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189 Cards in this Set

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Forms of evidence
1. TESTIMONIAL (witnesses's recount on the stand)
2. PHYSICAL (actual and representational)
3. OPINION (ordinary and expert witnesses)
4. NON-EVIDENCE (presumptions, judicial notice)
Direct v. Circumstantial evidence
DIRECT: Evidence that directly proves a fact, w/out an inference or presumption and which, if true, conclusively establishes that fact.
CIRCUMSTANTIAL: Evidence that, taken together, infers the fact to be proven.
Who has the burden of proof?
CRIMINAL: Prosecution has the burden of proof
CIVIL: Plaintiff has the burden of proving the elements of the cause of action; Defendant has the burden of proving the elements of any affirmative defenses.
What are the different standards of proof?
PREPONDERANCE OF THE EVIDENCE: 51% ("more likely than not") - most civil cases.
CLEAR AND CONVINCING EVIDENCE: 71% - some civil cases.
BEYOND A REASONABLE DOUBT: 85-90% - criminal cases.
Fact finding roles of judge and jury
- Judges decide questions of law and make some preliminary factual decisions re: the admission of evidence.
- Jury decides question of fact, including the credibility of witnesses.
Preliminary facts, defined
Facts that must be found to be true before a specific item of evidence is admissible
Preliminary facts, who makes determinations
- JUDGE DECIDES: Logical relevance, prejudice, voluntariness of a confession, competency of a witness to testify, qualification of an expert witness, whether privilege exists, hearsay exceptions (including existence of conspiracies in federal court).
- JURY DECIDES*: Conditional relevance, knowledge of witness, identity of persons, identity of documents (authentication), existence of conspiracy in CA court.

*Judge decides whether a minimum threshold of evidence has been reached.
Evidence that can be relied upon in making preliminary fact determinations
- In federal court, a judge can use any non-privileged reliable evidence (admissible or not) in making a preliminary fact determination.
- In CA court, a judge can only rely on admissible evidence in making preliminary fact determinations.
- In CA and federal court, JURIES can only use admissible evidence in making preliminary fact determinations.
Logical relevance
- Under FRE 401/EC 210, relevant evidence is evidence having any tendency to make the existence of any material fact more or less probable.
- Under FRE 402/EC 350-351, all logical evidence is admissible except as otherwise provided.
- Logical relevance is determined by the ISSUE ACTUALLY IN DISPUTE.
- If the evidence adding a brick to the wall of proof? Taking a brick out?
Conditional relevance
Under FRE 104, when the relevancy of evidence depends upon the fulfillment of a condition of fact (E.g., if statement was heard, it is relevant), then the evidence is admissible upon finding fulfillment of condition (E.g., statement admissible only if it is found to be heard).
Conditional relevance, limiting instructions
If evidence is admitted that has a valid use and an invalid use, the judge can give the jury a limiting instruction telling the jury in what context they may consider the evidence, thereby restricting the evidence to its proper scope.
Admissibility of proof by probabilities
For admissibility, there must be an adequate foundation both in evidence and in statistical theory:
- Accuracy: Are the values factually correct? Are the stats based on accurate numbers/probabilities?
- Independence: Are the stats calculated using truly independent variables? Are the variables mutually exclusive?
Problems with proof by probabilities, People v. Trujillo
Plaintiff offered probabilities to prove that the gun in question belonged to defendant. Taking the probability that a given gun was that caliber, with those lands and grooves, that rifling, a revolver, and had a misaligned chamber, the DA came up with a 1 in 400 probability that the gun belonged to someone else.
Proof by probabilities, requirement of corroboration.
Generally, probability evidence is insufficient by itself to support a conviction. To get a favorable verdict, independent corroborating evidence is generally required to support the statistical evidence.
Relevance of demeanor
- Demeanor is relevant.
- Under EC 780(a), The court or jury may consider, in determining the credibility of a witness, his demeanor while testifying and the manner in which he testifies.
Relevance of demeanor, right to use mental/physical faculties unfettered.
Under State v. Murphy, the right to appear and defend yourself is a right to appear with use of your mental and physical faculties unfettered. A new trial must be granted when D shows a reasonable possibility that his attitude, appearance, and demeanor, as observed by the jury, have been substantially influenced/affected by circumstances over which he had no control.
