I.
II.
Relevance
a. Generally
i. Rule: in order for evidence to be admissible, it must first be both
logically and legally relevant
ii. California Evidence Code Rules:
1. CEC § 350: ONLY relevant evidence is admissible
2. CEC § 351: (unless otherwise provided) ALL relevant evidence
is admissible
iii. Doctrine of Limited Admissibility
1. Rule: just bc evidence is inadmissible to prove one point does
not mean that it cannot be admissible for another point
2. If evidence has been deemed admissible for a limited purpose,
opposing counsel has a right to require court to give limiting
jury instructions; if they fail to ask NOT reversible error
b. Logical Relevance
i. Rule: Does the evidence have any tendency in reason to prove or
disprove any disputed fact that is of consequence to the
determination of the action?
1. This is codified in FRE § 401
2. NOTE: threshold is extremely low; logical relevancy satisfied if
the evidence is minimally probative
c. Legal Relevance
i. Rule: logically relevant evidence is subject to exclusion if its
probative value is substantially outweighed by its prejudicial
impact
ii. Factors of Prejudicial Impact:
1. Federal - FRE § 403
a. Mislead the jury
b. Cause confusion of the issues
c. Cause undue delay
d. Waste of time
e. Needless presentation of cumulative evidence
2. California - CEC § 352
a. Undue consumption of time
b. Undue prejudice
c. Confusing the issues
d. Misleading the jury
iii. When probative value is very low, does not take much prejudicial
impact to outweigh it
Opinion
a. Lay Opinion
i. Anybody who is not testifying as an expert is testifying as a lay person
ii. Rule: opinion testimony of a lay person is limited to describing facts
within their personal knowledge
1. Cannot give opinion as to matter calling for experts; OR
2. As to commonplace matters
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3. Exceptions:
a. Collectivized Facts: witness may collect facts that they
observed or heard and testify to an extrapolation if
based on common sense or knowledge
i. Ex: taking shots, slurring speech; might allow the
witness to say, “well, he appeared to be drunk”
b. Common Experience
iii. Federal - FRE § 701 – Opinion Testimony by Lay Witnesses
1. If a witness is not an expert, testimony limited to those
opinions or inferences which are:
a. Rationally based on the perception of the witness; AND
i. Did witness use one of the five senses to perceive
the act or event?
b. Helpful to a clear understanding of the witness
testimony or determination of a fact; AND
c. Not based on scientific, technical, or other specialized
knowledge
iv. California - CEC § 800
1. If a witness is not an expert, testimony in the form of an
opinion is limited to opinion that is:
a. Rationally based on the perception of the witness; AND
i. Did witness use one of the five senses to perceive
the act or event?
ii. Opinion must still be logically connected what he
perceived
b. Helpful to a clear understanding of his testimony
i. NOT allowed to make opinion if merely supports
information that can be proven by established
facts
v. Inferences can be made if they are rationally based
1. Ex: witness testified that he saw D wink at him and infers that
D wanted witness to fake an alibi:
a. Let the witness testify to the wink
b. NOT what he thought the wink meant
c. However, if they had a preexisting agreement to use the
wink for a faked alibi, then it would no longer be
opinion but rather personal knowledge
b. Expert Opinion
i. Rule: an expert can give testimony based on opinion so long as:
1. Expert is qualified by special knowledge, skill, experience,
training, or education; AND
a. Must establish a basis for the expertise before they can
testify
b. Voir Dire Process:
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III.
i. Give the opposition to cross examine the expert
about his/her credentials outside the presence of
the jury
2. Testimony based on facts that would be reasonably relied upon
by other experts in the field
a. Ex: expert tried to form an opinion based on symptoms
described to him by the deceased’s widow; court held
inadmissible bc not facts normally relied upon
ii. Federal - FRE § 702 – Testimony by Experts
1. An expert, qualified by knowledge, skill, experience, training,
or education, may testify in the form of an opinion if:
a. Testimony based upon sufficient facts or data
b. Testimony is the product of reliable principles and
methods; AND
c. Witness has applied principles and methods reliably to
the facts of the case
iii. Federal - FRE § 703 – Bases of Opinion Testimony by Experts
1. Facts or data relied upon as the bases of an expert’s opinion
must be of a type reasonably relied upon by experts in the
particular field in forming opinions or inferences upon the
subject
iv. California - CEC § 720 – Qualification as an Expert
1. Person qualifies as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him
v. California - CEC § 801 – Expert Testimony Limitations
1. An expert testifying in the form of opinion is limited to such an
opinion as is:
a. Sufficiently beyond common experience
b. Based on material reasonably relied on by other experts
Scientific / Demonstrative Evidence
a. Scientific Evidence
i. Judge determines whether the evidence meets either test  the judge
is the gatekeeper
ii. Frye Standard  used in California
1. Rule: before scientific evidence can be offered, the scientific
test by which the evidence was gathered must be accepted by
the general scientific community as being an accurate test
a. Ex: Lie detector test not admissible bc of the general
view that these tests are unreliable
iii. Daubert Standard  the Federal Standard
1. Rule: before scientific evidence is admissible, several factors
must be evaluated to determine whether research
methodology is appropriate:
a. The theory or technique can or has been tested
b. Subject to peer review and publication?
c. High known or potential rate of error?
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IV.
V.
d. Degree of acceptance in the community?
2. These are just factors, NOT elements
b. Demonstrative Evidence
i. Rule: demonstrative evidence is NOT treated the same as scientific
evidence; instead, it is admissible so long as it is relevant
1. Ex: Train and girl on the tracks reenactment. Judge decided
not logically relevant bc tended to prove contested fact of
distance; legally relevant bc prejudicial did not outweigh
probative
Similar Happenings
a. Rule: in order to admit evidence of similar happenings, must show
substantial identity of the material circumstances
i. NOTE: this does not mean identical; there has to be a substantial
comparison btw the similar happenings
b. Similar NON-Happenings
i. P will argue similar happenings; D will argue similar non-happenings
ii. Rule: evidence of non-occurrence of an accident only relevant if
multiple non-occurrences under static conditions where
complaints would be likely
1. Factors to Consider:
a. How many non-occurrences?
i. Must be a large number
b. Record of prior complaints or evidence that prior
accidents would have been reports
c. Static Conditions
i. Must show condition static and unlikely to
change
Subsequent Repairs
a. General Policy: do not want to dissuade people from repairing things until
after litigation for fear of liability
b. At common law, this was ALWAYS inadmissible
c. Federal – FRE § 407
i. Rule: evidence of measures taken subsequent to an injury or harm
that would have made injury/harm less likely to occur are:
1. Not Admissible to Show
a. Negligence
b. Culpable Conduct
c. Defect in Product
d. Defect in Product Design
e. Need for Warning
2. Admissible to Show
a. If at issue:
i. Ownership
ii. Control
iii. Feasibility of Alternative Measures
b. Impeachment
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VI.
d. California – CEC § 1151
i. Rule: evidence of measures taken subsequent to an injury or harm
that would have made injury/harm less likely to occur are:
1. Not Admissible to Show
a. Negligence
b. Culpable Conduct
2. Admissible to Show
a. Products Liability
b. Impeachment
ii. Why does CA allow evidence for products liability?
