EVIDENCE OUTLINE- Fall 2011
I.
Motion in Limine – made before the trial
A. A procedural tool to keep inappropriate evidence AWAY from the jury
II.
Trial
A. Plaintiff/prosecution typically has the burden of proof (case in chief)
B. Pretrial:
a. Qualifying the evidence- mark each exhibit for identification
C. Moving exhibit into evidence: jury cannot consider the evidence unless it’s been
admitted
D. Qualifying the witness: [Need= Competency + Personal Knowledge + Oath or
Affirmation]
a. Competent
1. FRE 605- Competency of a Judge as a Witness
a. Presiding judge at trial MAY NOT testify in the trial as a
witness. No objection need to be made
i. CA : in the absence of objection by a party, the judge
presiding at the trial of an action may testify in that
trial as a witness.
2. FRE 606- Competency of Jurors as Witness
a. During trial/before verdict: jurors may NOT testify
b. After trial/verdict: usually don’t allow jurors to testify about
what went on in jury room except if there was extraneous
prejudicial information or outside influence [this rule only
applies to jurors, (so i.e. if bailiff saw this activity he could
testify]
i. May testify about:
1. Misconduct in violation of judge’s
instructions (i.e. coin flipping)
2. Extraneous prej info (i.e. newspaper
improperly brought to jury’s attention)
3. Outside influence (i.e. bribe or threat…
drinking and smoking is not an outside
influence, nothing “internal to the jury” may
be included)
4. Mistake was made when entering the verdict
onto the verdict form
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3. Competency
a. FRE 601i. Every person is competent to be a witness except as
otherwise provided.
ii. NO requirement that the JUDGE makes any finding.
The jury will sort this out.
iii. If state law applies, competency should be determined
according to STATE law.
b. Common law: barred children , felons, and people with
certain religious beliefs.
c. CA 700: all persons are competent to be witness unless there
are grounds of disqualification
i. Inability of a witness to express himself (either
directly or through interpretation)
ii. Inability to understand the duty to tell the truth
iii. JUDGE decides this
4.
Disqualification of a Witness
a. the individual is incapable of expressing him/herself
concerning the matter so as to be understood either directly
or through interpretation by one who can understand him,
OR
b. Incapable of understanding the duty to tell the truth
5. Competency of a Witness Whose Recollection has been
Refreshed Through Hypnosis
a. Witness is competent per se
i. FRE takes this approach
ii. Diversity case use the state law to evaluate whether
the witness is competent
b. Witness is incompetent per se
i. CA: civil cases hold that hypnotized witnesses are
incompetent (People v Shirley)
ii. CA 795: criminal cases a person IS competent to
testify as to matters recalled and related PRIOR to
hypnosis if certain safeguards are followed.
1. Court does not HAVE TO ADMIT the
testimony in a criminal case, it MAY admit it.
But it MAY withhold it especially if unreliable
safeguards
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b. Personal knowledge
1. FRE 602- a witness may not testify to a matter unless there is
evidence “sufficient to support a finding” of personal knowledge of
the matter.
a. Must establish the foundation of personal knowledge
i. Where were you at 5:45p, what did you see?
b. Then ask about credibility
i. Were you wearing your glasses? Etc
ii. Did the witness see, feel , hear the incident?
c. Note:
i. Foundation for a lay person’s personal knowledge and
competence is necessary. Need to show the witness
had experience enabling them to form an opinion
that she had an opportunity to perceive and that she
formed an opinion base on that perception
ii. A lay person may give opinions regarding matters
within the competence of the ordinary person so long
as a proper foundation is laid
d. Expert Exception: FRE 703
i. Permits an expert witness to testify based on facts she
did not perceive with her own senses
c. Oath or Affirmation Requirement
1. Every witness must promise to testify truthfully in a form calculated
to awaken the witness’s conscience and impress upon the witness
to do. No particular form is required
2. An oath is required to later prosecute the witness for perjury; if the
witness just lies in court without an oath, there is no perjury
3. CA: every witness must promise to testify truthfully EXCEPT:
a. A child under 10 years of age or a dependent person with a
substantial cognitive impairment, in the court’s discretion,
may be required to only promise to tell the truth
III.
Objections:
A. Insuring that inadmissible evidence does not get admitted.
1. Erroneously admitted evidence:
a. Timely objection or motion to strike appears
b. Must state the grounds of the objection unless specific
ground is apparent from the context
2. Erroneously excluding evidence:
a. Must make an offer of proof
i. Must make known to the court the substance of the
evidence. Unless substance is clear from context
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3. Exception to preservation
a. Plain errors: if trial courts make an error that is so obvious
and prejudicial that a formal objection is not needed to alert
the trial court of the problem
i. CA: the error CANNOT BE ASCERTAINED FROM
CONTEXT. CA does not recognize the plain error rule.
b. Attorney is thinking in two parts:
1. How do I win the trial now?
2. If it gets appealed, how do I make the record?
a. Rule 103: Appellate review of evidentiary rulings:
i. Party must preserve the issue for appeal via
objections
ii. Persuade appellate court a mistake was made
iii. Show the error “affected a substantial right” aka
error was prejudicial . An error will not suffice for
causing a reversal.
B. Questioning
a. Cannot ask leading questions, unless you’re examining a hostile witness
where you can ask “leading-type” questions in which case you must alert the
court you’re examining a hostile witness
IV.
REAL EVIDENCE: Authentication and the Best Evidence Rule
A. Real Evidence:
a. Tangible evidence (can be touched and held)
1. Real evidence: usually refers to an item that was directly involved
in the events
2. Demonstrative Evidence: an item that merely illustrates the
testimony
B. Authentication FRE 901- All tangible evidence must meet authentication (judge
should admit the evidence as long as a reasonable juror could concluded it is what
the proponent claims)
a. VERY LOW standard of admission
b. This is a condition precedent to admissibility, not a final determination of an
item’s level of authenticity
c. Most common form of authentication: party offering the item calls a witness
with PERSONAL KNOWLEDGE to testify that the item is what the offering
party claims it to be
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d. Chain of custody:
1. Unique appearance or characteristics: authentication can be made
by one witness based on seeing it once before, uniqueness permits it
to be identified as that item
a. Chain of cusotdy MAY be required for items unique yet
susceptible to alteration in ways difficult to detect (ie. Sound
or video recordings)
2. Indistinguishable/fungible items: Chain of custody must show it
was continuously in safekeeping of one or more specific persons and
they didn’t alter it. Chain of Custody is necessary to establish item as
that which was perceived
e. Self Authentication FRE 902
1. Identifies an exhaustive list of 12 categories of items which do not
require “extrinsic evidence of authenticity”. Evidence presumed to
be what the proponent says it is
f. Best Evidence Rule (FRE 1002)
1. To prove the:
a. CONTENT of a
i. NOT necessarily to show that the original DIDN’T have
something in it
b. writing, recording or photograph
c. the original is required, except as otherwise provided
2. Original= writing or record itself or something meant to have the
same effect as an original
3. Once this rule is satisfied there is no restriction to other evidence
that may be offered in addition to the writing, recording or photo.
So you have to present “the original” (meeting the best evidence
rule) then other people can testify to what was in it. If rule isn’t
satisfied then other people cant testify to its contents either
4. Exceptions to the best evidence rule (FRE 1003):
a. Duplicates: produced by the same impression as the
original OR enlargements, electronic copying, anything
produced as a full and complete copy of the original through
methods other than by writing by hand (due to high error
rate)
b. Admissible like the original UNLESS:
1. Genuine question is raised as to its
authenticity OR
2. It would be unfair to admit the duplicate
c. All original are lost or have been destroyed
i. UNLESS proponent lost or destroyed them in bad faith
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d. Originals cant be obtained by any judicial procedure
e. Original is in possession of opponent and is not produced at
the time of hearing
f. The writing, recording or photo is not closely related to a
controlling issue
i. Permits the admission of secondary evidence where
dangers of mistake, fraud and omission are mitigated
by various factors
ii. When it doesn’t matter if it’s original or not
V.
JUDICIAL NOTICE—different kinds of facts (adjudicative, law, legislative)
A. Adjudicative facts
a. Judges can take judicial notice for adjudicative facts: facts normally left to
the jury.
b. FRE 201- a fact must “not be subject to reasonable dispute” meaning
either
1. Generally known in the court’s jrx or
a. CA: these facts must be judicially
noticed
b. Ex: a breathalyzer everyone knows
how it works BUT if it’s a NEW,
Unique breathalyzer that is NOT
admissible JN… need an expert
2. Capable accuracy and ready
determination by consulting authoritative
sources whose accuracy cannot reasonably
questioned
c. 201c – sua sponte is okay - a court may take judicial notice of a qualifying act
whether requested to do so or not.
d. 201d – Mandatory
1. if req’s met –
a. If the fact is truly undisputed and all the conditions are met
then the judge MUST take judicial notice.
i. When it’s requested by a party seeking a motion and
ii. When necessary information has been supplied.
e. Discretional
1. If it’s not raised by a party and council hasn’t specifically requested
it, it’s discretional. The judge does not have to, but CAN take judicial
notice.
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f. 201e – must give opposing party opp to be heard – whether party asks to
be heard before court takes notice, or if court does it sua sponte, other party
must have opp to be heard.
1. Opportunity to be heard:
a. A party is entitled upon timely request to an opportunity to
be heard as the propriety of taking judicial notice. In the
absence of prior motivation, the request may be made after
judicial notice has been taken.
g. 201f – judicial notice can be made at ANY time including during trial, after
trial, even on appeal
1. i.e. court of appeals can take judicial notice on an appropriate fact
h. 201g provides- Jury Instructions
1. In civil trials, the court shall instruct the jury to accept the noticed
fact as conclusively proven
2. In criminal trials, the court shall instruct the jury that they MAY
accept the noticed fact as conclusively proven, but they don’t
need to
a. This stems from a criminal D’s constitutional right to have a
jury find all the facts, not just the material ones
1. Furthermore, rule 201g does NOT distinguish
between facts essential to the crime and facts
that merely provide evidence that lead to
proof of essential facts.
i. Types of Laws Taking Judicial Notice –
1. the law is not an adjudicative fact, jury doesn’t decide the law and
therefore the rule does NOT regulate judge’s power to take judicial
notice of law.
