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338 Cards in this Set

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Steps to determining admissibility of evid
Is evid rel?
Is there a proper foundation?
Is the evid in proper form?
Is evid beyond the application of or w/in an exception to one of the exclusionary rules?
Proper foundation?
competency of wit
authenticity of evid
reliability of sc test
Proper form?
?s properly phrased, answers w/in requirements for lay & expert opionion & documents comply w/ best evid rule?
Exclusionary rules?
Discretionary exclusion for prejudice
Policy based exclusions
Priv
Hearsay
Parole evid
Sources of Evid law
FRE
state evid code
state CL
CEC--applies in CA state courts all civil & crim (not grand juries)
Prop 8 "Right to Truth in Evid"
Fed courts sitting in CA normally apply FRE but in CA civil diversity case
fed judge must apply CEC to 3 kind of evid issues. What are they?
1. ?s of privilege
2. ?s of competency of a wit &
3. ?s of the effect of a presumption.
Direct & circumstantial evid
Direct--no inferences. Testimony or real evid that speaks to material issue in case
Circumstantial--indirect & relies on inference. Evid of collateral fact from wh the existence of the material fact can be inferred.
Limited admissibility
Evid may be admissible for one pupose but not another or against one party but not another.
In these situations, court upon request must restrict the evid to its proper scope & instruct jury accordingly.
Threshold admissibility issues
relevance
not violate any exclusionary rule
2 step approach to relevance questions
LOGICAL RELEVANCE tends to prove or disprove a material fact
LEGAL RELEVANCE 1. judicial discretion 2. pub policy

Relevance definition: materiality
logically relevant if it tends to make the existence of any fact of consequence to the outcome of the a/n more or less probable than it would w/o the evid.
CEC: same as Fed rule but requires evid go to DISPUTED fact. (FRE intentionally left out word "disputed.")
Discretionary exclsion in FRE & CEC
A trial judge has discretion to exclude evid if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, mesleading the jury, undue delay or waste of time.
CEC same as Fed Rule. Prop 8 makes all relevant evid admissible in crim cases subject to CEC 352 balancing.
CEC Proposition 8 (also Victim's Bill of Rights) makes
all relevant evid in crim cases admissible; however even after Prop 8, CA prosecutor in most cases cannot initiate the use of char evid to
prove D's conduct on the occasion in ?
General rule of relevancy is that evid must relate to the
time, event or person involved in the present controversy. When considering the relevance of the evidence relating to a time, event or person other than the one at issue, an important factor is its proximity in time to the current events.
Exceptions to gen rule of relevancy allow similar occurences if
probative of material issue &
probativeness outweighs risk of confusion & unfair prejudice
Areas in wh similar occurences are relevant
1. causation
2. prior false claims or same bodily injury
3. similar accident or injuries causd by same event or cond/n
4. previous similar acts to prove intent
5. rebutting claims of impossibility
6. sales of similar prop
7. habit
8. bus routine
9. industry custom as evid of standard of care.
Evid of previous similar tort claims is inadmissible to prove
invalidity of the present claim; but evid of previous similar false claims or same bodily injury is relevant to prove
1. present claim likely to be false
2. P's cond/n is attributable in whole or part to prior injury.
Evid of similar accident or injuries caused by same event or cond/n admissible to prove
1. existence of a dangerous cond/n
2. D had knowledge of the dangerous cond/n &
3. dangerous cond/n was cause of present injury
Courts relunctant to admit evid of absence of similar accident to show
absence of neg or lack of a defect
Absence of similar complaints admissible to show
D's lack of knowledge of the danger
Previous similar acts admissible to prove
intent or motive when such elements are relevant
Requirement that prior occurrences be similar to one litigated may be relaxed when used to rebut
a claim of impossibililty (ie. car will not go above 50 mph)
Evid of sales of similar person or real prop that are not too remote in time is admissible to prove
value
Habit is
regular response to a specific set of circumstances & conveys no moral judgment.
FRE & CEC same
Character describes
one's disposition in respect to gen traits; goes to the gen char of a person & conveys a moral judgment.
FRE & CEC same
Habit is relevant
to prove that conduct of person on a particular occasion was in conformity w/ the habit.
Evid that a particular bus had an established bus routine is relevant
as tending to show that a particular event occurred.
Industry custom may be offered to show adherence to or deviance from
may be offered to show adherence to or deviance from an industry standard of care. Not conclusive b/e an entire industry may be neg.
Judge has broad discretion to exclude relevant evid if its
probative value is SUBSTANTIALLY outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time
CEC & FRE require proof of SUBSTANTIAL danger in order to have evid excluded. If probative value & danger of prejudice are evenly balanced, evid should be admitted.
Evid excluded for policy reasons include
1. liability ins
2. subsequent remedial measures
3. settlement offers & w/drawal of guilty pleas
4. offers to pay medical expenses
Evid of liability ins is not admissible to show
neg or abiltiy to pay
Both FRE & CEC
Evid of liability ins may be admissible to
1. prove ownership or control
2. to impeach
3. as part of an admission
Both FRE & CRE
Evid of liability ins to show D acted carefully?
FRE: D cannot use his LACK of liaiblity ins as evid that he was especially careful
CEC: does not cover that sit
Evid of subsequent remedial measure is not admissible to prove
FRE: neg, culpable conduct, a product defect or need for a warning.
CEC: same as FRE except CA rule does not apply in strict products liability--but in fed diversity case, fed rule would exclude evid of a subsequent safer design.
Evid of subsequent remedial measures is admissible to prove
1. ownership or control
2. rebut a claim of no feasible precaution
3. prove destruction of evid
Evid of compromises or offers to settle is not admissible to prove
liability or fault. Also applies to statements made in connection w/ settlements discussions. Includes admissions.
CEC: same as fed rule. also includes mediation proceedings.
For exclusionary rule to apply to settlement offers there must be indication
party is going to make a CLAIM & it is in DISPUTE
Evid of w/drawn guilty pleas & re/d stmts are
inadmissible
CEC: same as fed rule. Whether or not Prop 8 would make such evid admissible in crim case is unclear
Payment of or offer to pay medical expenses
are inadmissible. However, admissions made in connections are admissible.
CEC: both offers to pay medical expenses & stmts made in connection are inadmissible to prove liability.
Expression of sympathy
FRE: no counterpart
CEC: expression of sympathy relating to pain, suffering or death of an accident victim are inadmissible in CIVIL cases. Stmts of fault ARE admissible.
Char evid may be offered as substantive, rather than impeachment, evid to
1. prove char when it is the ultimate issue
2. serve as circumstantial evid of how a person probably acted.
Means of proving char
1. specific incidents of conduct
2. opinion testimony
3. reputation w/in the community testimony
CEC & FRE same
When is char admissible in civil case?
generally never unless char is directly in issue.
Examples of civil cases in wh char is in issue
1. About D: defamation, fraud, child custody
2. About other than D: self def, neg entrustment
In crim case, the prosecution cannot initiate evid of bad char of D to show
D is more likely to have committed the crime.
Even after Prop 8, CA prosecutor in most kinds of cases cannot initiate use of char to prove D's conduct on occassion in ?. (i.e. propensity evid)
In crim case, while prosecution may not initially show D's bad char traits to infer he acted in conformity w/ the crime charge, D may introduce
RELEVANT evid of char trais inconsistent w/ the crime charged but only
reputation & opinion (not specific acts)
Evid of char in crim case
Prosecution cannot introduce char evid unles D opens the door. If D opens the door, then the prosecution may, on eith direct or cross, ask about rep, opinion & specific acts.
D in crim case "opens the door" by evid of good char to prove innocence of alleged crime. What method of char evid can D use?
FRE: opinion & reputation
CEC: allows only reputation & opinion testimony on X (as well as direct). However prosecution may ask in good faith if defense wit has heard of instances of D's conduct that are inconsistent w/ wit/s testimony
What method of rebuting D's char evid can prosecution use?
FRE: reputation, opinion & specific acts --"have you heard?"
