Cory Charlupski
Evidence Outline
Relevance
Introduction
 Relevancy deals with proving a pointProbative Value
 Relevant if:
o Proves the issue
o Makes the issue more probable than not
o Most reasonable of all the inferences
o Reasonable to consider
Doctrine of Limited Admissibility
 Just because evidence is not admissible for one purpose does not mean it might not be admissible for
another purpose
 Solomon: Inadmissible for identity of real mother, but admissible to prove best mother
Logical Relevance
 FRE 401: Evidence that has any tendency to make a fact more or less probable
o Applicable substantive law determines what is of consequence
o Low threshold
 CEC 350: Only relevant evidence is admissible
 CEC 351: All relevant evidence is admissible, except as otherwise provided
 Engel: Evidence employee was fired after an accident has some tendency to prove negligence
 Knapp: Evidence of cause of death of another man relevant to D’s self-defense claim against police officer
(“assist in slight degree”)
 JMT of Solomon: Mother’s reaction was relevant
Legal Relevance/Probative Value
 Evidence is subject to exclusion if the risk of unfair prejudice substantially outweighs its probative value
 FRE 403:
o Mislead jury
o Prejudicial impact extraordinary compared to minimal logical relevance (weight)
o Confusion of issues
o Waste of time
o Undue delay
o Needless presentation of cumulative evidence



CEC 352:
o Consumption of time
o Undue prejudice
o Jury confusion
o Misleading the jury
Collins: Statistical probability inadmissible to prove identity in criminal case
o No foundation, distracted jury from role
Norfolk: Test with train to recreate scene to determine distance one could see a baby
o Jury can weigh appropriately
Circumstantial and Direct Evidence
 Direct: Proves a fact without need for inference
o Never irrelevant on material issue
 Circumstantial: Requires additional reasoning to get from A to B
o Irrelevant without probative value, even on material issue
 General rule: Witnesses should only testify to direct evidence. Jury makes inferences
1
Opinion
Lay Witnesses
 FRE 701/CEC 800: Lay witness can testify to
o Personal Knowledge (can be shown by W’s own testimony), or
o Opinion limited to those rationally based on own perception
 Taste, smell, vehicular speed, voice and handwriting ID, another’s intoxication, emotions,
irrational conduct
o Helpful to a clearer understanding of the witness’ testimony or the determination of a fact at issue,
and
o Not based on scientific, technical or other specialized knowledge
o Collective Facts Exception: Can extrapolate based on common sense/knowledge
 Based on common experience (105 degrees in valley, driving 80)
 Holden: Wink as signal to use an alibi. Can testify about wink but not what it meant
o If prior agreement for particular messageno longer opinion
 Thorp: W’s impression that child in bundle was D’s child inadmissible
 Schneiderman: Permissible to hypothesize about party membership
Expert Testimony
 Generally: An expert can give testimony about his opinions if:
o Qualified as an expert by knowledge, skill, experience, training, education
o Testimony based on facts reasonably relied upon by other experts in the field
 Inadmissible, hearsay evidence acceptable if used by others in field
 Dow Chemical: Widow claimed poison at war caused H’s death
 Inadmissible when expert relied on one medical record and anecdotal evidence
by victim’s wife
 Never examined body
o Must still be relevant
 Jack Ruby: W cannot testify on sanity but is testifying test administered properly so later
W can opine on sanity


Federal Rules
o FRE 702: Testimony by Experts
 An expert me testify about his opinion if:
 Qualified as expert by knowledge, skill, training, educ., exp.
 Testimony based on sufficient facts or data (Daughbert)
 Testimony is the product of reliable principles and methods
 W has applied the principles and methods reliably to case facts
o FRE 703: Bases of Expert Testimony
 Expert’s opinion may be based on inadmissible evidence presented to him before trial but
it must be of a type reasonably relied on by experts in the particular field in forming
opinions or inferences on the subject
 No matter how qualified, must have some underlying basis for opinion
CA Rule
o CEC 720: Testimony by Experts
 A person qualifies as an expert if he has special knowledge, skill, experience, training, or
education sufficient to qualify him
 Can be proved by any admissible evidence including expert’s own testimony
o CEC 721: Cross-Examination of Expert
 Can be cross-examined
 But not on scientific journals unless used, admitted, etc.
o CEC 722: Credibility od Expert
 Can be asked about who hired him
 Can be asked about his compensation
 Can voire dire expert
2
o

CEC 801: Expert W Opinion
 If testifying as expert, opinion limited to:
 Opinion related to subject beyond common experience to assist trier of fact
 Based on a matter known or made known to W at or before hearing
4 Basic Conditions of Expert Testimony
o 1) The opinions, inferences, or conclusions depend on special knowledge, skill, or training not
within the ordinary experience of lay jurors
o 2) Witness must be shown to be qualified as a true expert in the particular field of expertise
o 3) Witness must testify to a reasonable degree of certainty (probability) regarding his opinion,
inference, or conclusion, and
o 4) Must first describe the data/facts on which testimony is based, or must testify in response to
hypos w/ that data (being modified)
Scientific and Demonstrative Evidence
Frye/Kelly Standard: CA/Common Law Rule
 In order for scientific evidence to be admitted it must be sufficiently established to have gained acceptance
o Minority/new scientific opinions are excluded
o Does not require any scientific knowledge on judge’s part
o Results oriented
 Valdez: Lie-detector test for possession of narcotics
o But the parties stipulated (Can stipulate to almost anything)
Daubert Test: Federal Rule (FRE 702)
 Balance of factors
o None are conclusive or determinative in themselves
o Applies to more than just scientific evidence
o Factors are not completejudge has ultimate discretion
 Factors
o Can theory/technique be tested
o Has research/conclusions been subjected to peer review or publication
o Error rate?
o Uniformity/standard of procedures
o General acceptance
 Rejects Frye/Kelly
 Research oriented
 More scientific items come in and more are excluded (usually P’s excluded more)
 Kumho: Expands this rule beyond Frye
o Induced non-scientific testimony as expertMechanic on blowout
o Judge has to play gatekeeper
Scientific/Technical Evidence (Civ and crim but in reality willing to exclude more in civ cases)
 Judge determines if either test is met
 Frye/Daubert standards apply in Civil cases
 Few restrictions in criminal cases
 Generally courts favor admissibility
Demonstrative Evidence
 Admissible as long as it is relevant
 Henderson: Train and baby reenactment
o For the jury to determine how accurate. Not prejudicial enough to be excluded
o Expert does not give opinion
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Similar Happenings
Prior Occurrences
 Evidence of prior similar happenings is admissible if the prior events took place under substantially similar
circumstances
o Look for substantial identity of material circumstances
o More than relevancy and probative value
 Robitaitaille: Loose carpet not admissible (no evidence of carpet sticking up earlier)
o Would be admissible today
Prior Non-Occurrences
 3 Requirements must exist in addition to substantial identity of material circumstances
o 1) Evidence that complaints in the past would have been registered
o 2) Reason to believe people would have complained, and
 No complaints=knowledge it did not occur
o 3) Significant amount of prior non-occurrences
o (much more difficult to admit)
 Rathburn: Hanging tree branch in amusement park
o Allowed evidence 5,000 people with no complaints
o Trees are not static
Delicate Balance
 Prior occurrences and non-occurrences can be quite prejudicial
o High degree of similarity required
 Negligence: Less similarity required
 Products liability: More reliability required (notice is irrelevant)
Subsequent Repairs (Remedial Measures)
Rationale
 Do not want to dissuade people from making repairs until after litigation
 Want people to fix problems ASAP
 Limit admissibility of repairs to meet these goals (action by 3rd party is admissible)
Common Law: Always admissible
Federal Rules
 FRE 407: Subsequent Remedial Measures
o Evidence of measures taken subsequent to an injury or harm that would have made the
injury/harm less likely to occur are:

Not admissible to show
 Negligence
 Culpable conduct
 Defect in product
 Defect in product design
 Need for warning

Admissible to show
 If controverted
o Ownership
o Control
o Feasibility of alternative measures
 Ex: “No way we could have changed the design.” “Well didn’t
you change the design”
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
Impeachment
o Generally need more than a denial of danger
CA Rule
 CEC 1151: Subsequent Remedial Conduct
o Evidence of measures taken subsequent to an injury or harm that would have made injury/harm
less likely to occur are:

