WESTERN STATE UNIVERSITY COLLEGE OF LAW
ADVANCED AND CALIFORNIA EVIDENCE:
Section 255A– SPRING 2008
Tuesdays and Thursdays 4:45-6:15 PM
SYLLABUS
Professor Robert Molko
Office: Third Floor, Room 302R
Phone: 714-459-1149
1.
Objectives:
This course has two objectives:
a) First, it will cover the subjects omitted in the former one-semester Evidence class
(Privileges, Presumptions, Lay and Expert opinion and Judicial Notice).
b) Second, it will also provide a detailed comparison of the California Evidence Code
with the Federal Rules of Evidence.
In the course of doing this, it will provide a review of many other rules of evidence which were
previously covered in the former one-semester Evidence class. The course will answer a large
student demand for a doctrinal course for bar preparation and preparation for practice. Part of
this process will be the development of an approach to analyzing evidence issues.
Relation to Other Courses
The current Evidence I course is not the equivalent of the former one-semester Evidence course,
and this course will have some overlap with both the current Evidence I and Evidence II courses.
Therefore, taking either Evidence I or Evidence II will be inconsistent with this course
Prerequisites
The one-semester Evidence course is a prerequisite.
Students may not take this course and also take Evidence I or Evidence II.
.
2. Required Texts:
Cases and Materials on Evidence, (Updated Tenth Edition), Waltz and Park.
2007 Federal & California Evidence Rules, David W. Miller, Aspen Publisher
Printed on Facing Pages for Comparative Study
3. Optional Hornbook:
Principles of Evidence – Concise Hornbook Series, Graham C. Lilly; West Publishing Co., 2006 4th
ed.
4.
“In-Class” Methodology:
Evidence law was, at one time, universally derived from case law (common law). Today, many
jurisdictions, including California and the federal courts, have codified their respective laws of evidence.
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However, even in these jurisdictions, case law interpretation of the evidence codes still shapes and refines
the rules of evidence. Therefore, the “case method”, with which you are already familiar, will be used
extensively in-class to develop your ability to apply the codes. Bring both the Waltz & Park case book
and the Miller rules book to each class session.
The Federal Rules of Evidence (FRE) and the California Evidence Code are the centerpieces of the
course. When the assigned casebook material refers to any rule of evidence, find and read:
A) The corresponding comparative facing pages in part I of the Miller book
B) The text of the corresponding federal rule and related legislative history material in part II of
the Miller book
and
C) The text and related legislative and law review commission comments of the corresponding
California Evidence Code section in part III of the Miller book.
As with any statutory material, legislative history is an essential resource for statutory interpretation.
Please prepare to address in class how a particular California Evidence Code section differs from its FRE
counterpart. You will find the Miller book’s comparison of California and Federal evidence code
provisions especially useful in this regard. California evidence law is now bar tested.
When an assignment includes a case from another jurisdiction that has not adopted the Federal Rules of
Evidence, please prepare to address in class how you think the case would be decided under the Federal
Rules and the California Evidence Code.
When a class ends in the middle of a syllabus assignment, prepare for the next class by reviewing that
assignment as well as any new material assigned for that next class.
5. Exams and Grading
There will be a three-hour, “closed-book,” final examination. The final examination may test you on any
material assigned in the Waltz & Park casebook, as well as any related material covered in the Miller
book. 85% of your semester grade will be based on this final exam. The remaining 15% of your semester
grade will be based on your preparation for class, your attendance and your class participation.
6. Preparation for Class and Classroom Participation:
Legal education is a co-operative venture that requires your active engagement in class discussion.
Therefore, class participation is a mandatory part of this course. A student whom I deem unprepared will
be treated as absent for that day. You will be expected to stay sufficiently ahead of the class in your
preparation to insure your readiness to participate for each class. Neither the assertion that you did not
anticipate the class getting so far, nor that you read the assignment too long ago to remember it will
excuse a failure to be prepared for class.
7. Attendance & Decorum:
Successful completion of this course is dependent upon satisfaction of the W.S.U. Attendance Policy,
which is reprinted in the Student Handbook. If you arrive late, do not sign the sign-in sheet; you will be
deemed “absent” for that session. If you depart early you may be marked absent for that session.
IF YOU MISS MORE THAN FOUR (4) DAY CLASSES, YOU WILL RECEIVE A GRADE OF “F”
AND WILL NOT BE PERMITTED TO ATTEND SUBSEQUENT CLASSES.
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Students leaving and returning to their seats, while class is in session, disrupts the concentration of
students and, therefore, the learning environment. Therefore, once class begins, students may not leave
the classroom prior to the end of the session, unless you have notified the Dean of Students, in advance,
that you have a particular physical condition that renders you unable to comply with this rule. Violation
of this rule may be deemed an “early departure” for which a student may be marked absent. Also, please
turn off your cell phones during class.
8. Seating Chart:
A seating chart will be distributed at the beginning of the second class session. Please print your name
legibly in the seat you choose for your permanent seat. If you wish to change your seat, please notify me
so that I can make the appropriate changes on the chart.
9.
Office Hours:
Please make appointments through the Faculty Appointment Book located at the front desk in the Faculty
Office Suite on the third floor. My office hours will be contained in the Appointment Book. If you cannot
keep a scheduled appointment, please call either Pam Halverson or me as soon as possible to cancel your
appointment so that another student can see me during that time slot.
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Week
1
2
3
4
5
6
Subject
Reading
Assignment
(Waltz & Park)
 Judicial Notice
734 – 748