CEC: same as FRE except where D "opens the door," opinion, reputation & specific acts are admissible on both direct & crossX.
When rebuting char wit for D, prosecution CANNOT introduce
extrinsic evid of the misconduct and is limited to inquiry of the wit.
Besides crossXing character wit to rebut D's char wit, prosecution can
call qualified wits to testify to D's bad rep or give their opinions of D's char.
May D introduce evid of a bad char trait of victim in crim case?
Yes if it is relevant to show D's innocence, D may introduce reputation or opinion evid.
CEC allows D to use not only reputation or opinion evid but also specific act evid to prove the crime victim's char as evid of how victim acted on the occasion in ?
Once D has introduced evid of a bad char trait of the victim, the prosecution may counter w/
reputation or opinion evid of:
1. Victim's good char or
2. D's bad char for the same trait
CEC: Prosecution may rebut using all 3 types of evid about victim's char
Exception to D's being permitted to introduce char evid of victim
FRE: rape & sexual molestation cases--evid of victims' sexual beh generally inadmissible to prove victim's sexual misbehavior or disposition.
CA: rape shield law prohibits any evid re: char of sex crime victim. Prohibits D from offering evid about victim's prior sexual conduct or manner of dress to prove consent on the occasion in ?
Exception to inadmissibility of victim's sexual beh in rape case
FRE: 1. someone other than D is source of semen
2. sexual beh b/n victim & D--by defense to prove consent, by prosecution--any reason
CEC: Prohibition does not apply to victim's prior sexual conduct w/ D. If prosecutor initiates an inquiry into victim's prior sexual condcut, D may X & rebut. Prop 8 does not apply to evid that is barred by rape shield law.
Is alleged victim's sex beh admissible in civil case?
FRE: yes if not excluded by any other rule & its probative value substantially outweighs danger of unfair prejudice
CEC: no, D cannot offer evid of P's prior sexual conduct to prove either consent or lack of injury, but the prohibition does not apply to prior sexual conduct w/ D. If P initiates the inquiry, D may X & rebut.
Evid of specific acts of misconduct inadmissible if
offered soley to establish a crim disposition or bad char
Generally, evid of other crimes of misconduct admissible if
these acts are relevant to some issue other than D's char or disposition
What are the issues for wh evid of prior acts of misconduct is admissible?
Motive
Intent
Mistake (absence of)
Identity
Common plan or scheme
Requirements for admissibility of prior acts for purposes of MIMIC
1. sufficient evid to support a jury finding D committed the prior act AND
2. probative value must not be substantially outwighted by the danger of unfair prejudice.
Prior acts of sexual assault or child molestation in crim case arising out of sexual assault or molestation
FRE: Evid of D's prior acts of sexual assault or child molestation admissible in case in wh D is accused of sex assault or child molest/n. Party intending to offer must give notice must disclose it to the D 15 days before trial or show good cause.
CEC: prosecutor can include in case in chief evid that D committed a prior rape to prove his propensity to rape--as circumstancial evid he did the rape in ? Must give notice; judge has discretion to exclude.
Prior acts of sexual assault or child molestation in civil case arising out of sexual assault or molestation
FRE: Exception to gen rule that char evid is inadmissible to prove conduct
CEC has no exception for sexual assault or child molestation evid in civil cases.
FRE & CEC differ as to evid of prior acts of sexual assault & child molestation
FRE allow in civil & crim cases; CEC does not allow in civil
CEC permits propensity evid in crim cases that charge domestic violence or elder abuse; FRE do not.
Judicial notice of fact is
recognition of a fact as true w/o formal presentation of evid
Define adjudicative & legislative facts
Adjudicative--controlling or operative--facts jury weighs wh relate to particular case
Legislative--those relating to legal reasoning & lawmaking
Facts appropriate for judicial notice
indisputable facts that are matters of:
1. common knowledge in the communtiy
2. capable of immediate & accurate verification
Adjudicative facts need to meet these requirements to be judicially noticed but legislative facts can be judicially noticed w/o.
Judicially noticed facts re: mandatory or permissive
FRE: conclusive in civil cases, but jury may disregard in criminal cases.
CEC: Judicially noticed facts are conclusive in both civil & crim cases (may be subj to 6thA challenge by taking fact issue away from jury)
Judicial notice re: judge's discretion
FRE: If facts are appropriate for judicial notice, judge must take judicial notice if requested. If not requested, judge has discretion.
CEC: If facts are of gen knowledge, judge must take judicial notice. If facts are not universally known but can be establshed by resort to sources of indisputable accuracy, judge has discretion.
Real evid
actual physical evid addressed directly to the trier of fact. Types include
direct, circumstantial, original or prepared
Demonstrative evid
prepared real physical evid that one can see & inspect (such as a model or photo)
& while of probative value does not play a direct part in the incident in ?.
Cond/ns of admissibility of real evid (3)
1. authentication
2. re: condition of object
3. balancing test--legal relevance
Authentication of real evid is
identifying object as what the proponent claims it to be
Ways of authenticial of real evid
1. testimony of a wit or
2. evid of substantially unbroken chain of possession
If cond/n of object which is real evid is significant, it must
be shown to be in substantially the same cond/n at trial.
Particular types of real proof include
1. reproductions & explanatory real evid
2. maps, charts, etc
3. exhibition of child in paternity suits
4. exhibition of injuries
5. jury view of scene
6. demos
documentary evid
evid supplied by a writing wh must be authenticated before admissible
Authentication of documentary evid is
1. proof the writing is what proponent claims it to be must be
2. sufficient to support a jury finding of genuineness

May document be authenticated through pleadings?
Yes
May document be authenticated through stipulation (opposing parties agreeing)
Yes
Examples of proper authentication of written documentary evid include
1. admissions
2. eye wit testimony
3. handwriting verification
4. ancient docs
5. reply letter
6. photo
7. x-ray, EKG, etc.
3 ways to verifying handwriting
nonexpert W/PERSONAL KNOWLEDGE, expert who has compared, trier of fact who has compared writing w/ sample of maker's
Ancient document may be authenticated by evid that it
FRE: is at least 20 Y/O, in such cond/n such that it is free from suspicion as to authenticity & was found in a place where such writing likely to be kept.
CEC: is at least 30 Y/O, does not look suspicious, is found where one would expect & has been treated as authentic by people who care about its authenticity.
Reply letter doctrine
writing may be authenticated by evid it was written in response to a communciation sent by claimed author.
To authenticate a photo
wit must id it as a portrayal of certain relevant facts & verify it depicts a correct representation.
To authenticate a photo taken by an unattended camera,
wit must show camera properly operating at relevant time & photo was developed from film obtained from that camera.
To authenticate an X-Ray or EKG,
it must be shown that the process used is accurate, machine was properly working & operator was qualified to operate it.
To authenticate an oral stmt, authentication as to
identity of speaker is required
Voice may be IDed by
anyone who has heard voice at any time, including after litigation has begun & for the sole purpose of testifying
Telephone conver/ns may be IDed by one of parties to call if person testifies that
1. he recognized the other party's voice
2. the speaker had knowledge of certain facts that only a particular person would have
3. he called a particular person's # & a voice answered as that person or
4. he called a bus & talked w/ the person answering the phone about matters relevant to the business.
Self authentication is
verification w/o extrinsic evid of truth or genuiness.
Self authenticating docs include
FRE: certified copies of public records, official publications, newspapers & periodicals, trade journals, acknowledged docs, commercial paper, certified bus records.
CEC: trade inscriptions & bus records are not self authenticating
To prove the terms of a writing (including recording, photo, X-ray, MRI),
FRE: BEST EVID RULE--original writing must be produced if the terms of the writing are material. Secondary evid of the writing (e.g. oral testimony) is admissible only if the original is unavailable.
CEC: SECONDARY EVID RULE requires the original when proponent seeks to prove the content of a writing. Like best evid rule, aims to protect against unreliable or fraudulent secondary evid of a writing.