1. Courts believe that it would be too costly for a firm not to
repair their potentially defective items
2. Thus, the policy rationale of promoting repairs is not
implicated
Offers to Settle and Compromise
a. Rule: evidence of an offer to settle is inadmissible if offered on liability or
lack of liability, however, the evidence might be admissible for a different
purpose
i. Ex: impeachment of the witness (NOT admissible for impeaching
based on prior inconsistent statements)
ii. Any others?
b. Policy Rationale: do not want to discourage people from offering or reaching
a deal for fear that when you get into a lawsuit in court they will use it
against you
c. Admissions Made DURING Offers to Settle:
i. Common Law  Admissible
ii. Federal  Inadmissible
iii. California  Inadmissible
d. Payment of or Offers to Pay Medical Expenses:
i. Common Law  Admissible
ii. Federal  Inadmissible
iii. California  Admissible (unless made out of humanitarian motives)
e. Admissions Made DURING Offers to Pay Medical Expenses:
i. Common Law  Admissible
ii. Federal  Admissible
iii. California  Admissible (unless made out of humanitarian motives)
f. Payments or Offers Made out of Humanitarian Motives:
i. Common Law  Admissible
ii. Federal  Admissible (unless offer to pay medical expenses)
iii. California  Inadmissible
g. Admissions Made DURING Offers Made out of Humanitarian Motives:
i. Common Law  Admissible
ii. Federal  Admissible
iii. California  Inadmissible
h. CA and Humanitarian Motive
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VII.
VIII.
i. Burden of proof on the party seeking to exclude the evidence to prove
humanitarian motive
ii. This is a question of fact
Judicial Notice
a. Generally:
i. Taking JN of a fact means that neither party is allowed to argue or
introduce evidence against that fact
ii. Purpose:
1. Time saving device
2. Avoids possibility of jury reaching results contrary to common
sense
b. Federal – FRE § 201
i. A judicially notice fact is one that is not subject to reasonable dispute
and is either:
1. Generally known within the territorial jdx of the court; or
2. Capable of accurate and ready determination by an
unquestionably accurate source
ii. Courts have discretion to take judicial notice even when not asked to
iii. Courts must take judicial notice if:
1. Request by a party
2. Supplied with the necessary information
iv. Jury Instructions:
1. In a Civil Case jury must accept JN as conclusive
2. In a Criminal Case jury may accept JN as conclusive
c. California – CEC § 450 – 453
i. Mandatory Notice must be taken of:
1. Laws of the US and States
2. Meaning of English words and phrases
3. Meaning of legal expressions
4. Facts and propositions of generalized, universally known
knowledge that cannot be reasonably disputed
5. NOTE: failure to take JN of the above is a reversible error;
judge must take JN even if nobody asks
ii. Discretionary Notice may be taken of:
1. Foreign laws
2. Court records in state or federal court
3. Generally known facts that cannot reasonably be disputed
4. Facts capable of immediate and accurate determination by an
accurate source
a. Ex: Lincoln and the Farmer’s Almanac
Hearsay
a. General:
i. Both sides can make a hearsay objection
1. Ex: D wants to introduce evidence that someone else confessed
to crime; Prosecution excludes bc of hearsay
ii. Policy:
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1. Want for accurate information in court
2. Cross-examination
b. Rule: an out of court statement, offered to prove the truth of the matter
asserted
i. Elements:
1. Out of Court
a. Out of THIS court
b. Even an out of court statement made under oath is
hearsay
c. Statement made by witness in different trial = hearsay
2. Statement
a. Statement can be:
i. Oral
ii. Written
iii. Conduct intended to convey meaning
1. Nonassertive conduct NOT a statement
(i.e. a scream)
3. Offered to Prove the Truth of the Matter Asserted
a. Only concerned with statements being offered to prove
their truth
b. Remember the Doctrine of Limited Admissibility:
i. Is there a reason other than the truth of the
statement for it to be admitted?
c. Non-Hearsay
i. In-Court Statements
ii. Non-Assertive Statements
iii. Not for the truth of the matter asserted
iv. Animals and machines
1. Need a scientific foundation to prove reliability of the test, but
not hearsay
v. Listener’s State of Mind (effect on the listener)
1. Rule: if the statement is offered to show its effect on the
listener, NOT hearsay bc the statement not being offered for its
truth
a. Ex:
i. To Prove Reasonableness  selfdefense/duress
1. Ex: someone threatens to kill you if you
do not do something; not trying to show
that they will kill you, just that you feared
it
ii. To Prove Notice
1. Ex: notice of a dangerous condition when
negligence is asserted (Safeway ketchup
bottle case)
vi. Declarant’s State of Mind
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IX.
1. Rule: does not matter if the statement is true; all that matters is
what the state of mind of the delcarant is
vii. Operative Fact (K Terms)
1. Rule: statements made in connection with a K are not offered
to prove the truth of the terms, but rather to show that the
provision existed
a. Gifts/Wills  contemporaneous statements
accompanying a gift [transfer of property] are not
evaluated for their truth but rather as part of the
transaction to determine if it is a gift
Hearsay Exceptions/Exemptions
a. Generally:
i. Federal law calls some of these exemptions and others exceptions
1. No real difference other than title
2. Exemptions:
a. Admissions
b. Prior Inconsistent Statements
c. Prior Consistent Statements
d. Prior Identifications
3. Exceptions Where Unavailability Required:
a. Former Testimony
b. Dying Declarations
c. Declarations Against Interest
d. CA ONLY  Statements of Past State of Mind
4. All other exceptions availability not at issue
ii. What is unavailability?
1. FRE  lack of memory, privilege, unwilling to testify, absent
2. CEC  focus on actual/physical unavailability
a. Stricter Requirement
b. Unavailability Required
i. Former Testimony  FRE § 804(b)(1)
1. Rule: in order for former testimony to be admissible in the
present case:
a. Declarant unavailable
b. Former testimony made under oath
c. Subject to cross examination
i. NOTE: does NOT include Grand Jury Trials bc no
cross examination
d. Same interest and motive of parties
i. Compare issue sought to be established by
witness when testified at former trial, weigh it
against issue sought to be proven by witness in
this trial
ii. See differences between CIVIL and CRIMINAL
e. Substantially same issue
2. Criminal Cases:
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a. Must be same D in both trials  otherwise
Confrontation Clause issues
3. Civil Cases:
a. Can be different D’s but the motive must be similar
i. Confrontation Clause does not apply to Civil
b. Thus, does not matter if you yourself had a chance to
cross examine as long as issues/motives are same
ii. Dying Declarations  FRE § 804(b)(2) / CRC § 1242
1. Rule: dying declaration may be admitted despite the hearsay
rule if:
a. Declarant is unavailable
i. CEC: Declarant MUST be dead
ii. FRE: Only unavailability; must show:
1. By preponderance of evidence that
declarant believed death was imminent
2. Witness unavailable
b. Made under a sense of impending death
c. Pertaining to the cause and circumstances of his death
i. NOTE: cannot be speculative, must be within
personal knowledge of D
2. Difference Between CEC and FRE  CEC requires death
3. Forfeiture Theory (don’t know the scope)
a. Comes into play with regard to whether a dying
declaration is admissible against a D who cannot
confront their accuser
b. This is one exception that we will let in, in some cases,
even though there has never been a chance to confront
c. Reason: foundational decision for the court to decide; is
the reason why they are unavailable bc the D shot
them?