Not admissible to show
 Negligence
 Culpable conduct

Are admissible to show
 Product liability (Ault: Change to gear box)
 Impeachment (Dagett: Change in railroad speed)

Why does CA allow product liability
o Mosk Theory: too costly not to make repairs but reality is CA is anti-business
Compromise
Pleas and Plea Negotiations
 Generally
o Guilty pleas in a criminal trial are admissible against D in a subsequent civil trial
o Nolo pleas in a criminal trial are not admissible against D in a subsequent civil trial
 Not all states have Nolo pleas
o Policy: Encourage plea bargains for petty criminal convictions without the need for litigation to
ensure that you don’t get screwed in following civil trial
o Limited: Impeachment options more limited in this context
 Only applies when dealing with prosecutors, not police

FRE 410: Inadmissibility of Pleas
o In any civil or criminal proceeding, the following are inadmissible
 Plea of guilty which is later withdrawn
 Plea of Nolo
 Any statement made in any proceeding relating to those please, and
 Any statements made in the discussion of a plea that do not result in a guilty plea or a
guilty plea that is later withdrawn
o Still admissible for
 Perjury action for statements made under oath, on the record, with counsel, or
 Proceeding where another statement from plea/discussion introduced

CEC 1153: Offer to Plead Guilty or Withdraw Plea of Guilty
o Any withdrawn guilty plea/nolo plea or offer to plead guilty is inadmissible in any future action or
proceeding
Offers of Settlement/Compromise
 FRE 408: Compromise and Offers to Compromise
o Offer, promise to offer, promise to accept not admissible to prove liability, invalidity, or amount,
or to impeach with PIS
o Conduct/statements made in compromise negotiations not admissible to prove the same unless
offered in criminal trial related to public agency
o Permitted when offered for other reasons
 Proving W’s bias or prejudice, negating contention of undue delay, proving an effort to
obstruct criminal investigation
5

CEC 1152: Offers to Compromise
o Evidence that a person has, in compromise or for humanitarian motives, furnished or offered to
furnish money, etc. is inadmissible
o Can be offered to show breach of good faith
Common Law
FRE
CEC
Inadmissible
Inadmissible under
FRE 408-410
Inadmissible under
CEC 1152-1153
Admissible
Inadmissible
FRE408-410
Inadmissible under
CEC 1152-1153
Admissible
Inadmissible under
FRE 409
Admissible
Admissible FRE 409
Admissible
Admissible UNLESS
offer to pay medical
expenses- FRE 409
Admissible UNLESS
made out of
humanitarian
motives – CEC 1152
Admissible UNLESS
made out of
humanitarian
motives – CEC 1152
Inadmissible CEC
1152
Admissible
Admissible FRE 409
Setlltement/Compromise
or Offers of Such
Admissions made during
settlement/compromise
or offers of such
Payment of or offers to
pay medical expenses
Admissions Made During
Offers to Pay Medical
Expenses
Payments or Offers made
out of Humanitarian
Motives
Admissions made during
offers made out of
Humanitarian Motives
Inadmissible CEC
1152

Rationale
o Want people to compromise
o Examine whether there would be hindrance to settlement
o Only applies to parties in the litigation
 Esser: Car accident blamed on 3rd party’s negligence who offered to pay
 Goldman thinks wrong decision in this case
o Must be some discussion of being sued/compromise otherwise it is not within the rules

CA and Humanitarian Motive
o Burden on the party seeking to exclude statements or offer to prove the HM
 By preponderance of the evidence and determined by judge
o Non-HM
 Simply trying to avoid litigation
o Policy
 CA is trying to get people to act out of humanitarian compassion for each other

Some offers are to compensate and not compromise or settle
o Medical Expenses
o If “in exchange I don’t want you to sue me doesn’t appear
o 408 vs. 409
 No exclusion in 409 for admission made during offer to pay
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Judicial Notice
Generally
 Policy: There are certain facts that a court can establish without requiring each or both parties to present
evidence
o Time saving device
o Ex: admissibility of radar
 You cannot litigate issues a court has taken judicial notice of
 FRE and CEC are essentially the same
Federal
 FRE 201: Judicial Notice of Adjudicative Facts
o A judicially noticed fact must be one that is not subject to reasonable dispute, and is either:
 Generally known to be within the territorial JDX of the court, or
 Capable of accurate and ready determination by accurate source whose accuracy cannot
be reasonably questioned
o Discretionary whether requested or not
o Mandatory if requested by a party and supplied with necessary information
o Jury instructions
 Civil: Jury must accept JN fact as conclusive
 Criminal: Jury may accept JN fact as conclusive
CA

CEC 450: JN may be taken only as authorized by law

CEC 451: Matters which must be judicially noticed
o Laws of the US and states
o Meaning of English words, phrases, and legal expressions
o Facts and propositions of generalized, universally known knowledge that cannot be reasonably
disputed
 Based on generational knowledge: World is flat in 1491
 Ex: Human uses the nose to smell
 Nicketta: Disease killed if Pork cooked correctly

CEC 452: Matter which may be judicially noticed
o Foreign laws
o Generally known facts in the JDX that cannot reasonably be disputed
 Ex: The 10 is not a toll road
o Facts capable of immediate and accurate determination by an accurate source
 Lincoln: Farmer’s Almanac

CEC 453: Compulsory Judicial Notice Upon Request
o TC shall take JN of a 452 if a party requests it and:
 Gives each party notice
 Gives TC sufficient information to enable it to take JN
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Hearsay
Definition: An out of (this) court statement offered to prove the truth of the matter asserted
 Both sides can make a hearsay objection
 St. v. English: 3rd party confession to police officers is inadmissible without putting that party on the stand
Policy: Reliability (Cross-examination)
Elements
 OOC: Not in this court, in this court proceeding
 Statement: Oral, Written, or Conduct intended to have a meaning and attempting to deliver that meaning
o Is it a factual assertion?
o Yes:
 “It is cold in here” or “This place perfect for polar bears”
o No:
 “I need to put a jacket on” or questions or fact that people didn’t complain
 Offered to prove truth
o Doctrine of limited admissibility
o Murdock: Plane crash issue of who was alive longer
 If offered to prove if H alivehearsay
If offered just to show he spokenon-hearsay
Non-Hearsay
 In court statements subject to cross examination and jury evaluation

Not offered for the truth
o Murdock

Non-Assertive statements

State of Mind
o Of the listener/reader
 Sunramanian: Captive caught with ammunition with duress claim
 Not admissible to prove they were trying to kill him
 Admissible to prove duress
o DLA
o Independent legal significance
o Of the declarant
 Safeway Stores: Manager yells to watch out for ketchup
 Not trying to prove there was ketchup on the floor
 Negligence is a state of mind
 If the direct assertion is that of feelings or SOMhearsay

Independent Legal Significance /Operative Fact
o Legal significance independent of their actual truth
o Contracts: K terms have an objective standard
 Contemporaneous statements accompanying a gift accompany the transaction
 Cannot move outside the contract world and try to prove a real world fact
 Hanson: Pointing to the corn to show which corn he was selling
o Rhodes: Military SGT accused of espionage when gov’t found a document
 Don’t have to accept “he has agreed to cooperate”
 Relevant to show cooperation based on his name in the document alone
o Bridges: Kidnapped 7 year old girl recalling details of chamber
 Not offered to prove the description
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


Offered to show knowledge she knew where she was
Split Theories (for hybrid cases)
Non-Human
o Exempt from the hearsay rule
o Scientific Machines
 Webster Grove: Machine to determine speed
o Animals
Common Non-Hearsay uses for OOC Statements
 Impeachment
 Verbal acts (Ks)
 Effect on listener/reader (warnings)
 Circumstantial evidence of SOM (I am pope)
 Circumstantial evidence of memory/belief (knowledge)
 Verbal markers
Hearsay Exceptions
Unavailability
 FRE: Lack of memory, privilege, unwillingness, absence
 CEC: Focus on actual and physical unavailability
Hearsay Exception: Unavailability Immaterial

Spontaneous Exclamations (Excited Utterance)—FRE 803(2), CEC 1240
o Elements
 Sufficiently startling event
 Statement relates (FRE)/explains (CEC) the startling event
 Statement is made while under stress from the event
 Unconsciousness subtracted
 In the “Throes of Excitement”
o
Availability irrelevant
o
Identity of declarant irrelevant
o
Rationale: no chance to fabricate
 Goldman disagrees
o
Potential issues
 How involved was declarant
 Shock, memory loss, coma
 Self-serving statements
 Statement in response to detailed question
o
Cestero: Made statement about car accident right when woke up from a coma
 Not self-serving
 No time to reflect
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Hearsay Exception: Unavailability Immaterial