In what 2 sits does best evid rule apply
1. writing is a legally operative or dispositive instrument or
2. knowledge of a wit concerning facts results from having read the doc
To what type of writings does best evid rule NOT apply?
1. fact to be proved exists ind of writing
2. writing is collaterial to litigated issue
3. summary of voluminous records
4. public records
"Original" for best evid & secondary evid rules include
FRE would allow photcopies & duplicates made by machine but not handwritten notes nor penciled sketch (only admissible if they satisfy an exception to best evid rule)
CEC: photocopies & other written evid of the content of the original writing (e.g. penciled sketch of the graffiti in defamation case) as well as handwritten copies
FRE: Duplicates are allowed unless
authenticity is challenged or unfairness would result.
FRE: what argument can satisfy foundation for nonproduction of original
1. loss or destruction of original
2, in the possession of a 3rd party outside the juris/n & is unobtainable
3. in possession of an adversary who, after due notice, fails to produce
CEC: proponent can use otherwise admissible secondary evid to prove content of a writing unless
1. genuine dispute about the material terms of the original exists & justice requires the secondary evid to be excluded or
2. a good faith reason why use of secondary evid would be unfair.
CEC: oral testimony inadmissible to prove contents of a writing except
1. original is lost or destroyed w/ no fraudulent intent.
2. writing is made up of multitude of items that cannot be efficiently examined in court & objective is to prove the botton line conclusion, not the little details
3. wit does not have & can't get original or copy by subpoena or other reasonable means
4. proponent does not have & cannot get the original or a copy & writing is not impt enough in the case to make it worthwhile to track down the original or a copy
Does Prop 8 apply to seconary evid rule?
No. Secondary evid rule is exempt--so rule still applies in crim cases.
Fed court makes determinations of fact re: admissibility of duplicates, oral testimony, etc as to contents of original, but court may ask jury to decide
1. whether original ever existed
2. whether a writing, recording or photo produced at trial is an original &
3. whether evid offered correctly reflects the contents of the original
Parol Evid Rule
See Ks flash cards #110. 114. 115, 116, 177, 307
To be compentent to testify, wits must possess 4 basic testimonial attributes
FRE: capacity to observe, recollect, communicate & appreciate obligation to speak truthfully
CEC: gen. same as FRE. Wit is not competent if she cannot make herself understood directly or via an interpreter.
Rule of competency--limitations--i.e. wit must
FRE: 1. have personal knowledge
2. declare he will testify truthfully
3. presume competent until corally is established.
CEC: have personal knowlege which requires ability to perceive and remember the relevant facts.
Most juris/ns & fed have removed CL wit disqualifications for
lack of religious belief
conviction of crime
interest in the lawsuit
Whether an infant can testify
depends on child's capacity & intelligence as determined by trial judge
Whether an insane person can testify depends on
the person's understanding of obligation to tell the truth & his capacity to testify accurately
May the presiding judge testify?
FRE: no
CEC: yes if no party objects but still viewed as incompent so can be grounds for a mistrial
CEC: Can presiding judge, arbitrator or mediator at a judicial or quasi-judicial proceeding testify at a later civil proceeding about the matter?
No except for testimony about a stmt or conduct constituting contempt, crime or judicial misconduct.
May a juror testify before the jury in wh they are sitting?
FRE: no
CEC: yes if no party objects but still viewed as incompent so can be grounds for a mistrial. Juror not prohibited from testifying in front of the judge w/o other jurors present.
dead man's stat
law prohibiting the admission of a decedent's stmt as evid in certain circumstances as when an opposing party or wit seeks to use the stmt to support a claim against the decedent's estate
Application of dead man's stat under FRE & CEC
FRE: No Dead Man's Law but a state Act will apply in fed cases where state law, under the Erie doc, provides the rule of decision (e.g. diversity cases)
CA has no Dead Man Act.
Why must judge exercise reasonable control over the examination of witnesses?
to aid the ascertainment of truth, to avoid wasting time and to protect witnesses from harassment.
Leading ?s are
? wh suggest ans
Leading ?s are generally improper on
direct exam
Leadings are generally permitted
1. on X
2. to elicit preliminary or intro matter
3. wit needs help b/e of loss of memory, immaturity or phy or mental weakness or
4. wit hostile
Improper ?s include
1. misleading
2. compound
3. argumentative
4. conclusionary
5. cummulative
6. unduly harrassing or embarrassing
7. call for a narrative ans or speculation
8. assume facts not in evid
What types of answers may be stricken?
1. lack foundation
2. unresponsive
FRE & CEC re: nonresponsive ans
CEC: both examining party & non-examining party may move to strike a non-responsive ans
FRE: give trial judge discretion to permit non-responsive objections by non-examining party.
present recollection refreshed
wit may use any writing OR THING for purpose of reviving or refreshing her present recollection. She may not read from writing while she actually testifies b/e the writing is merely a memory stimulus & not admitted into evid.
past recollection recorded
WRITING concerning events that a wit once knew about but can no longer remember. Doc itself is evid and may be read into the record if proper found/n laid. Though hearsay, it falls w/in specific exception.
CEC treats past recollection recorded as an exception to the hearsay rule.
Elements of proper found/n for past recollection recorded
1. wit at one time had personal knowledge of facts of writing
2. writing was made by the wit, under her direc/n or adopted by wit.
3. timely made when matter was fresh in wit's mind
4. writing is accurate &
5. wit has insufficient recollection to testify fully & accurately.
Inspection & use of present recollection refreshed on X
FRE: Adverse party entitled to have writing produced at trial, to X wit about it & to introduce portions into evid.
CEC: If opponent requests, proponent MUST produce the writing. If he does not, the testimony from refreshed memory MUST BE STRICKEN; but if wit does not have & cannot get it (thru subpoena, etc) the duty is excused
Opinion testimony: 2 broad types
lay, expert
Lay opinion testimony allowed when it is
FRE: 1. rationally based on wit's perception
2. helpful to a clear understanding of wit's testimony or to determination of fact in issue.
3. not based on scientific, technical or other specialized knowleged.
CEC: same as fed rule except excludes requirement that lay opinion must not be based on scientific, technical or other specialized knowlege to be admissible
Examples of proper lay wit testimony
general cond/n, appearance or state of emotion of person, voice or handwriting ID, speed, value of his own services, intoxica/n of another.
Examples of sits in wh opinion of lay wit NOT admissible
whether there was a K, whether agency re/ship existed
Expert opinion testimony admissible if
FRE: 1. subj matter in wh scientific, techn or other special knowledge helpful to jury
2. qualification as expert
3. wit believes in opinion to reasonable degree of certainty
4. opinion reliable & proper factual basis
CEC: same as fed rule
Determination of reliability of sc opinion based on
FRE: 1. personal observation
2. facts made known to expert at trial
3. facts not known personally but suppled to him outside courtroom & of a TYPE REASONABLY RELIED ON BY EXPERTS in the field. So opinion can be based on even a new, novel theory or tech as long as theory is validated by sound methodology. (Daubert)
CEC: uses GENERALLY ACCEPTED AS VALID & RELIABLE IN THE RELEVANT SC FIELD. thought to protect jury from being misled by bogus sc & sc testimony that sounds better than it is. (Kelly-Frye) Note: CA does not apply to nonsc expert opinion or to expert medical testimony
Opinion of ultimate issues
FRE: an expert may render an opinion as to the ultimate issue in the case, In crim case, in which D's mental state constitute an element of the crime or defense, an expert may not, under the FRE, state an opinion as to whether the accused did or did not have the mental state at issue.
RE: facts made known to expert outside courtroom
FRE: proponent must not disclose the inadmissible material to jury unless proponent convinces the judge that its prejudicial effect is substantially outweighed by value in helping jury to evaluate the expert's testimony.
CEC: has no counterpart but the opponent can ask the judge to use general discretion to prevent jury from hearing the inadmissible material.