2. Federal courts
a. Will take judicial notice of federal law; may take judicial
notice of state law; will not take judicial notice of municipal
law.
3. CALIFORNIA:
a. Courts must take judicial notice of federal law; must take
judicial notice of CA law; must take judicial notice of other
state’s laws; must take judicial notice of CA rules of
professional conduct; will not take judicial notice of
municipal law.
VI.
j. Types of Things No Judicial Notice (Facts) –
1. Legislative facts= NOT related to the action but are assumptions
about the world in which the law operates.
2. Administrative facts = assumptions and truths taken as factual that
the court uses in its foundation for legal rules; facts typically used by
legislature to decide what law should be
RELEVANCE
A. Evidence having
a. any tendency
b. to make the existence of a material fact
c. more or less probable than it would be without the evidence
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B. We make generalizations to prove relevance, the generalizations need not always be
true, the stronger the generalizations and the less generalizations necessary the
strong the probative value
a. Even ONE LINK in our chain is broken then shit’s not relevant
b. If something ISN’T convincing that DOES NOT mean it’s NOT RELEVANT (i.e.
someone apologizing the day before a suicide to prove it was suicide)
a. Relevance Inquiries:
i. What position is the evidence offered to prove?
ii. Is that proposition provable in the case?
1. Look at the law that governs the case
2. Look at what has happened in the litigation of the case
a. Ex: in some jrx if a party admits fault in a negligence case
then all you have to do is litigate the extent of their liability..
in many states that means the question of whether the D was
negligent is irrelevant and the proposition is no longer
provable so the ONLY THING you CAN litigate is the extent of
damages, so making the issue of “what is at fault” irrelevant
and not provable.
iii. Does the evidence have some tendency in reason to prove or disprove
the proposition?
1. VERY LOW BAR. If I get past 2, then ALMOST ALWAYS the answer to
3 is yes.
iv. Then evaluate probative value
1. If prejudice substantially outweighs probative value then evidence
may be excluded
a. Concerns of unfair prejudice:
i. Inferential prejudice
ii. Nullification prejudice
iii. Improper use prejudice
b. Confusion of issues
c. Misleading the jury
d. Undue delay, waste of time, etc
2. DO NOT consider credibility
b. Relevance is a “relative concept”. You always have to look at the question and look
at what the other evidence is in that case. You don’t look at pieces of evidence in
isolation
c. Relevancy makes sure there is some logical link b/t inferences/generalizations, no
matter how small – it’s a binary Q – either relevant or not. Cf probative value which
measures the strength of each inference – it’s a matter of degree
d. Balancing probative value against dangers – (FRE 403 & EC 352)
i. Rule 403 is weighed IN FAVOR of admitting evidence. Exclusion of relevant
evidence on grounds of prejudice, confusion or waste of time
ii. MUST LOOK AT ALL THE EVIDENCE TO MAKE YOUR DECISION
iii. Should be a last ditch effort to get evidence excluded. After you have
determined evidence is relevant due to questions 1-3.
a. Relevance contrast with probative value
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i. Relevance is an absolute concept; evidence is either
relevant or it is not.
1. Evidence is either relevant or not relevant,
regardless of its probative value.
ii. Probative value, on the other hand, is relative;
evidence can be highly probative or marginally
probative.
iv. Burden on opponent (objector) is VERY high.
1. Relevant evidence MAY be excluded if its probative value is
substantially outweighed by the danger of:
a. Factors considered when evaluating PROBATIVE VALUE:
i. Judges do NOT consider the credibility of the
evidence when determining probative value. Judges
assume the evidence is credible
ii. A party’s need for particular item of evidence
iii. The temporal remoteness of evi when estimating
probative value
1. E.g. a threat to kill the victim yesterday is far
most probative than a threat to kill him a year
ago
b. UNFAIR PREJUDICE
i. Inferential error prejudice
1. The jury misconceives the logical import of
the evidence, either by deciding that it is
probative of a fact of which it actually is not
or by deciding that it is more or less probative
of a fact than it actually is
1) (e.g. gruesome photos can suggest
negligence even if the defendant acted
reasonably, or they can exaggerate the
gravity of injury suffered)
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ii. Nullification prejudice
1. The evidence invites the jury to punish or
reward a party regardless of the facts
presented at trial
1) (e.g. evidence of Defendant’s prior
criminal convictions).
iii. Improper use prejudice
1. The evidence is logically relevant for more
than one purpose, but is only admissible for a
limited purpose
1) (e.g. character evidence offered to
prove identity).
c. Confusion of the issues
d. Misleading the jury
e. Or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence
v. Weight or probative value is a matter of degree
a. Weight: the strength of its relationship between the
evidence offered and the proposition sought to be proven
b. You ALWAYS look at the context of whatever evidence is
on the record
VII.
VIII.
UNDISPUTED FACTS
A. CA 210: Once facts are admitted, they are no longer disputed and they become
irrelevant
B. FRE 401: Does NOT require a matter to be in dispute for it to be classified as
relevant. MAY BE excluded on FRE 403 grounds of unfair prej or waste of time
C. NOTE: Evidentiary Richness- a party’s concession of an ultimate fact does NOT
affect the other party’s ability to present evi to prove a case the way they want.
a. EXCEPTION: when status is at issue, then prosecutor must accept a
stipulation to that fact and cannot present evi
1. Old Chief: Prosecution of charged crime wanted to show Old Chief
was a felon. Old Chief stipulated to this charge. Prosecution wanted
to present evi of his prior felony and describe it, but such a
description would not add anything besides prej
PROBABILISTIC EVIDENCE
A. Important Factors:
a. There must be a basis in the record for the numbers used to calculate the
probability
b. The methodology used must be accurate. The factors must be independent
c. Factors must be accurate and scientifically valid and accepted by the experts
of the community
1. i.e. breatherlizers, blood tests, etc
d. [if the above qualities exist, then no objection is necessary. It’s only
prejudicial if the jury must abandon an underlying undisputed fact]
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B. Probabilistic evidence: not admissible if the validity of methods used to derive
those probabilities is not demonstrated
C. Product rule:
a. Independent events- multiply each independent probability to see
probability of events occurring at the same time
1. This rule depends on events being independent. If the second event
is dependent on the outcome of the first event then the rule does not
apply.
IX.
PRELIMINARY QUESTIONS OF FACT
A. A factual question that must be answered as a preliminary step in determining the
admissibility of certain evidence.
B. Preponderance of evidence standard:
a. Proponent has to meet the burden for the judge to admit the evidence
b. Same standard applies for criminal law cases for preliminary questions of
fact
C. 104 (a)- Default Rule:
a. Judge must determine if the preliminary fact exists in order to admit the evi
1. This determination involves:
a. Preponderance of evidence: “more likely than not” standard
b. Applying POLICY of the LAW or EVIDENCE PRINCIPLE
i. We don’t believe the jury will ignore the evi if it’s
presented to them.
2. CA 400: judge is solely bound by the rules of evidence in making this
decision
D. 104 (b) – Conditional Relevancy:
a. The judge must admit the evidence upon:
1. Introduction of evidence sufficient to support a finding of
2. the fulfillment of the condition
3. [aka if a rational jury could conclude it’s true]
b. The idea here is that if a certain fact is NOT true, the jury would be able to
disregard it despite hearing it because they conclude what’s true and what’s
not true.
E. 104 ( c)
a. Hearings on the admissibility of confessions shall in all cases be conducted
out of the hearing of the jury. Hearings on other preliminary matters shall be
so conducted when the interest of justice require, or when an accused is a
witness and so requests.
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X.
HEARSAY
A. We must ensure that the evidence the jury hears is reliable.
B. Defined: out of court statement offered to prove the truth of the matter asserted
C. STEP 1: RELEVANCE ANALYSIS:
a. If something is IRRELEVANT, that is the objection that is raised
D. STEP 2: What is the out of court statement? FRE 801: Hearsay is…
a. A statement
1. Oral or written assertion OR
a. Documents intended to communicate something may be
considered hearsay
i. Hand written receipt or typed into a computer IS
hearsay
ii. Speed radar gun is NOT hearsay.
2. Non-verbal conduct intended to be an assertion
a. Assertion: CONSCIOUS intent to convey something.
i. NON-assertive conduct:
1. Acting in a manner consistent with his/her
interests or beliefs and no intent to
communicate. NOT hearsay.
a. Orders
b. Involuntary reactions
i. “ouch”
c. Opening an umbrella when it’s raining
d. Surfer’s going to the beach
b. Made by the declarant
1. Declarant= person making the statement
2. Animals are NOT declarants
3. Mechanical devices are NOT declarants
4. Witness and the declarant could potentially be the same person, but
the witness is on the stand
c. Other than while testifying at the trial or hearing
1. NOT made under oath
2. Any out of court statement even made by the witness presently
testifying
3. Statements made in depositions
4. Statements made in unrelated OR related previous trials
5. Statements of a party, witness or spectator in the courtroom which
the case is being heard if made while that person is not on the stand
6. Anytime other than the current trial
E. STEP 3: What is asserted by the statement?:
F. STEP 4: is the statement: Offered to prove the truth of the matter asserted
a. Always look at the matter asserted from the out of court statement
a. STEP 1: determine the PURPOSE for which the evi is offered
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b. STEP 2: first inference rule
i. The statement must be TRUE in order for the evidence
to be relevant to the proponent’s case
b. Hearsay is not admissible except as provided by THESE RULES
1. CEC 1200: Except as provided by law, hearsay evidence is
inadmissible. CA judges can make common law exceptions to the
hearsay rule
2. FRE 802: Hearsay is not admissible unless there is an exception or
exemption
XI.