i. NOTE: if killed him in self-defense, some justices
would not support the forfeiture theory
4. CL: only available in homicide cases where declarant died and
was victim in the case
iii. Declarations Against Interest  FRE § 804(b)(3) / CRC § 1230
1. General
a. Differences Between This and Admissions
i. Admissions
1. ONLY apply to party opponents
2. Only admissible against declarant, co-c,
business partner, or declarant’s employer
3. Does NOT require unavailability
ii. Declarations Against Interest
1. Can be anything said by a third party
2. Admissible against any party
3. Requires unavailability
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b. Requirements:
i. Unavailability
ii. Declarant realizes it is a statement against his
interest
2. Interests Recognized by Both California and Federal:
a. Pecuniary (monetary) or property interest of
declarant;
b. Tends to subject declarant to civil or criminal liability;
c. Statement invalidates declarant’s claim against
another;
3. Additional Federal Interest
a. Statement tending to expose declarant to criminal
liability and exculpate the accused
b. HOWEVER:
i. Must be corroborating circumstances
indicating the trustworthiness of the statement
c. CA does not have this
4. Additional California Interest
a. Statement which would subject declarant to hatred,
ridicule, or social disgrace in the community
b. Federal does not have this
5. NOTE ON CONFRONTATION CLAUSE
a. When prosecution offers hearsay as a statement against
penal interest against a criminal D:
i. Even if the hearsay statement satisfies
requirements of statement against interest,
would not be admissible unless confrontation
clause is ALSO satisfied
b. Look for this on EXAM
6. Common-Law  only statements against pecuniary or
property interests of declarant
c. Not Requiring Unavailability
i. Spontaneous Exclamations (Excited Utterance)
1. General:
a. Availability of declarant is irrelevant  thus, declarant
can be anonymous
b. Self-serving statements can be admitted
2. Rule: spontaneous exclamations will be admitted if:
a. Sufficiently startling event
b. CA and Fed differ slightly on second element:
i. CEC  The statement describes/explains the
startling event
ii. FRE  The statement relates to the startling
event
c. Statement made while under stress of the event
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i. NOTE: longer the time, less likely to be admitted;
however, unconsciousness does not count
towards time
3. Difference Between CEC and FRE
a. CA requires the statement to describe or explain the
event, whereas the Federal only requires that it relate
ii. Present Sense Impressions
1. CA and Fed are different on this exception
2. FRE § 803(b)(1)  Broad
a. Rule: a statement by a declarant is admissible if:
i. Statements describes or explains an event or
condition
ii. Statement made at time declarant was
perceiving the event or immediately
thereafter
b. Thus, can bring in statements regarding the conduct of
others NOT JUST declarant
3. CEC § 1241  Narrow
a. Rule: a statement by a declarant is admissible if:
i. Statement offered to explain, qualify, or make
understandable the conduct of the declarant
ii. Statement made while declarant was engaged
in such conduct
b. Thus, can ONLY bring in statements made by declarant
describing his own conduct
4. Difference Between CEC and FRE
a. CA only allows if declarant describing his/her own
conduct
b. Federal allows statements describing others conduct
iii. Excited Utterance v. Present Sense Impression
1. Lag Time:
a. PSI requires the statement to be made either during or
immediately after
b. Excited Utterance does not need to be made
immediately after but while declarant still under
influence of startling event
2. Nature of Event:
a. PSI the event does not need to be startling
b. Excited Utterance the event must be startling
3. Describe v. Relate (Federal Only)
a. Under Fed, PSI must describe the event
b. Under Fed, Excited Utterance must just relate to the
event
iv. State of Mind
1. General:
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a. When a direct assertion of SOM  need exception;
When an indirect assertion of SOM:
i. Non-hearsay
ii. Must be relevant
b. Direct  “I am angry”
i. Hearsay – an out of court statement offered to
prove the truth of the matter asserted
ii. This is the kind of statement that this exception
applies to
c. Indirect  “I am from Mars”
i. Not hearsay – just inferring someone’s state of
mind from a statement they made
d. States of Mind Allowed:
i. Belief
ii. Emotion
iii. Design
iv. Plan/Intent
v. Pain
vi. Bodily Health
vii. Mental Feeling
e. CA Trustworthiness Requirement  CEC § 1252
i. For both present and past SOM, CA requires that
the circumstances indicate trustworthiness
2. Statements of Present State of Mind
a. FRE § 803(3)
i. Rule: statement of declarant’s present SOM is
admissible UNLESS:
1. Statement of memory or belief to prove
the fact remembered or believed, unless it
relates to a will.
ii. This exception covers both physical and
emotional feelings
iii. Present SOM admissible to prove:
1. Past, present, and future SOM; AND
2. Present or future conduct of declarant
a. NOT 3rd Person
b. CEC § 1250
i. Rule: statement of declarant’s present SOM is
admissible when:
1. Evidence offered to prove declarant’s
SOM at that time or any other time when
it is at issue in the action; OR
2. Evidence offered to prove or explain acts
or conduct of declarant
ii. Except:
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1. Statement of memory or belief to prove
the fact remembered or believed
iii. Remember  CA trustworthiness requirement
iv. Present SOM admissible to prove:
1. Past, present, and future SOM of
declarant; AND
2. Present or future conduct of declarant
c. To Prove Future Conduct
i. Rule: statements of present SOM are admissible
to prove that declarant subsequently acted in
accordance with that SOM
ii. Joint Conduct
1. Courts will allow statements to prove
conduct of person other than declarant
2. Rule: a statement of present SOM is
admissible to prove the future conduct
of not only the declarant but of anyone
else described in that statement
a. Ex: “I am going to SF with Arin”
d. To Prove Past Conduct
i. Both CA and Federal do NOT allow statement of
present SOM to prove past conduct
1. Exception ONLY under Federal: cases
involving declarant’s will
3. Statements of Past State of Mind  CEC § 1251
a. CA ONLY
i. Ex: “I believed that the route was the shortest
route”
b. Rule: statement of declarants past SOM is admissible if:
i. Declarant is unavailable
ii. SOM is at issue in the action and not offered to
prove any fact other than SOM
iii. Must be trustworthy
c. NOT admissible to prove:
i. Past, present, or future conduct of declarant
ii. Future conduct of third party
d. Is it admissible to prove present or future SOM?
e. NOTE: applicability to physical condition
v. Physical Condition
1. Rationale:
a. No purpose in lying
b. You want to get better so you will tell the Dr. the truth
2. Federal  FRE § 803(4)
a. Rule: statements made for the purposes of medical
diagnosis or treatment are admissible so long as they
are pertinent to diagnosis or treat
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b. This includes:
i. Medical History
ii. Past or Present Symptoms; OR
iii. Cause
c. Statement can be made to:
i. Physicians
ii. Physicians Assistants
iii. Nurses
iv. Emergency Room Intake Receptionist
3. California  NO EXCEPTION
a. However, can be admitted under the past state of mind
exception discussed above
b. Broader than the Federal Rule:
i. Does not have to be spoken to persons for
diagnosis or treatment
1. Ex: can be a statement of a past physical
condition to a friend over a beer
c. NOTE: since under 1251 (past state of mind) MUST
have unavailability (of who?)