Authoritative tests & treatises
FRE: can be used to impeach experts but also as substantive evid if expert is on stand when excerpt read & relevant portion read into evid but not received as an exhibit. (liberal hearsay exception)
CEC: much narrower--covers only historical works, books of sc or art & published maps or charts--& can be used only to prove facts of gen notoriety & interest.
cross examination (X)
?ing of a wit by party opposed to the party who called the wit to testify. Purpose is to discredit a wit before the fact finder
X is generally limited to
1. scope of direct exam including all reasonable inferences
2. testing the credibility of the wit
X & collateral matters
Xer generally bound by answers of wit to ?s concerning collateral matters; but
certain matters of impeachment (e.g. bias, interest, conviction) may be developed by extrinsic evid--court has wide discretion here.
Impeachment in evid law means
discrediting the veracity of the wit
Under gen rule, can a party bolster or accredit the tesimony of his own wit?
no not unless wit has been impeached, but under FRE wit may be impeached by any party including the party who called him.
In CA, can a party bolter his own wit w/o impeachment?
No in civil cases but in crim cases, Prop 8 allows both the prosecutor & D to bolster wit's credibility before it is attacked.
Traditional rule allowed impeachment of party's own witness if adverse, hostile, wit whom party required by law to call or surprise testimony. However
these are now incorrect answers to be avoided.
Impeachment devices (6)
1. prior inconsistent stmt (PIS)
2. bias or interest
3. convic/n of crime
4. bad acts
5. opinion or reputa/n evid for truthfulness
6. sensory deficits
PIS involve showing
on X or extrinsic evid the wit has, on another occasion, make stmt inconsistent w/ his present testimony
To prove PIS by extrinsic evid,
1. proper foundation must be laid &
2. stmt must be relevant to some issue in the case
Foundation for extrinsic evid to prove PIS involve
wit being given an opportunity to explain or deny the stmt. FRE: opportunity to explain or deny need not come before introduction of PIS
FRE & CEC similar
Exceptions to rule that wit be given an opportunity to explain or deny PIS
FRE: hearsay declarant may be used to impeach despite lack of a foundation.
Also may be dispensed w/ "where interests of justice require" (e.g. wit unavailable when inconsistent stmt discovered)
Evidentiary effect of PIS
FRE limit use of PIS to impeachment unless the stmt was made under oath in a prior legal proceeding in wh case it is admissible nonhearsay.
CA allows a PIS as nonhearsay if offered only to impeach. PIS is hearsay if used to prove truth but admissible under exception even if not made under oath in prior legal proceeding.
Evid that wit is biased or has an interest in the outcome of the suit tends to show
wit has a motive to lie
Foundation for extrinsic evid of bias or interest
wit must 1st be asked about facts that show bias or interest on X
Evid wh is otherwise inadmissible (e.g. arrests, liability ins) may be introduced if relevant
for impeachment purposes if proper foundation laid
FRE: A wit in civil or crim cases may be impeached by proof of a conviction of
1. any crime involving dishonesty or fraud & court has no discretion to bar
2. felony not involving dishonesty & court does have discretion to exclude
FRE: Court has discretion to exclude felony conviction to impeach if
1. wit is crim D & prosecution has not shown evid of conviction's probative value outweighs unfair prejudice
2. All other wits: court determines the probative value is substantially outweighed by its prejudicial effect.
FRE: What convictions are not admissible?
remote (more than 10 yrs), juvenile, conviction obtained in violation of D's Const/al rights is invalid for all purposes.
Effect of pardon on admissibility of convictions for impeachment
not admissible if wit has been pardoned, pardon is based on innocence or person pardoned has not been convicted of subsequent felony
Is foundation required for extrinsic evid of conviction to impeach?
No
CEC: A wit in both civil & crim cases may be impeached by proof of conviction of
any felony (whether or not it involves dishonesty or false stmt), subject to 3 qualifications which are
1, convic/n has not been expunged nor wit pardoned
2. felony involves moral turpitude
3. court has discretion to prohibit use of conv/n if probative value substantially outweight by its dangers.
In CA civil cases, can misdemeanor convic/n be used to impeach a wit?
no
In CA crim cases, can misdemeanor convic/n be used to impeach a wit?
Yes, Prop 8 allows both prosecution & D to impeach using a misdemeanor involving moral turpitude.
Under FRE, may wit be interrogated upon X about specific instances of misconduct (SIC)--i.e. bad act (nonconvictions)?
yes but only if act is probative of truthfulness & must be done in good faith
Under FRE, is extrinsic evid of SIC permitted?
No
Under CEC, may wit in CIVIL case be interrogated in X about SIC/bad acts; is extrinsic evid allowed?
No. CA civil cases prohibit initial X & extrinsic evid.
Under Prop 8, may wit in CRIM case be interrogated about SIC/bad acts?
Yes CA crim cases permit both the initial X & the extrinsic evid. However, trial judge can use discretionary exclusion.
Under FRE, may wit be impeached by opinion or reputation for truthfulness?
Yes--may include rep in bus circles & community; no foundation required
Under CEC, may wit be impeached by opinion or reputation for truthfulness?
Yes, unlike most states CA follow fed approach
Re: Collateral matter & impeachment
If wit makes a stmt not directly relevant to issue in the case, the rule against impeachment on a collateral matter applies to bar his opponent from proving the statment untrue either by PIC or extrinsic evid.
Impeachment by sensory deficits can be shown by
X
Extrinsic evid.
no foundation required
Can hearsay declarant be impeached?
FRE yes & may be supported by evid that would be admissible if the delarant had testified.
Also party against whom out of court stmt was offered may call declarant as a wit & X.
Wit who has been impeached may be rehabilitated by
1. explanation on redirect
2. other wits to testify as to good rep for truthfulness
3. prior consistent stmt (PCS)
PCS not ordinarily allowed to rehab wit except
if testimony of wit attacked by charge wit is LYING OR EXAGGERATING b/e of some motive, PCS is allowed to rebut. PCS also is allowed as
substantive evid whether or not under oath.
objection
formal stmt opposing somthing that has occurred or is about to occur in court & seeking judge's immediate ruling on the point. If inadmissible ans comes in, I must make motion to strike
Effect of failure to object
deemed a waiver of any ground for objection. Thus, if no objection is made, otherwise inadmisible evid may be admitted
When should objections at trial be made?
after the ? but before the ans if ? calls for inadmissible matter. Otherwise as soon as an ans emerges as inadmissible.
When should objection be made at a deposition?
If objection is to form of ? or as to a priv, when ? is asked or it may be waived. Objections based on the substance of a ? or ans may be postponed until the deposition is offered in evid.
To perserve right to appeal an adverse ruling, the party objecting must usu.
state the basis for the objection.
General objection
made w/o specifying any grounds in support of the objection. A sustained gen objection will be upheld if there was any ground for the objection (usu. relevancy). Overruled gen objection
will be upheld on appeal unless the evid was not admissible under any circumstances for any purpose.
Specific objection
one accompanied by a stmt of one or more grounds in support will be upheld on appeal
only if the ground stated was correct or if the evid excluded was not competent & could not be made so.
Can one who "opens the door" on a particular subject object as to its relevancy if adversary offers evid on same subj?
No
When part of a conversation, act or writing is introduced into evid, the adverse party
may require the proponent to introduce any other part that out in fairness should be considered.
Examining counsel may move to strike an unresponsive answer but
(FRE) opposing counsel may not but
(CEC) in CA motion to strike an unresponsive answer can be made by counsel for any party.
offer of proof
presentation of evid for the record (outside jury's presence) usu. made after judge has sustained an objection to the admissibility of that evid made to persuade trial court to hear evid & to preserve evid record for appeal
3 parts of an offer of proof
nature, purpose & argument supporting admissibility
What is governing law of privilege (priv) in fed & CA courts?
FRE have no specific priv provisions; fed courts use privs governed by CL (i.e. created by judiciary) & in diversity cases use state law.
CEC privs are statutory (ie. not created by judiciary)
Testimonial privs gen
Testimonial privs permit one to refuse to disclose, and prohibit others from disclosing, certain confidential information in judicial proceedings.