Present Sense Impression—FRE 803(1)
o
A statement by a declarant is admissible if it is:
 Describing or explaining an event or condition, and
 While declarant was perceiving the event or condition, or immediately thereafter
 Only real requirement is immediacy
o
Credibility
 Immediate perception
 Insufficient time for fabrication
 Caused by the event
o
o
CA has not accepted this rule
CEC 1241: Contemporaneous Statement (Narrower rule than FRE)
 A statement by declarant is admissible if it is:
 Offered to explain, qualify, or make understandable conduct of the declarant,
and
 Was made while declarant was engaged in such conduct
 (What the declarant is doing while they are doing it)
 Only statements clarifying declarant’s own conduct allowed in CEC
 Statements about anyone’s conduct allowed in FRE
o
Houston Oxygen: D’s offered W’s OOC statement that drivers of another car must be drunk,
we’ll find them wrecked if they keep up that speed
 Admissible under FRE and CL
 Not admissible under CEC
Requirement that it is said to someone does not exist anymore
o
Hearsay Exception: Unavailability Immaterial

Admissions
o
Generally
 A party’s words or acts may be offered as evidence against him
 FREexemptionNon-Hearsay
 CECexception
 Must be offered by opponent
o
Rationale
 Hearsay is about credibilitycan’t object to not cross-ex. yourself
 Party can always take the stand and challenge the admission
 Based on an estoppel theory
o
Judge’s Role: Authorization, agency, conspiracy, partnership
 Must be foundational evidence of conspiracy
 Determined by preponderance of the evidence
 FRE: Judge allowed to examine a statement and other evidence
 CEC: Must be foundation already established before examining hearsay statement
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o
Admissions by Party Opponents—FRE 801(d)(2)(A), CEC 1220
 Admissions or statements by party opponents are admissible against them
 Did not have to be an admission at the time the statement was made
 Includes self-serving admissions
 On Opinion Rule: Functions as exemption to the opinion rule as well
 Reed: “I think the clamp broke”
 Admissible even without personal knowledge
 Different if he said, “I was told the clamp broke”
o
Adoptive Admissions—FRE 801(d)(2)(B), CEC 1221
 3rd 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
 Proof: This must be accomplished by preponderance of the evidence as
determined by the judge
 Pawlowski: D said he’ll take chances to mechanic about tire
o Any ambiguitynot admissible (could be disagreeing)

Admission by Silence (or conduct manifesting to adopt/agree)
 Silence can lead to an adoptive admission
 If a reasonable person under the circumstances would have responded to the 3rd
party statement
 Alker: “$5000 bundles, right?”silence
o Taken as admission of the price
 Criminal: Silence after an arrest cannot be used against you
o
Authorized Admissions—FRE 801(d)(2)(C), CEC 1222
 Statements made by an individual authorized to make statements for another party are
admissible
 Subject to Judge’s discretion and proof of authorization
 Rudzinski: Usher asked Janitor why he did not come earlier (to clean up a spill)
 Within the scope but not within his authority
 Statement made to another agent or principal
o
Vicarious Admissions—FRE 801(d)(2)(D), CEC 1224
 For purposes of exam assume FRE and CEC identical
 Statements made during the course and scope of employment are admissible regardless
of the employee’s potential liability
 Does not apply to former employees
 No longer in the course of employment
 Not the CA rule but court has hinted it is changing
 Subject to same Judge’s rules
 Rudzinski
 Murphy Auto Parts: Employee rushing after hours says he is making delivery when hits
someone
 Court allowed it as excited utterance but would probably be allowed here if in
existence
 Bootstrappingcircular evidence
 Wild Care Survival: Kid crawls under fence to see Sophie the Wolf
 Injury from fence or wolf?
 Employee’s belief can be imputed to the employer because he is within the
scope while an employee
 Not if he said “I was told”
 No requirement of knowledge in FRE
11
o
Co-Conspirator Admissions—FRE 801(d)(2)(E)
 Statements of a co-conspirator are admissible if:
 Party is a CC
 Talking about the criminal enterprise (consp.), and
 Statements made during the course of the speaker’s involvement in the
conspiracy, and
 In furtherance of it

Confessions don’t count
 Not in furtherance
 Not during the course
 When arrestedno longer in the conspiracy

Partnership Admissions
 Similar to CC
 Typically partners are responsible for other partners’ statements about the
business
o Unless admitting to a crime
 Elements
o Any statement by one partner
o Within the scope of the partnership
o About the partnership
o During the partnership
o Can be admitted against all partners
Hearsay Exception: Unavailability Immaterial

State of Mind—FRE 803(3), CEC 1250-1252
o Generally
 Direct statement of how a person feels is hearsay but there is an exception for statements
of a person’s presently existing SOM
 Ex: I am angry
 Rationale: When SOM is at issue declarant is best source
o
Indirect
 Generally admissible
 Infer SOM from a statement madeNON-Hearsay
 Ex: I am from Mars
 Not an assertion proving they are from Mars
 Shows sanity at time of statement
 Still need to consider 403/352
 Surveys
o Admissible as SOM evidence in most JDXs
o Represents a conclusion of what declarant believed
o
SOM Defined (Categories)
 Belief
 Emotion
 Design
 Plan/Intent
 Pain
 Bodily health
 Mental feeling
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o
FRE 803(3)
 A statement of the declarant's then existing state of mind, emotion, sensation, or physical
condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health),
but not including a statement of memory or belief to prove the fact remembered or
believed unless it relates to the execution, revocation, identification, or terms of
declarant's will.

o
o
Other uses
 Present belief can be used as circumstantial evidence to prove a SOM at another
time

Use SOM to prove declarant acted in conformity with SOM
o Mutual Life Ins: Wife claiming insurance for H who she says died but
insurance says it was W who died
 Admitted letters from W showing intent to go on the trip to
prove he did

Evidence of a statement of memory or belief is not admissible to prove the fact
remembered or believed
o Shepard: 3rd attempt to get in statement that husband poisoned her
 Past tense
o Will Exception: Evidence of a statement of memory or belief to prove a
fact remembered or believed is admissible it has to do with a testator’s
will
CA Rules
 CEC1252
 Additional trustworthiness requirement for CA

CEC 1250
 Same as 803(3) for present SOM
 Availability immaterial for present SOM
 b)inadmissible to prove fact remembered or believed (Shepard)

CEC 1251: Previously existing SOM
 Elements
o Unavailability required
o SOM must be at issue
 Only offered to prove SOM
o Does not apply to truth of conduct
o Garford Trucking
 Can be used to prove future conduct of 3rd party
o Alcalde: Says she is going out with Frank and never seen again
 Under Hillmon analysis her statement was present intent to do
a future act
Other Cases
 Adkins v. Brett: Alienation case where SOM is at issue
 Some statements were too prejudicial

Garford Trucking: D got into accident while allegedly driving for work. Even though
took longer route he believed it to be faster
 Relevant to prove his present belief at that time
 Less relevant the longer away from the action
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Statement
s of
PRESENT
Admissibl
e to prove
PAST
state of
mind of
Declarant
Admissibl
e to prove
PRESENT
State of
Mind of
Declarant
Admissibl
e to prove
FUTURE
state of
mind of
Declarant
Admissibl
e to prove
PAST
CONDUCT
OF
OTHERS
Admissible
to prove
PRESENT
CONDUCT
OF
DECLARAN
T
YES
Admissible
to Prove
FUTURE
CONDUCT
OF
DECLARAN
T
YES
Future
Conduct
of
Someone
OTHER
than
declarant
YES
Unav
Req?
YES
YES
YES
NO
CEC
1250(a)(1)
FRE 803(3)
CEC
1250(a)(1)
FRE 803(3)
CEC
1250(a)(1)
FRE 803(3)
CEC
1250(b)
FRE 803(3)
[Except to
Prove a
Will – CEC
1260]
CEC
1250(a)(2)
FRE 803(3)
CEC
1250(a)(2)
FRE 803(3)
CEC
1251(b)
FRE803(3)
?
CEC
1250(a
)
FRE
803(3)
YES
NO
NO
NO
NO
NO
NO
YES
CEC
1251(b)
CEC
1251(b)
CEC
1251(b)
CEC
1251(b)
CEC
1251(b)
CEC
1251(b)
CEC
1251(b)
CEC
1251(a
)
State of
Mind
(Defined
as –
emotion,
plan,
intent,
belief,
etc.)
Statement
s of PAST
State of
Mind (in
CA)
14
NO
Hearsay Exception: Unavailability Immaterial