4. California v. Federal
a. ONLY Federal must be for diagnosis or treatment
b. Cause of Physical Condition:
i. Federal  statement describing the cause to
physical condition admissible if reasonably
pertinent to treatment or diagnosis
ii. California  no such admissibility
1. Thus, only declarants description of her
physical condition admissible, but NOT
cause
c. Unavailability  NOT required under Federal
i. Under CA:
1. Required for past physical condition
2. Not required for present physical
condition
d. Trustworthiness  ONLY required in CA
vi. Past Recollection Recorded  FRE § 803(5) / CEC § 1237
1. Rule: a memorandum or record can be read into evidence if:
a. Witness has no present recollection of what he said;
b. Statement was made or adopted by witness;
c. Written record made immediately after incident
while FRESH in memory;
d. Witness prepared to swear they took it down
accurately
e. CA ONLY  writing must be authenticated
2. Proponent v. Opponent of Evidence:
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a. Proponent is only allowed to have the document read
into evidence
b. Opponent is allowed to offer the document into
evidence
3. NOTE:
a. Usually comes up with police or investigative reports
b. One of the only hearsay exceptions that requires the
declarant to be in court
4. Present Recollection Refreshed
a. NOT a hearsay exception
b. Rule: can refresh a witness’s recollection with anything
(i.e. song, paper, report, snuff)
c. HOWEVER
i. When you refresh a witnesses recollection the
other side gets to see what is used to refresh
vii. Business Records
1. FRE § 803(6)
a. Rule: business records will be admissible if:
i. Writing made in the course of a regularly
conducted business activity
ii. Must be recorded
iii. It was the regular practice of the business to
make that record (not just for litigation)
1. Look to the purpose of the person’s job
2. For employees  within the scope of
employment
3. Ex: Dr. takes down details of accident
from patient; all that is allowed is what is
need to fix the injury NOT statements of
liability
iv. Record made at or near time of event by a
person with knowledge
v. Person who writes it must be under a business
obligation to do so
vi. Must be trustworthy:
1. Must ask whether or not this was made
for purposes of litigation
2. If self-serving (i.e. an accident report
made after the fact from one party’s point
of view)
3. Court looks to the circumstances in
deciding whether or not there is sufficient
trustworthiness
2. CEC § 1271
a. Rule: records will be admissible if:
i. Made in the regular course of business
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ii. Writing made at or near in time to the event
iii. Custodian of records testifies to the identity and
mode of its preparation; AND
iv. Must be trustworthy
3. Absence of Business Records  FRE § 803(7) / CEC § 1272
a. Rule: absence of an entry will be admitted if:
i. It was in the regular course of business to keep
records
ii. Lack of entry being used to show nonoccurrence of the event
iii. Source and method indicate trustworthiness
d. Admissions
i. Generally:
1. Difference in Title:
a. Under Federal this is an exemption
b. Under CA this is an exception
2. Must be offered by opponent  cannot offer them yourself
3. Admission is anything a party has ever communicated sought
to be introduced against that party at trial
4. Only applies to party’s in the case NOT witnesses
5. NOTE: although a party’s statement or conduct is an admission,
may still be disallowed under other rules
a. Ex: plea or offer to plea may be an admission but
excluded by another rule
6. 5 Types of Party Admissions:
a. Individual (Regular) Admissions
b. Adoptive Admissions
c. Authorized Admissions
d. Vicarious (Employee) Admissions
e. Co-Conspirator Admissions
ii. Individual Admissions  FRE § 801(d)(2)(A)/CEC § 1220
1. Rule: admissions or statements by party opponents are
admissible against them
a. Party CANNOT introduce their own statement
b. Essentially, any statement made by a party at any time
is admissible as an admission if relevant and offered by
opposing party
2. NOTE: in criminal trials, D cannot introduce admissions made
by the Prosecution; however, the Prosecution can introduce
admissions made by the D
iii. Adoptive Admissions  FRE § 801(d)(2)(B)/CEC § 1221
1. This is essentially a party’s reaction to another person’s
statement or conduct when it is reasonable to treat the party’s
reaction or inaction as an agreement with what was said
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2. Rule: third party statements will be attributed to the party in
the litigation if the party manifested an adoption or belief in
the truth of the statement
a. Must be established by a preponderance of the
evidence as determined by the judge
b. Using this, the opposition can introduce BOTH:
i. Statement by the D; AND
ii. Statement by the Third Party
c. LOOK FOR:
i. “yes, I agree with you”
3. Admission by Silence
a. Rule: silence can lead to an adoptive admission if a
reasonable person under the circumstances would have
responded to the third party statement
b. NOTE: this is not a separate exception, but included in
this exception through “words or other conduct”
iv. Authorized Admissions
1. Rule: statements made by an individual authorized to make
statements for a party concerning the subject are admissible
a. Must be established by a preponderance of the
evidence as determined by the judge
b. Ex: Press Secretary allowed to speak for President
2. The rule only covers statements made by agents who have
speaking authority
a. Both made by agents to their principals AND agents to
third persons
3. To prove authority:
a. In CA  statement CANNOT be considered (only nonhearsay evidence)
b. In Fed  statement ALONE not enough; need other
evidence
4. Both require employment at time of statement
v. Vicarious Admissions
1. For purposes of the EXAM, CA and Fed are the SAME
2. Rule: statements made during the course and within the
scope of employment are admissible regardless of the
employee’s potential liability
a. DOES NOT allow statements by employees after they
are fired
b. NOTE: this includes people not explicitly authorized to
speak
3. Right to speak arises out of the nature and scope of the
employee’s duties
vi. Co-Conspirator Admissions
1. Rule: statements of co-conspirators are admissible if:
17
a. Party is a co-conspirator talking about the criminal
enterprise
b. Statement made during the course of the conspiracy
c. Statement made in furtherance of the conspiracy
2. NOTE: confessions made to the police are NOT in furtherance
or during the conspiracy
a. Once you have been arrested, you are taken out of the
conspiracy
3. Partnership Admissions:
a. A similar rule
b. Rule: any statement made by one partner within the
scope of the partnership, about the partnership, and
during the partnership can be admitted against all
e. Prior Inconsistent Statements
i. General:
1. This exception is also used for impeachment of a witness
a. NOTE: under FRE for impeachment the statement is
admissible even if not made under oath
2. Federal is more limited
3. California is very broad
ii. Federal  FRE § 801(d)(1)(A)
1. Rule: prior inconsistent statements will be admitted as truthful
if:
a. Declarant testifies at trial and is subject to crossexamination
b. Previous statement was given under oath
c. Previous statement made at a:
i. Trial;
ii. Hearing;
iii. Other Proceeding; OR
iv. Deposition
iii. CA  CEC § 1235
1. Rule: prior inconsistent statements will be admitted as truthful
if:
a. Declarant testifies at trial;
b. However, cannot be used UNLESS:
i. Witness has a chance to explain the
inconsistency
ii. Witness has not been excused from further
testimony; OR
iii. Interests of Justice require otherwise
iv. Federal v. CA
1. Under the Federal the statement must be under oath
a. CA has no such requirement
2. CA does not require the formal setting that the Federal does
f. Prior Consistent Statements
18
g. Prior Identification
i. General:
1. Both CA and Federal require availability of witness
2. CA much more restrictive than Federal
ii. Federal  FRE § 801(d)(1)(C)
1. Rule: the prior identification is admissible if:
a. Declarant is on the stand
b. Declarant testifies at trial or hearing and is subject to
cross-examination
c. Statement is of identification of a person after
perceiving the person
2. Does not matter whether or not the witness can now identify
the person in court
3. No timing issues or swearing to the accuracy of the statement
iii. CA  CEC § 1238
1. Rule: the statement is admissible if:
a. Statement would have been admissible if made by him
while testifying
b. Declarant is on the stand
c. Statement is of identification of a person who
participated in crime or other occurrence
d. Made soon after occurrence
i. NOTE: Time limitation that is not existent in
Federal Rules
e. Witness must first testify that they made the
identification and it was a true reflection of his
opinion at that time
i. Must swear to the accuracy of the identification
2. Even if the witness does not remember it now it is admissible
a. NOTE: this is the main difference between this an Past
Recollection Recorded
iv. CA v. Federal:
1. Both require prior identification have been made by someone
who is now a witness in court
2. CA Requires:
a. Similar to past recollection recorded
b. Witness on the stand now, be able to say, that the time
they made the identification it was a true reflection of
their opinion
h. Expanding Hearsay Exceptions
i. General:
1. ONLY in the Federal Rules
2. NO CA equivalent
ii. Rule: an otherwise hearsay statement is admissible if:
1. Most probative piece of evidence on the issue that the
proponent can reasonable get; (necessary)
19
i.