What types of CL priv do fed courts recognize?
attorney-cl, Dr-pt, spousal communication & phsychotherapist/SW-cl.
Who may assert priv?
holder & sometimes the person to whom confidence made may assert on holder's behalf
To be priv/ed, a communication must be
confidential
How is priv waived?
1. failure to claim
2, vol disclosure of priv/d matter by holder
3. Kual provision waiving in advance
Eavesdropper is
one who secretly listens to private conversation of others w/o consent. CEC allows holder of priv to
stop eavesdroppers from revealing the confidential communication.
Describe attorney-cl priv
When professional legal advice is sought from an attorney, the communications made in confidence by a client are protected from disclosure unless the priv is waived.
Who holds attorney-cl priv?
Client. Attorney's authority to claim on behalf is presumed
Are disclosures made before the attorney accepts or declines case covered?
Yes
What about attorney-cl priv & corps?
Corps are "clients" & stmts made by corp officials or employees to an attorney are protected if the employees were authorized by corp to make stmts.
Are confidential communications made to 3rd parties--ie. attorney's secretary, messengers, accountants)--protected?
Yes if necessary to transmit the information b/n attorney & cl
Attorney-cl priv where attorney acts for both parties
no priv can be invoked in a lawsuit b/n the parties, but the priv can be claimed in a suite b/n either or both of the 2 parties & third persons
Dr.-pt priv when communication b/n cl & Dr. during exam made at attorney's request
Dr-pt priv does not apply b/e no trmt is contemplated. Attorney-cl priv will apply as long as Dr. not called as a wit
How long does attorney-cl priv last?
indefinitely; but in CA priv evaporates when deceased cl's estate has been fully distributed & personal rep d/ced.

Exceptions to attorney-cl priv (FRE)
1. cl sought attorney services to aid in crime or fraud.
2. 2 or more parties consult lawyer on matter of common interest & communication is offered by one party against the other
3. communication relevant to ? duty breach in a dispute b/n attorney & cl.
Exceptions to attorney-cl priv (CEC)
1. cl hired attorney to help commit crime or fraud
2. attorney believes disclosure necessary to prevent crime wh lawyer reasonably believes will result in death or substantial bodily harm.
3. CA allows attorney to testify about deceased cl's competence & intent when disposing of a piece of prop by will or lifetime conveyance.
Is attorney work product protected by attorney-cl priv?
No but docs prepared by attorney for his own use in a case are not subj to discovery except in case of necessity. (See civpro #239-241; 244-246)
How is waiver of attorney-cl priv & work product rule limited?
Vol disclosure of priv/ed material deemed a waiver ONLY W/ RESPECT TO THE DISCLOSED MATERIAL. Undisclosed priv material is subj to waiver only if the waiver is (1) intentional, (2) of the same subj matter & (3) material should be considered together to avoid unfairness.
What if disclosure of attorney-cl confidential communication or work product was inadvertent?
There is no waiver if holder took reasonable steps to rectify.
In CA, what criteria are used for communications b/n corp officer or employee to fall under attorney-cl priv?
1. corp officer or employee is natural person to communicate w/ the lawyer on corp's behalf or
2. the person did something for wh corp may be held liable & corp told him to talk to lawyer about it
physician-pt priv
right to exclude from evid in a legal proceeding any confidential communication that a pt make to a Dr for the purpose of dx or trmt unless pt consents to disclosure
holder of physician-pt priv is
pt
Under MAJ (use if MBE assumes priv), confidential communications b/n pt & Dr are priv/d provided that
1. prof re/ship exists (physician, dentist, nurse)
2. info is acquired while attending the pt in the course of trmt &
3. info is necessary for trmt
Under CEC, Dr.-pt priv applies
1. only to licensed physician (or someone pt reasonably thinks is licensed) not to a dentist, nurse or other medical worker. Does apply to nurse who is working w/ Dr. to gather info on behalf of Dr.
2. if pt is seeking either treatment or dx
Dr-pt priv does not apply (or is impliedly waived) if
1. pt puts his physical cond/n in issue (i.e. personal injury suit)
2. Dr's asst was sought to aid wrongdoing
3. relevant to an issue of breach of duty b/n pt & Dr.
4. pt agreed by K to waive (i.e. ins policy)
5. It is fed case applying fed law of priv
Does Dr.-pt priv apply in both civil & crim cases?
Varies among states. Some states allow. In # of others, not in crim cases, others deny it only in felony cases, a few only deny in homicide cases.

In CA, when does physician-pt priv not apply?
1. crim cases
2. info Dr. is required to report to a public office
3. commitment & competency proceedings
4. proceedings to revoke or suspend a license
Psychotherapist/SW-pt priv
person can invoke to prevent the disclosure of a confidential communication made in the course of dx or trmt of a mental or emotional cond/n or at direction of a psychotherapist
Psychotherapist/SW-pt priv in fed court
US SC recognizes so virtually all states recognize & priv operates same as physician-pt
CEC's psychotherapist/SW-pt priv covers
wide range of mental health providers
Does CA psychotherapist/SW-pt priv apply in crim cases?
Yes but not to court appointed therapist
CL psychotherapist/SW-pt priv does NOT apply if
1. Pt has put mental cond/n in issue
2. prof services were sought to aid in crim or fraud
3. case involves breach of duty b/n pt & therapist.
Besides CL exceptions, under CEC psychotherapist/SW-pt priv does NOT apply:
1. when psychotherapist has reasonable cause to believe the person is a danger to himself or others & disclosure is necessary to end the danger
2. If cl is under 16 & therapist has reasonable cause to believe child has been victim of crim, & disclosure is in child's best interest.
2 H-W priv/s
spousal immunity
confidential marital communciation
elements of spousal immunity--CL applied in fed courts & CEC
1. one spouse cannot be compelled to testify against the other in any crim proceeding whether or not spouse is D
2. Priv last only during the marriage but covers info learned before & during
CEC--same as CL but applies to any kind of proceeding--not just crim
Who holds the spousal immunity priv?--fed courts & CEC
FRE--witness-spouse
CEC--same: witness-spouse
elements of confidential marital communications priv--CL applied in fed courts & CEC
1. communications made in reliance upon the intimacy of the marriage are priv/d.
2. applies in both civil & crim cases
3. Priv survives marriage but covers only stmts made during marriage.
CEC--same as CL
FRE--Who hold the marital communications priv?--fed courts & CEC
both spouses have priv not to disclose & to prevent other from disclosing a confidential marital communication
CEC--same as CL
Priv against self incrim/n
5thA protects a wit in a civil or crim cases against being required to give testimony that might tend to incriminate him or her. Does not justify a complete refusal to take the stand except for D in crim case.
CEC: same
Clergy priv--CL & CEC
Priv allows person to refuse to disclose & to prevent others from disclosing confidential communcations w/ a member of the clergy. Similar to attorney-cl priv.
CEC: penitent's confidential communication must be made to cleric who routinely receives such communications & whose religion requires them to be kept secret. BOTH penitent & cleric are holders.
Accountant priv--CL & CEC
Priv for stmts make to CPA. Similar to attorney-cl priv.
CA has no accountant-cl priv under CEC
Professional jounrnalist priv--fed & CA
No Con right for a prof journalist to protect his source of info, so is limited to ind state stats on subj.
CA has no true journalist priv, but newspaper & media cannot be punished for contempt if they refuse to reveal a confidential source; yields to D's right to a fair trial
Govt priv/s generally & CEC
Official (wh means govt acquire in confidence & not open to pub) info may be protected by a govt priv. If ID of informer voluntarily disclosed, no priv
CEC: 1. if fed or st stat forbid, unqualifiedly priv/d
2. Absent a stat, if judge concludes pub interest in keeping info confidential outweighs the need to disclose the info.
CEC Misc priv/s
voter's secret ballot, trade secrets, personnel records of police officers & prison guards
Exclusion of wits--FRE & CEC
FRE: at party's request judge must sequester wits EXCEPT parties, person whose presence is essential to presentation of case, person authorized by stat.