NOT HEARSAY
A. In-court: under oath and subject to cross examination
B. Non-assertive: not intended to have meaning and deliver that meaning by
words/conduct
a. ORDERS OF ANY KIND FALL UNDER NON-ASSERTIVE CONDUCT
C. Not offered for truth: we are not concern with truth of declarant’s statement, but
only whether he said it. In this case, the credibility of the W, not declarant, is at issue
a. Scientific machines and animals
b. Verbal acts or statements of independent legal significance:
1. Examples:
a. Torts of defamation , libel, slander
b. Words of donative intent in connection with the transfer of
property
i. Act of making a gift
ii. “here is my bat, you can have it”.
iii. If this doesn’t happen in conjunction with one another
THEN it’s hearsay
2. Words of legal impact
a. Offer to make a K and acceptance to a K
3. Assertion satisfying a contractual obligation to pay someone
4. Criminal act of perjury
5. Officer reading suspect Miranda rights
6. Shareholder votes at Co. board meeting “aye”
7. Initial agreements of a conspiracy
8. Wedding vows before someone licensed to perform a wedding
9. Note: statements ABOUT the verbal act can be hearsay
c. Situations in which the value of the evidence derives from the fact that
the words were spoken, NOT from the truth of the matter asserted
1. E.g. after a car accident, V says, “I’m alive” Not offered to prove he is
alive, but rather the fact that he said something, which indicates he is
alive
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d. Situations which words are offered to show their EFFECT on the
LISTENER, NOT to prove the truth of the matter asserted
1. Reasonable fear
a. E.g. D claims self defense, his reasonable fear of the victim is
an impt issue and victim’s statements can make the fear
reasonable
2. Notice of a fact, condition or event
a. E.g. if a mechanic tells driver that his brakes are faulty, this
shows that the drive had knowledge that the brakes were
bad. Other evi must be introduced to show the brakes were
actually defective
3. Good/bad faith
a. E.g. D newspaper writer publishes a scandalous article about
Z after a source tells writer Z had an affair
4. Explain listener’s behavior
a. E.g. policeman searches D after an informant tells policeman
that D is carrying drugs
e. Situations which the words or conduct constitute circumstantial evi of
declarant’s state of mind
1. These situations are only implicated when the statement is
circumstantial, not direct, evi of the declarant’s state of mind.
2. Direct state of mind: HEARSAY
3. Indirect state of mind: NOT hearsay
i. Declarant’s feelings toward another person
1. E.g. “Joe is a dirt bag”
ii. Declarant’s beliefs
1. E.g. “Z poisoned me” suggests that declarant
didn’t commit suicide
iii. Declarant’s knowledge of something unique
1. If declarant’s statement about something that
the declarant is unlikely to have indpt
knowledge of, and the declarant’s statements
are sufficiently detailed, they tend to show
knowledge of the fact described.
a. E.g. kidnapping victim’s description of
her attacker’s van is relevant to show
that she has knowledge of the interior
of a van that matches the interior of
defendant’s van. Other evidence must
be introduced, however, to actually
prove the appearance of the interior of
defendant’s van.
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D. Limited Admissibility
a. Anytime evi is relevant for 2 purposes but admissible for only one [hearsay
and not hearsay], there is a FRE 403 problem, which may make evi
inadmissible if the jury’s accepting the truth of the matter asserted would
prejudice a party
1. Sheppard v US: dying wife stating “my husband poisoned me.” That
statement is admissible as non-hearsay evi proving she was not
suicidal. It was not admissible as hearsay evi proving her husband
poisoned her. Admitting the evi caused unfair prej to D because the
distinction between the victim’s state of mind and her death-bed
accusation of D was too narrow for jury to discern. Contrast with the
wife’s statement “don’t give up; there’s always hope”
XII.
HEARSAY
A. REVIEW:
a. Relevance analysis: evaluate why the person is offering the evi and why
it’s relevant?
1. If it’s irrelevant, then it’s not important and not admissible and that
is the objection raised
b. If it’s an out of court statement, one must evaluate whether it’s being
offered to prove the truth of the matter asserted? [if we’re at this point,
it’s RELEVANT]
1. IF YES, then it’s hearsay. Then we ask…
c. Is there an exception or exemption that makes the hearsay admissible?
B. NOTE: if something fits under an EXEMPTION, then it’s NOT HEARSAY. If you’re on
the hearsay/non-hearsay part then it’s hearsay because it’s an out of court
statement being offered to prove the truth of the matter asserted
XIII. EXEMPTIONS (FRE), EXCEPTIONS (CEC)
A. Admissions : ANY STATEMENT (including a plea of guilty) , Made by a
party, Offered into evi , By that party’s opponent
a. PK does NOT apply
1. E.g. “I crossed the centerline after I fell asleep”, although technically
NO PK, there is NO PK objection for admissions
b. Party-opponent: statement offered against a party and is that party’s own
statement
1. Criminal Cases: D cannot submit evi of the PO saying anything, but
other way is admissible
c. Adoptive Admission: statement offered against a party who manifested
adoption/belief in its truth (does not apply to ambiguous responses, e.g. I’ll
take my chances) and includes admissions by use or silence (if hear,
understood and reasonable person would say something/disagree)
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1. USE: Mere possession of a document is not an adoption by its
contents, but actual use of the document (e.g. circulating
newspaper reprints) frequently amounts to an adoptive admission
2. SILENCE: look at context
d. Authorized Admissions: declarant who was authorized by party-opponent
1. Expressed or implied authorization
2. CEC: NEED sufficient proof of authorization
e. Agency/Vicarious Admissions: by an agent, speaking within the scope
and during the course of relationship, regardless of agent’s personal
liability (does not apply to former employees)
1. DOES NOT apply to statements made by govt agents against the govt.
PO are not “agents” of the state
2. CEC: The rule is implicated only when the negligent conduct of that
declarant-employee is the basis for the employer’s liability in the
case under respondeat superior—the employer is responsible for
employee’s words only if also responsible for employee’s conduct
i. In CA, there needs to be some proof on behalf of
employer that there is authorization in order to admit
the statement of an agent or employer
3. Determination of whether or not an agency existed
a. Federally 104 (a) is applied
b. CA: It is a 104 (b) question—the jury will allow the jury to
decide
f. Co-conspirator Admissions: by declarant who was part of a conspiracy
and statement made during and in furtherance of the conspiracy
1. NOTE: a D who joins an already existing conspiracy is deemed to
have adopted all prior co-conspirator statements
2. Statements that don’t apply are :
a. once conspiracy is over OR
b. parties have been arrested not admissible
c. OR do not move the conspiracy forward
d. Idle chatter not admissible
3. NOTE: Conspiracy didn’t have to be evoked for this rule to apply
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B. Prior Identification (FRE Exemption, CA exception)
a. FRE 801 (d)(1)(c) (EXEMPTION)
1. Declarant must testify at trial or hearing AND
i. Note: even if the declarant doesn’t remember the facts
of the ID or who she identified it’s ok
2. Subject to cross examination concerning the prior statement
3. Previously identified the person after perceiving him
4. Testify:
a. Recalling making the statement AND
b. After perceiving the person
5. Someone else can testify about the identification procedure. Must
have PK
a. If there is an issue with the means in which the identification
took place, then it’s a CONSTITUTIONAL objection
b. CEC 1238 (EXCEPTION)
1. Declarant must testify at trial or hearing AND
2. Previously identified the person after perceiving him
3. Testify:
a. That W made the ID
b. It was a true reflection of her opinion at the time ID was
ade
c. Statement made when ID was fresh in declarant’s mind
4. FRE 106- EXCEPTION: only for writing. “Completeness doctrine”
a. When a writing or recorded statement or part thereof is
introduced by a party, an adverse party may require the
introduction at that time of any other part or any other
writing or recorded statement which ought in fairness to be
considered contemporaneously with it.
b. CA: has a FULL Completeness Doctrine
C. Prior Inconsistent Statement (FRE exemption)—NOT hearsay objection, used
to Impeach
a. CL: Not admissible
b. FRE: PIS admissible if declarant is a W on the stand, subject to x-exam, the
prior statement is inconsistent with current testimony, given under oath
(hearing or dep)
1. Offered to rebut an express or implied charge against the declarant
of recent fabrication or improper influence or motive Or
2. Show inconsistency
c. CEC: PIS admissible if:
1. D has chance to explain/deny inconsistent statement on the stand;
or
2. D has not been excused as a W
17
d. Burden of proof
1. FED: SOME PROOF of the elements other than the statement itself
is necessary to establish the existence of the conspiracy and the
participation therein of the declarant and the party against
whom the statement is offered. (boot strapping)
a. Preliminary facts should be decided by the court pursuant to
104 (a)
2. CA: 1223 [EXCEPTION]
a. proponent need only introduce evi sufficient to support a
finding that the above foundational facts exist
b. CANNOT USE THE STATEMENT AT ALL TO PROVE that
someone was part of the conspiracy
XIV.
PROCEDURAL ISSUES
A. FED:
a. The contents of the statement must be considered but are not alone
sufficient to meet the foundational requirements
B. CA:
a. For authorized admissions and co-conspirator, the proponent needs only
make a prima facie showing that the preliminary facts exist
b. The court may NOT consider the statements themselves when determining
whether the preliminary facts exist (no bootstrapping)
XV.