2. Offered to prove a material fact
3. Made under circumstances that suggest its trustworthiness
(reliability)
4. Proponent tells opponent in advance so they have a chance to
prepare and counter (fair)
Hearsay and the Confrontation Clause
i. General
1. Confrontation Clause  gives the defendant a right to confront
accusers/a witness when he is presenting evidence against
defendant
a. Becomes an issue in criminal cases, where admission
of hearsay prevents defendant from being able to crossexamine or confront witness
b. Serves as an additional check against hearsay!
2. Rule: A D in a criminal case has the right to confront any
prosecution witness; even prosecution witnesses not brought
to court but have their evidence offered by way of a hearsay
exemption or exception
a. Ex: witness makes excited utterance; does not come to
court; D can make the claim that their statement was
testimonial
3. Hearsay must be testimonial for confrontation to apply (see
below)
4. Note  evidence that qualifies under other established
hearsay exceptions automatically satisfies confrontation
ii. Old Factors
1. State could prove that hearsay was admissible in a criminal
trial without violating confrontation clause if:
a. Necessary  evidence otherwise unavailable except for
hearsay (perhaps because of defendant’s criminal
actions)
b. Trustworthy  more reliable it is, less likely court finds
it violates confrontation
2. This is not clear law, do we need to know this?
iii. Testimonial Requirement
1. Rule: Only testimonial hearsay is subject to confrontation
a. If a statement is testimonial, declarant is considered a
“witness” which defendant has the right to confront
2. What is Testimonial?
a. Rule: hearsay is testimonial (and therefore subject to
confrontation) only if declarant is aware that
statements may be subsequently utilized in criminal
prosecution
i. Testimony  preliminary hearings, jury
testimony, former trial testimony, police
interrogation, police reports
20
X.
ii. Non-testimony  business records, statements
made in furtherance of conspiracy
b. Emergency statements are not testimonial
i. If declarant makes statements to get assistance
in an on-going emergency, statements are nontestimonial (statements to stop an on-going
crime)
1. 911 call = non-testimonial, but info
solicited afterward during police
investigation is testimonial
ii. Is declarant talking about what is happening
(emergency non-testimony) or what happened
(testimony)?
3. The line here is fuzzy
4. Exceptions to Testimonial Evidence (admitted despite
confrontation problem)
a. Dying Declaration
b. Declarant is unavailable but defendant had an
earlier chance to cross-examine
c. Forfeiture Rule  defendant loses confrontation right
if he is the reason why witness is unavailable
i. Defendant killed witness or somehow had intent
to make witness unavailable
1. Killing witness in heat of passion does not
trigger forfeiture of confrontation right
iv. Due Process
1. Rule: Defendant should not be denied constitutional right to
present witnesses by hearsay rule if such evidence is:
a. Necessary to the case
b. Otherwise trustworthy
2. Hearsay rules cannot be applied mechanically if they violate
defendant’s due process right to bring witnesses!
a. Defendant has a right to offer in legitimate evidence and
rules of evidence are trumped by defendant’s
constitutional rights
Character Evidence
a. Generally
i. Evidence referring to character is used to attack credibility of that
witness
ii. 3 ways to show character:
1. Specific acts
a. Most probative and used to prove notice
b. Ie. Witness says “D is a saint.” P offers evidence
showing that D kicked his dog and asks if witness knew.
i. If Yes  maybe W lies about D
ii. If No  maybe W doesn’t know D so well
21
2. Opinion
3. General Reputation
a. Ie. If defendant calls witness to say how honest he is,
prosecution may rebut with evidence of a theft arrest 
conviction not necessary, arrest relevant to reputation!
b. Character Evidence used when Character Is Material
i. When character evidence is a material issue (ultimate thing being
proven) then character evidence can be used.
1. We are afraid that if defendant was like that in the past, they
will be like that in the future/present  different than using
evidence of character traits in the past to prove/show that
someone did something now.
2. Note  rules are same in both criminal/civil
ii. Character evidence is admissible if proving:
1. Negligent Entrustment
a. Employer was negligent in entrusting employee to use
reasonable care in job  employee’s character is now
material issue
b. Character traits puts employers on notice that their
employees may be negligent or dangerous
i. Ie. Showing employee went to work drunk in the
past
c. If also bringing negligence claim, then for limited
purpose of showing neg. entrustment may require
limiting instruction
2. Defamation
a. May use character evidence to show what reputation
was prior to defamation/how much damages should be
3. Child Custody (parent traits)
4. Wrongful Death (measure damages)
iii. Evidence that can be used:
1. Common  specific acts
2. Federal  specific acts, reputation, opinion
3. California  specific acts, reputation, opinion
c. Character Evidence Used to Prove Propensity (circumstantial evidence)
i. General Rule: Cannot offer evidence of a person’s character to prove
propensity.
1. Propensity  inference that because a person did/does
something in the past, he likely did it on this occasion.
a. Considered prejudicial
2. Exception:
a. Impeaching witness credibility (see below)
ii. Civil Rules
1. Can never use prior acts to show someone did something on a
particular day
iii. Criminal Rules
22
1. Character of the Defendant
a. Mercy Rule: Defendant may offer evidence to show
traits of his character  BUT this allows prosecution to
rebut/cross-examine and do the same (opens the door!)
i. Burden of proof is reasonable doubt, so
character evidence may help defendant beat this
ii. Relevancy requirement  character evidence
must be relevant to the charges
1. No evidence of non-violence for a fraud
charge
iii. Rules on Type of Evidence Allowed Under Mercy
1. Common:
a. D  reputation (not other 2?)
b. P  rebut with reputation, specific
acts
2. Federal:
a. D  reputation, opinion
b. P  rebut with reputation, opinion,
specific acts (DOUBLE CHECK
SPECIFIC ACTS)
3. California:
a. D  reputation, opinion
b. P  rebut with reputation, opinion,
specific acts
4. Note  P rules are for rebuttals – if
prosecution offers witness of defendant’s
character in rebuttal, then defendant can
cross-examine about specific acts!
5. Is this correct  prosecution can crossexamine about specific conduct, but not
rebut with specific conduct evidence?
2. Character of the Victim
a. Mercy Rule also allows defendant to offer evidence of
victim’s character if relevant to charge
i. Danger  opens door for P to offer rebuttal
about victim’s character AND defendant’s
character!
1. Evidence about defendant’s character
introduced must be relevant to what
defendant is seeking to prove by attacking
victim’s character  cannot be unrelated
character evidence.
a. Ie. If D challenge’s V’s character for
violence, P can offer evidence
about D for violence
23
b. Rules on Types of Evidence Allowed for Evidence About
Victim
i. Common:
1. D  reputation
ii. Federal:
1. D  reputation, opinion
2. P  rebut with reputation, opinion,
specific acts
iii. California:
1. D  reputation, opinion, specific acts
2. P  reputation, opinion, specific acts
c. Homicide Rule (FEDERAL ONLY)
i. If defense claims victim was aggressor (selfdefense), prosecution may rebut to show victim’s
peaceful character
1. P may use reputation, opinion (no specific
acts)
2. Does not apply in CA  defendant cannot
just claim self-defense, must prove
specific act/evidence showing it
3. Exceptions to Propensity Rule
a. Exceptions where character evidence of past acts is
allowed to show likelihood of current act:
i. Sexual Assault/Sex Crimes
1. Federal  prior sex crimes of similar
nature or child molestation
2. California  Prior sex crimes or child
molestation or domestic violence
ii. Impeachment
1. Admissible when offered to attack
witness credibility (see below)
iii. Character to Prove Something Other than
Propensity
1. Identify relevant issue for which evidence
is being offered and then:
a. Does prejudicial impact outweigh
probative value?
b. Did proponent of the evidence
prove by preponderance of the
evidence that the defendant
committed the act seeking to be
proved?