CEC judge has discretion to grant or deny a motion to sequester
Hearsay rule--FRE & CEC
stmt other than one made by the declarant while testifying at the trial or hearing, offered in evid to prove the truth of the matter asserted. If stmt is hearsay & no exception applies, evid must be excluded upon appropriate objection. Reason: adverse party denied the right to X
CEC: same as fed rule; hearsay law is exempt from Prop 8
Issue: multiple hearsay
multiple levels of hearsay involve out of court statement that contains another out of court stmt. for multiple level hearsay to be admissible each level must be separately admissible
Stmt for purposes of hearsay rule
1. oral or written assertion or
2. non-verbal conduct intended as an assertion
What stmts are NOT hearsay, b/e they are not "offered to prove the truth of the matter"
1. verbal acts or legally operative facts
2. stmts offered to show the EFFECT UPON HEARER OR READER
3. stmts offered as CIRCUMSTANTIAL EVID OF DECLARANT'S STATE OF MIND
Can animals or machines make stmts wh are hearsay?
no
Despite meeting the CL definition of hearsay, what stmts are NOT hearsay under FRE thus are admissible as substantive evid? How does CEC treat these?
1. prior stmts by wit (PIS, PCS)
2. prior stmt of ID
3. admissions
CEC label these 3 types of stmts as hearsay but admit them under exceptions to the hearsay rule
PIS
FRE: not hearsay if inconsistent w/ declarant's in-court testimony & given under oath at a prior proceeding
CA: hearsay exception; allows PIS for substantive evid even if not made under oath at an earlier proceeding. Crim: does not violate Confrontation Clause IF D had a MEANINGFUL chance at the trial to confront & X wit about the prior stmt.
PCS
FRE: not hearsay if consistent w/ declarant's in-court testimony & is offered to rebut a charge the wit is lying or exaggerating b/e of some motive & stmt was made before any motive arose
CEC: hearsay exception; PCS must have been made BEFORE an alleged inconsistent stmt, alleged fabrication or bias. If admissible to bolster wit's credibility, can be used substantively.
Prior ID
FRE: not hearsay if prior stmt is one of ID of a person made after perceiving him.
CEC: hearsay exception; Wit must have IDed the person while fresh in memory & wit must confirm in court wit made the prior ID & it truly reflected her opinion at the time.
Admission by party opponent--definition
1. amounts to a prior acknowledgment by one of the parties of a relevant fact
2. stmt need not have been against declarant's interest when made
3. can be opinion; personal knowledge not required
FRE: "not hearsay"
CEC" execptions to hearsay rule
Formal judicial admissions are
conclusive (e.g. pleadings, stipulations, etc).
Informal judicial admissions are
made during testimony & extrajudicial (evidentiary) admissions & not conclusive & can be explained.
Adoptive admission is
when party makes an admission by expressly or impliedly adopting or acquiescing in stmt of another--FRE: admissible non-hearsay
CEC: exception ot hearsay rule
Silence is treated as an admission if
1. party heard & understood the stmt
2. party was capable of denying stmt
AND
3. reasonable person would have denied the accusation
Is silence in face of accusations by police in a crim case an admission of a crime?
almost never
Vicarious admission in evid law is
a stmt or act by declarant which = acknowledgement by another person due to the re/ship b/n the two.
Before admitting a hearsay stmt as a vicarious admission, the court must
1st determine the declarant's re/ship w/ the party against whom the stmt is offered. The contents of the stmt alone is not sufficient to est the re/ship.
Does admission of a co-party amount to a vicarious admission?
No.
Does admission of an authorized spokesperson amount to a vicarious admission?
Yes, admissible nonhearsay under FRE
Exception to hearsay rule under CEC
Does admission of an agent amount to a vicarious admission by the principal?
Yes, under FRE admissible nonhearsay, if w/in the scope of the agency & made while the employment re/ship exists.
CEC--no provision. But in respondeat superior civil cases, stmt of employee is admissible against employer if employee's neg conduct is basis for employer's liability.
Does admission by a partner amount to a vicarious admission by the other partner?
Yes admission will be binding on the other partner if the admission concerns matters w/in the scope of the partnership business.
Are admission by one conspirators, made to a 3rd party, admissible against co-conspriators?
Yes as admissible nonhearsay if in stmt furtherence of a conspiracy to commit a crime or civil wrong at a time when the declarant was participating in the conspriacy.
Exception to hearsay rule under CEC
Can testimonial admissions by a co-conspirator be admitted against another co-conspirator?
only if there was an opportunity to X the hearsay declarant.
Is a stmt of a joint prop owner admissible against the other or a stmt of a former owner of real prop admissible agianst those claiming under her (i.e. grantees,heirs, etc)?
These types of stmts not considered admissions under FRE but may be admissible under one of the hearsay exceptions. Most state courts, are admissible as admissions.
CA: evid of stmt concerning boundaries of land is admissible if declarant unavailable, had knowledge & stmt was made under circumstances to indicate its trustworthiness.
Unavailabity can occur when declarant
FRE: 1. exempt b/e of priv.
2. refuses to testify despite court order
3. has loss of memory on subj matter
4. can't testify--death or illness OR
5. absent b/e beyond reach of court by reasonable means
CA does not recognize refusal to testify or partial lack of memory as a ground of unavailability. Total memory loss & fear of testifying caused by threats of reprisal can be grounds for unavailablity.
Exceptions to the hearsay rule that cond/n admissiblity of the hearsay stmt on the present unavailabity of the declarant.
1. former testimony
2. statements against interest
3. dying declarations
4. statements of personal or family hx
5. stmts offed against party procuring declarant's unavailability
CEC does not require unavailability to admit stmt about person's family hx. CA adds 2 other exceptions requiring unavailabity of the declarant: (1) stmts of declarant's past phy cond/n or state of mind where an issue in the case & (2) stmts describing inflict/n or threat of injury.
Former testimony of non unavailable wit is admissibile if
FRE: 1. party against whom the testimony is offered was a party, party in privy or predecessor in interest former ac/n
2. same subj matter
3. under oath
4. & had opportunity at the prior proceeding to develop the declarant's testimony (i.e. X or redirect)
CEC: alike except CA does not require party be in privy or predecessor in interest. All that is necessary is the prior party had an opportunity & similar motive to X wit.
Is grand jury testimony admissible as former testimony?
No b/e grand juries provide no opportunity for X (but could be admitted as prior inconsistent statement given under oath by a wit currently testifying)
In CA, does former testimony exception apply to deposition testimony given in same civil case at wh hearsay is offered at trial.
Yes admissible for all purposes but only if deponent is unavailable or lives more than 150 miles from courthouse.
Stmt against interest
FRE: stmt of unavailable wit against that person's pecuniary, proprietary or penal interest when made (+collateral facts contained in the stmt) is admissible under the stmt against interest exception to the hearsay rule. Declarant must have had personal knowledge of the facts & must have been aware the stmt was against interest when made.
CEC: alike except CA recognizes stmts against social interest wh show declarant to be obj of hatred, ridicule or social disgrace in the community.
In crim case, what is required when stmt against interest is offered to exculpate D (e.g. confession of unavailable declarant)
FRE: D must offer corroborating circumstances showing trustworthiness of declarant's stmt.
CEC: does NOT require corroboration when D tried to exculpate himself by using unavailable declarant's self incriminating stmt.
Dying declaration
FRE: In a HOMICIDE (not less serious) OR CIVIL case , stmt made by a now unavailable (thru any of available fed grounds) declarant is admissible if: 1. declarant believed his death was imminent & 2. stmt concerned the cause or circumstances of what he believed to be his impending death.
CEC: same except dying declaration admissible in ANY KIND of CASE where it is relevant to know what killed declarant. Declarant must be dead & stmt must be about whatever killed him.
