Burkholder/Mate Outline, EvidenceProfessor Goldman 5/17/2023

O U T L I N E

EvidenceProfessor Goldman, FA 2004

Know Common Law, FRE, CA Rules, 403 & 352.............................................................5I. General Tips.................................................................................................................5

A. Offer why it is relevant – offers of proof.................................................................51. Kaplan & Waltz, the Trial of Jack Ruby 1965, G3.............................................5

B. “Off the Record”......................................................................................................5C. Leading questions....................................................................................................5D. Stipulations..............................................................................................................5

1. Intrinsic/Extrinsic................................................................................................5II. Logical Relevancy.......................................................................................................6

A. Material Issue...........................................................................................................6B. Probative Value.......................................................................................................6

2. Engel v. United Traction Company 1911 – graphics 1.......................................6C. The Doctrine of Limited (or Multiple) Admissibility..............................................6

1. Multiple /Limited.................................................................................................61. Knapp v. State 79.................................................................................................7

D. Res Inter Alios Acta/ Judicial Discretion................................................................71. Firlotte v. Jesse, 1946, G1...................................................................................7

III. Legal Relevancy......................................................................................................8A. California Evidence Code - 1238............................................................................8

1. § 350 – only relevant evidence is admissible......................................................82. § 351 Admissibility of relevant evidence............................................................83. § 352 Discretion of the court to exclude evidence..............................................8

B. Federal Rules of Evidence - 999..............................................................................81. FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time.......................................................................................8

C. The Product Theory/Independent Samples..............................................................81. People v. Collins 368...........................................................................................9

IV. Opinion....................................................................................................................9A. Inferences – Why laypeople can’t give opinions.....................................................9

1. Conclusions drawn from the facts should be left to the jury...............................92. Exceptions –fast, hot and drunk..........................................................................93. FRE 701 - Opinion Testimony by Lay Witnesses...............................................94. Commonwealth v. Holden 1957, 797................................................................105. State v. Thorp 1875, 802....................................................................................10

B. Specialized Knowledge.........................................................................................101. When an expert may testify, p. 803...................................................................102. FRE 702 - Testimony by Experts......................................................................103. People v. Collins 368.........................................................................................11

C. Facts upon which an expert may base their testimony..........................................111. FRE 703 - Bases of Opinion Testimony by Experts..........................................112. Lilley v. Dow Chemical 1985, G7.....................................................................11

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D. Experts may testify only to areas within their expertise........................................111. Kaplan & Waltz, the Trial of Jack Ruby 1965, G3...........................................11

V. Scientific Evidence....................................................................................................12A. California – Frye Test –called Kelly Test..............................................................12

1. The evidence must be accepted by the scientific community............................12B. Federal - FRE 702 – Daubert Case........................................................................12

1. FRE 702 Testimony by Experts.........................................................................122. Daubert (Supreme Court) looks at:....................................................................12

VI. Demonstrative Evidence........................................................................................13A. Lie Detectors..........................................................................................................13

1. State v. Valdez 1962, G8...................................................................................13B. The test is Relevancy (tends to prove or disprove)................................................13

1. Admitting demonstrative evidence....................................................................132. Norfolk & W. RY. Co. v. Henderson 1922, G13..............................................13

C. Substantial Identity................................................................................................14D. Offers of NO prior similar happenings..................................................................14

VII. Subsequent remedial measures/ CA §1151/FRE §407..........................................14A. Evidence of Prior Settlement/Subsequent Repairs (PSSR)...................................14

2. Admissibility when not introduced to establish culpable conduct or negligence.15

3. Rule 407.  Subsequent Remedial Measures.......................................................15B. Pleadings................................................................................................................15

1. Nolo contendere.................................................................................................152. FRE Rule 410.  Inadmissibility of Pleas, Plea Discussions, and Related Statements..................................................................................................................163. Cal. Evid. Code § 1153.  Offer to plead guilty or withdraw plea of guilty by criminal defendant.....................................................................................................16

C. Offers of Compromise/Settlement.........................................................................161. Unsettled offers to compromise are not admissible in a subsequent action against the party making the offer. Esser v. Brophey G 24.......................................162. Negotiations/Admissions of liability during......................................................173. Offers to pay medical expenses/Offers made of humanitarian motives............174. FRE Rule 408.  Compromise and Offers to Compromise.................................185. FRE Rule 409.  Payment of Medical and Similar Expenses.............................186. Cal. Evid. Code § 1152.  Admissibility of evidence of offer to compromise. . .18