2. Evidence Allowed:
a. Common  specific acts
b. Federal  specific acts
c. California  specific acts
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3. Use to prove:
a. Motive
b. Intent
c. Knowledge
d. Preparation
e. Identity
f. Absence of Mistake/Accident
g. Modus Operandi (unique criminal
signature)
4. Modus Operandi Foundation Required
a. Before showing modus operandi,
must show by preponderance of
the evidence that D was involved
in past, related crime!
b. Doesn’t matter if they were
acquitted  must just show
signature crime element and that
D committed each of these crimes
under preponderance of evidence
XI.
d. Habit
i. No longer character evidence if can prove defendant did something
every day
1. Much higher probative value (but still see if prejudicial impact
outweighs); more admissible than character evidence
ii. Relevance important  habit/routine must be relevant to prove
person in current situation operated in conformity with past habit
1. Business  Custom or “Routine Practice”
2. Individuals  Custom or Habit
Witness Impeachment
a. Generally
i. When witnesses are introduced, credibility becomes an issue. Also
applies when defendant takes the stand.
ii. Dishonesty vs. Untruthfulness
1. Dishonesty is broader
a. Ie. Stealing is dishonest but not untruthful (if there is no
lying involved)
2. For credibility, we focus on untruthfulness.
3. How do we know if probative value outweighs prejudicial?
a. Crimes like perjury/fraud have very high probative
value
i. Under federal, crimes involving dishonesty are
always probative
b. Other crimes may be admitted but if unrelated to truthtelling, prejudicial impact may outweigh probative
value
iii. 5 Methods of Impeachment
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1. Bias
2. Mental Defects
3. Character for Untruthfulness
a. Impeachment by Reputation/Opinion
b. Impeachment by Prior Bad Acts
c. Impeachment by Prior Convictions
d. Impeachment by Prior Untruthful Acts
4. Specific Contradiction
5. Prior Inconsistent Statements
b. Bias
i. Evidence that witness may have reason to not give truthful testimony
ii. Rule: Bias is always considered material and is never collateral.
1. Can use extrinsic evidence to impeach witness over bias
2. Common  cross-examining witness first requires laying
foundation
c. Mental Defects
i. Any sensory/mental defect that might affect witness capacity to relate
events is admissible to impeach.
1. Psychological
2. Physical (includes drug/alcohol use)
3. Educational, etc.
ii. Attorney may resort directly to extrinsic evidence without foundation
1. Capacity is always relevant and never collateral.
d. Character for Untruthfulness
i. Impeachment by Reputation/Opinion
1. Credibility of witness may be attacked/supported by evidence
of reputation and opinion if:
a. Evidence refers to witness’ truthfulness/untruthfulness
b. Evidence only admissible AFTER witness’ character has
been attacked by opinion/reputation evidence
2. Federal/California  same rules, may use reputation/opinion
evidence after witness’ truthful character is attacked
a. Common  only reputation after character attacked
3. Before allowing reputation/opinion evidence, must lay
foundation  show how new witness being introduced is
acquainted with/knows about witness being impeached
ii. Impeachment by Prior Bad Acts
1. Federal  not allowed by extrinsic evidence, but if related to
truthfulness, may inquire on witness cross-exam if:
a. (1) Prior act reflects on truthfulness
b. (2) Asked in good faith
c. (3) Evidence is asked about on cross, and not offered
through extrinsic evidence
i. Can only cross-examine, not introduce
documents or other witnesses who observed
prior bad act
26
d. (4) Probative value substantially outweighs
prejudicial impact
2. California
a. Criminal  Case law says prior acts admissible to
examine credibility of witness (other than accused) as
long as relevant to dishonesty
b. Civil  Prior specific bad acts NOT admisible
iii. Impeachment by Prior Convictions
1. Felonies
a. Witness is NOT the Defendant
i. Federal  Any felony admissible in
civil/criminal
1. To exclude, must show low probative
value substantially outweighed by high
prejudicial impact
a. Demanding standard to keep out
ii. California  Admissible unless pardoned
1. Applies to civil/criminal
b. Witness IS the Defendant
i. Federal  Any felony admissible in criminal
1. To include, must show probative value
outweighs prejudicial impact
2. Burden is on prosecutor for this, standard
is NOT substantially outweighs (burden
on government not as high)
ii. California  Must meet Beagle Factors and be
crime of moral turpitude
1. Beagle Factors
a. Similarity of prior conviction to
current charge
i. More similar = more
prejudicial
b. How long ago was the prior crime?
i. Older = less probative
c. Does prior conviction reflect on
honesty/integrity of defendant?
i. Relevant to credibility?
d. Would fear of jury hearing prior
conviction prevent D from
testifying?
2. Moral Turpitude
a. Is MT  possession with intent to
sell, aggravated child neglect, etc.
b. Is NOT MT  mere possession,
simple child neglect, battery
27
3. Castro Rule  in criminal cases, no prior
evidence of past convictions is admissible
unless it is logically relevant
a. MT requirement exists to show
relevance of conviction evidence
4. For civil cases  felonies in CA
admissible
2. Misdemeanors
a. Federal  Admissible as long as they involve dishonesty
i. Applies to criminal/civil
b. California
i. Criminal  Admissible if relates to dishonesty
ii. Civil  Not admissible
3. Federal 10-Year Limitation Rule  evidence of prior
conviction is inadmissible if more than 10 years has passed
from date of conviction or date of release (whichever later)
unless probative value substantially outweighs prejudicial
4. Common Law  allows any specific acts that tend to discredit
witness (including, but not limited to, felonies)
e. Specific Contradiction
i. May use evidence of specific contradiction to attack a witness’
credibility
ii. Federal
1. Collateral Matter Rule  If evidence is just relevant to
attacking witness credibility and has no independent relevancy
to the case, you cannot introduce extrinsic evidence about
contradiction (including going to another witness)
a. Saves time  don’t want to allow impeachment just
because witness was wrong about something
2. If matter is not collateral, may prove specific contradiction
through extrinsic evidence.
a. Ie. Witness A testifies she saw D shoot victim; to
impeach A, D offers witness B who says C shot victim 
not collateral because who shot victim is relevant to
case!
iii. California  Must be relevant; probative value substantially
outweighs prejudicial
iv. Common  no extrinsic evidence allowed
f. Prior Inconsistent Statements (PIS)
i. Introducing evidence that witness made prior statements inconsistent
with testimony  not offered for truth, but to show that witness said
inconsistent things about what he is testifying about
1. Can use any statement (oral, taped, written, sworn, unsworn)
but must have been made by witness himself
28
ii. Interest of Justice Exception  for both Federal and CA, extrinsic
evidence of PIS will be admissible if interest of justice otherwise
requires!
1. If witness is unavailable or other hearsay exception applies,
foundation not required
iii. Federal  extrinsic evidence of PIS not admissible unless:
1. Option 1 (both required)
a. Give chance for witness to deny/explain AND
b. Give opposing party chance to question witness on
statement in question
- OR
2. Option 2
a. Lay foundation (time/place/person while witness is on
stand)  only necessary if using extrinsic evidence??
3. In other words  if you give witness opportunity to explain
statement, you don’t first need to lay foundation but need to
eventually to use extrinsic evidence??