Physical Condition—FRE 803(4)
o Statements for purpose of medical diagnosis or treatment
o Rationale
 No purpose in lying
 Want to get better so will tell doctor the truth
o
Fed Rule
 Statements made for the purposes of:
 Medical diagnosis or treatment
 Describing medical history
 Describing past or present symptoms
 Describing pain or sensations
 Inception or general character of the cause or external source as reasonably
pertinent to diagnosis or treatment
 No requirement statement made to a doctor
 Past is included to distinguish from state of mind
o
CA Rule
 No CA equivalent
 CA is more expansive because it has completely done away with requirement that
statement made for treatment or diagnosis
 CEC 1250 for present physical condition
 Not just for treatment diagnosis
 Can tell friend of ailing back
 1251 for past physical condition
 Requires W unavailability
 Narrower: Can only show “existence of” and not “cause”
 FRE is separate because its SOM exception does not cover past situations
o
Ritter: Statements made to psychiatrist about rat in soda
 Testimony of patient’s report of symptoms to doctor or of predicting medical conclusions
admissible as long as P goes to doctor for bona fide purpose of treatment
Hearsay Exception: Unavailability Immaterial

Business Records—FRE 803(6) & (8), CEC 1271 &1280
o
Elements (Same for FRE 803(6) and CEC 1271)
 Writing made in the regular course of business
 Made at or near the time of the act, condition or event
 Custodian or other qualified W testifies to its identity and mode of preparation, and
 Sources of information and method and time of preparation were such as to indicate its
trustworthiness
 Generally after the fact reports not allowed
 Palmer: Railroad accident report
o Not made in the regular course of business because prepared in
anticipation of litigation
o Offered by D’sless reliable and not day-to-day
15
o
Other Admissible records
 FRE 803(8): Vital Records
 Records, in any form, of births, fetal deaths, deaths, or marriages, if the report
was made to a public office pursuant to requirement of law
 CEC 1280: Record by public employee
 Same elements as above
 But:
o Do not need custodian
o Police records not admissible against criminal D (??)
o
Business is defined broadly
 Same for public and private
 Anything that constitutes systematic activity
 Ex: Not selling an occasional item online
 Ex: Welfare records, police reports
o
Trustworthiness
 Foundational requirement
 Did the person making the record have an obligation to make it correctly
 Factors
 Regular mistakes
 Punishment for making mistakes
 Sloppy record keeping
 Ex: Newspapers not admissible
 Job is to sell not accuracy
o
Multiple Hearsay
 Often contain MHS
 Exception for each layer
 Johnson v. Lutz: Introducing police report of accident to show the deceased was killed
when D’s truck hit his motorcycle
 3rd parties told policewrote report
 Not admissible because not trustworthy
 Would be OK if police officer saw the accident
o
Witnesses
 Custodian of records
 Has to testify to the elements
 Does not have to be the one who wrote it
o
Rationale
 Incentive to record correctly
 Gov’t employees have duty
o
Experts
 Expert opinion can be admitted from business record if they would have been able to
testify to the same thing at trial
 Kohlmeyer: D wants to admit grandma’s medical records to show he may have inherited
mental illness
 Hospital records, including expert opinion, admissible
 Must still lay foundation
 Even though can’t cross can attack and impeach with others
16
o
Written vs. Oral
 Majority/Fed: Must be in writing
 Minority: Oral business records
 Goldman says this is very unreliable
 Geralds: Employee sued for injury but boss says previous injury
 Allowed statement of foreman that it was reported to him P wasn’t working as
hard because of problems with legs and feet
o
Extraneous Statements
 Ex: Cause of an accident to Dr. beyond what hurts (rear-ended)
 Sometimes relevant
 Williams: Struck by car and wants to introduce hospital records
 Doctor’s not in business of determining fault
 Double HS: Patientdoctor and doctorreport
 In CA allowed under admissions (why?)
o
Non-Occurrence
 Can use records to show non-occurrence
 Must prove it otherwise would have been recorded but was not
Hearsay Exception: Unavailability Immaterial

Expanding Hearsay Exceptions: Residual Exception—FRE 807
o
FRE 807 Residual/Equivalency/Expanded Exception
 A statement not covered in 803/804 with equivalent circumstantial guarantees of
trustworthiness is not excluded by hearsay rule if the court determines
 Material
 More probative than any other evidence proponent can procure through
reasonable efforts
 Best served by admission
o Interest of justice and purposes of the rules
 Must provide notice
o Name and address of declarant
o
Purpose
 A catch all exception to permit admission of hearsay evidence not otherwise covered
o
NO CA Equivalent
o
US v. Barbati: D convicted of counterfeit money IDed by bartender at the scene
 Non-Hearsay
 Highly probative and necessary, trustworthy, no lapse of time
 Chain of authentication
 Opportunity to cross-examine
 Created prior ID
o
Dallas County: Insurance defense claims damage from fire 60 years ago and introduces an old
newspaper
 Pure hearsaynewspapers not business records
 Judge considers factors and admits
 Inadmissible in CA
 Doesn’t qualify as an ancient document
 20 years in FED
 30 years in CA
17
o
Potential abuse of the rule
 Over-applied the exception
 Turbyfill: P burned pouring gasoline into a truck in D’s used car lot
 Court admitted D mechanics unsworn handwritten account
Hearsay Exception: Unavailability Required

Former Testimony—FRE 804(b)(1), CEC 1290
o In order for former testimony to be admitted in the present case:
 Declarant must be unavailable
 Under oath
 Party with similar interest or motive
 Opportunity for cross-examination of former testimony
 If criminal trial must be the same D
 If civil trial can be different D so long as motive is similar
o Travelers: Testimony from criminal trial can be used in civil trial to
prove intentionally set fire
 Even though different D
 Grand Jury—Inadmissible, no opportunity to cross
 Former and current proceedings have essentially the same issues
o
Notes


Multiple hearsay
Rationale: Testimonial infirmities already addressed
Hearsay Exception: Unavailability Required

Dying Declarations—FRE 804(b)(2), CEC 1242
o A dying declaration may be admitted despite the hearsay rule if:
 Declarant is unavailable
 FRE: Allows for miraculous recoveries
 CEC: dead
 Made under sense of imminent/impeding death
 Proof:
o “I am dying” (SOM exception)
o Doctor tell patient they are dying
o Circumstances
 Pertaining to the cause and circumstances of his death
 Must be a description of the event
 Cannot be speculative
 Must be within declarant’s personal knowledge
o Proceedings (check this)
 FRE: Criminal homicide cases and all civil cases
 CEC: All criminal and civil cases
o Forfeiture Theory
 ?
o Rationale
 A man has no reason to lie
 Does not want to go to grave with sins
o Shepard: W believes H poisoned her
 She was recoveringnot in imminent death
 Also opinion
18
Hearsay Exception: Unavailability Required

Declarations Against Interest—FRE 804(b)(3), CEC 1230
o Generally
 Deals with 3rd parties
 Unlike admissions, statements against interest deal with statements by 3rd
persons which are then admitted at trial
 Person making the statement must realize he is making a statement against his
interest
 Rationale: Rare to lie against own interest
o
Requirements
 Unavailability, and
 Declarant realizes it is a statement against his interest (true?)
 Ex: Boasting in a prison cell does not work because it promotes your interests
 Personal first-hand knowledge
o
Reasonableness Test
 A reasonable person in the declarant’s position would not have made the declaration
unless they knew it to be true
o
Federal Rules
 Only the following interests are recognized
 Pecuniary (money) or property interest of declarant
 Tends to subject declarant to criminal or civil liability
 Statement invalidates declarant’s claim against another
 Statement tending to expose declarant to criminal liability while exculpating the
accused
 Requires corroborating circumstances indicating the trustworthiness of the statement
o
CA Rule
 Only the following interests are recognized
 Pecuniary (money) or property interest of declarant
 Tends to subject declarant to criminal or civil liability
 Statement invalidates declarant’s claim against another
 Statement would subject declarant to hatred, ridicule, or social disgrace in the
community
o
Spriggs: D on trial for heroin possession and 3rd party allegedly said “the drugs are mine”
 Admissible even against penal interest
Parriera: H appeals attempt murder convictions because W’s statements the wounds might be
self-inflicted
 Allowed because statement of suicide could lead to social disgrace
o
19
Hearsay Exception: Availability Necessary