Traditional rule of dying declaration
required declarant to die & restricted exception to homicide prosecutions. (likely wrong answers on MBE)
Stmts of personal or family hx by declarant concerning births, marriages, deaths, etc are admissible if
FRE: 1. declarant unavailable
2. declarant is a member (or intimate w/) of the family in ? &
3. stmts are based on declarant's personal knowledge of the facts of her family.
CEC: does not require unavailablity
Stmts offered against party procuring declarant's unavailability is admissible
FRE: 1. civil or crim case
2. stmt of person now unavailable for any of fed recognized reasons
3. offered against person who has engaged or acquiesced in wrongdoing that intentionally procured the declarant's unavailability.
4. Ordinary preponderance of evid standard applies.
CA similar but more restrictive.
1. only in serious felony case
2. only if declarant was killed or kidnapped
3. only to stmt recorded by law enforcement official before the declarant was killed or kidnapped.
4. must be clear & convincing eivd that declarant's killing or kidnapping was procured by the person against whom the stmt is offered.
Stmt of declarant's past physical or mental cond/n is admissible as hearsay exception when declarant unavailable
CEC: to prove cond/n if it is an issue in the case. Stmt need not be made for medical purposes.
No fed counterpart
Stmt describing infliction or threat of physical injury is admissible as hearsay exception when declarant unavailable if stmt
CEC: 1. was made at or near time of infliction or threat
2. was made under circumstances that indicate turstworthiness &
3. is in writing, recorded or made to a law enforcement or med personel.
No fed counterpart
Hearsay exceptions in wh declarant's unavailability immaterial
present state of mind
excited utterances
present sense impressions
declara/ns of physical cond/n
bus records
past recollection recorded
official records
ancient dos
learned treatises
reputation
family records
market reports
State of mind hearsay exception
stmt of then existing state of mind, emotion, sensation or physical cond/n; usu. introduced to show intent or evid intent was carried out. Admissible when state of mind is a material issue or to show subsequent acts of declarant.
CEC authorizes judge to exclude stmts of mind or body made under suspicious circumstances. (fed law does not)
excited utterances
FRE: out of court stmts relating to a startling event, made while under the stress of the excitement from the event is admissible.
CEC counterpart is spontaneous stmt rule
presence sense impressions
FRE: stmt made concurrently w/ perception of an event in wh there is little time for calculated misstmt & contemporaneous nature makes it reliable.
CEC no presence sense impression exception--CEC contemporaneous stmt narrower than fed rule wh applies to explain, qualify or make understandable something the declarant himself is doing at the very time he makes the stmt
Declarations of present physical cond/n
FRE: admissible as an exception to hearsay rule even if not made to physician
CEC: like FRE stmt of present bodily cond/n admissible under same terms as stmt of present state of mind.

Declarations of past physical cond/n
Generally inadmissible hearsay; under FRE admissible if made to medical personnel to assist in dx or trmt.
CEC: admissible if made by child abuse victim for purpose of obtaining medical dx or trmt; otherwise admissible in CA only if declarant is unavailable & declarant's state of mind is itself an issue
Do CEC & FRE permit the use of a stmt of memory or belief about the past to prove the fact remembered or believed?
Generally no
CA recognizes hearsay exceptions for declarations of past state of mind in what sits?
1. stmt of declarant's state of mind, emotion or physical sensation at time prior to making of the stmt where the previous mental state is itself an issue in the case stmt may not be offered to prove any fact other than the past mental state; declarant must be unavailable to testify. FRE do not contain an equivalent provision)
2. where the stmt was made for purposes of med. dx or trmt and describe medical history, past or present symptions or the cause of such symptions insofar as reasonable pertinent to dx or trmt. (CEC limited to child under 12 describing any act of child abuse or neglect) FRE not so limited
3. where stmt consists of the declarant's contention that he has or has not made a will or revoked his will. FRE similar. CEC requires declarant be available to testify FRE do not require unavailability.
Bus records admissible in evid as proof of that act or transac/n if
FRE: 1. Bus entry
2. made in regular course of bus.
3. about matters w/in personal knwolege of entrant
4. w/ DUTY to transmit
5. made at or near time of event
6. authentication necessary
CEC: like fed rule
May bus records be used to prove the nonoccurrence of an event?
Yes if it was in the regular practice of bus to record such matters
Whether "opinion & dx" are included in bus records exception
FRE: Yes specifically includes
CA states only of "acts, cond/ns & events" CA readily admit straighforward med opinions & dxs but not debatable or difficult ones.
Past recollection recorded
See #115-17 supra
Public records & reports
FRE: public reports of activities of the office or agency, made w/in scope of duty of the public employee & at or near time of event.
Are police observations admissible under the bus records exception or public records exception to hearsay rule?
Police reports may qualify as bus records under some circumstances, but people are not under a bus duty to convey info to police, Thus a report containing their stmts cannot qualify as a bus record. It probably can be admitted under the public records & reports exception.

JUST REMEMBER THAT A POLICE REPORT = DOUBLE HEARSAY - WHAT THE WIT SAID TO THE COPS AND WHAT THE COPS WROTE IN THE REPORT - BOTH MUST QUALIFY AS EXCEPTIONS IN ORDER FOR THE REPORT TO BE ADMISSIBLE
Careful though about stmts of others contained in the report to make sure they are admissible under a hearsay exception. Otherwise these would be excluded.
Are public records & reports admissible against D in a crim case?
FRE: generally no
Public records and reports generally are NOT ADMISSIBLE AGAINST THE D IN A CRIM CASE
Are reports of fact findings resulting from investigations of a public office or agency admissible?
FRE: yes if info is used against the govt
CEC: allows official records of govt investigation to be used for the govt as well as against.

Records of vital statistics
admissible if report made to public officer pursuant to requirements of law
same as fed rule
Is a stmt of absence of pub record admissible to infer matter did not occur?
Yes if made in form of certification or testimony from the custodian that diligent search was done & no record found
Is evid of a prior felony conviction admissible under hearsay exception?
FRE yes in both civil & crim. A copy of a judgment of a prior felony conviction is admissible to prove any fact essential to the judgment. In crim case, it may be used for this purpose only against the accused. Other wits, to impeach.
CEC permits such use only in a civil case

WOW - AM I OUT OF TOUCH? WHERE THE PRIOR FELONY IS RELEVANT TO PROVE AN ESSENTIAL FACT, WE ADMIT A CERTIFIED COPY OF THE CONVICTION IN CRIMINAL CASES
Is evid of a prior felony conviction based on a plea of nolo contendere admissible under hearsay exception?
FRE no it is barred
CEC: permits

NO CONTEST CANNOT BE USED TO ESTABLISH NEGLIGENCE IN A CIVIL CASE
Is prior crim acquittal admissible under hearsay exception?
No. The exclusionary rule is applied to records of prior acquittals.
Is judgment in former civil case admissible in subsequent case?
No. It is inadmissible in subsequent crim proceeding & generally inadmissible in subsequent civil proceeding.

ALTHOUGH IT MAY BE ADMISSIBLE FOR PURPOSE OF ESTABLISHING RES JUDICATA OR COLLATERAL ESTOPPEL
Ancient docs & docs affecting prop interests
FRE: stmts in authenticated docs 20 yrs+ are admissible. Stmts in any doc affecting an interest in prop regardless of age is admissible
CEC requires 30 yrs. + foundational evid that during those 30 yrs. doc was treated as accurate by people who have reason to care.
Learned treaties are admissible as substantive proof if
FRE: 1. called to attention of or relied on by an expert wit &
2. established as a reliable authority by testimony of that wit, other expert testimony or judicial notice
CEC: facts of general notoriety & interest that are found in published maps or charts or books of hx, sc or art. CA courts have interpreted this narrowly & viewed "art" to cover little beyond exact sciences.