4. Presentation of writing  not required to show witness
document but must present to opposing counsel if requested
5. Note  under Federal rules, hearsay declarant is like a witness,
so hearsay declarants can be impeached by all impeachment
methods
a. No foundational requirement for extrinsic evidence
iv. California  extrinsic evidence of PIS not admissible unless:
1. Option 1
a. Give chance for witness to deny/explain AND
b. Witness not yet excused
- OR
2. Option 2
a. Lay foundation (time/place/person while witness is on
stand)
3. Presentation of writing  not required to show witness
document but must present to opposing counsel if requested
v. Common  To admit extrinsic evidence of PIS:
1. Lay foundation (time/place/person while witness is on stand)
2. Used to have to present witness with writing before
impeaching
g. Rehabilitating a Witness
i. Once witness has been impeached, can use rehabilitation evidence to
try and revive him.
1. Federal and California rules are the same.
2. Note  generally, cannot bolster/support witness credibility
with evidence relevant only to that until after impeachment
ii. Attacks on Witness’ Character
1. Cannot give evidence about witness’ character for truthfulness
without first having witness character attacked.
29
XII.
2. Usually limited to opinion/reputation, but if witness’
credibility attacked by prior bad act, may be able to revive
credibility by prior good act.
iii. Attacks on Witness’ Statements
1. Cannot give evidence about PIS before witness’ character has
been attacked.
2. Must be attacked in one of two ways:
a. Recent fabrication (other side accuses witness of
having motive to make up what he is saying after the
time it allegedly occurred)
i. Rule: Statements consistent with witnesses’
current testimony are admissible if they were
made before the date of witness’ alleged motive
to lie. They are inadmissible after this date.
b. Claim of PIS (other side accuses witness of making
prior statement inconsistent with what witness is now
saying in present testimony)
i. Statements consistent with witness’ current
testimony are admissible if they were made
before the date of witness’ alleged PIS. They are
inadmissible after this date.
1. Note  Federal rule is broader, does not
require prior inconsistent statements to
have been made under oath to be
admitted.
Best Evidence
a. Generally
i. Rule: When a witness testifies as to the contents of a writing, the
original must be produced or there must be an exception.
1. Rule applies only when proving the content of a
writing/recording/photograph  any form of recorded
information technically qualifies as a writing
a. Ie. Letters, receipts, account books, blueprints, movies,
X-ray plates, audio tapes, CDs, oral recordings, etc.
i. Duplicates  highly accurate reproductions (ie.
Computer printout)
ii. Secondary Evidence  not duplicates or
originals (could be typewritten or handwritten
copies)
b. Ie. W is a radiologist who examined injury X-ray. Did
not bring X-rays, but testifies what he saw on the X-ray.
Triggers Best Evidence  need to see the X-ray!
2. Rule does not apply when witness is testifying from his own
memory (not what he saw on the writing)
30
a. Ie. W testifies about earnings of his company. Did not
need to produce accounting books because he had
knowledge of earnings before they were recorded.
b. Look to see whether information was available to witness
before or after it was recorded  if after, may be Best
Evidence issue
ii. Note  if a writing is collateral (minor issue in trial) then best
evidence may not apply/be necessary
b. Federal
i. To prove the contents of a writing, recording or photo, the original
writing is required.
1. Note  if the party for whom the contents of the writing is
being offered against gives testimony about it, then BER does
not apply (don’t need original)
a. Applies only to written/transcribed admissions, not
oral admissions
ii. Exception  Duplicates are admissible as originals unless:
1. Dispute related to authenticity of original; OR
2. Circumstances would be unfair to admit duplicate
iii. Exception  Secondary Evidence (includes oral statements)
1. Other evidence (not original or duplicate) is allowed about
contents of a writing if:
a. Originals lost or destroyed (not in bad faith);
b. Originals not obtainable by judicial process;
c. Original in possession of opposing counsel and he will
not produce it; OR
d. Writing is not closely related to issue (collateral)
iv. Note  if something is public record, you don’t need an original and a
copy is sufficient
c. California
i. No rule on duplicates
ii. Secondary Evidence
1. Written  Written secondary evidence admissible unless:
a. General dispute concerning material term and justice
requires exclusion OR
b. Admission would be unfair
c. Note  Remember “written” here includes photos!
2. Oral  Oral secondary evidence admissible only if:
a. Party does not have a copy; AND
b. Original lost, destroyed or collateral
i. Must not be fault of the party
3. Criminal  In addition to written evidence rule, secondary
evidence also inadmissible in criminal trial if:
a. Original in possession of proponent; AND
b. Proponent has not made original available to other side
at or before trial.
31
XIII.
i. Does not apply to duplicates, collateral matters,
public records
iii. Written secondary evidence is better than oral secondary evidence
d. Common
i. Duplicates  admissible as originals if original unavailable.
ii. Secondary Evidence  burden on proponent to prove reliability
Authentication
a. Rule: Evidence is not self-authenticating; proponent of the writing must
prove through extrinsic evidence that the writing is genuine
b. Telephone Calls
i. Federal rule, probably also applies to CA
1. Evidence that call was made to number assigned by phone
company and:
a. If person  Circumstances (including self-ID) show the
person answering to be the one who was called.
b. If business  call related to business transacted over
phone
2. Rule only deals with calls made, not calls received
c. Federal
i. Authentication Methods
1. Testimony of witness with knowledge
2. Non-expert testimony on handwriting (ie. By spouse)
3. Comparison with authentic writing
4. Distinctive characteristics
5. Voice ID
6. Telephone Conversations
a. Also e-mails  Federal does not allow selfauthentication of these
7. Public Records
8. Ancient Documents (20 years or older = authenticated)
ii. Self-Authentication  No other evidence required
1. Public documents under seal/certified
2. Foreign public documents
3. Official publications
4. Newspapers and periodicals
5. Trade inscriptions (ie. Computer with Apple logo)
6. Commercial paper
7. Acknowledged documents
d. California
i. Rule: Mere recitation of a name is insufficient to authenticate a
writing
1. Original must be authenticated before secondary evidence is
admissible
2. Handwriting  can be authenticated via expert or someone
familiar
32
XIV.
3. Reply Rule  writing received in response to a letter to the
alleged author is authentic
4. Authentication by Content  Writing which has contents
only the alleged author would know is authenticated
ii. CA has no trademark rules, so difficult to get evidence of this in
e. Common  mere recitation of a name is insufficient to authenticate a writing
Privilege
a. Generally
i. Privilege is only asserted during a legal proceeding when a party
attempts to force disclosure of a communication for evidence
ii. Process
1. Did the communication take place within the relationship
required for the privilege?
a. Relationship must exist first to exert privilege!
2. Was the communication confidential?
a. If holder reveals it  no confidentiality!
3. Who can claim the privilege?
4. Has the proponent acted in a way to destroy the privilege?
iii. Impersonators
1. If client communicates under reasonable belief that he is
talking to someone under a privileged relationship, then
privilege still applies.
a. Ie. If someone pretends to be a lawyer, client may still
be able to assert privilege if he believed it was true.
iv. Death
1. Federal  looks like all privileges survive death
a. Except possibly marital privilege
2. California  Privilege does not survive death.
b. Attorney-Client Privilege
i. Rule: A/C privilege is impenetrable.
1. Applies not just to attorney but also attorney’s agents (law
clerks, secretaries, etc.)
ii. Only statements made between lawyer and client for purpose of
services/advice are considered privileged
iii. Holder  client holds the privilege
1. Note  privilege only applies to statements between
lawyer/client; this does not mean that the actual information
said in the statements cannot come out in trial
a. Does not apply to objects
2. Note  Attorney who discloses privileged communications has
not waived privilege because the privilege is not his to waive
(but he will have violated ethical rules).