Past Recollection Recorded—FRE 803(5), CEC 1237
o Federal and CA rules are the same
o Elements
 Witness does not remember
 Must be something permanently recorded
 Recorded while fresh in W’s memory
 Sworn to on stand
 Made by W himself or at W’s direction
 Corroborative entry: need both W’s if made by someone else
 Must remember writing it down/Accurate record
 Strange because if don’t remember event how do they remember writing it
 Court almost never strikes the evidence if W testifies remembering writing it
down
 CA: must be authenticated
o
May be read into evidence
 Writing itself may not be received in evidence unless offered by adverse party
 Ex: To supplement something they are trying to prove
 Once one party uses a document the other side has access to entire document
 Rule of Completeness
o
Present Recollection Refreshed
 Nothing to do with hearsay but often confused with the exception
 Nothing offered into evidence
 W reads/looks silently
 Party can use anything to refresh W’s memory
o
Adams v. NY Central RR: Suit to recover from injuries and attempting to introduce insurance
agent testimony that could not be remembered
 The court confuses refreshing recollection
 Wrongly denies admission because it did not refresh recollection
 Anything used can be used by other side even if privileged
o
Baker v. State: Baker wants to use a police report prepared by another officer to refresh the
officer’s testimony
 Not allowed because no personal knowledge
 But allowed on appeal because anything can be used
 Goldman doesn’t like this because can lead Ws when wouldn’t be able to get in under
past recollection recorded
20
Hearsay Exception: Availability Necessary

Prior Identification—801(d)(1)(C), CEC 1238
o
Federal Rule
 Exemption
 A statement is not hearsay if:
 The declarant testifies at the trial or hearing, and
 Is subject to cross-examination concerning the statement, and
 The statement is one of identification of a person made after perceiving the
person
 Since it is an exemption it does not even qualify as hearsay
 More lenient than CA rules
 Do not require that a person’s prior ID be a true reflection at the time
o
CA Rule
 Exception
 Evidence of a statement previously made by a W is not made inadmissible by the hearsay
rule if the statement
 Would have been admissible if made by him while testifying, and
 Statement is an ID of a party or another as a person who participated in a crime
or other occurrence
 Statement was made at a time when the occurrence was fresh in the W’s
memory, and
 The evidence of the statement is offered after the W testifies that he made the ID
and that it was a true reflection of his opinion at that time
o
US v. Owens: Prison guard beaten and at first could not ID D then he did
 FRE does not bar admission with memory loss
 Would not have been allowed in CA because couldn’t swear it was an accurate
representation at the time
o
US v. Barbati: D convicted of counterfeit money IDed by bartender at the scene
 Non-Hearsay
 Highly probative and necessary, trustworthy, no lapse of time
 Chain of authentication
 Opportunity to cross-examine
 Created prior ID
Hearsay Exception: Availability Necessary

Prior Inconsistent Statements—FRE 801(d)(1)(A), CEC 1235
o
Can be offered to impeach and offered for truth
o
FRE 801(d)(1)(A)
 Exemption
 Elements
 Witness has to testify subject to cross
 Inconsistent statement
 Was given under oath subject to penalty of perjury at a prior trial, hearing,
deposition, or other proceeding
 Note: Does not require cross-examination
 Grand jury testimony OK
21




o
CEC 1235
 Evidence of a statement made by a witness is not made inadmissible by the hearsay rule
if the statement is inconsistent with his testimony at the hearing and is offered in
compliance with Section 770 (admissibility of inconsistent statement to impeach a W)
 In CA prior statement can be made anywhere
 Does not have to be under oath

o
Statements not made under oath might still be OK for impeachment purposes
Different from former testimony exception
Much narrower than CA rule
Can impeach if not under oath with a limiting instruction
California v. Green: 16 year olds busted for selling pot. They point out their supplier
during investigation and preliminary hearing but not at trial
 Not prior testimony because W is available
 Not Prior ID because says he was on acid and can’t remember
 Create this exception
Criminal Trial
 If not under oath declarant must be available at trial for cross
 6th AMD
Hearsay and the Confrontation Clause
Issue


When hearsay statement is being offered against a criminal D does it violate CC
6th AMD CC issues or DP issues
Rational
 Const’n gives criminal D right to confront witnesses against him
 Arguably hearsay denies ability to do so
 6th AMD not interpreted literally otherwise all hearsay exceptions would be barred
Due Process—Compulsory Process
 Hearsay rules cannot be mechanically applies if the result is the criminal D’s inability to compel witnesses
on his own behalf
o Right to call witnesses on own behalf
 Chambers: D could not call 4 witnesses that had been told by M that M committed the crime D was
accused of
o MI Court did not allow admissions against penal interest
o Held: Violation of DP and ability to compel witnesses on D’s behalf
 And impeach own witnesses

Green v. GA: Statement by M for D to run an errand is hearsay
o But court says even though no exception he is guaranteed a fair trial
o Fundamental fairness and this is death penalty case
o Critical evidence
Testimonial Test: If a statement is testimonial, it is subject to the confrontation clause
 Definitions
o Testimonial: Primary purpose to get information for criminal prosecution
 Investigation
 What happened vs. What is happening
22
o
o
o

Intent
o
o
Non-Testimonial: Statement made in the ongoing emergency
 911 call
 Helping someone
 Ongoing problem
Scalia: CC only concerned with statements taken by gov’t officials
CC can be triggered by spontaneous statements
Not clear whose intent
Statement must be made knowingly to a gov’t agent
Examples
 US v. Owens: Beaten Prison Guard case where he could not remember ID at trial
o USSC said he was available even though no memory
o Said conf. clause does not require accuracy only presence and under oath

Davis v. Washington: Davis’ GF called 911 to report abuse
o Admissible because 911 is non-testimonial

Hammon v. Indiana: Police responded to 911 call, found woman on porch, went into the home and saw
broken furnace, asked her what happened and to write it down
o Testimonialpurposes of investigation
o Inadmissible because violates CC

Crawford v. Washington: D convicted of stabbing man who allegedly tried to rape wife. Tape-recorded
statement of wife describing the statement played for the jury
o Not admissibletestimonial and no opportunity to cross-examine

Ohio v. Roberts (Old Rule):
o Standard is reliability
 Burden shifts to gov’t
o Still the rule for non-testimonial evidence (true?)

New Cases
o Bryant: Arguable dying declaration describing man with gun
 Majority non-testimonial because ongoing
 Scalia dissent brings back reliability because had gun
o Chemist reports
 Experts never called to stand
 Court held CC applies
Forfeiture rule

Voucher Rule
 Cannot impeach your own witness
 Not followed by CA or FED
23
Character Evidence
Admissibility of character:

When character itself is at issue (Civil or Criminal)
o
CEC and FRE
 Reputation
 Opinion
 Specific Acts
o
3 Civil cases where Character is at issue
 Negligent entrustment
 Cleghorn: Train worker fails to flag train to stop
o Prior drunkenness admissible to prove employer knew to support claim
for punitives
o No evidence to prove he was drunk that day
 Defamation
 Wellman
 Child custody
o
1 Rare criminal case where character is at issue
 Entrapment
 CA (minority): if the gov’t does something that persuades a reasonably law
abiding citizen to break the law
 FED (majority): Not merely when gov’t has persuaded you to commit a crime,
but also if you’re not predisposed to commit the crime Your predisposition to
commit that crime matters

To show propensity (Civil)
o CEC
 Never
o FRE
 Never 404(A)
 Some authority that in civil rights cases the character of a victim may be used

Habit/routine practice (Civil and Criminal)
o CEC and FRE
 Specific acts
 Can be used by both sides
 More detailed than propensity

Defendant’s or Victim’s Character-based propensities in prosecution’s case-in-chief
o CEC
 Never
 Exception: 1106-1109
 D’s prior sex crimes in a prosecution for sex offense
 Domestic violence in a prosecution for domestic violence
o
FRE