- D was given tranquilizers before testifying. The tranquilizers led him to give off a cold/subdued demeanor and jury convicted him. New trial granted.
Legal relevance: Balance between probative value and prejudice, FRE 403/EC 352
Under FRE 403/EC 352, relevant evidence may be excluded if its probative value is SUBSTANTIALLY OUTWEIGHED by the danger of UNFAIR prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
- I.e., logical relevance can be rendered inadmissible if it unfairly prejudicial nature substantially outweighs its probative value.
FRE 403/ EC 352, effect of other evidence
Evidence which may cause unfair prejudice should be considered in light of alternative evidence that could also be presented. I.e., the availability of other means of proof may be an appropriate consideration. Is there equally probative evidence that is less prejudicial?
FRE 403/ EC 352, requirement of UNFAIR prejudice
Unfair prejudice means an undue tendency to suggest a decision on an improper basis, commonly an emotional one (not necessarily emotional, though).
Ask:
- Will the evidence distract the jury from the fact-finding process?
- Will the jury give the evidence undue weight?
- Is the evidence being used to incite an emotional response in the jury?
- Are there any less prejudicial alternatives?
FRE 403/ EC 352, relationship to credibility of evidence
Under Ballou v. Henri Studios, FRE 403 does NOT permit exclusion of evidence based on the credibility of that evidence.
- Credibility issues are reserved for trial.
- In 403/352 analysis, the judge must decide the probative value of the evidence AS IF IT WERE TRUE. I.e., It is NOT the judge's duty to determine whether the evidence is believable, only the result if it were true.
FRE 403/ EC 352, Old Chief
There is a fine balance between prohibiting evidence based on unfair prejudice and the prosecution's right to present "coherent narrative" that tells a "colorful story with descriptive richness."
- In Old Chief, D was accused of violating a law that prohibits possession of a firearm by anyone with a felony conviction. D wanted to stipulate to his prior conviction. Prosecution wanted to be able to go into some detail of that prior conviction. Held, although, in general, D's 403 objection offering to concede a point cannot prevail over the prosecutions choice to offer evidence showing guilt and surrounding circumstances, here, a coherent narrative would be unduly prejudicial and a stipulation will do.
Character evidence generally
In general, evidence of a person's character is NOT admissible to prove that the person acted in conformity with that character on a given occasion.
CAVEAT: In some situations, the character of a witness may tend to prove an issue in dispute.
Admissibility of character evidence
Character evidence can be used in four (4) situations:
1. Any time CHARACTER IS IN ISSUE (character is an element of a criminal charge, civil claim, or defense).
2. As circumstantial evidence in favor of a CRIMINAL DEFENDANT ("Look, I'm a good guy, I didn't do this."). N.b. Offering such evidence opens door for prosecution to rebut this evidence through character evidence of their own. I.e., while the prosecution cannot initiate this line of evidence, they can respond to it.
3. To show character of a VICTIM of a crime, if relevant (only really used when D claims self-defense).
4. To IMPEACH ANY WITNESS who has testified in a case (civil or criminal).
Proving character evidence
In situations where character evidence is deemed admissible, there are three ways to prove a person's character:
1. Introduce evidence of SPECIFIC CONDUCT ("D cheated on his chemistry exam," "D stole a book last month").
2. Introduce evidence of the party's REPUTATION in the community.
3. Introduce OPINION EVIDENCE based on a witness's personal knowledge, where the witness knows the person whose character is in question.
Character evidence: when character is in issue
- negligent entrustment (P has to prove that 3rd party had certain character traits that D knew or should have known about)
- libel/defamation suits (D can assert a defense of truth, where P actually had th bad character traits that D alleged)
- punitive damages
- child custody cases
Character evidence: methods of proving character in issue
The following methods may be used to prove character in issue: specific conduct, reputation in the community, opinion evidence
Character evidence: character as circumstantial evidence in favor of criminal defendant
Under FRE 404(a)(1)/EC 1102, only the criminal defendant can initiate the process of character reputation evidence. Once the defendant has initiated this process, however, the prosecution can rebut by bringing character witness of its own or by cross-examining the defendant (as to the same character trait).
Character evidence: methods of proving character as circumstantial evidence in favor of criminal defendant
The following methods may be used to prove character as circumstantial evidence in favor of a criminal defendant:
1. Reputation in the community
2. Opinion evidence.