3. However, attorney may claim privilege on behalf of client.
iv. Privilege covers confidential information
1. If statement is said publicly, it won’t be privileged
v. Special A/C Rules
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1. Identity Rule  Attorney may not be compelled to reveal
identity of his client IF there is a confidential issue surrounding
identity
a. Does not extend to others who may know the identity
from other circumstances  ie. Subpoenaing bank
records to discover client name
2. Hiring Rule  Information about employment of attorney is
confidential (if there is a confidential issue involved)
a. However, privilege about employment will not apply to
hiring a lawyer for others
3. Physical Evidence Rule  A/C privilege only applies to
communications, so privilege does not extend to objects given
to attorney by client
a. Documents may only be privileged IF privilege would
have prevented the government from subpoenaing the
documents in the first place
i. Don’t want lawyers to become depositaries!
b. Communication regarding object is still confidential
(and attorney is not required to disclose client identity)
c. Attorney may hold onto object, but if it is evidence, he
probably has to turn over or be charged with
obstruction of justice
4. Eavesdropping/Disclosure to 3rd Party Rule  privilege is
not waived if a third party overhears the privileged
communications (which were intended to be confidential)
unless the client knew or should have known of the third
party’s presence
5. Crime-Fraud Rule  Privilege will not extend to
communications where the client seeks/obtains lawyer’s
services to enable or aid anyone to commit or plan to commit a
crime
a. But  if client didn’t solicit/ask for help to commit
crime and lawyer just offers services anyway, then
privilege for client will still exist!
6. Attorney Agent Rule  Persons obtained by the attorney for
the sole purpose of assisting with the litigation are covered by
privilege
a. Includes translators, doctors (to testify), engineers, etc.
b. Presence of third party must be necessary for the
performance of attorney
7. Corporate Control Group Rule  In the case of a company
lawyer, A/C privilege covers the control group (President, BOD,
upper management)
a. Exception  Employees outside the control group may
also be covered if:
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i. Communication to attorney was made at
direction of employee’s superiors AND
ii. Employee’s performance of his duties is the
subject matter upon which attorney’s advice is
sought (relates to litigation)
b. No individual privilege exists for employees
communicating to company lawyers
i. Communications made on behalf of company 
privilege only applies to control group/those
within the exception
c. No privilege exists for former employees
8. Death of Client Rule
a. Federal  privilege extends beyond death unless
adverse to client’s interests
b. CA  privilege extinguishes at death of client
9. Other CA Rule  privilege does not apply if attorney
reasonably believes disclosure is necessary to prevent death
or serious bodily harm to an individual
vi. Work Product Privilege
1. Work Product  all items prepared by attorney in assisting
client’s case
2. Rule  work product is privileged unless there is “strong need”
for the materials
a. Must be more than mere inconvenience or expense (ie.
Death of a witness interviewed by opposition)
vii. Client-Litigant Exception  if a client sues a lawyer for malpractice
and then objects to use of communications divulged under A/C
privilege as evidence, privilege is deemed waived
1. Otherwise attorney can’t defend himself.
c. Patient-Physician Privilege
i. Structured similar to A/C privilege
ii. Federal  unsure if it exists, not established by common law
iii. California
1. Civil  privilege applies to confidential communications
made between patient and doctor, when patient sought out
doctor for medical treatment
a. Extends to both observation and communication
b. If patient sought doctor for medical diagnosis (as
evidence for litigation), then privilege does NOT apply
c. Patient-Litigant Exception  for cases involving
personal injury of a victim, patient-physician privilege is
waived so communication related to the matter can be
revealed about patient’s injury/condition
2. Criminal  no patient-physician privilege
d. Psychotherapy-Patient Privilege
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i. Rule: communication between a client and psychotherapist made for
the purpose of seeking psychological treatment are confidential.
1. Applies to  doctors, social workers, therapists, etc.
ii. Holder  patient holds the privilege and is the only one who can
assert it
1. The doctor has no independent privilege and cannot assert it if
patient does not want to
2. Like doctor-patient privilege, this privilege may be waived by
patient submitting her physical condition as an issue at trial
a. But must be more than asserting emotional distress 
must be a substantial part of the case.
iii. Patient-Litigant Exception  applies only if emotional distress is
principal/significant claim in the case
1. Claims limited to emotional distress may remove the privilege
(not generalized pain and suffering)
a. Could be use of insanity, mental distress, any
psychiatric defense
iv. Dangerous Patient Exception  if psychotherapist reasonably
believes patient is a danger to himself or others and disclosure is
necessary to prevent harm, privilege will not attach to that session or
future sessions.
1. Privilege still attaches to past sessions
2. Confessions to past crimes do not undo the privilege
3. Even if shrink does not reveal the danger, privilege still won’t
apply.
v. Other Exceptions to the Privilege:
1. Crime/fraud involved
2. Shrink appointed by court
e. Priest-Penitent Privilege
i. Rule: communications between a priest and penitent are privileged.
ii. Holder  both priest and penitent hold the privilege here
1. Do not want to see a bunch of priests in jail
f. Marital Privilege  2 forms
i. Marital Disabling Privilege (Prospective Privilege)
1. Purpose  avoid destroying existing marriages
2. Holder  only wife (spouse not on trial) holds the privilege
3. Only applies is husband and wife are married at date of
testimony
4. California  civil and criminal cases
a. Does not apply for sham marriages which exist only to
prevent testimony
5. Federal  criminal only, NOT civil
6. Exception  Victim’s Exception
a. Rule: Wife (spouse) cannot invoke privilege in a
criminal case where:
i. Wife (spouse) is a victim;
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ii. Child of either spouse is a victim;
iii. Third party victim is injured while defendant
spouse was committing a crime against wife
(spouse)
b. Crime/Fraud  privilege also does not apply if
communication was made to enable or aid anyone in
committing a crime or fraud
ii. Marital Communication Privilege (Retrospective Privilege)
1. Purpose  encourage open and honest communications in a
marriage
2. Applies if husband and wife were married at the time of the
communication and communication was made in confidence
a. Communication must be made during official, legal
marriage  if 5 minutes before wedding,
communication not covered
b. No third parties can be present or not made in
confidence
3. Holder  both parties hold
a. In CA, wife (spouse) may be forced to testify if party
spouse wants them to
4. Exception  Victim’s Exception
a. Rule: Wife (spouse) cannot invoke privilege in a
criminal case where:
i. Wife (spouse) is a victim;
ii. Child of either spouse is a victim;
iii. Third party victim is injured while defendant
spouse was committing a crime against wife
(spouse)
b. Crime/Fraud  privilege also does not apply if
communication was made to enable or aid anyone in
committing a crime or fraud
g. Reporter Privilege
i. Federal  reporter has no privilege to hide sources, court can hold in
contempt if refuses to give
ii. California  reporter has privilege to his info/sources and may not be
held in contempt for refusing to reveal
h. Governmental Privilege
i. Civil Trials
1. Rule  Government may assert privilege if:
a. Letter submitted from head of a federal department;
b. Head of department understands his decisions; AND
c. Indication made that national security is at issue
ii. Criminal Trials
1. Rule  Government may assert privilege, but if the
information is relevant to the prosecution of a defendant,
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refusing to hand it over will violate due process and the case
will be dismissed!
2. Nixon Rule  Criminal defendant’s due process rights trump a
general assertion of executive privilege
a. Courts balance due process vs. right of executive to
keep something secret (means executive privilege is not
absolute!)
b. Note  asserting military or other government secrets
may change this analysis
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