Never
Exception: 413-415
24



D’s prior sex crimes in prosecution of a similar sex offence including child
molestation
Defendant’s character-based propensities submitted by the prosecution to rebut or by D
o Mercy Rule
 When burden is BARD character evidence may tip scales in favor of D
 Still has to be relevant (non-violence in fraud charge is irrelevant)
o
CEC: D’s character may be attacked by P if D in a criminal case opens the door by first attacking
character of the victim
 Reputation
 Opinion
 Specific acts
 Specific acts can be used during the cross-examination of a “character witness”
to attack W’s credibility as to D’s character
o
FRE 404: In a murder case, P may use evidence of a victim’s peacefulness to rebut defense claim
that the victim was the aggressor (self-defense)
 Reputation
 Opinion
 Note: Under fed rules only, If D brings up character trait of victim, P can rebut by
bringing up D’s character trait
o
o
o
All 3 allowed on cross in both
FRE allows P to show murder victim had peaceful character to rebut self-defense claim
Michelson: D on trial for bribing a federal officer and his defense is entrapment
 Once D opens the door to his reputation P can challenge it on cross
 Can use specific acts on cross to show W is not really familiar with the D
 Not to show he did the crime
Admissibility of Victim’s propensities in Defense case or by P to rebut
o CEC
 Reputation
 Opinion
 Specific acts
 Specific acts can be used during the cross-examination of a “character witness”
to attack W’s credibility as to V’s character
 Note: If D decides to take advantage of this rule, P can not only rehabilitate V’s character
by any of the 3 methods, P can also respond by bringing up D’s character ad is allowed to
use all 3 methods D was
 Reputation
 Opinion
 Prior Specific Conduct
o
FRE 404: In a murder case, P may use evidence of a victim’s peacefulness to rebut defense claim
that the victim was the aggressor (self-defense)
 All 3: R, O, SA
 Specific acts can be used during the cross-examination of a “character witness”
to attack W’s credibility as to V’s character
 Note: Under fed rules only, If D brings up character trait of victim, P can rebut by
bringing up D’s character trait
25

When relevant to prove intent, plan, modus operandi (home alone), striking similarity
o Before showing MO—Foundation
 Clear and convincing evidence D was involved in the other crimes
 Tucker: D called police to say found dead body when awoke in his house. P
offered uncharged similar evidence from 6 years before
o Too prejudicial
 Does not matter if they were acquitted
 Massey: D cut out bed sheet and P wants to admit similar burglary even though
D was acquitted
o Admitted by the court
o
o

CEC

Specific acts
 Admissibility of a previous crime will be held to preponderance standard
FRE 404(b)
 Specific Acts
 Both P and D can use this but P must give notice
 Under fed rules we use preponderance of the evidence to decide whether or not a
previous acquittal or non-indictment can be admitted
Any witness’ propensity to tell the truth (reputation for bad eyesight or memory inadmissible)
o CEC
 Reputation
 Opinion
 Felonies: subject to 352 and Beagle Factors
 Beagle Factors when D is the W
o How long ago did the crime occur
o Is it a crime of moral turpitude
o Similarities to current charge
o Likelihood that past conviction will prevent D from testifying for fear
the past conviction will be brought up
 Misdemeanors if offered for impeachment at criminal trial
o
FRE





Reputation
Opinion
Any felony subject to 403
 If offered against non-Def. Witness403
 If Dprobative value outweighs prejudice (not substantially)
Any felony or misdemeanor involving dishonesty or false statements against any W
without limitation
Convictions
 Probative value of dishonesty too great to be outweighed
 Generally juvenile convictions not admissible
 Pending appeal does not mean no conviction
 Inadmissible if pardoned
 Time limit: 10 years
o From the date of release
o Or can use older is probative value subst’ly outweighs prej.
 Mirror image of 403
26

Un-convicted evidence of prior untruth against any W
 Subject to 403
 When W is on the stand you can ask about specific instances in past that would
reflect (un)truthfulness
 Can’t use extrinsic evidence
o Can show something on cross but if denied cannot do anything about it
 Bottom Line: Under fed rules, when asking a W about specific instances in his
past, we’re limited to asking W about them
Impeachment
CEC 780: Determination of W’s Credibility for truthfulness
 Things that may be considered (but not limited to):
o (a) Demeanor and manner of testimony
o (b) Character of his testimony.
o (c) Extent of capacity to perceive, recollect, or communicate any matter about which he testifies.
o (d) Extent of opportunity to perceive any matter about which he testifies.
o (e) Character for honesty or veracity or their opposites.
o (f) Existence or nonexistence of a bias, interest, or other motive.
o (g) A statement previously made by him that is consistent with his testimony
o (h) A statement made by him that is inconsistent with any part of his testimony
o (i) The existence or nonexistence of any fact testified to by him.
o (j) Attitude toward the action in which he testifies or toward giving testimony.
o (k) His admission of untruthfulness.
Impeachment: Bad Reputation
Generally
 W’s general character, especially for truth telling, may be attacked
 Usually done by:
o Bad reputation
o Prior bad acts
o Convictions
Bad Reputation
 Can impeach W with bad reputation and opinion for truth or veracity
o Character trait for lying
 Allows W1 to show W2 in untruthful
 Must first establish foundation
o Lives in same community
FRE 608(a)
 Character evidence may be introduced only to prove or disprove W’s (un)truthfulness
o Civil and Criminal
o Only admissible to prove truthfulness after attacked
27
Impeachment: Prior Bad Acts—FRE 608, CEC 787
Dishonesty vs. Untruthful
 Dishonesty is the umbrella
 Untruthfulness is one way someone can be dishonest
 Others: Fraud, cheating
FRE 608(b)
 Any un-convicted evidence of prior untruth may be used against any W subject to 403
o Specific acts cannot be proven by extrinsic evidence, Must take W’s answer
o May be inquired into on cross subject to good-faith basis
o Must ask about the specific act not the fact of charges, arrest, indictment
 Exs:
o Evidence D robbed a bank but never convictednot ok
o Evidence D lied on job app but never convictedok
 People v. Sorge: P trying to show D committed an illegal abortion
o Cross examiner must have good-faith basis for asking about a particular prior bad act
CEC 787
 Prohibits use of evidence of specific acts of W to prove character in an attempt to attack or support the
credibility of W
 However: does not apply in criminal cases
o Broader the FRE
 Felonies
 Misdemeanors
 Un-convicted priors
o Subject only to 352
Impeachment: Convictions—FRE 609, CEC 788
CEC




FRE


All felony convictions that involve moral turpitude
Felonies: subject to 352 and Beagle Factors
o Beagle Factors when D is the W
 How long ago did the crime occur
 Is it a crime of moral turpitude
 Similarities to current charge
 Likelihood that past conviction will prevent D from testifying for fear the past conviction
will be brought up
Misdemeanors and un-convicted acts if they relate to dishonesty
People v. Castro
o Prior conviction of heroin possession was inadmissible against D witness because without sale
there is no moral turpitude
Any felony subject to 403
o If offered against non-Def. Witness403
o If Dprobative value outweighs prejudice (not substantially)
Any felony or misdemeanor involving dishonesty or false statements against any W without limitation
o Convictions
 Probative value of dishonesty too great to be outweighed
 Generally juvenile convictions not admissible
 Pending appeal does not mean no conviction
28



Inadmissible if pardoned
Time limit: 10 years
 From the date of release
 Or can use older is probative value subst’ly outweighs prej.
o Mirror image of 403
Un-convicted evidence of prior untruth against any W
o Subject to 403
o When W is on the stand you can ask about specific instances in past that would reflect
(un)truthfulness
o Can’t use extrinsic evidence
 Can show something on cross but if denied cannot do anything about it
 Bottom Line: Under fed rules, when asking a W about specific instances in his past,
we’re limited to asking W about them
Impeachment: Specific Unrelated Error (Impeachment by Contradiction)
Collateral Matters
 Matter unrelated to material issues in the case and relevant only to impeachment of W
 Only reason impeaching is because they were wrong about something
 Time saving device
Federal Rule
 Can challenge W on cross
 No extrinsic evidence
o Can’t go to another W
 Considered “unrelated” error because its only relevancy is that W said it
 Collateral matter rule: Only related to credibility not to an actual issue
 State v. Oswalt: Crime supposedly took place in Seattle but an alibi W says D was in Portland every night.
P offers testimony D was in Seattle a few weeks earlier
o Offered to impeach he was always in alibi bar
o Only admissible for impeachment
CA Rule
 CEC 352
 No collateral matter exclusion
 Court’s discretion
Impeachment: Defective Capacity
Capacity
 Psychological
o Hiss: Psychopathic personality
o Do not understand guilt and do not mind lying
 Physical
o Bad eyesight
o Hearing
o Memory
 Educational
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Rule