*N.b. Evidence of specific conduct is NOT allowed.
Character evidence: using REPUTATION EVIDENCE as circumstantial evidence in favor of a criminal defendant
Witness may only testify about what he/she has HEARD IN THE COMMUNITY. Witness may not testify about any specific conduct of the defendant.
- Question from lawyer should be "Have you heard..." (v. "Do you know..." = not ok)
- Applies to both direct and cross examinations
Logical relevance of character evidence used as circumstantial evidence in favor of a criminal defendant
Any character evidence must be logically related to the charge. E.g., in a murder case, reputation of honesty might not be logically related, but reputation of past violence might be.
Character evidence: using OPINION EVIDENCE as circumstantial evidence in favor of a criminal defendant
Proper questioning would be "Do you know D?" Yes. "Have you had an occasion to form an opinion as to D's [character trait]?" Yes. "What is that opinion?"

N.b. Cannot ask how that opinion was formed.
Character evidence: using evidence of past arrests to rebut reputation/opinion evidence in favor of a criminal defendant
Under Michelson v. US, evidence of past arrest, even if there was no conviction, may be admitted as character evidence.
N.b. Seems like this must be done via cross examination of the witness offered by the defendant.
Character evidence: reputation of victim
The only case where this can be used in in a murder/assault case where D claims self-defense. In such a case, peaceful/violent nature of the victim can be introduced by either side.
Character evidence: methods of proving reputation of victim
Reputation of victim can be proved through: reputation in the community, opinion evidence, or specific conduct.
Logical relevance of character evidence used to prove reputation of victim when self-defense is asserted
The only logically relevant evidence is evidence of peacefulness or violence (honesty/dishonesty wont be relevant to self-defense claim).
General admissibility of other crimes or bad acts
Under FRE 404(b)/EC 1101(b), evidence of other crimes or bad acts are NOT admissible to prove the character of a person in order to show action in conformity therewith. I.e., they cannot be used to show PROPENSITY to commit a crime. Other crimes or bad acts might be admissible to prove:
- Motive
- Opportunity
- Intent
- Preparation
- Plan
- Knowledge
- Identity
- Absence of mistake/accident
FRE 403/ EC 352 analysis when using other crimes or bad acts
Under McCormic, the court should consider the following six factors when determining whether the probative value of using another crimes or bad act is substantially outweighed by the danger of unfair prejudice:
- Strength of the evidence as to commission of other crime;
- Similarities between the crimes;
- Time interval - time that has elapsed between crimes;
- Need for the evidence;
- Efficacy of alternative proof;
- Degree to which evidence probably will rouse the jury to overmastering hostility.
Steps for admitting "other crimes or bad acts" evidence
1. Is the evidence relevant to one of the allowable purposes for which the evidence may be introduced?
2. Is there enough evidence to send the case to the jury? Could a reasonable jury find, by a preponderance of the evidence, that D did in fact commit the past crime/bad act?
3. Does the evidence overcome FRE 403/ EC 352 scrutiny?
4. Limiting instruction must be given to jury on how to use the evidence.
Other crimes or bad acts, conditional relevance
The past crime/bad act is only relevant if the jury finds by a preponderance of the evidence that it was indeed committed by the defendant.
Other crimes or bad acts, misc. rules
- When considering whether D committed the past crime, the jury may consider the prior crime in light of the present crime (does not have to view in isolation).
- Conviction of a past offense is not a prerequisite to the introduction of such evidence.
- If defendant stipulates to motive/knowledge/intent/whatever, the prosecution cannot introduce prior bad as evidence of those things.
Other crimes or bad acts as corroborating evidence in CA
Under Ewoldt, in CA, other crimes or bad acts may, in appropriate circumstances, be used as corroborating evidence.
Other crimes or bad acts, sex crimes exception
SEX CRIMES EXCEPTION: Under FRE 413-415/EC 1108, propensity evidence can be introduced in sex crimes cases (sexual assault/child molestation). In federal court, other crimes or bad acts can be used to show propensity to commit crimes in sex crimes cases in both civil and criminal cases. In CA, only admissible in criminal sex crime cases.
Hearsay, general rule
Under FRE 801/EC 1200, "Hearsay evidence" is an out of court statement offered for the truth of the matter asserted. Except as provided by law, hearsay evidence is inadmissible.
Hearsay, "out of court"
A hearsay statement is a statement made while NOT on the witness stand
Hearsay, "statement"
"Statement" includes an oral or written assertion OR nonverbal conduct of a person, if it is intended by the person as an assertion.
Hearsay, "offered for the truth of the matter stated"
A hearsay statement is a statement offered to try to convince the jury that the substance of the statement is true.
Purpose of the hearsay rule
Hearsay statements are inherently untrustworthy because they are not made under oath and they are not subject to cross-examination. Cross examination tests the witness's sincerity, memory, perception, and mode of expression (diction, delivery, tone, etc.).
Character
Generalized description of one's disposition
Habit
One's regular response to a repeated sitation. Routine practice for group/organization. Use of Specific conduct OK. Subject to 403. NOT character evidence.
# of repitions to show habit?
Sufficient - undefined
Prior Similar Happenings (PSH)
prior similar happening may be introduced in subsequent action to show negligence. Must have substantial similarity between all critical aspects.


Subject to 403
Absence of/Subsequent Similar Happenings
Absence of PSH may also be shown to prove no negligence. Subsequent SH are likely OK too.

Subject to 403
Lady Falls on sidewalk. She wants to introduce into evidence that 100 people fell prior to accident. Admissible? What about if 100 fell since? What about if noone has fallen?
- Evidence of prior falls is admissible as prior similar happenings - so long as similar in all critical aspects.
- Evidence of subsequent falls are admissible as similar happenings - so long as similar in all critical aspects ("modern" trend.
- Nobody falling is admissible as absence of similar happening.
Similar Conditions
Existence of a similar condition or circumstance shortly before/after an incident can used to show condition was present at time of accident. Related to PSH.

Subject to 403.
Guy speeds by and 2 minutes later you see him in an accident. Admissible to show he was speeding at time of accident? What about 10 minutes?
2 min. = admissible as evidence of similar condition. 10 min. = probably not.
Subsequent Precautions
After event, remedial or precautionary measures are NOT admissible to prove negligence, defect. Want people to fix and upgrade without fear of liability
Offers In Compromise
NOT admissible to prove liability. Offer to pay medical, NOT admissible. MUST be made during an effort to compromise (settlement negotiations)
Offers in Compromise OK when...
Showing Bias, delay, OK to then use to go and discover evidence.
Offers in Compromise HYPOs
During Settlement - Brakes were bad, i will pay you. Admissible?

Letter to other side stating facts of accident. Admissible?
Pleas
No contest and revoked guilty not admissible.

Guilty = Admission (even for minor infractions). Admissible

In CA - traffic not admissible, only felony convictions.
Hearsay, multiple hearsay statements ("X said that Y said..."
If a hearsay statement consists of more than one hearsay "I heard John say that Anne said..." then each hearsay statement therein must be broken down individually and meet an exception in order for the statement to be admissible.
Husband and wifey die in a plane crash. There is a dispute over the will and the issue turns on whether the husband or the wife actually died first. The sheriff testifies that the wife was dead when he arrived on the scene but he heard the husband whisper, "I am still alive."

Objection, hearsay. What result?
Overruled. Statement not offered for the truth of the matter asserted. It doesn't matter what the husband said, so long as he said something. He could have said "I am dead first" and it would have been relevant, regardless of its truth.
P sues hospital for negligence in hiring Dr. and allowing Dr. to perform surgery on P's hip. P offers evidence of accessible records which would have revealed Dr.’s incompetence.