Reputation evid is admissible under several exceptions to hearsay rule as evid of
1. char
2. person or family hx
3. land boundaries &
4. a community's gen hx
See #21, 37-50, 237, 247 supra
Family records exception to hearsay rule concerns
FRE: stmts of fact re: person or family hx contained in family Bibles, jewelry, engranvings, genealogies, tombstones, etc
CEC: same as fed
Market reports & other published compilations are admissible as exception to hearsay rule if
generally used & relied on by the pub or persons in a particular occupation.
CEC: same as fed
Catch-all exception requires
FRE: 1. circumstantial guarantees of trustworthiness
2. "necessary"--i.e.probative, offered on material fact &
3. notice be given to adversay as to nature of stmt
CEC: has no "catch-all" exception. But CA judges can create new hearsay exceptions by decisional law.
Constitutional issues & Confrontation Clause & hearsay
Confrontation Clause (6thA guarantee of crim D to directly confront an accusing wit & to X) trumps hearsay exceptions; hearsay evid is inadmissible unlesss declarant unavail & D had opportunity to X at time stmt made. D forfeits this right if he acted wrongfully w/ intent of keeping wit from testifying. Also hearsay & other exclusionary rules cannot be applied when they would deny D right to a fair trial.
CA Prop 8 & Constitutional issues
"all relevant evid is admissible" in crim trials in CA casts doubt on body of evid law wh protects Con rights of crim Ds; but has been interpreted by CA courts to exempt certain exclusionary rules.
What exclusionary rules are exempt from Prop 8 in CA?
1. those based on Con
2. those adopted by CA leg after 1982
3. priv rules wh existed in 1982
4. Ca law wh prohibits court from holding a member of the media in contempt
5. Rule against hearsay evid
6. Judicial discretionary rule preserved
7. CA's rape shield stats
8. Ca's secondary evid rule
9. Evid rules prohibiting prosecution from offering evid of D's or victim's char before D opens the door
Essay approach to Prop 8
1. Always consider Prop 8 in CA crim case
2. If prosecution or defense has offered evid that would be excluded by one of ordinary rules of evid. If so note on essay
3. If evid falls w/in one of the 9 exempted caregories, explain why Prop 8 does not apply & proceed to apply the ordinary rule.
4. If evid outside of one of the 9 exempted categories,
then explain why evid is admissible b/e of Prop 8
5. Ask whether judge should nonetheless exclude on ground that its danger substantially outweighs probative value.
burden of persuasion is a
party's duty to convince the fact finder to view the facts in a way that favors that party
In civil cases, P's burden is usu.
"by a preponderance of the evid."
In crim cases, prosecution's burden is
"beyond a reasonable doubt."
burden of production
a party's duty to introduce enough evid on an issue to have the issue decided by the fact finder, rather than against the party in a preemptory ruling. Also called burden of going forward w/ evid.
A presumption is a rule that
requires a particular inference be drawn from an ascertained set of facts.
Effect of presumption is
to shift burden of production
When is presumption rebutted?
when adversary produces some evid contradicting a presumed fact.
Distinguish inferences & presumptions
Inference is conclusion reached by considering other facts & deducing a logical consequence from them. Presumption is a form of substituted proof in that the introduction of basic fact gives rise to the presumed fact.
Permissible inferences
may allow a party to meet his burden of production (e.g. est a prima facie case) but does not shift the burden to the adversay
Examples of permissible inference
inference of neg arising from res ipsa loquitur,
inference of neg when will's drafter is also the principal beneficiary
In crim cases, the presumption of innocence is
a permissible inference but does not shift the burden of production.
What must the judge instruct the jury in crim case when true presumptions arise?
Judge must instruct jury they MAY regard the basic facts as sufficient evid of the presumed fact.
In a crim case, if a presumed fact establishes guilt, is an element of the offense or negates a defense, it must be proved
beyond a reasonable doubt.
conclusive presumption
cannot be overcome by any additional evid or argument. (e.g. child under 7 y/o can't commit a crime) really a rule of substantive law.
What is common rebuttable presumption re legitimacy?
every person presumed to be legitimate
What is common rebuttable presumption re issue of suicide?
When cause of death is in dispute, there is a presumption in civil cases it was NOT suicide
What is common rebuttable presumption re sanity
Every person is presumed sane.

UNLESS THEY ARE PREPARING FOR THE CALIFORNIA BAR EXAM
What is common rebuttable presumption re death from absence
If person is unexplainably absent for a 7 yrs & has not been heard from, he is presumed dead.
What is common rebuttable presumption re ownership of car--agent driver.
Proof of ownership of a car creates presumption the owner was the driver or or owner's agent.
What is common rebuttable presumption re chastity
every person is presumed chaste & virtuous.
What is common rebuttable presumption re persons in official office?
they are doing their job
What is common rebuttable presumption re continuance?
Proof of existence of a person or cond/n at a given time raise a presumption that it continued for as long as is usual w/ things of that nature.
What is common rebuttable presumption re mail delivery?
properly addressed, stamped & dispatched letter is presumed to have been delivered.
What is common rebuttable presumption re solvency?
Person is presumed solvent & every debt collectible.
What is common rebuttable presumption re bailee's neg
Proof of delivery of good in good cond/n to a bailee & failure of the bailee to return goods in the same cond/n create presumption the bailee was neg.
What is common rebuttable presumption re marriage
Upon proof of a marriage ceremony, marriage is presumed valid.
re/ship of parties, judge, jury: allocation of responsibilities
In our adversarial adjudicative process, the focus is on the party's responsibility to frame the issues in a litigation and to assume to burden of proving the issues he has raised. trial jude's primary responsibility is to superintend the trial fairly. ?s of law are for judge, ?s of fact are for jury.
Primary responsbility of judge & jury
judge decides ?s of law; jury decides ?s of fact for jury
Preliminary fact (also predicate fact, foundational fact)
essential cond/n to the admissibility of proffered eved; fact from wh a presumption or inference arises.
Preliminary fact decided by jury
FRE: After judge decides whether there is enough evid to support a finding that preliminary fact exists, judge admits evid & lets jury decide whether the preliminary fact exists.
CEC: same as FRE except in CA, judge alone decides the genuiness of a handwriting exemplar (fed courts use 2 step process above).
Preliminary fact decided by judge
facts effecting the competency of the evid such as whether or not the proffered evid is relevant.
Examples of preliminary facts to be decided by jury
authenticity of a doc, credibility of a wit, personal knowlege
Examples of preliminary facts to be decided by judge
requrements for hearsay exceptions, priv/s, expert testimony, mental competence
What evid may judge consider?
FRE: any relevant unpriv evid; not bound by rules of evid--except for priv rules. Many state courts hold rules of evid do apply in preliminary fact determiantions
CEC: exactly opposite from FRE. CA judge is bound by rules of evid--e.g. cannot use inadmissible hearsay to decide preliminary fact issue.
Whether jury should be excused during preliminary fact determination is
up to discretion of judge
May D testify on a preliminary matter (e.g. circumstances of a searcy) w/o subjecting himself to testifying at trial?
Yes
May judge comment on the weight of the evid?
In fed courts, yes.
In state courts, generally no.
CA con authorizes judge to comment on the evid & credibility of wits, but it must be done in a way wh does not usurp the jury's function.
May the judge call & interrogate wits on his own initiative?
Yes
What is judge's obligation re: counsel's evidentiary objections?
rule promptly & when asked state grounds
How are preliminary facts required by co-conspirator exception to hearsay rule decided?
fed court: judge alone decides
CA uses the 2 step process i.e. judge gives it to jury if judge decides enough evid exists to support a finding that stmt made in furtherence of conspiracy or w/ testimonial admission if in a hearing w/ opportunity to X.
What qualifies for admissible proof a judgment has been entered?
certified copy of judgment
Prior crim conviction when felony conviciton admissible
FRE judments of felony convictions are admissible in crim and civ action to prove any facts essential to the judgement but only against the accused. Impeachment purposes against others.
Prior crim acquittal
excluded. Exclusionary rule still applied to records of prior acquittals
judgment in former civil case
inadmissible in a subsequent crim proceeding & generally inadmissible in subsequent civil proceedings.