Attorney can resort directly to any extrinsic matters to attack a witness’ capacity to testify
Capacity is always relevant and never collateral
Can do it on direct
Examples
 If W claims he heard D say something
o W might wear hearing aid
Impeachment: Bias
Bias




Evidence that the witness could have reason to give less than truthful testimony
Always material and never collateral
Subject to 352/403
Attorney may resort directly to extrinsic evidence
o If there is a piece of evidence you know you should get in but not sure where

Greatwreaks: D trying to argue that testifying officer is biased because of a past history with him and his
wife, and that the officer wanted revenge for D beating him uo
o Allegedly officer raped D’s wife and D beat officer up
o Bias was issue for jury to decide
o To not allow it would prejudice D and not give him a fair trial
o Court could have gone either way
o Important limiting instruction
o Rape is necessary to show why the beating took place
Impeachent: Prior Inconsistent Statements (Fed: Exemption, CA Exception)
Definition
 Evidence of a prior statement that is inconsistent with W’s testimony at trial
 Not offered for the truth but to show that W has said inconsistent things about the issue to which he is
testifying
 Coles v. Harsch: D accused of alienating affection of P’s wife. W testifies that he does not remember
discussing a certain incident at a picnic, but P says he said it was disgraceful
o P’s statement about his conversation with W is not admissible because W not given opportunity to
explain the statement
o Insufficient foundation (CL rule)
 Larkin: P suing for negligent operation of train
o Court rules inadmissible because did not show W document
o No longer the rule
Federal and CA Rule
 Foundation
o Do not have to lay proper foundation
 Examination
o Do not have to disclose document unless requested by other party
 Extrinsic Evidence
o Not admissible unless
 W given a chance to explain or deny statement
 Opposite party has opportunity to interrogate
 CA adds: Or if W not excused and can return
 Writing
o Do not have to show the document before asking W about it
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Prior Consistent Statements
 PCS of W are admissible as long as there is an allegation of recent fabrication and the statements were
made before there is a reason to make them up

Recent fabrication
o You are lying and have made up a story
o Common in employment cases, sexual harassment

Fed and CA Rule
o Admissible if made before the date of W’s alleged motive to lie
o If made before date W allegedly made inconsistent statement

CA Rule
o Do not need a charge of fabrication
o Just a prior inconsistent statement
o Prior consistent statement is admissible when opponent introduces PIS
o Offered to rebut
o Can still get in if accused of recent fabrication

Rehabilitation
o Repairing credibility of own W
o Can only do so after W’s credibility has been attacked

Barmore: P allegedly injured when he jumped from a truck and wanted to introduce evidence of a
statement he told his wife the next morning
o D alleged post-firing fabrication since P was silent about the injury when he went to a doctor
o Court: admissible to corroborate testimony provided they were made before a motive to
misrepresent existed
Best Evidence/Original Writing Rule
Generally
 Often confused with hearsay
 Own rule and rationale
 Same underlying trustworthiness requirement
 Not required to simply prove the writing exists
 Contracts, deeds, and JMTs almost always required
3 Applicable Situations
 Writing itself is subject of litigation
 Contents of writing are closely related to controlling issue
 Witness repeats contents of OOC statement (not relying on personal knowledge)
Federal Rule
 FRE 1002: Requirement of Original
o To prove the content of a writing, recording, or photograph, the original is required except as
otherwise provided in these rule or Congressional acts
 Sirico v. Cotto: P called a doctor, who had taken X-rays of her spine and written a report
about her condition
 At trial he only had the report
 Court held report is not admissible to prove contents of x-ray
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o
Only governs Testimony based on a writing, not personal knowledge
 Herzig v. Swift: P tried to introduce amount of husband’s partnership by offering a
partner’s testimony and not the accounting books
 Books not required, content is not the issue
 Not referring to a writing, testifying of independent knowledge

FRE 1003: Duplicates
o Duplicates are admissible as original unless:
 Genuine question is raised as to authenticity
 Fairness

FRE 1004: Admissibility of Other Evidence
o Original lost or destroyed
o Original not obtainable
o Original in possession of opponent
o Collateral matters
 Not closely related to a controlling issue

Originals not Required
o Official records (FRE 1005)
o Too voluminous (FRE 1006)
o Admission by party opponent (FRE 1007)
 Does not allow unsworn oral testimony
CA Rule
 CEC 1521: Secondary Evidence Rule
o Content of a writing may be proved by otherwise admissible secondary evidence
o Court shall exclude secondary evidence if the court determines either:
 (1) A genuine dispute exists concerning material terms of the writing and justice requires
the exclusion.
 (2) Admission of the secondary evidence would be unfair.
o (b) Nothing in this section makes admissible oral testimony to prove the content of a writing if the
testimony is inadmissible under Section 1523 (oral testimony of the content of a writing).

CEC 1522: Additional Grounds for Exclusion—Criminal Trial
o Proponent has but does not show original to other side at criminal trial
 Secondary Evidence inadmissible
o Does not apply to:
 Duplicates
 Writing not closely related to controlling issues
 Copy custody of public entity
 Copy recorded in public records
 Request to exclude made away from jury

CEC 1523: Oral Testimony
o Only admissible if:
 Party does not have a copy, and
 Original lost, destroyed, or collateral (by others fault)
o Oral burden of proof on proponent

Bottom Line
o Easier to get in secondary evidence in CA than federal
o But harder in CA for oral testimony to prove content

Meyers v. US: D objected to the use of W to testify about another party’s testimony and demanded the
stenographer to read the record
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o
o
o

The content of the testimony was at issue not the content of the record
W only testifying to what he heard
If you ask W if testimony is same as record then you need it
Enskat: Officers entered D movie theatre to take still pictures of scenes from a movie alleged to be
obscene
o Photos not admissible
o Failure to explain why they could not produce the film
Authentication
General Rule
 Proponent of the writing must show it is what they claim it to be
 Common Law
o Just because it says who wrote it is not enough
o Mancari: Shoe advertisement libel case
 Self-authentication is not enough even though the stores name is on the ad
FRE 901
 Applies to:
o Testimony of a W with knowledge
o Non-expert opinion on handwriting
o Comparison by trier or expert Ws
o Distinctive characteristics
o Voice ID
o Telephone conversations
 Person: self-ID to show who answered
 Business: Convo related to business transacted over the phone
 What about caller ID?
o Public records or reports
o Ancient documents or data compilation
o Process or system
o Method provided by statute or rule
FRE 902
 Extrinsic evidence not required for (Self-ID OK)
o Domestic public documents under seal
o Domestic public documents not under seal
o Foreign public documents
o Certified copies of public records
o Official publications
o Newspapers/periodicals
o Trade inscriptions
o Acknowledged documents
o Commercial paper and related documents
o Presumptions under acts of congress
o Certified domestic records of regularly conducted activity
o Certified foreign records of regularly conducted activity
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CA Rule
 CEC 11400, 1401, 1417 like above
 CEC 1420: By evidence of reply
o Reply letter doctrine
o Writing received in response to a letter the alleged author wrote

CEC 1421: Authentication by content
o Writing has contents only the alleged author would know

Ex: Trademark cases
o Very hard to get evidence in
o Mancari rule still in effect
Privilege
Generally
 FRE: No Federal statues
 CEC: Presumption of privilege shifts burden for opponent of the claim to prove it was not confidential
 Questions
o Within the relationship
o Confidential
o Who can claim
o Has it been destroyed
 Impersonators
o Reasonable belief standard
 Death
o FRE: privilege survives death
o CEC: Privilege dies
Attorney-Client Privilege—CEC 950-959
Rule

Client holds the privilege to prevent disclosure of confidential AC communications
o Whether or not party to litigation
o Can prevent another from disclosing

Once it exists it is basically impenetrable
o Extends to process of hiring a lawyer

Waiver
o Only client can waive
o Even if A divulges it is not waived

Identity
o Attorney cannot be compeled to reveal client’s identity
o Tilloston: IRS case
 A not required to reveal client’s name when it exposes him to suit
o Schulze: Same case but asked bank
 Bank can reveal client
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