EXCEPTIONS-
Statements that are considered hearsay but are admitted under an
exception
A. Present Sense Impressions
a. FRE: declarant describes or explains a condition/event, while or
immediately after perceiving it
1. If sufficient time (more than 10 seconds) has passed giving the
person time to reflect on the event , then the statement is
inadmissible
2. So if there is past tense wording, that is an indicator of it not being a
present sense impression
3. The witness (listener) doesn’t need to have been observing the
actual incident [i.e. telephone call]
4. Declarant could have made the statement to herself
18
b. CEC: Contemporaneous Statements- NO PRESENT SENSE IMPRESSION
EXCEPTION : declarant describes what he is doing, while or immediately
after he is doing it (I am now cutting the red wire)
B. Excited Utterance (FRE/CEC)
a. Statement describes a startling event, made soon after the event (not
counting time unconscious)
b. Statement made while under stress of excitement, caused by startling
event (self-serving ok)
a. Notes:
i. if sufficient time has passed and there is time for
reflection, the individual is not longer under the stress
of excitement
ii. If declarant is responding to a question, then it’s like a
reflection and doesn’t qualify.
C. Then existing SOM or physical condition
a. Indirect statement: NOT hearsay
b. Direct statement: hearsay, but exception
1. Statements must relate to the declarant’s THEN-existing state of
mind, emotional or physical condition
2. CANNOT be offered to prove a fact that has happened in the past
a. DOES NOT include a statement of memory or belief to prove
the fact remembered or believed
3. UNLESS it relates to the execution, revocation, identification or
terms of declarant’s will
4. To prove future conduct
a. Hillmon doctrine: statements of present state of mind are
admissible to prove that the declarant subsequently acted in
accordance with that state of mind to do in the future
i. Intention to do something in the future AND
ii. Acted on it
b. Courts are split as to whether someone’s state of mind (i.e.
intentions to do something in the future) can be given to
show what somebody else did too
i. CA: Future conduct of another person + declarant
ii. FED: Future conduct of just the declarant
5. CEC PAST SOM :
a. Declarant must be unavailable
b. D’s SOM is at issue in the case and the evi is not offered to
prove any fact other than such state of mind
19
c. Statement made in circumstances indicating trustworthiness
D. Physical Condition- Medical Treatment/Diagnosis
a. FRE: statement [to anyone] for purposes of medical diagnosis or
treatment or med history , which are reasonably pertinent to diagnosis or
treatment (not limited to treating physician)
1. Declarant MUST KNOW the statement is being made for purpose of
treatment
2. If a diagnosis or treating physician would consider the facts relevant
for treatment then the statement is covered whether it’s a
description or a condition
3. NOT limited to statements made to medical professionals
a. BUT, this doesn’t work if it’s the medical professional making
the statement about the condition, treatment or diag,
UNLESS they’re repeating what the patient feels
4. NOT limited to statements concerning one’s/declarant’s own
medical condition
a. i.e. if Mother tells the dr “my son has a fever” that works
5. THIS EXCEPTION DOESN’T apply to the cause of the accident
6. Must be CURRENT condition, NOT past “has been” “was”
7. FRE: PROGNOSIS IS PERMISSIBLE
8. CEC: PROGNOSIS is NOT PERMISSIBLE
E. Past-Recollection Recorded – 803(5)
a. FRE:
1. The witness must once have had knowledge about a matter
2. But now has insufficient recollection to enable the witness to
testify fully and accurately,
3. The memorandum or record of the witness’s knowledge must have
been made or adopted by the witness when the matter was
fresh in the witnesses memory
4. Must have been recorded at or near the time the event took place
a. Adopted: if the witness didn’t actually make the
memorandum or record, she read it when the matter was
fresh in her mind and concluded it was correct
5. when the matter was fresh in the witness’ memory and to reflect
that knowledge correctly
6. CA and FED: If admitted, the memorandum or record may be read
into evidence but may NOT itself be received as an exhibit unless
offered by an adverse party
b. CEC 123:
1. Declarant must have PK
20
2. Writing made at or near the time of the event—must be fresh in
declarant’s memory
3. Writing made by the declarant, at his/her direction, OR by someone
else for purpose of recording
4. Declarant must testify the statement when it was recorded was
true
a. i.e. “I don’t really remember what happened but I do recall
talking to the PO and what I told the PO at the time was
accurate”
F. Present Recollection Refreshed (FRE 612)
a. FRE: if W uses writing to refresh memory while or before testifying, the
adverse party is entitled to having the writing produced, inspect it,
cross examine the W, introduce portion which relate to testimony of W
(excise portions not related)
1. If it claims that the writing contains matters NOT related to the
subject matter of the testimony , the court shall examine the
writing in camera, excise any portions NOT related and order
delivery of the remainder to the party entitled thereto
2. Any portion withheld over objections shall be preserved and made
available to the appellate court in the event of an appeal
3. If a writing is NOT produced or delivered pursuant to order under
this rule, the court shall make any order justice requires like
striking the testimony , or declaring a mistrial
a. Exception except in crim cases when prosecution elects to
not comply
4. NOTE: for the void dior (refreshing takes place), the opponent
should request to have the jury excused.
a. If the W’s memory is found to be shaky, the objection raised
would be on the grounds of LACK OF PK or inadequate
memory
b. CEC 772
1. Adverse party may request production of the “writing” used to
refresh recollection
2. If the “writing” is not produced, testimony of the witness “shall be
stricken”
a. Writing defined broadly, CEC 250: any form of
communication or representation
G. Business and Public Records Exception- 803 (6)
a. FRE: Witness on the stand is custodian or qualified person or by self
authentication
21
1. Entry of event, conditions, opinions or diags made during regular
course of business, before facts giving rise to litigation
a. Personal records don’t count
2. Statement is recorded in writing
3. Made at or near the time of the event or diag, by someone with a
duty to observe/report and knew the facts or transmitted from
someone who knew the facts [all must have PK]
4. Source of info/method of prep are trustworthy
a. FRE: opponent has this burden
b. CEC:
1. Burden is on the proponent to show the sources of prep indicating
trustworthiness
2. W must be custodian of records
3. CA: “acts, conditions or events” but usually judges are ready to admit
hospital records including opinions and diagnoses that are
straightforward, unlikely to admit difficult or debatable opinions
H. Absence of entry in Records- 803(7)
a. Evi that a matter is NOT included in the memoranda, reports, records or data
compilations
b. Keep in accordance to the business records exception
c. To prove the non-occurrence/non-existence of that matter
d. Not hearsay (but on MY admissible under this exception)
1. BUT if testimony based on a document showing absence=
hearsay
I.
Official/Public Records- 803 (8)
a. **This does not require regularity of activity or record making
b. Records, reports, statements or data compilations, in any form of
public offices or agencies, setting forth
1. (A) the activities of the office or agency [internal workings: payroll,
personnel files, purchase receipts] OR
2. (B) matters observed pursuant to duty imposed by law as to which
matters there was a duty to report,
a. This includes weather records, maps, a court reporter’s
transcript.
b. As opposed to RULE C: this applies to observed data w/o
analysis leading to factual findings
c. Oats exception: This rule excludes in criminal cases
observed by PO and other law enforcement personnel upon
submission of the prosecution. But the D could bring it in
i. Completeness doctrine: If part of the doc is
introduced by the D, and it could potentially mislead
22
the trier of facts, the opposing party could try to
include more info to not mislead the trier of fact
3. (C ) in Civil actions and proceedings and against the govt in
criminal cases, factual findings resulting from an investigation
made pursuant to authority granted by law, unless the sources of
info or other circumstances indicate lack of trustworthiness.
a. This includes reports of an evaluative nature that produce
factual findings after an investigation, such as an
administrative finding about employment discrimination or
the safety of a plane that crash
b. Reports containing opinions, as long as those opinions are
based on investigations and factual findings
c. Report may be admitted under this subdivision, even when the
factual findings in that record are based on statements from
persons not in public office.
i. Ex: Report of the Federal Aviation Administration that
reaches a finding concerning the cause of an airplane
crash cold be admitted under 803(8)(C ) even if the
finding was based on interviews by eyewitnesses to
the crash. The eyewitness statements , however,
wouldn’t be admissible unless within another
hearsay exception
4. Trustworthiness Evaluation:
a. Timeliness of the investigation
b. The skill or experience of the investigator
c. The extent of the investigation AND
d. Bias or prejudice of the investigator
23
Unavailability REQUIRED (3) - 804 (a)
FRE- Declarant is unavailable when
(PRLDA):
5. Exempted from testifying on
grounds of privilege
6. Persists in refusing to testify
7. Testifies to a lack of memory
of the subject matter
8. Death or unable to testify due
to then existing physical
mental illness or infirmity
9. Absent from the hearing, and
the proponent has been
unable to procure him by
process or other reasonable
means
Must show every possible, reasonable method was
used to secure his presence before deeming someone
unavailable. The W is NOT unavailable if the
proponent is responsible for the declarant’s absence
J.