757 – 793
Burden of Proof and
Presumptions

Privileges
Attorney-Client
Physician-Patient
Psychotherapist-Patient
Marital

Privileges
5th Amendment
Clergy-Penitent
News-person’s
Sexual Assault Victim-Counselor
D. Violence Victim-Counselor
Trade secret
 Opinion, Expertise and
Experts
 Scientific and Demonstrative
Evidence
 Scientific and Demonstrative
Evidence
573-655
FRE 201
Ca. Ev. 450--457
FRE 301-302
Ca. Ev. 500-660
FRE 501, Ca. Ev. 911-919
Ca. Ev. 950-962
Ca. Ev. 990- 1007
Ca. Ev. 1010-1027
Ca. Ev. 970-973, 980-987
573-655
794 – 821; 838 –
862;
862 – 895
5th A., Ca. Ev. 930, 940
Ca. Ev. 1030-1034
Ca. Ev. 1070
Ca. Ev. 1035-1036
Ca. Ev. 1037-1037.7
Ca. Ev. 1060-1061
FRE 701-706
Ca. Ev. 800-805, 720, 721
Daubert v. Kelly-Frye*
912 – 917;935 –
945; 946-984;
984-991
Hearsay: Exemptions &
Exceptions
 Prior Identification
237 – 242

Party Admissions
160 – 188

Decl. Against Interest
200 – 210

Spontaneous and
Contemporaneous
Declarations
146 – 159
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Federal Rule of Evidence
and
California Evidence Code
(Additional Reading assignment)
FRE 801
Ca. Ev. 1200
FRE 801(d)(1)(C)
Ca. Ev. 1238
FRE 801(d)(2)
Ca. Ev. 1220,1221,1222, 1223
FRE 804(b)(3)
Ca. Ev. 1230
FRE 803 (1) and (2)
Ca. Ev. 1240, 1241
Week
7
8
9
11
12
13
14
Subject
Hearsay Exceptions
(cont’d)
 State of Mind
 Statement for Purposes of
Medical Diagnosis or
Treatment
 Past Recollection Recorded
Hearsay Exceptions
Wed. – (cont’d)
 Business and Public Records
 Former Testimony
 Dying Declarations
 Prior Inconsistent Statement
 Prior Consistent Statement
 Residual Exception
Relevance:
 Character Evidence
 Prior Sexual Conduct
 Prior Domestic Violence
 Relevance:
Similar Happenings, Compromise
and Subsequent Precautions
 Discretion to Exclude
Impeachment and CrossExamination
 Prior Inconsistent Statement
 Prior Bad Acts
 Prior Convictions
 Reputation for Truth
 Bias
 Impeachment and Cross –
Examination (cont’d)
 Prior consistent Statement
Writings:
 Best Evidence Rule
 Authentication
Reading
Assignment
210 – 234
FRE 803(3)
Ca. Ev 1250, 1251, 1252, 1260, 1261
234 – 237
FRE 803(4)
Ca. Ev. 1253
242 – 253
FRE 803(5)
Ca. Ev. 1237
254 – 292
188 – 200
137 – 146
FRE 803(6)- 803(8), Ca.Ev.1270-1280
FRE 804(b)(1), Ca. Ev. 1290-1293
FRE 804(b)(20, Ca. Ev. 1242
FRE 801(d)(1)(A), Ca. Ev. 1235
FRE 801(d)(1)(B), Ca. Ev. 1236, 791
Only FRE 807. None in Ca.
384 – 439
440 – 462
FRE 404,405, Ca. Ev. 1101-1103
FRE 412-413, Ca. Ev. 1103,1106,1108
FRE 414,415, Ca. Ev. 1109
FRE 407, 408, 409, 410
Ca. Ev. 1151, 1152, 1153
463 – 484
485 – 572
686 – 694
694 – 699
Reading Week
15
Final Examination
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Federal Rule of Evidence
and
California Evidence Code
May 2008
FRE 403, Ca. Ev. 352
FRE 607,608,609, 611,615, 705
Ca. Ev. 780, 785, 786-787, 788, 721
FRE 613, Ca. Ev. 770
FRE1001-1008; Ca. Ev. 1520-1523,
1550-1551
FRE 901-903; Ca. Ev. 1400-1421, 14501454, 1552-1553, 1530-1532
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