3rd parties
o City of SF: Physician examined client at attorney’s direction to prepare for case
 No doctor privilege but was ACP
 Agent of attorney
o Schulze: Bank was not an agent for attorney
o Clark v. State: Telephone operator eavesdropping and testifying
 Inadmissible today as long as reasonable to expect privacy on phone
 Opposite ex: screaming in public room
Corporate Client
o Control group test: Privilege limited to employees with substantial role or control in deciding and
directing legal responses
o Personal services Test: Extends to current employees involved in the matter that can give rise to
litigation
o Harper and Row: Book inflation case where P wants to obtain investigative interviews between
corporate A and employees
 Protected for those with personal knowledge or performing duties related to the litigation

Work Product: Items prepared by A in assisting C
o Qualified privilege not to divulge certain information
o While not a privileged communication, it is not subject to discovery without a showing of good
cause
 WP involving mental process is highly protected
 Other side can try and get it elsewhere
 Must be a very strong need and no other way to get it

Other Cases
o US v. Liddy: Attorney testified that D retained lawyer at 4 in the AM immediately after
discovering a crime to have jury draw inference
 Error to allow time and place of hiring attorney
 But harmless because he hired attorneys for other Ds
o In Re Ryder: Attorney concealed gun and stolen item in safety deposit box
 Not privileged
 Objects are not communication
Exceptions
 Crime/fraud
o Services sought or obtained for those purposes
o Clark: Whose intent is determinative? Client calls but A gives the advice
o Ryder
 Claims against deceased client involving will or property
 Breach of duty claim
 Lawyer as attesting W
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Patient-Physician Privilege
Rule





Patient, whether or not a party, has a privilege to refuse disclosing, and to prevent others from disclosing
confidential, communications between P and P or anyone patient reasonably believes to be a doctor (civil
only)
Only applies when consulting for treatment or diagnosis that will lead to treatment
Patient must intend/claim the privilege or else waived
Rarely invoked (because 2 main situations)
o Civil personal injury cases and brings the injury in
o Criminal cases (CA does not have privilege in criminal cases)
Probably no privilege in fed
Exceptions
 Patient-litigant exception
o Patient makes medical condition an issue
 Physician aids patient in crime or tort
 Criminal proceeding
 Parties claim through deceased patient
 Breach of duty
Case

City of SF: Same as above
o No PPP
o Physician was agent of attorneys
o Not seeking treatment
o P placed medical condition in issue
Patient-Psychotherapist Privilege
Rule




Patient holds the privilege to prevent disclosure of confidential communication related to rendering medical
diagnosis, advice, or treatment
Includes: counselors, marriage therapists, social workers, assistants
o Anyone reasonably believed to be a psychotherapist
Applies to criminal caseswhereas the Dr.-Patient does not
In re Lifschutz: Dr. held in contempt for not answering questions or producing records
o Patient did not assert the privilege, and dr. is not the holder
o Patient waived privilege by placing condition at issue
Exceptions
 Patient-Litigant Exception
o Applies only if it is a principal or significant issue in the case
 Ex: rat in coke
o Generalized pain and suffering excluded
 Dangerous Patient Exception
o If therapist reasonably believes patient is a danger to himself or to others and disclosure is
necessary to prevent harm the privilege will not attach to that session or any future sessions
o Confessions to past crime do not remove privilege
o Even if doctor does not disclose, the excepted sessions are not privileged
o Menendez v. Sup. Ct.: Menendez brothers arrested for killing their parents and dr. they were
seeing wanted to testify and get in certain information in trial
 Only patients can waive the privilege
36





 But, here, even if Dr. did not actually tell people that information is still not privileged
Doctor appointed by the court
Crime or fraud
o Sought by patient
Claim through deceased patient
Breach of duty
Patient under 16 and dr. thinks they are victim and disclosure in best interest
Clergyman/Priest-Penitent Privilege
Rule


Communications between priest and penitent are privileged
Absolute privilegeeither side can assert it
Reporter Privilege
Rule




Qualified privilege to prevent disclosure of sources
Determined on case-by-case basis
Criminal contempt: swearing at judge, etcdies with case
Civil contempt: Defying court orderindefinite as long as info can be useful
CEC 1070: Reporter cannot be held in contempt for refusing to divulge sources
 While they are employed as a reporter
 No jail but other penalties
o Non-suit
o Shift the burden for D to show not acting with malice or reckless disregard
o P cannot otherwise make a case
Cases


Carey v. Hume: Journalist wrote a story from info supplied by an eyewitness in which he stated he had
seen P remove boxes of records from union headquarters and then call the police to report robbery
o Court held this was critical to the case and could not be obtained elsewhere
o Not privileged in federal
o Court rejected 1A claim
Farr v. Sup. Ct.: Court gag order and then reporter obtains information about excluded witness testimony
from people involved in the case
o Different because court does not want information relevant to the trial but relevant to who
disobeyed the court’s gag order
o 1070 enacted after Farrs
o Here contempt ends with ability to sanction the lawyers
o Can apply rule of immunity from contempt unless it inappropriately interferes with the
justice system
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Marital Privilege
2 Privileges
1. Marital Disabling Privilege
a. Purpose: avoid destroying existing marriages
b. Applies if: H and W married on the date the testimony is given (still something to protect)
i. CEC 972(F): does not apply to sham marriages to prevent testimony
ii. Even if were not married at the time but are married now
iii. Applies to all testimony—not just about martial confidences
c. Where applicable
i. Fed: Criminal trials only
1. Applies to federal grand jury
ii. CA: Criminal and civil trials
d. Holders: Only the witness spouse holds the privilege
i. W spouse may refuse testifying but cannot be blocked
e. Exceptions
i. Witness spouse cannot invoke privilege in a case where
1. W spouse is a victim
2. Child of either spouse is a victim
3. 3rd party victim injured while party spouse committing crime against W spouse
ii. Crime/Fraud
1. Does not apply if communication was made to enable or aid anyone in
committing a crime or fraud
2.
Marital Communications Privilege
a. Purpose: Encourage open and honest communications in marriage
b. Applies if: H and W married when the communication took place and made in confidence
i. No 3rd parties present (even if child old enough to understand it)
ii. Applies even if marriage has since ended
iii. Does not prevent testimony about acts
c. Holders: Technically both parties
i. CA Exception: In criminal trials, witness spouse may be forced to testify if party spouse
wants them to
d. Exceptions
i. Victim Exception (Policy: forced testimony)
1. W spouse cannot invoke privilege in criminal case where:
a. W spouse is a victim
b. Child of either spouse is a victim
c. 3rd party victim injured while party spouse committing crime against W
spouse
ii. Crime/Fraud
1. Does not apply of communication was made to enable or aid anyone in
committing a crime or fraud
3.
FRE
a.
b.
c.
4.
Cases
a.
Both apply in criminal proceedings only
The communications privilege generally held by the spouse who made the communication
The disabling privilege held by testifying spouse
Melski: W walked in when H and accomplices in kitchen with contraband
i. D argued it was confidential communication
ii. Not privileged when made in the presence of others
iii. Not intended to be a communication made in confidence
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b.
Trammel: D indicted on conspiracy to import and importing heroin. In exchange for leniency W
agreed to cooperate when she was caught with him
i. Witness spouse cannot be forced to testify or foreclosed from testifying
ii. W spouse willing to testify
iii. Disabling privilege because most of her testimony described actions
c.
Wyatt: H prosecuted under Mann Act for transporting W across state lines for prostitution
i. Forced adverse testimony properly admitted even though both objected
ii. W was victim
iii. Court takes away W’s privilege
Governmental Privileges
 Civil: Gov’t as D may assert privilege if:
o Letter from head of department
o Head understands his decisions
o Indicated national security at issue
o In camera hearings now OK but not necessary
o Unlike criminal, gov’t does not have to concede case
o But judge can hold in contempt or give jury instruction that the information favors P
o US v. Reynolds: Airplane crash with secret technologies ad tort claim against US

 Criminal:
o Gov’t may assert privilege, however if it is relevant to the prosecution of a D, refusing to hand it
over violates DP and case must be dismissed
 As long as it does not have to do with nat’l security
o Nixon Rule: Criminal Ds DP rights trump a general assertion of executive privilege
 Assertion of military/gov’t secrets may have changed the outcome here
 Executive privilege only absolute in relation to specific military, nat’l security or
diplomatic measures
o In camera: allows judges to examine information to make determinations
39