VIII. Burdens and Presumptions....................................................................................19A. Definition of Burden and Presumption..................................................................19B. Irrebuttable or conclusive presumption.................................................................19C. Rebuttable Presumption.........................................................................................19

1. Defined..............................................................................................................192. Rebuttable Presumptions affect the Burden of Producing Evidence – Orthodox/Majority View/Civil Cases under Federal Rules.......................................193. Rebuttable Presumptions affect the Burden of Proof (persuasion) – lingering on – Minority Jurisdictions.............................................................................................204. California’s Unique Approach - Mixed.............................................................205. Criminal Cases – Rational Connection..............................................................20

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D. Policy.....................................................................................................................21IX. Judicial Notice.......................................................................................................21

A. Cal. Evid. Code § 450.  Judicial notice may be taken only as authorized by law. 21B. § 451.  Matters which must be judicially noticed..................................................21C. CEC § 452.  Matters which may be judicially noticed..........................................22D. CEC § 453.  Compulsory judicial notice upon request.........................................22E. FRE Rule 201.  Judicial Notice of Adjudicative Facts..........................................22

1. Proof is not required of facts of which the court takes judicial notice. Nicketta v. National Tea Co, G27............................................................................................232. Psychological studies – Brown v. Board of Education G30..............................233. Policy.................................................................................................................23

X. Hearsay – an out of (this) court statement offered to prove its truth (of the matter asserted).............................................................................................................................23

A. FRE Rule 801. Hearsay Definitions (a) (b) (c).....................................................23B. CEC § 1200.  The hearsay rule.............................................................................23C. Reasons for the hearsay rule:.................................................................................23

2. Policy.................................................................................................................24D. Non – Hearsay.......................................................................................................24

1. Non Statements offered to prove non occurrence of events..............................242. Non assertive conduct........................................................................................243. Acts of Independent Legal Significance/Operative Fact...................................254. State of Mind.....................................................................................................265. Animals..............................................................................................................266. Machines............................................................................................................26

E. Doctrine of Limited Admissibility.........................................................................262. McCormick theory.............................................................................................273. Morgan’s theory.................................................................................................27

XI. Exceptions where witness must be unavailable.....................................................27A. Former Testimony.................................................................................................27

2. FRE § 804 (b) (1) Former Testimony................................................................283. § 1291.  Former testimony offered against party to former proceeding............28

B. Dying Declarations................................................................................................281. General...............................................................................................................282. It must be a statement by a soon to be deceased,...............................................293. California rules/Common Law – declarant must die.........................................294. CEC § 1242.  Dying declaration........................................................................295. Federal rules: ok to admit if they live if............................................................296. FRE § 804 (b) (2) Statement under belief of impending death.........................29

XII. Hearsay exceptions where unavailability of declarant not at issue.......................29A. FRE Rule 803.  Hearsay Exceptions; Availability of Declarant Immaterial.........29B. Spontaneous Exclamations....................................................................................31

1. Excited Utterance - FRE....................................................................................311. The statement must be made about the startling event......................................322. It must be made within minutes of the event.....................................................323. CEC § 1240.  Spontaneous statement................................................................324. Present Sense Impression - FRE........................................................................32

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5. No Present Sense Impression under CEC §1241 unless....................................326. Common Law NO exception for Excited Utterance/Present Sense Impression33

XIII. Admissions............................................................................................................33A. General...................................................................................................................33

1. CA and Common law –.....................................................................................332. FRE § 801 (d) (2) (D)........................................................................................33

B. Adopted Admissions..............................................................................................33C. Coconspirator exception/Vicarious.......................................................................34

1. Business Partners in furtherance........................................................................342. Vicarious Admission by Employees..................................................................343. California RULE - § 1222 & §1224.  Authorized admission............................34

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Know Common Law, FRE, CA Rules, 403 & 352.

I. General Tips/Making the RecordA. offers of proof --Offer why it is relevant –

(1) An offer of proof is “the witness will testify as follows…”(a) At the trial level if the evidence is not allowed by the trial court

judge, offer reasons (on the record) as to why it is relevant(i) it will be on the record(ii) if judge denies offer proof, it must be deemed true on

appeal (iii) Exaggeration is a problem. If allowed, sanctions possible.