Objection, hearsay. What result?
Overruled, see Johnson v. Misericordia Hospital. Records not offered to establish the truth of opinions in records, but to show such opinions did exist about Dr.'s competence and should have been considered by those investigating his application. Even if statements were UNTRUE, the statements would be relevant because they show that the hospital was put on notice to investigate his application more carefully.

N.b.: Hospital is entitled to a limiting instruction. “May consider statement to determine if hospital negligently failed in duty to investigate (non-hearsay). May not consider statement to determine actual incompetence (hearsay).”
A statement is not "offered for truth" when the statement...
- is offered to show effect on the hearer/the hearer's state of mind.
- has independent legal significance.
- to show a the speaker's knowledge.
In a breach of contract case, the plaintiff testifies that the defendant said, "I promise to pay you for that car."

Objection, hearsay. What result?
Overruled. Statement not offered for the truth of the matter - even if the statement is untrue, it creates a legal relationship. I.e., the words have an independent legal significance.
Liability Insurance
Not admissible to show wrongdoing. Admissible to show agency
Witness is Competent if....
1)Understands obligation to tell the truth

2)Demonstrates an ability to observe and communicate concerning matter.
Hypnosis
Per se inadmissible. But if you are hypnotized, you can still testify to what you demonstrate is recalled before hyponosis.

Criminal Defendant can testify, hypnosis goes to weight.
Cross Examination must be limited to....
Subject Matter covered during Direct OR matters affecting credibility.
Impeachment: Accomplished
1) Showing witness not in a good position to observe
2) Witness is Unreliable i.e. bias
3)Contradicting witness (with own or someone else's statements)
Impeach Own Witness?
Yes. Can futhur question to modify testimony or impeach if didn't work out.
Impeach and 403
It is limited by sensitivity to confusion of issues, misleading jury and wasting time.
Impeach: Prior Bad Acts
In federal court, may be used to impeach any witness via cross-examination of THAT witness (no extrinsic evidence). In CA civil cases, CANNOT use at all. In CA criminal, can ask via cross-examination OR can introduce extrinsic evidence of prior bad acts.
Bad Acts: Federal Rule
Bad Act MUST be one that reflects truth or veracity. Only if witness takes stand and testifies. NO extrinsic evidence
Bad Acts: CA
Civil - NO Bad Acts
Criminal - OK

Can be any act, NO truth or veracity requirement.

Extrinsic OK.
Hearsay, non-assertive conduct: general rule
For conduct to be a statement under the hearsay rule, there must be an intention to make an assertion.
Animal and mechanical assertions, general admissibility rule
In general, animal and mechanical assertions are admissible if it is shown that the animal or machine was reliable and accurate in the past. E.g., Buck v. State evidence of bloodhound scent-tracking admissible because shown to be reliable; City of Webster Grove v. Quick: same idea for radar gun.
N.b. the hearsay rule really only applies to humans.
Impeach: Convictions ok?
Depends on whether crime of dishonesty or not. Learning Fed only. 4 scenarios.
Convictions - Under 10 years from conviction or release: ANY conviction involving falsity or dishonesty offered against ANY witness.
May be used without limitation. conviction auto-admitted withOUT 403.
Convictions - Under 10 years: (Fel. Only) NOT involving falsity or dishonesty that are offered against any witness EXCEPT a criminal defendant.
May be used unless prejudice SUBSTANTIALLY OUTWEIGHS probative value (403 analysis)
Convictions - Under 10 years (Fel. Only) NOT involving falsity or dishonesty that are offered against a criminal defendant
May be used if prejudice MERELY OUTWEIGHS probative value (tougher than 403)
Convictions - OVER 10 years: ANY conviction involving falsity or dishonesty that is offered against any witness.
May be used against the witness only if the PROBATIVE SUBSTANTIALLY OUTWEIGHS prejudicial value (VERY TOUGH)
Crime of Falsity or Dishonesty
1) per se if crime involves some element of DECEIT, UTRUTHFULNESS, or FALSIFICATION (i.e. false statment, perjury, fraud) OR
2)because of the way the crime was committed
When Convictions not admissible
pardon, annullment or certificate of rehibilitation, juvenile convictions,
IMPEACH: Reputation
You may impeach reputation by showing they have a reputation for untruthfullness or veracity. Same questioning as for character evidence.
Preserving Claims of Improper Impeachment
1)D Must testify
2)If D didn't testify - Can't appeal the judges in limine decision to allow evidence of prior convictions if he did testify.
Policy justification for hearsay exceptions
There are some situations in which evidence, even though hearsay, should nevertheless be admitted - because it is either sufficiently reliable/trustworthy or out of practical necessity.
Hearsay exceptions requiring the declarant to be unavailable: general "unavailable" rule
Under FRE 804/EC 240, a declarant is deemed "unavailable" for the purposes of a hearsay exception if:
- Exempted by privilege;
- Refuses to testify despite court order to;
- Lack of memory on subject matter;
- Death or current physical/mental illness;
- Party unable to procure attendance by process or other reasonable means.
N.b. If the above reason is due to procurement or wrongdoing of proponent of statement to prevent witness attendance, then declarant is NOT "unavailable."
Hearsay exceptions requiring the declarant to be unavailable
1. Dying declarations
2. Former testimony
3. Declarations against interest
Dying declarations, general rule
A declarant’s statement concerning the cause or circumstances of her own impending death, if made when the declarant believed her death was imminent, is admissible as an exception to the hearsay rule.
Dying declarations rule, CA v. Fed
- In CA, a dying declaration can be used in any civil or criminal case, but the declarant must actually DIE.
- In federal court, a dying declaration can only be used in a civil case or homicide case and the declarant doesn't have to actually die, but must be unavailable.
Spontaneous declarations, 2 types
1. Excited utterances
2. Present sense impressions (Fed only)
Excited utterances, general rule
- Under FRE 803(2)/EC 1240, a statement RELATING TO (fed)/DESCRIBING (CA) a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is admissible as an exception to the hearsay rule.
- Requirements: 1) Startling event, 2) Statement made under stress at that event (at the same time of the event or shortly thereafter), 3) Statement relates to the circumstances of the event (In CA, statement must DESCRIBE the startling event), 4) There is independent corroboration that the startling event occurred.
Present sense impressions, general rule
THIS RULE ONLY APPLIES IN FEDERAL COURT.
- Under FRE 803(1), a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter is admissible as an exception to the hearsay rule.