CA –240 [PCD A]
Declarant is unavailable when:
 Privilege
 Competency Death or physical or mental illness, infirmity
 Absent
 NOTE: some states can compel the presence of a
person of another person for criminal prosecution
EXCEPTION 1: Former Testimony Exception – 804 (b)(1) [unavailability
required]
a. Declarant is unavailable, and party with similar interests/motive as party
against whom testimony is now offered had opportunity to cross-examine
testimony while declarant was under oath—sufficient similarity of
parties/issues so opportunity to develop cross was meaningful Testimony of
a now-unavailable witness, given at same or different hearing or depo
taken in compliance with law in the course of the same or another
proceeding
a. Offered by the prosecutor or D, grand jury testimony isn’t
admissible
b. Criminal: offered against same party as former hearing
c. Civil:
1. FRE: same or predecessor in interest (actual relationship between
the parties.. competitor does not fall under this rule)
2. CA: same/similar interest
K. EXCEPTION 2: Dying Declaration [unavailability required]— admissible if the
declarant is unavailable and the statement was made under a sense of impending
death (need proof) , pertaining to the cause and circumstances of death
24
a. FRE 804 (b)(2)
1. Allows for miraculous recovery for civil cases
2. Involving a civil action or criminal homicide action (declarant
must die)
a. ATTEMPTED murder is not the same as homicide
b. CEC
1. Requires the declarant actually died
2. Dying declaration valid in ALL civil and criminal cases
L. EXCEPTION 3: Declaration Against Interest [unavailability required]
a. Declarant is unavailable, and a reasonable person in declarant’s position
would not have made the statement unless he believed it to be true (he is
aware statement is against his interest
1. must be genuinely against your interest, so admitting to committing a
crime to your crime “father” is NOT against your interest
2. must evaluate if there would be any reason why someone would make
the statement and reasons to suspect it wouldn’t be true
b. FRE: Contrary to the declarant’s pecuniary (financial) or proprietary
(property) interest or subject the declarant to civil or criminal (penal)
liability that
1. If it exposes declarant to criminal liability offered to exculpate D,
there must have been corroborating circumstances that clearly
indicate trustworthiness
2. Wiiliamson: really have to parse all words spoken and only those
words that are against the interest of the declarant may come in.
a. Ex: “we drove the blue car to the bank”, the fact that the car is
was “blue” is not against the interest doesn’t need to come in
c. Common Law limited to Pecuniary, Proprietary and civil (no criminal)
d. CEC: pecuniary, proprietary, civil, criminal, objects of hatred, ridicule,
social disgrace and render invalid a claim by declarant against another
1. No requirement that the statement be trustworthy
XVI.
Forfeiture by Wrongdoing
a. In criminal and in civil cases, any statement offered against a party that has
directly engaged or acquiesced in wrongdoing that was intended to and did
procure the unavailability of the declarant is admissible OR
b. Wrongful procurement was in furtherance, within the scope and
reasonably foreseeable as necessary or natural consequence of an
ongoing conspiracy
c. Not a typical hearsay rule, just someone, by virtue of their acts, loses the
protection of the hearsay rule
d. Preponderance of evi standard
e. [loss in Confrontation Clause rights as well]
25
a. CA: 1350
i. This exception only applies in serious felony cases
ii. Statements must have been recorded on tape or in
writing by law enforcement
iii. Exception only applies if the declarant was killed or
kidnapped
iv. Judge need clear and convincing evi that that the
declarant’s unavailability was knowingly caused by D
XVII.
Residual Exception—FRE ONLY, NOT IN CA
A. Statement not specifically covered by other hearsay exceptions is admissible if there
is OTHER EVI available that’s probative then cannot use residual
a. Offered to prove a material fact
b. Made under circumstances of trustworthiness(reliable)
c. More probative than any other available evidence on that issue (necessary)
d. General purpose of these rules and the interest of justice will best be served
by admission of the statement into evi
1. Must compare this evi’s reliability with the typical reliability of evi
covered by the specific exceptions
e. Proponent gives opponent sufficiently advance notice to challenge
(fairness)
f. “near miss” likely admissible
XVIII. Confrontation Clause
A. Confrontation clause ONLY applies to criminal defendant’s statements
B. To testimonial out-of-court statements
C. Testimonial hearsay statements must be excluded unless:
a. 1.) declarant is available at the trial for cross-examination OR
b. 2.) declarant is unavailable AND D against whom the statement is sought to
be introduced had an prior opportunity to cross-examine the declarant
D. Testimonial statements are for the purpose of gathering info for prosecution:
a. Preliminary hearing testimony
b. Grand jury testimony
c. Former trial testimony
d. Statements made in PO interrogations
e. Statement made to PO under NO emergency
26
Character Evidence
A. Character Evidence: evidence that shows a person’s tendency to act in a certain way, that
makes a general statement about that person and conveys a moral or ethical judgment
B. Character Evidence generally not admissible for the purpose of proving action in
conformity therewith on a particular occasion except…
a. If it IS character evi
i. Make sure the offering party complied with any procedural rules regarding
admission (time, etc)
b. If it IS NOT character evi
i. Other crimes, wrongs or acts?
ii. Habit?
iii. Similar event?
C. When Character is an issue in the case (negligent entrustment, defamation, child custody,
deceit, assault/battery when D says he acted in self defense, then P’s character for violence
comes into issue)
a. ** may be used only during cross-X when D has made character an issue
b. FRE/CEC: character of opinion, reputation, and specific acts is admissible.
i. Opinion: knowing the person’s character well enough to assert an opinion
about it (questions like “did you know?”, “have you heard?” are permissible for
x-examination)
ii. Reputation: form of hearsay but considered to fall within an exception. The
W must have been in the community long enough to have sufficient
exposure to thoughts of the community members
c. Common law: character evi of specific acts is admissible.
D. FRE 413- Evidence of Similar Crimes in Sexual assault cases
a. In a criminal in which the D is accused of an offense of sexual assault, evidence of the
D’s commission of another offense or offenses of sexual assault is admissible, any
may be considered for its bearing on any matter to which it is relevant
b. The attorney for the govt shall disclose the evi to the D (statement of W or summary
of the substance of any testimony) at least 15 days before the scheduled date of trial
or at a later time if the court allows for good cause
E. FRE 414- Evidence of Similar Crimes in Child Molestation cases [same rules as above]
F. FRE 415- CIVIL
a. If Child molestation or sexual assault, may admit child molestation or sexual assault
27
G. Sexual History
a. CL: woman’s character could be arranged as D’s defense to show consent
b. FRE: Alleged V’s past sexual behavior OR alleged sexual predispositions
i. Inadmissible to prove:
1. Alleged V engaged in other sexual behavior
2. Alleged V’s sexual predisposition
ii. Admissible to prove:
1. Criminal:
a. V’s sexual conduct to prove source of physical evidence is
someone other than D (no opinion nor rep) was the source
b. V’s prior sexual conduct with D offered by accused to prove
consent on that occasion
c. Evi of which the exclusion would violate the constitutional
rights of the D
2. Civil
a. Probative value substantially outweighs danger of harm to
any V and unfair prej to any party
b. If V’s reputation admissible only if it has been placed in
controversy by the alleged V
c. BALANCING TEST:
i. UNLIKE 403 probative-prejudice balancing test
giving the court discretion to exclude evi if there is
unfair prej substantially outweighing probative value,
there is a reversal in that the balance places a heavy
burden on the proponent to demonstrate the court
should admit the evi
iii. Procedure:
1. File written motion at least 14 days pre-trail describing the evi and
purpose unless requires a different time (for good cause)
2. Serve motion on all parties and notify the victim and guardian
c. CEC 1103:<check this
i. V’s prior sexual behavior generally inadmissible expect:
1. In criminal and civil cases
a. Opinion, reputation, or specific conduct of the V’s sexual
history with the D admissible to prove consent on the
occasion in question
28
H. In Civil Cases: propensity character evi is never admissible to prove a person acted in
conformity with that character trait (not in any jrx) except for:
a. sexual assault/child molestation OR
b. where character is at issue
I.
In Criminal Case
a. Defendant or Victim’s Propensity Character in PROSECUTION’S Case-In-Chief
i. FRE: such evidence is not admissible, except for evidence of prior sex
crimes (including child molestation) in a prosecution of a similar offense. It
utilized, attorney must disclose evidence to the D including statements at
least 15 days before trial
ii. CEC: such evidence is not admissible, except for evidence of prior sex or
domestic violence crimes in a prosecution of a similar offense. If utilized,
attorney must disclose evidence to the D including statements at least 15
days before trial
iii. Common Law: never admissible
b. Defendant’s or Victim’s Propensity Offered by DEFENDANT (and then
Prosecution’s Rebuttal)
a. DIRECT: opinion and rep
b. CROSS: rep, opinion and specific instances
c. 404 DOORS:
i. D opens door offering evi of his own character
1. Prosecution can now rebut with its own
evidence of D’s character
ii. D unlocks second door by offering evi of V’s character
1. Prosecution can walk through that door and
present rebuttal evi about V’s character OR
2. Present evi that D has the same character
trait
ii. FRE:
1. D can admit reputation and opinion character evidence of himself
a. Prosecution can cross examine the D’s character witness and
present specific instances, rep or opinion
b. Prosecution can offer its own character witnesses to
contradict the testimony D offered
2. D admit reputation and opinion character evi of victim to prove
innocence of D
a. Prosecution can cross examine D’s witness with specific
instances, rep or opinion
b. Prosecution can present its own W to show the V was good
with opinion and rep (i.e. peaceful rather than violent
29
i. D can obviously cross examine this using
reputation, opinion, specific instances
c. Prosecution can offer evidence of the same trait of the D’s
character
3. In a homicide case where D claim self-defense
a. Prosecution may use reputation and opinion evidence of V’s
peacefulness to rebut that victim was the aggressor
b. Prosecution may offer evidence concern the D’s character for
violence
4. If D makes character an issue
a. Prosecution in cross examination, could bring specific act evi
iii. CEC:
1. D can admit reputation and opinion evidence of his own character
2. D can admit reputation, opinion and specific acts of V’s character
a. If D attacks V’s character as violent (not addressing his own
character),
i. Prosecution may rebut with specific acts of both
victim’s peaceful and
ii. Prosecution may rebut with D’s violent character,
even though D did not open the door to his own
character
iii. Prosecution in cross-examining D’s character W,
prosecution can use specific acts for the limited
purpose of attacking witness’ credibility as to D’s
peaceful character
iv. Common Law:
1. D can admit reputation evidence of his peaceful or victim’s violent
character
2. In cross-examining D’s character W, prosecution can use specific acts
for the limited purpose of attacking W’s credibility as to D’s peaceful
character
J.