1. Kaplan & Waltz, the Trial of Jack Ruby 1965, G3(1) Belli was trying to introduce testimony by a psychologist that would

lay the foundation for finding of insanity by a psychiatrist. The prosecution objected that the testimony was improper if the expert had no opinion on the insanity of the Δ. (a) Offer of proof. Belli promised the evidence necessary to lay the

foundation for the psychiatrist, who would then testify as to Ruby’s insanity.

(2) When the prosecution originally objected to the admission of the testimony and the judge sustained the objection, Belli made an offer of proof to preserve for appellate review the propriety of a ruling excluding testimony. His offer of proof was that psychomotor epilepsy gave the blackout states. The judge did not allow it, because it is not what he asked.

(3) QUESTION: is the offer of proof in front of a jury. B. “Off the Record”

(1) This is what is said when a party wishes to make a point that is not recorded for the court. (a) However, only when the judge gives the order will the reporter

stop recording. C. Leading questions

(1) Leading q’s are rarely allowed on direct examinations (a) However there may be exceptions if the witness is incompetent,

hostile, don’t speak the language, etc.(2) Leading questions can be used for cross examination

D. Stipulations(1) Parties may get together in advance and stipulate that certain

evidence is admissible. I.e. lie detectors. See lie detectors under expert testimony.

1. Intrinsic/Extrinsic(1) Intrinsic (def: being an extremely important and basic characteristic of a

person or thing) (a) Evidence from witness testifying.(b) Existing within a writing

(2) Extrinsic (def: not forming an essential part of a thing or arising or originating from the outside; "extrinsic evidence"; "an extrinsic feature of the

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new building"; "that style is something extrinsic to the subject"; "looking for extrinsic aid"(a) From outside sources -- Black's

E. The Doctrine of Limited (or Multiple) Admissibility-- LIMITING INSTRUCTION/352 & 403 ANALYSIS1. Multiple /Limited -- inadmissible for a particular point or a

particular party(1) Admissibility changes based on:

(a) What the evidence is offered to prove(b) Which party offers the evidence(c) example: Normally, prior actions are not allowed as evidence.

(2) EXAMPLE: The Story of Solomon(a) The evidence Solomon used was after declaring the baby be cut

in half, which mom sought to protect the interest of the child(b) Goldman Hypo: the outburst by one of the women --

(i) evidence is not be admissible as to who the actual mother is, (ii) but admissible to prove who the better mother would be(iii) Conclusion: just because evidence might be inadmissible for

one reason, it might be admissible for another(3) Evidence could be admissible to one side of the case, and maybe

not to the other.(4) Or the evidence might be able to prove state of mind, but not guilt.

(a) EXAMPLE: The Peterson Case(i) The defense brought in conversations between Amber and

Scott, and the prosecution did the same. However, in the way the CA rules of evidence work, the prosecution can bring in the tapes to prove Scott’s guilt, but the defense can’t use them to prove his innocence.

(ii) Given the jury will hear the same tapes, the judge will instruct the jury on how they should consider the evidence

(5) example: evidence of a prior murder (a) inadmissible – i.e. you can’t offer prior actions to prove that the

person committed the same acts. (b) Admissible: to show state of mind involved

(i) reasonable fear (i.e. if another person heard that he killed someone, it might show self defense).

(ii) Or for impeachment purposes. 1. Knapp v. State 79

(1) A man killed an arresting officer, his claim was self defense. The defense claimed he heard from a third party that the officer had killed another man. The prosecution offered testimony that the other man died from alcoholism. The defense tried to exclude this testimony as irrelevant – the relevancy is the state of mind of the Δ. (a) Issue: is the evidence of how the man died relevant to the self

defense claim? (b) Jurisdictions rarely allow evidence of committed prior offenses.

However, this goes to the Δ’s state of mind.

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(c) HOLDING: The evidence of the circumstances of the death of the third party is admissible. The fear of the Δ must be reasonable, and if there is evidence that he knew that the party died from other causes, his self defense claim would not be reasonable.

(2) Defense: evidence is irrelevant because state of mind of defendant was created by reputation of victim, not actual cause of death.

(3) Prosecution: but highly relevant to show (a) credibility of victim reputation (b) thus D honesty re story because(c) uncorroborated (d) thus the "reasonable" nature of defendant's fear.(e) Remove s material element of defense

II. Logical Relevancy--"Any tendency in reason to prove or disprove the matter asserted".A. Material Issue

(1) The evidence must be offered to prove an issue material to the case. See the Kaplan & Waltz, the Trial of Jack Ruby 1965, supra.