N.b. Event does not have to be startling, independent corroboration is not necessary (lack of corroboration will go to the weight of the evidence, but not its admissibility), time element is strictly enforced.
Impeach Based on Capacity to Observe
1)attack capacity to perceive, recollect or communicate AND/OR
2)the extent of his opportunity to perceive the matter
(i.e. drunkeness, eyesight, drugs, Old persons "ability to remember")

OK on Cross, Extrinsic OK
Impeach - Capacity - Mental Disorder
Subject to 403, may attack witness by use of physciatrist testimony of mental disorder
Impeaching a witness - Testimony of Others in Contradiction
In federal court, testimony of others in contradiction can be used as 1) substantive EVIDENCE if its testimony about a primary issue in case 2) IMPEACHMENT EVIDENCE (sole purpose is for impeachment) if the issue is a collateral issue.

N.b. Testimony in contraction can only go to the important issues - cannot bicker about stupid little things.
Evidence of Sexual conduct to impeach
1) File written motion with reasons for relevance and offer of proof
2)Have hearing with witness w/o jury
3) Judge then decides what questions are OK
Bias
Describes a relationship b/w party and witness wich might lead witness to slant his testimony in favor or against defendant. Subject to 403. Goes to weight
Prior Inconsistent Statement
If witness testifies at trial, evidence of PIS is admissible to impeach credibitlity

-must be shown to opposing counsel upon request.
-Exemption, thus NON-Hearsay
Priot Inconsistent Statement - Impeachment - CA v. FED
May be used to impeach in both.

CA - may also be admitted for truth,
FED - for truth only if made in prior proceeding under oath and subject to cross. If no oath, used for impeach not for truth.

Check for Admission of party opponent here.
Calling Witness to Impeach with PIS
CA - Fine
Fed - Can't call if primary reason is to impeach.
"I don't know" as basis for introducing PIS
I don't know is not inconsistent unless deliberately evasive.
Prior Consistent Statements
may be used generally to rehabilitate a witness after has been impeached

Can Come In under Catch-All
When do you use prior consistent statments?
1)When W is impeached by PIS
2)W is accused of fabrication
3)W has been accused of bias

Only rehibilitates for bias and fabrication if made before the charged fabrication or improper bias.
Impeaching Hearsay Declarants instead of Testifying witnesses
Credibility of declarant may be attacked and supported by evidence that would be admissible if declarant had testified as a witness.
Original Documents Rule ("Best Evidence")
If you want to prove the contents of a writing, you must produce the original, unless: 1)Lost/Destroyed 2) Not Obtainable 3) In possession of Opponent 4) Collateral Matters
Duplicate is fine unless:
1) genuine authenticy question OR
2) Unfair to admit dupe instead of original
Copies of Public Records
If certified or testified that same as original
Admissions by a party-opponent, general rule
NOT TO BE CONFUSED WITH DECLARATIONS AGAINST INTEREST.
An admission by a party-opponent is a statement made (expressly or impliedly) by a party to the litigation, when offered against that party. Admissions by a party opponent are admissible as an exception to the hearsay rule. Under FRE 801, the "statement" must be the party's own statement in either an individual or a representative capacity OR a statement which the party has manifested an adoption or belief in its truth.
- Can be anything your opponent says in either a formal/informal setting.
- Three kinds: regular admissions, implied admissions, and vicarious admissions.
Admissions by a party opponent - requirement of first hand knowledge?
NO, see Reed v. McCord, admissions by a party opponent are admissible even if not based on first-hand knowledge.
Admissions by a party opponent: implied admissions general rule
(1) This is where someone implies an adoption of a certain statement or belief made by another person.
(2) FRE defines it as a statement which the party “has manifested an adoption or belief in its truth.”
(3) An implied admission may be made by adopting or acquiescing in the statement of another.
(4) Adoption/Acquiescence may be manifested in any appropriate manner (certain conduct or silence)
Admissions by a party opponent, implied admissions: admissions by silence
A party makes an admission by silence if he/she 1) heard the statement/accusation and 2) remained silent, 3) where a reasonable person would respond/refute the statement if he/she felt it was untrue.
EXCEPTION: An arrested defendant has a right to remain silent under Miranda, so silence in that context does not constitute an admission.
Admissions by a party opponent, implied admissions: admissions by wrongdoing
Wrongdoing by a party, amounting to an obstruction of justice, may come in as an admission by conduct that the party's case is weak.
- E.g., Asking someone to lie (suborning perjury), intentional destruction/suppression of evidence, showing an alibi to be false, sufficiently suspicious circumstances (like flight after crime)
Admissions by a party opponent, implied admissions: ambiguous admissions
If someone's response to a statement is ambiguous, it does NOT constitute an admission.
Summaries for Best Evidence?
Fine, if original made available
What must proponent by trying to prove to claim BE?
1)Propenent must seek to prove contents of particular document
2)If just trying to make point, and doc is one way of doing that, BE doesn't apply
Authentication
All real and demonstrative evidence must be authenticated by a custodian before admitted - more than signature, unless self-authenticator. Satisfied by showing that the matter in question is what it claims to be.