Other Acts Evidence--To Prove Plan, Intent, Motive, or Modus Operandi [applies to
CRIM and CIV]
a. Protections Used For Other Acts Evidence:
i. Must pertain to an ISSUE in the car
ii. If an objection is raised, the judge must always weigh the probative value of
the evidence used for the non character purpose against the danger of unfair
prejudice
1. If the “other acts” evidence doesn’t involve something involving
MORAL judgment, the balancing test is NOT that big of a concern
iii. If D requests limiting instruction, must be given
30
b. If evi of other crimes of specific acts is relevant for some other purpose than
character evi, then it’s admissible to prove MIIMACS O
i. Motive
ii. Intent
iii. Identify (Modus operandi)
1. Similarity b/w “other act” and charged crime is SO striking to be
“behavioral fingerprint” of perpetrator
iv. Mistake
v. Absence of mistake
vi. Common Plan
vii. Scheme
1. Connection other acts evi to charged crime
viii. Opportunity
c. When offering specific acts to prove MO, propounding party must prove with
evidence that D actually committed the prior act (prior conviction is insufficient)
d. CA and FRE say acquittal DOES NOT preclude intro of other acts in a separate
criminal prosecution
e. Timing of uncharged misconduct can happen BEFORE or AFTER charged conduct
f. Quantum of proof:
i. FRE- 104 (b)—judge must conclude that there is enough evi that the
jury could reasonable find. [sufficient to support a finding]
ii. CEC- 104 (a)—judge has to make the decision for other acts evi
(preponderance)
g. IF YOU SEE THE DOCTRINE OF CHANCES AS AN ANSWER CHOICE ON THE EXAM,
it’s WRONG
h. Procedure for Determining Admissibility
i. Huddleston
1. Evi must be offered for proper purpose
2. Evi must be relevant to prove 404 (b) fact in question
3. Probative value of the evi must not be substantially outweighed by
the danger of unfair prej or other concerns under 403
4. Court must issue a limiting instruction if a party requests it to do so,
and may issue an instruction even in the absence of a requests
K. Habit [FRE/CEC]: propensity of a person repeatedly to act in a certain manner in a
specific situation
a. Character evidence of specific acts is admissible in all cases, in all jurisdictions [by
the D and P] to show the individual or organization acted in conformity with such
habit/routine.
b. NEED to show virtually invariable conduct (repeated, specific response to
specific stimulus)
i. A person’s propensity to repeatedly respond in a certain manner to certain
stimuli and does not convey an ethical or moral judgment
31
ii. An organization
1. Regular business reactions. Even though they involve thought, they
are admissible
a. i.e. regularly checking railroad breaks at 4 pm
iii. Specificity
1. Related to specific responses to certain circumstances
iv. Repetition
1. The more a person acts a certain way, the more probative the evi
v. Duration
1. The longer the person has acted in a certain way, the more probative
vi. Semi-automatic
1. Act is done without conscious thoughts
2. DOES NOT need to be automatic. Some behavior involves conscious
thought
a. i.e. someone might habitually check all the gas burners on the
stove before going to bed every night
c. Quantum of Proof
i. W must have sufficient familiarity (i.e. less than 6 times is NOT enough)
ii. Could get a cohort of witnesses who would cumulatively speak to the habit
evi
L. Similar Events
a. Judge must be able to conclude that the event discussed is sufficiently similar to the
circumstances in P’s case. Must know a lot about the previous incidents.
i. Must look at conditions, people, circumstances, chain of events
ii. Prior Occurrences: evidence of prior similar happenings is admissible if the
prior events took place under substantially similar material
circumstances
iii. Prior Non-Occurrences: evidence of a prior non-occurrence is admissible
if:
1. There are substantially similar material circumstances, such that
conditions are static;
2. Party would have known had there been an occurrence, such that
there is a process to record complaints, there were past registered
complaints, etc and
3. Significant number of non-occurrences (e.g. 500 rides and no
injuries)
iv. Helpful evaluation:
1. Does the evi have relevance to prove the existence of a defect?
2. Does it tend to show that the owner/city was on notice of the
existence of the defect?
a. Could introduce evi before or after the disputed occurrence
32
Evidence Excluded for Reasons of Public Policy
A. Subsequent Remedial Measures
a. Subsequent conduct refers to conduct had it been undertaken before the accident,
it would have been less likely to occur (i.e. safety devices, rules, discharge
employees, etc… but NOT post-accident reviews or studies)
b. CL: never admissible
c. FRE: not admissible to show negligence, culpable conduct, product liability, need
for warning
i. Admissible:
1. Impeachment
a. Inadmissible for this purpose if:
i. At the time of the accident, the subsequent remedial
measure was NOT believed to be as practical as the
one employed
ii. Subsequent remedial measures taken after the
incident but not by testifying person NOR
subordinate
2. Ownership
3. Control
4. Feasibility of precautionary measures, if controverted
a. If D states there was no other way to avoid the accident
b. This does NOT mean denying negligence by saying the
method was safe
i. NOTE: denying liability does NOT invoke these
exceptions
c. Tuer: if D expresses weighing options and this was the best
route then NOT disputing feasibility (need to have an
explanation for the route taken)
d. CEC: not admissible to prove negligence or culpable conduct
i. Admissible:
1. Products liability
2. Impeachment
e. Court has the discretion to excluded evi if probative value is outweighed by dangers
B. Compromises and Negotiations
a. Furnishing, offering or promising to furnish, accepting, offering, or promising to
accept a valuable consideration in compromising or attempting to compromise the
claim
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b. Prohibits Uses:
i. Prove liability for
ii. Invalidity or
iii. Amount of a claim that was disputed as to validity or amount, or
iv. To impeach through a prior inconsistent statement or contradiction
c. Permitted Uses:
i. Bias or prejudice
ii. Negating a contention of undue delay
iii. Proving an effort to obstruct a criminal investigation/prosecution
d. When Negotiation Begins
i. If proposal is tentative and any statement made in connection with it is
hypothetical, the offer was made in contemplation of mutual concessions,
then it is an offer and compromise and should be excluded
1. Need to suggest there is room for compromise
2. Need some magic words to initiate the compromise, some indication
of the willingness to compromise
3. Context is important (i.e. if a lawyer made the statement, it would
look more like a compromise)
ii. If the statement admits liability and buys or secures relief against the
liability or trying to escape liability, promise is an admission, NOT an
attempt to compromise, and should be admissible
a. “tell me how much I owe you” (admission)
b. “if you agree to bypass the insurance, I’ll pay your damages”
(not a compromise)
i. Not a compromise because he is seeking relief to
secure liability. No suggestion about room for
discussion and compromise.
c. “let’s work this out” (beginning of a negotiation)
d. Any statement in connection with the offer not being subject
to being admitted “let’s talk about if we can discuss further
compromise (that will be enough to protect you. It’s still
an offer and compromise)
e. If one person says “I’ll give $11K”, next the other person says
“I’ll take $20K”, then the other person response “$15K”, the
initial statement is NOT negotiation
f. If the statement is made in the form of admitting liability
i. The initial statement was not an initiation of
negotiation, and that’s an admission once the party
makes a counter offer, anything AFTER that would be
a compromise<check?
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g. If the declarant questions whether the opposing party was
injured and then says “I’ll pay some of your medical expenses
in exchange for a signed release” is a magic word of exchange
and this is borderline but it was considered compromise
1. Need offer of exchange
C. Offers to Pay Medical Expenses and Similar Expenses [Humanitarian Offer]
a. Furnishing, offering or promising to pay medical, hospital or similar expenses
i. FRE and CEC agree that humanitarian offers to pay medical or similar
expenses is inadmissible if offered as tending to prove liability
ii. Statements Made in Connection with the offer:
1. FRE: Are admissible
2. CEC: Are NOT admissible
D. Criminal Pleas/Offers
a. In any criminal or civil trial, evidence of the following is NOT admissible for any
purpose against the D made the plea or was a participant in the plea discussion:
i. Pleas of guilty and nolo contendere later withdrawn
1. Nolo contendere: “I will NOT consent” (subjects the person to
basically everything accompany a guilty plea, but the govt gives up
the right to use the plea against the D in subsequent proceedings)
2. CEC: pleas of nolo contendere are admissible against pleader
ii. Statements made at a court hearing to enter the former pleas
iii. Statement made in the course of plea discussion to an attorney for the
prosecuting authority that do not result in guilty plea or result in guilty plea
later withdrawn
b. There are two exceptions to the rule above:
i. When a defendant introduces a statement that was made during the plea or
plea discussions, and the statement in question ought in fairness be
considered contemporaneously with it
1. This is a specialized adaptation of the Rule of Completeness.
a. GOAL is to not mislead the trier of facts
i. i.e. D offers one statement mad during plea
bargaining and the court finds another statement
necessary to clarify the meaning of the first
ii. In a criminal proceeding for perjury if the false statement was made by the
defendant under oath, on the record, and in the presence of counsel.
1. E.g., if a criminal defendant agrees to testify against an accomplice but
does not testify truthfully, evidence of the plea agreement is admissible
to show perjury.
a. The statement made at the plea hearing is not hearsay, as it
has independent legal significance.
