outweighs.)
Still discretionary – judge must put on record that they have done balancing test. Then, standard
is abuse of discretion.
609(a)(2) Involved dishonesty or false statement, regardless of punishment.
 admissible; No balancing – internal or 403!
Policy choice.
“crimen falsi”
Congressional intent: “narrow” definition of “dishonesty”, i.e. involving falsehood, deceit,
fraud, false pretense, etc.
CA Constitution Art 1 § 28 (Victim’s Bill of Rights)
(f) Use of prior convictions
Any prior felon conviction shall be used without limitation.
(But, balancing test!)
People v. Castro (1985) – “Nothing in this section shall affect EC § 352 (like FRE 403).”
General balancing test – burden on opponent, must show substantially outweighs!
Violation of Due Process if no probative value.
“General readiness to do evil”, “moral turpitude”
Virtual every felony aside from simple possession involves moral turpitude.
“Conspiracy to commit a misdemeanor”, “conspiracy to tattoo a person under 18” don’t.
609 applies to civil cases
General balancing test
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EVIDENCE
[Split in courts re: where crime is not crimen falsi but manner involves some deceit. Slight
majority: Only look at nature of crime itself, don’t want to litigate the way crime was committed.
Others: If particular way crime committed involves dishonesty.]
For exam, go with “pure” version.
Luce v. U.S. (1984) – U.S. Supreme Court: If D doesn’t testify, won’t review denial of motion to
exclude prior conviction! (Testimony might have varied from the proffer, etc., so can’t know if
trial court abused its discretion.)
Ohler v. U.S. (2000) – But if you bring up the prior conviction, you’ve waived your right to
appeal the trial judge’s prior decision that the conviction is admissible to impeach!
BAD REPUTATION FOR TRUTH AND VERACITY
608 – Can attack any witness’s character for truthfulness with reputation or opinion, but only on
the matter of truthfulness (specific acts – discretion).
i.e. Can’t show alcoholic or bad memory.
CEC 786
Honesty or veracity – only reputation or opinion (No specific acts in civil case).
CA Supreme Court: Truth in Evidence provisions removed bar of 786 and 787 in criminal
prosecution! So, bad memory, alcoholic, etc. -> admissible! Applies to all witness in a criminal
prosecution.
PSYCHIATRIC TESTIMONY
6th Amendment – Right to Confront Accuser
Must be allowed to cross-examine
Can bring in extrinsic evidence
Proponent must show: a) mental illness has some relation to aspect of witness’s credibility by
preponderance of the evidence; b) danger of unfair prejudice outweighed by probative value.
PRIOR STATEMENTS TO IMPEACH OR REHABILITATE
Not hearsay! Not offered to prove the truth of the matter asserted.
Can impeach using prior inconsistent statement through:
Cross-exam of witness, or
Introduction of extrinsic evidence, so long as the witness is given a chance to
explain/deny.
FRE 613 – only if statement made prior to time witness testified; not required to disclose
statement to witness before corss (unless opposing counsel makes motion); but lawyer can’t tell
witness about it. Eliminates rule from Coles case, but must still give witness opportunity to
explain or deny.
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EVIDENCE
CEC 768, 769, 770
Inconsistent statement (no language of “prior”. L.A. police chief anecdote.)
(But, language of consistent statements does say “prior”.)
Under CEC 1235, once gone through process, statement admissible both to impeach and to prove
the truth of the matter asserted! (Hearsay exception.)
FRE: If statement made under oath in a proceeding, not hearsay.
801(d)(1)
All other prior inconsistent statements may only be admitted to impeach provided opposing
counsel asks for limiting instruction.
May allow witness to explain apparent inconsistency. Rehabilitate.
By showing that at some time before trial, made consistent statement.
FRE 801(d)(1)(B)
To rebut a charge of “recent fabrication or improper influence or motive”.
Statements all made after the point problem arisen, i.e. after point of alleged impropriety, i.e.
fabrication.
Statements not admissible if made after alleged impropriety.
CA treats the same way. 791(b)
FRE 801 – If meet requirement of the rule, can use: Both to rehabilitate and to prove truth of the
matter asserted (defined as Not hearsay).
CA – If statement is admissible as prior consistent statement, go to 1236. Also admissible to
prove truth of the matter asserted (exception to hearsay).
CEC 791 Following also ok:
Trial, W testifies -> inconsistent statement 4 months before trial -> consistent statement 6
months before trial.
If genuine loss of memory, nothing to impeach!
If there’s a suspicion that loss of memory is not genuine, can bring in as prior inconsistent
statement.
CA – ok, can bring in to impeach and to prove truth of matter asserted.
Fed – Only if made under oath in a proceeding.
(Danger of unfair prejudice?)
FRE do not expressly say can impeach for bias. Classic form of impeachment; permitted,
probably required by 6th Am.
CEC 780 – List of ways can impeach witness. “Technically unnecessary” because all relevant
evidence is admissible.
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