Have to object. If contested Jury decides.
Self-Authenticator
1)Certified Public Records
2)Newspapers and Periodicals
3)Public Docs Under Seal
4)Public Docs Not under seal but later certifed under seal
Most common methods of Authentication
1)Direct Evidence about handwriting
2)Circumstantial about handwriting.
3)Self-Authenticating
Judicial Notice
recognition of the truth of certain facts w/o introduction of evidence to facts. Appellate Court can JN anything Trial court did. Judge can't do it based on personal knowledge.
Kinds of Judicial Notice
1) Laws
2)Facts generally known within the JDX - "common knowledge"
3) Facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
Judicial Notice: Civil vs. Criminal
Civil - Court will Instruct, Jury must accept
Criminal - jury not required to accept.
When can a layperson give an opinion?
When they have personal knowledge

Mckascle - Witness generally testify to their perception, but they are permitted to make an opinion if it is a) rationally based on perception AND the opinion is helpful to a clear understanding of testimony.
Expert Opinion/Testimony
1)Subject is sufficiently beyond common experience AND
2)Would assist the trier of fact to understand the evidence or determine fact.
.
Who May give expert testimony?
special knowledge, skill, experience, training or education in the area
What Can Expert rely on?
1)Hearsay(writings, etc.)
2)Personal observations
3)Hypos
4)Things Heard in courtroom

403 analysis
Scientific Evidence
Tells us about the out-of-court events that aren't perceived by laypeople.
Rules re: Admissibility of Scientific evidence

FED v. CA
CA - Must be based on principles that are generally accepted in the scientific community

FED - General acceptance in sci comm NOT required but may enter as a consideration JUST 1) Scientific knowledge 2) that will assist trier of fact

Look at: if tested, peer reviewed, rate of error, gen. accept.
Lie Detectors
Don't come in unless stipulated to by both parties
Demonstrative Evidence
physical representation of what happened. Other than word of mouth. Subject to 403.

REQUIREMENTS
1) Fair representation of what it depicts
2)Established by foundation
Privilege - CA (codified) Fed (Common Law)
Policy of allowing protection to certain evidence at expense of relevant and reliable evidence.

Only HOLDER of priviledge can waive.
Attorney-Client Privilege
communication between licensed atorney and client seeking legal advice, retainer or during relationship
Exceptions to A-C privilege
1)Prevent death or bodily harm
2)Needed as part of estate dispute
3)Part of suit against attorney for malpractice
4)Competence to execute doc, lawyer witnessed execution
5)Question of intention or validity of document by deceased
D's girlfriend is mad and yells, in front of a cop, "D was shooting up." D does not verbally respond but just hung his head and shook it back and forth.

Admissible?
No, see State v. Carlson, head shaking does NOT constitute an implied admission - response too ambiguous. Was head shake positive or negative?
Admissions by a party opponent: vicarious admissions, general rule
A vicarious admission is an admission made by a person other than the party against whom it is sought to be introduced, usable against party because it was in some way authorized by him. This includes admissions by 1) a person who is authorized to make statement, 2) an agent in scope of employment, or 3) a co-conspirator in course of conspiracy.
Agency, CA v. Fed
N.b. In CA and fed court, existence of the agency relationship is decided by judge as preliminary fact.
- CA test for agency: Statement is made by a person AUTHORIZED by the party to make a statement concerning the subject matter of the statement (specific authorization by party for subject-matter of this statement).
- Fed test for agency: 1) Statement made by person authorized by the party to make statement concerning the subject (same as CA rule) OR 2) Statement is made by the party’s agency or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, i.e., 1) statement is made by agent, 2) statement concerns a matter within the scope of his agency or employment, 3) Statement is made during the existence of his employment (or agency).
Vicarious admissions: statements by an employer, attributable to an employee
Generally, while statements of an EE might be attributable to the ER, statements of the ER are not attributable to the EE where the EE did not participate in the formulation of such statements.
Employee Poos of Corporation kept bitch wolf in his backyard. Child walked through yard and was allegedly attacked by the wolf. Evidence suggests it was caused by child crawling under the fence and that wolf, when seen, was licking the child. Plaintiff seeks to introduce statements:
- Note from Poos to President: “Call me, wolf bit kid.”
- Next day Poos told President: “Wolf bit child.”
- Board meeting “wolf biting child discussion.”