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2. E.g. D plea guilty and promises to testify about the other party who
played a role. During the testimony, D downplays his role and up-plays
the other party’s role
c. Waiver
i. A D may agree to waive the rule’s protections as part of a plea discussion
E. Liability Insurance
a. Evi that a person has liability insurance is inadmissible to prove that the person
acted negligently and wrongfully (fault)
i. NOTE: OTHER forms of insurance are admissible
b. Liability insurance may be admissible to prove proof of : agency, ownership,
control or bias of witness
EXAMINATION OF WITNESSES
A. Mode of Questioning
a. Leading Questions: suggesting the answer desired (usually if can be answered
yes/no)
i. Improper on Direct Examination
ii. Permitted in:
1. Cross-examination (but improper when crossing your own
favorable witness)
2. Elicit preliminary or undisputed or introductory facts (even on
direct)
3. When W needs aid to response because of serious memory loss,
immaturity, mental infirmity, small children (even on direct)
4. Questioning the adverse party
a. must let the court know (if it’s not obvious that the party is
adverse or hostile)
5. Questioning W identified with an adverse/hostile party
B. Court must exercise control over the mode and order of interrogating witnesses and evi
presentation to:
a. (1) make the interrogation and presentation effective for the ascertainment of the
truth,
b. (2) avoid needless consumption of time, and
c. (3) protect witnesses from harassment or undue embarrassment
C. Common objections
a. Misleading: a question is misleading if it mischaracterizes earlier evidence or tricks
the witness or jury into assuming a fact that has not been proven
b. Ambiguous: a question is ambiguous when it is unclear what facts the question
seeks to reveal.
c. Compound question: a compound question simultaneously puts more than one
inquiry before the witness
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d. Assumes facts not in evidence: a question assumes facts not in evidence if it
invents facts not supported by the evidentiary record
e. Cumulative: goes to facts well established by evidence already admitted
f. Argumentative: a question is argumentative if it doesn’t really ask a question so
much as poses argument to the jury.
g. Asked and answered: examiner repeating a question to which there has already
been a response
i. NOTE: asked and answers on x-examination is not sustained automatically
even when the question has reached a point where it’s been asked before
h. Calls for a narrative answer: poses an open-ended in quiry that invites the W to
give a lengthy narrative response
D. Scope of Cross-Examination
a. Limited to subject matter of the direct examination
b. Matters effecting W’s credibility
i. Anything tending to show bias, inability to perceive or recollect always
admissible
IMPEACHMENT—casting an adverse reflection on the truthfulness of a W [may be done by either
party]
A. Motion In Limine: Can make a pre-trial motion in limine to make the necessary exclusions
if you think there is a lawyer who will abuse the process or make questions that are
inadmissible
B. ANY party may impeach a w’s credibility. Including the party who calls the W.
C. Ways to Impeach:
a. Inconsistency in testimony
b. Prior inconsistent statement (NOT considered hearsay)
i. Prior statement must have been given under oath at trial , hearing, other
proceeding (including grand jury), or deposition [statements to the PO or
affidavits do not count]
1. CEC: prior statements need not be given under oath, so long as W
testifies and is subject to cross-examination. So all are admissible
ii. Cannot call a witness for the sole purpose of impeaching them to get in
otherwise inadmissible evidence
c. Bias
d. Show the W has lied in some portion of the testimony
e. Calling into question W’s ability or capacity or opportunity to
perceive/recollect
f. Factors affecting W’s capacity to narrate
g. Appearance/status of the W, demeanor
i. Can discuss the W’s body language in the closing statement so long as it’s not
mischaracterized or misstated
h. Plausibility of W’s testimony
D. Sources of Impeachment:
a. Cross examination
i. Try to get the W to corroborate part of your case
ii. Discredit the W’s testimony
iii. Discredit other unfavorable testimony
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iv. Use the testimony to prove some element of your own case (if within the
scope)
v. Collateral Matter Rule:
1. If the matter is NOT admissible as tending to prove some element of
the case itself it’s collateral and we could cross examine about it, but
CANNOT bring in extrinsic evi for the same purpose.
b. Extrinsic Evi (other W testimony, documentary evi, etc)
i. ANY evi other than what comes out of a W’s mouth while testifying at trial
ii. Foundation must be laid before extrinsic evi may be introduced
iii. If the impeachment is relevant to the substantive issues in the case, we’re
going to be allowed to bring in the extrinsic
iv. Extrinsic evidence is inadmissible to contradict a witness as to a collateral
matter; this includes any of the witness’s prior inconsistent statements of a
collateral nature.
v. If the inconsistent statement is proved through extrinsic evi, then the W
being impeached must be given an opportunity to explain or deny the
inconsistent statement at some point.
1. Thus, so long as the witness is subject to re-call (has not been dismissed),
extrinsic evidence of the statement can be offered before the witness is
given an opportunity to explain/deny the statement.
a. Exception: inconsistent statements by hearsay declarants may be
proven by extrinsic evidence without requiring that the declarant
be given an opportunity to explain/deny the statement.
b. Exception: this rule does not apply to party admissions.
E. Witness’s Character for Truthfulness
a. Extrinsic Evi:
i. W’s words while on the stand are admissible, but NO OTHER/external
evidence. Any evidence outside of W’s own testimony on the stand are
considered extrinsic (even depos, other Ws, etc)
b. [p 455] FRE 608 (a) /CEC 787: May use reputation and opinion evi to attack W’s
credibility for untruthfulness is admissible to impeach , ONLY after which
character evi of truthfulness is admissible to rehabilitate the credibility of the W
i. If credibility is attacked in other ways (e.g. misperceived events, memory
lapse, honestly mistaken) character rehabilitation would be improper
ii. Specific Instances of conduct of a W to support or attack W’s character for
truthfulness, other than conviction of a crime (609), MAY NOT be provided
by extrinsic evi EXCEPTION:
1. “truth in evidence” provision: In criminal cases, the limitations of
section 787 and 786 do NOT apply, so you can impeach the W with
specific instances of conduct in a criminal prosecution
2. 608 (b) Specific Conduct Admissible When: May be in the
discretion of the court, if probative of truthfulness/untruthfulness be
inquired into on cross-exam of W
a. Conduct is probative of truthfulness/untruthfulness when it
implicates the general character of the W for veracity rather
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than some other character trait (such as carelessness or
propensity for violence) i.e. evi of specific instances is
probative of truthfulness or untruthfulness when conduct
consists of acts such as fraud, lying, using false name, making
false claim , engaging in deceptive business practices
b. Principle W: Concerns W’s character for truthfulness OR
untruthfulness
c. Character W testifying: concern the character for
truthfulness/untruthfulness of another W2 as to which
character W1 being cross examined has testified
d. Inquiring about “bad acts” – arrests are not permissible.
“were you arrested for X?”
c. Balancing Test
i. Even where 608 (b) is satisfied, recall the provision does NOT require
admission of specific instances evi, but only recognized discretion to admit
ii. 403 and 611 shows the exercise of discretion:
1. 403 requires probative value NOT be outweighed by danger of unfair
prej, confusion of issues or misleading the jury and 611 bars
harassment and undue embarrassment
F. Impeachment Using an Expert
a. Rule: need an expert qualified to rendering the opinion that the W testifying has
questionable credibility that effects the ability to proceed or recollect
i. MUST SHOW THE INDIVIDUAL meets one of the traditional categories of
impeachment.
1. i.e. cannot simply mention the individual is being treated for mental
illness or suffers from one. There must be a connection between the
illness and the testimony/credibility.. if not then the connection
cannot be drawn
b. NOTE: NO W is allowed to draw a conclusion for the jury about the other witness.
i.e. “the W is lying”. That’s the jury’s job.
G. Impeachment by Prior Criminal Convictions—FRE 609… chart on p 461
a. These rules ONLY apply to prior criminal convictions. Rule is not applicable to
prior arrests or indictments of a witness.
b. Only applies when conviction offered to prove “character of truthfulness” of W
c. CL: felon was absolutely prohibited from being a W (automatically disqualification)
d. FRE: evi foreclosed by the character evi rules (i.e. specific acts) gets opened up if the
W testifies under the automatic rule of admitting a felony conviction.
i. 609 (a)(1) Convictions for crimes punishable by death or imprisonment
of one year or more, the general rule is that it’s permissible PERHAPS
(contingent on balancing test).
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a. NOTE:
i. Does not matter if it’s a felony/misdemeanor..
just needs to be punishable by a year or more in
prison
ii. COULD be convicted for a year of imprisonment,
but doesn’t have to NECESSARILY have gone to jail
2. Procedure for admissibility
a. If the witnesses is not the accused
i. Evi is admitted unless the party opposing
impeachment shows probative value of conviction for
impeachment is substantially outweighed by unfair
prej (FRE 403) .
b. If the witness is the accused
i. The conviction evidence is admitted only if the
proponent proves that its probative value
outweighs its prejudice. [note: different from 403]
ii. 609 (a)(2) Convictions for any crime, regardless of punishment,
requiring proof of an act or dishonesty, false statement, fraud, or
“criminfalse” (deception in the crime) by the W
1. Procedure for admissibility
a. There is no judicial discretion here to exclude; such
evidence “shall” be admitted regardless of FRE 403
balancing implications.
b. Acts of dishonesty/false statement requirement
i. Most courts read this as meaning that dishonesty
must be an element of the crime (e.g. perjury, but not
theft
2. If the conviction is similar to the charged offense, it’s more likely the
court will exclude it if it’s not one of the criminfalse convictions
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i. Types of offenses include: perjury, subordination of
perjury, false statement, criminal fraud,
embezzlement, or false pretense or any other offense
in the nature of crimen falsi, the commission of which
involves some element of deceit, untruthfulness, or
falsification bearing on the W’s propensity to testify
truthfully
1. **arrest is NOT a conviction. CANNOT use
this as specific evi of dishonest conduct
ii. i.e. if the conviction is for the sale of mj, it’s NOT a
crime involving falsehood. If the person who it’s
offered against is the D in the current case and the
charged crime is similar, it’s highly likely the court
will exclude the evi because the balancing test is
lower
iii. TIME LIMIT 609 (b)
1. Evi of a conviction under this rule is NOT admissible if a period of
more than 10 yrs elapsed since date of conviction OR release of W
from confinement imposed for that conviction (whichever is the
later date)
2. Evi of conviction of more than 10 years old is NOT admissible
UNLESS proponent gives to adverse party sufficient advanced,
written notice of intent to use such evi to provide adverse party with
fair opportunity to contests the use of such evi
3. If conviction is more than 10 years old, the court can consider it
in a proper case and if the probative value > danger of prej then
it’s admissible.
a. Must show probative value substantially outweighs
prejudice . This is NOT like 403 which favors admission.