Are Poos's statements admissible against Poos? Are Poos’s statements admissible against corporation? Board's statements admissible against Poos? Board's statement admissible against corporation?
Mahlandt v. Wild Canid Survival Center:
Are Poos's statements admissible against Poos? YES.
Are Poos’s statements admissible against corporation? YES - admissible against corporation as admissions of employee in scope of employment.
Board's statements admissible against Poos? NO - Poos didn't attend meeting or participate.
Board's statement admissible against corporation? YES - vicarious admissions.
M was driving his own car well after the shop closed. M hit a kid and said, “I was in a hurry to do something for my boss.” Boss is liable only if M is on the job when the accident occurred. M’s statement at the time of the accident is the only evidence that M was on the job (i.e. acting as an agent) when the accident occurred.

M's statement admissible as vicarious admission?
No, see Murphy, statement cannot come in under vicarious admission exception b/c of lack of independent evidence establishing agency.
N.b. Statement can come in under the excited utterance exception. AND, once it’s in under the excited utterance exception, we can use it to establish agency.
Admissions by a party opponent: vicarious admissions by a co-conspirator
Statements made by one co-conspirator are admissible against another co-conspirator, so log as the statement was made during the course of the conspiracy and in furtherance of it.
- (1) Must show existence of a conspiracy (by independent evidence), (2) Statement must relate to and further the objectives of the conspiracy; and (3) Statement must be made during the conspiracy i.e. before the conspiracy has terminated.
- Co-conspirators’ statements may be used against D even if he joined the conspiracy after the statements were made (see Goldberg)
- Statements made after D left conspiracy(or after conspiracy terminated)can’t be used against D.
Vicarious admissions by a co-conspirator, CA v. Fed
- In fed courts, JUDGE decides the preliminary fact of whether there was a conspiracy and the judge may rely on HEARSAY statement in making that determination, so long as there is also some independent evidence of the conspiracy.
- In CA courts, the JURY decides whether there is a conspiracy and the jury is limited to ADMISSIBLE evidence in making that determination. Party would present independent evidence that a jury could reasonably decide that they were in a conspiracy (by preponderance), and then statement would be admitted. The jury would be instructed to disregard the statement unless believed that they were engaged in a conspiracy.
Former Testimony exception to the hearsay rule, general rule (CA v. Fed)
Admissible if:
1. Declarant unavailable
2. opportunity to cross (similar motive)
3. Substantial overlap in the issue.
4. Similar identity of the parties (same or predecessor in interest) FED.

CA: Statutory exception, broader than federal rule - when "someone" (needs not be the party against whom the former testimony is offered) had a similar motive and opportunity to cross-examine.
Former testimony, federal "predecessor-in-interest" language
Clay v. Johns-Manville: asbestos suit. Deposition of Dr. Smith, doctor for Johns-Manville, in another suit is excluded.
HELD: Raysbestos is successor-in-interest. Court will view this liberally with eye tow similar motive - look at cross-examination and similar questions.
- 9th Circuit would reach contrary result.
- CA allows broadly those with similar motive and interest in civil.
Declarations against interest exception to the hearsay rule, general rule
Declarations against interest may come in:
1. Declarant is unavailable
2. Statement contrary to a) PECUNIARY ($$) interest (i.e. would lose $$ or subject him to civil liability or render invalid a potential civil claim), OR b) PROPRIETARY interest OR c) PENAL interest (i.e. would subject him to criminal liability), 3)"a Reasonable person in the declarant’s position would not have made statement unless true."

- FED trustworthiness: A statement tending to expose the declarant to criminal liability and offered to exonerate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
Privilege - Eavesdropping
1)Client intended the communication to be confidential
2)Client had a reasonable expecation of privavy
Privilege - Death
Survives Death - Fed only (via case law)
Privilege - Lawyer
Must Be acting as a lawyer for client to claim privilege. Must relate to subject matter of clients legal issue.

Performing notice function of appearence date? NO privilege.
Privilege - Agent of Lawyer
Privilege extends if a facilitator or intermidiary are assisting communication between client and lawyer (translator, doctors)
Privilege - Crime Fraud
No pirvilege if services sought obtained are sought to commit crime or fraud.
Evidence of Counsel Retention
NOT Admissible - violates constitutional right to counsel
Privilege - Reports of Attorney
If DOMINANT PURPOSE is for litigation - privileged
Attorney Work Product Doctrine
OK to compel discovery of docs made in prep for litigation through a showing of SUBSTANTIAL NEED shown by undue hardship to find info any other way.
Privilege - CA v. Fed
Fed- Statement must be from client TO attorney.
CA - equally covered. NO SURVIVAL OF DEATH
Physician Privilege - Rule
Patient has the priv to refuse to disclose and to prevent another from disclosing a confidential communication b/w Patient and physician
When does patient-Physician no apply?
1)Criminal Case
2)Personal Injury suit plaintiff
3)Defendant's medical condition if condition is relevant to liability
Crime Tort Exception
If seek doctor for aid in crime or tort, then no privilege. SAME with patient-shrink as well.
Patient-Psychotherapist Rule
Patient has priv to refuse to disclose, and to repent another from disclosing, a confidential communication b/w patient and Psychotherapist. Broad def of psychotherapist
Definition of psychotherapist
Broad - psychiatrist, psychologist, social worker, marriage counselor, childrens counselor, mental health nurses.
WHen does psychotherapist-patient apply?
Criminal. Defendant in Civil, Not Plaintiff.
Tarasoft - patient-psychotherapist
If doc has reasonable cause to believe the patient is in such mental cndition that dangerous to himself or person or property of another and that disclosure of communication will prevent threatened danger. NO PRIVILEGE

STANDARD: Serious and imminent danger of violence to readily identifiable victim.
Marital Privilege - Kinds?
1) Testimonial Privilege
2) Confidential Communication
Testimonial privilege
Privilege NOT TO TESTIFY against spouse in any proceeding.

Trammel - May voluntarily agree to testify against. Doesn't apply to pre marriage; spouse v. Spouse; or domestic violence criminal


IN CA - Have to let person know in advance
Spousal Confidential Communication Privilege
privilege to refuse to disclose and to PREVENT other from disclosing a communication made in confidence to other spouse. Must have reason to believe it was confidential.
When do marital privileges apply?
Marriage must exist at time of trial/testimony.
Hearsay Exception - State of Mind
Statement must go do declarant's THEN EXISTING state of mind. Includes statements of intent, plan, motive, design, mentality,
How different from NON-HEARSAY purpose.
I hate Joan. SOM exception.
Look out for Joan, Bitch. Non-heasay (effect on the hearer)
When State of Mind exception doesn't apply?
When statement is describing memory or perception of state of mind.

Can't use intentions of one to prove actions of another.
When can SOM statement come in?
1)then existing SOM
2)Intention to perform a future act (Hillmon - I will go with Hillmon)

If intention requires act of third-party, can still come in as SOM. (Pheaster)
Hearsay - State of Mind Exception -Survey Results
If survey relates to PUBLIC state of mind, Admissible, if relevant.

Questions must get answers that reflect then existing state of mind.
Hearsay - State of Mind Exception - Physical Condition
FEDERAL RULE ONLY: Statements of declarant's present physical condition medical history, symptoms, pain or cause of condition are admissible.
In CA, only admissible if physical condition is at issue in the case AND declarant is unavailable. State can be made to anyone. (Note extra trustworthiness filter too -- for shits and giggles).
Hearsay - State of Mind Exception - Cause of Physical Condition
Admissible if pertinent to diagnosis or treatment. Must be made for purposes of obtaining medical treatment. Any hospital employee.
State of Mind Exception - Cause of Physical Condition - CA v. FED
CA says Declarant must be unavailable.

Statement can be made to anyone

Trustworthiness filter - don't admit if evidence of lack of trustworthiness.
Recollection Evidence - 3 Kinds
1)Prior Identification
2)Present Recollection Revived
3)Past Recollection Recorded
Prior ID - Admissible if...CA v. FED
CA
1)of a party that participated in crime or occurance
2)Fresh ID
3)Fountation - Declarant gets on Stand and testifies he made ID and reflected opinion at the time.

In CA, someone else can testify that other person made ID.

FED
Declarant must testify at trial and be subject to cross. NO FOUNDATION.
Present Recollection Revived
If W cannot remember a fact, can be shown a doc/stimulus which refreshes memory. Stimulus is not evidence. Stimulus can be anything by anyone.

Cross is used to rebut authenticity or bias within doc.
Past Recollection Recorded
Witness doesn't recall after looking at doc, but remembers it was accurate.

Must establish:
1)Freshness - that it was made at the time of happening or was fresh in mind
2) Authorship - was made by witness or under direction, or someone recorded the witness' statement
3)Foundation - W testifies that it was accurate at the time it was made.

If these 3 met, may READ THE DOCUMENT INTO EVIDENCE.
Business Records
1)business records
2)during course of business
3) at or near time of occurance
4)w/in personal knowledge of the organization

Other:
5)Trustworthiness Filter - if judge feels not trustworthy
6)Custodian - All things must be vouched to meet above requirements.
What is a Business?
business, institution, association, profession, occupation, and calling of any kind, profit is irrelevant. VERY BROAD
What is a Business Record?
Memo, report, record, data compilation, in any form of acts, events, conditions, opinions, diagnosis
Absence of Record?
May be admitted to show non-occurance of event
Public Records
a)record of its own activities
b)matters observed pursuant to duties with a duty to report (excluding criminal law enforcement)
c)cvil and criminal against gov. Facts resulting from investigatoin, unless lack of trustworthiness.

NO (c) in CAL
Public Records - CA v. FED
B Nothing Observed by law Enforcement in Criminal Case &
C cannot be used against a criminal defendant.

Trustworthiness Limitation - In CA all 3
FED only under C
Public Records - B OR C?
Depends on Complexity
Complex = C, descriptive records = B

Need for investigation - C
Need for opinion - C
Catch-All
ALWAYS ARGUE LAST

Must have guarantees of Trustworthiness by showing
1)offered as evidence of material fact
2)No other evidence to prove the same point
3)Serves interest of justice

*must give other side advanced notice of attempt to admit.
Constitutional Contraints on Admitting Hearsay
1)Due Process
2)Confrontation Clause
Confrontation Clause in Hearsay
Only in Criminal.

Testimonal statements made by witness absent from trial will be admitted only when:

1)Declarant is unavailable
2)Prior Opportunity to cross
3)testimonial
Confrontation Clause in Hearsay - What is Testimonial?
any assertion made to court, affidavits, depos, prior testimony, confessions,
Due Process in Hearsay
When exclusion is so unfair as to constitue a denial of Due process.

Depends on Facts of case. Must be Grossly Unfair.

Bernstein is an absolute fool. It violates my rights to liberty to have to study with Bern, the village idiot.