Creates a standard heavily slanted in favor of exclusion; only
if probative value substantially outweighs prej
iv. CEC:
1. All felony convictions are admissible but they didn’t repeal CA’s
balancing. So the judge must consider the probative value of the
conviction on the issue of the W’s credibility vs the danger of unfair
prej and if it substantially outweighed by the danger of unfair prej,
the judge retains the discretion to exclude
2. Based on fed constitutional principles, all felony convictions are
admissible so long as they have some relevance on the issue of
the W’s truthfulness. This means that there are some felony
convictions the DO NOT involve “moral turpitude” then those
felonies are inadmissible because they would violate the D’s due
process rights. [all subject to the balancing test]
a. The crime that was before the court and therefore the kind
of felony conviction inadmissible is : simple possession of
an illegal substance. And then the other two that do not
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involve moral turpitude: conspiracy to commit a
misdemeanor and conspiracy to tattoo a minor.
3. The D can impeach using any felony conviction. So the prosecution’s
Ws are subject to the same form of impeachment as the D in criminal
cases.
a. CEC 788 applies in civil cases: admitting any kind of felony
but it has provisions prohibiting _________________H. Impeachment based on religious beliefs – Rule 610
a. Rule: A witness's beliefs or opinions on matters of religion when offered to show a
witness's character for truthfulness or untruthfulness is influenced by the nature of
that belief is inadmissible.
b. BUT evidence of religion may be used for some other purpose other than to prove
credibility (ie show bias of witness, to show basis for an assertion of clerical
privilege, damages, modus operandi, motive, conduct, and the basis for a claim or
defense).
i. In such cases, evidence of religious beliefs is admissible but 403 gives court
discretion to keep it out.
c. Religion = mainstream religions and evidence of beliefs that are unconventional; but
NOT the fact that a witness subscribes to an ideology that is political or
philosophical (hard distinction).
I.
Impeachment based on bias, motive, and interest.
a. No specific FRE rule governs impeachment for bias, motive and interest and so
there’s no per se restriction on it.
b. Limited by Relevance, Rule 403, and 611 (prevent wasted time, harassment,
confusion, etc)
i. US v. Abel: Bank robbery prosecution. Prosecutor called Ehel to testify that
Abel did the crime. D impeached Ehel's testimony with Witness Mills saying
that Ehel had told Mills that he would lie about what D did so he could gain
favor with prosecution. Then prosecution recalls Ehel to testify that he, Mills,
and Abel were members of Aryan Brotherhood an organization whose
members are required to lie, cheat and steal and do anything to protect
eachother. This was intended to impeach Mills by suggesting Mills had a
motive/bias due to brotherhood to lie to protect D. USSC: It is permissible to
impeach a witness by showing his bias under the FRE. Because it is relevant
under Rule 401's definition because it makes facts more or less probable in
the eyes of the jury. Furthermore, a description of the group membership of
the witness with the D is important because being a member of the Book-ofthe-Month club together is much different than being members of the Aryan
Fuckhood.
ii. Can use CEC 780 which is just a catalogue of the CL form of
impeachment which is the guide under what you can do under the FRE
J.
Impeachment by Contradiction
a. Impeachment by contradiction = witness says something, but it’s not true and you
impeach witness by showing it’s not true
b. No FRE rule expressly covers impeachment by contradiction. CL gap-fills.
i. Even courts that don’t keep old CL rule use the rule but base it on 403
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c. CL Rule: a party may not impeach a witness by contradiction on a collateral matter
using extrinsic evidence.
i. If contradiction of a W occurred with respect to a fact of “consequence to
the outcome of the case” then we could both cross examine the W and
introduce extrinsic evi
1. i.e. being at a church social before seeing the accident as opposed to
gambling and drinking
2. OR if there is a matter of credibility or perception then can bring in
extrinsic evi and cross
ii. If the contradiction involves a matter NOT of consequence to the outcome
of the case (collateral) then we can cross examine the W about it, but
cannot introduce extrinsic evi
1. i.e. if the W said he saw James Bond as opposed to Bambi before the
car accident
iii. Collateral matter = factual matter that has no importance to the case. ONLY
purpose is to undercut witness credibility by contradiction.
1. Evidence that is relevant to a fact of consequence in the case is not
collateral.
2. If evidence that impeaches by contradiction also impeaches by
another method then it’s NOT collateral.
iv. Extrinsic evidence = bringing in another witness, using a document to show
they are wrong; intrinsic evidence – out of their own mouth is okay.
1. Court in some instances may say a document is not extrinsic if there
will be no time wasted in admitting it, won’t distract jury, and
probative values are >> dangers.
a. E.g. bartender being asked what he had to drink and
checking tabs may be okay
d. Followed by judges and handled by the balancing test.
K. Prior Inconsistent Statements of Witnesses
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a. Prior Inconsistent Statements
i. Inconsistency requirement
1. Courts have adopted a liberal interpretation of the inconsistency
requirement. A direct contradiction is not required. A number of
situations are possible:
a. Prior omission of material facts: “I killed him” at time of
arrest vs. “I killed him in self-defense at time of trial.
b. Prior lack of knowledge: prior statements that a witness had
no knowledge about matters the witness is now testifying to.
c. Current lack of memory: because memory fades with time, a
memory lapse is not an inconsistency. In some
circumstances, however, such a claim is not credible.
ii. Non-collateral requirement
1. Remember, extrinsic evidence is inadmissible to contradict a witness
as to a collateral matter; this includes any of the witness’s prior
inconsistent statements of a collateral nature.
iii. Impeachment purpose
1. Generally
a. A party may show, by cross-examination or extrinsic
evidence, that the witness has, on another occasion, made
statements inconsistent with his trial testimony.
2. Foundational requirements
a. If the inconsistent statement is proved through extrinsic
evidence, then the witness being impeached must be given
an opportunity to explain or deny the inconsistent
statement at some point.
b. NO requirement it was under oath. So if not under oath
admissible for impeachment but not substantive
i. Thus, so long as the witness is subject to re-call (has
not been dismissed), extrinsic evidence of the
statement can be offered before the witness is given
an opportunity to explain/deny the statement.
1. Exception: inconsistent statements by
hearsay declarants may be proven by
extrinsic evidence without requiring that the
declarant be given an opportunity to
explain/deny the statement.
2. Exception: this rule does not apply to party
admissions.
c. Note: these requirements can be dispensed with where
the interests of justice so require (e.g. the witness is
unavailable when the inconsistent statement is discovered).
3. Limited admissibility
a. Remember, particularly when the prior statement is directed
to a crucial, disputed issue in the case, exclusion on FRE 403
grounds may be warranted.
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iv. Substantive purpose
1. Admissibility
a. A prior inconsistent statement is admissible as substantive
evidence if:
i. The statement was made under oath at a trial,
hearing, or other proceeding, or in a deposition
1. Note: statements made to police officers or in
sworn affidavits are not included in this
definition, though they could still be offered
to impeach
2. CALIFORNIA: all prior inconsistent statements
are admissible as substantive evidence
regardless of whether they were given under
oath, as long as the witness testifies at trial.
3. NO PRIOR REQUIREMENT
ii. The witness testifies at trial and is subject to crossexamination regarding the statement
1. See above for definition of “subject to crossexamination” requirement.
2. Foundational requirements
a. The same foundational requirements that apply for the
impeachment purpose apply equal here:
b. If the inconsistent statement is proved through extrinsic
evidence, then the witness being impeached must be given
an opportunity to explain or deny the inconsistent
statement at some point.
i. but remember the foundation does not apply to
party admissions.
3. Hearsay classification
a. Such statements are not hearsay under the FRE
i. CALIFORNIA: such statements are hearsay, but are still
admissible.
b. Prior Consistent Statements
i. Admissibility
1. A prior statement that is consistent with the witness’s trial
testimony is admissible to rehabilitate credibility and as substantive
evidence if:
a. The statement is offered to rebut an express or implied
charge of recent fabrication or improper influence or
motive
i. CALIFORNIA: prior consistent statements are
admissible not only to rebut a charge of recent
fabrication, but additionally when the witness has
been impeached by a prior inconsistent statement
and consistent statement was made before the
inconsistent statement.
b. The statement was made before any improper influence or
motive to fabricate arose.
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c. The witness testifies at trial and is subject to crossexamination.
i. Note: the statement need not have been made under
oath to be substantively admissible.
ii. Prohibition on bolstering
1. Prior consistent statements are admissible only if the witness has
first been accused of fabricating her testimony or having been
influenced/bribed.
a. I.e., a charge of bias would not make a prior consistent
statement admissible.
iii. All or nothing nature
1. Prior consistent statements are either admissible for all purposes or
admissible for no purpose.
iv. Hearsay classification
1. Such statements are not hearsay under the FRE
a. CALIFORNIA: such statements are hearsay, but are still
admissible.
c. Impeachment of a Hearsay Declarant
i. Generally
1. When a hearsay statement is admitted, the credibility of the
declarant may be attacked, and if attacked may be supported, by any
evidence that would be admissible had the declarant actually
testified.
ii. Exception from foundational requirements
1. A hearsay declarant need not be given an opportunity to
explain/deny a prior inconsistent statement.
iii. Exception from general mode of questioning
1. If the party against whom a hearsay statement has been admitted
calls the declarant as a witness, the party may examine the declarant
on the statement as if under cross-examination.
2. When it’s admissible for one and not the other (usually admissible
for impeachment and not substantive use)  limiting instruction is
necessary
d. COLLATERAL POLICY:
i. If the inconsistent statement applies to a collateral matter, you can xexamine but you CANNOT bring in extrinsic evi.
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