(2) Must not elicit a “so what” type of response. B. Probative Value

(1) Definition -- Degree of relevance.(2) The general rule of logical relevancy is “any tendency to prove”

(a) EXAMPLE: The Story of Solomon(i) The evidence Solomon used was after declaring the baby be

cut in half, which mom sought to protect the interest of the child

(ii) The woman that screamed to stop the killing of the child, did not really prove maternity, but it is probative1. Conclusion: the value is the degree of evidence that it

presents 2. Engel v. United Traction Company 1911 – graphics 1

(1) Π suing Δ for negligence when the Δ’s trolley car hit π. Question by the plaintiff as to why witness/driver was no longer working for company.

(2) The court excluded the evidence as irrelevant because there are a lot of reasons he could have been fired.

(3) If relevance were the only issue– Relevance is not the proper objection(a) The court excludes the admissibility of the evidence because it

might not be the most logical. (4) HOLDING: The evidence was not admitted because the desired

inference from the evidence is probably wrong. (a) BUT ACCORDING TO PROF: The holding is wrong. . The

evidence should have been admitted because it has a tendency to prove a disputed fact. It might be excluded for other reasons (its prejudice outweighs its probative value).

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(5) current jurisdictions have rules against admissibility of discharge of employee as an admission of negligence.

C. Res Inter Alios Acta/ Judicial Discretion(1) Strangers to the controversy should not affect the contested matter.

1. Firlotte v. Jesse, 1946, G1(1) Oral Contract dispute.

(a) Disputed term: The lessor had claimed he reserved the right to let his cattle graze on the land. Lessee denied that term.(i) Lessee offered evidence of another contract.

1. Contract contained no reservation to lessor. (2) Typically, they will not allow strangers to a controversy enter into

evidence. This case had no other evidence, and it is ultimately up to the judge to allow the evidence in.(a) "Within the discretion of the court... wind when directly

connected with the question in dispute... or when it affects the credibility of the witness."

(b) "Admissible at that tends to prove the issue or constitutes a link in the chain of proof..."

(3) On appeal, the court let the ruling to allow the third party evidence in. If the court on appeal feels there is no relevance, they will toss it. However, even if the tendency is slight, they will defer to the trial judge.(a) Nothing else separates the parties but this evidence.(b) Close calls go to the trial judge.

2. "Immaterial" v. "relevant"(1) immaterial = what does evidence have to do with THIS case?

Question at issue is disputed fact in case.(2) Relevant = proves or disproves what the proponent says it will.(3) Codification of evidence rules combines relevancy and materiality.

(a) California =1960's(b) Federal =1970's

III. Legal Relevancy A. California Evidence Code -text 1238

1. § 350 – only relevant evidence is admissible.(1) No evidence is admissible except relevant evidence

2. § 351 Admissibility of relevant evidence(1) Except as otherwise provided by statute, all relevant evidence is

admissible.3. § 352 Discretion of the court to exclude evidence

(1) The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

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B. Federal Rules of Evidence - text 9991. FRE 403. Exclusion of Relevant Evidence on Grounds of

Prejudice, Confusion, or Waste of Time(1) Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice, confusion or the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

(2) Trial court judges given great discretion on appeal.(a) Time element: like the testimony May jury think issue is more

important than it is.(b) Lacks:trustworthiness(c) prejudicial(d) policy

C. The Product Theory/Independent Samples(1) Statistics can be manipulated in many ways to make the numbers

sway in favor of one side or the other. If the evidence substantially outweighs the probative value, then it will substantially prejudice the jury and be thrown out(a) use the product theory If samples are:

(i) independent (ii) not prejudical,

(b) EXAMPLE: In the OJ case, there were a number of tests run on DNA evidence and used in combination, these tests made the statistical probability of the blood belonging to someone else infinitesimal.

(c) EXAMPLE: If being deaf is an independent variable, and being colorblind is an independent variable. (i) If you could prove the above, then you could use the product

rule to establish facts. However, statistics must still not be prejudicial.

1. People v. Collins 368(1) The prosecution is prevented from using statistical evidence to

prosecute a couple for robbery. The statistics are displayed as follows:(a) Partly yellow automobile 1/10(b) Negro Man with Beard 1/10(c) Negro Man with Mustache 1/10 (d) Interracial Couple in Car 1/1000

(2) By the product rule, the results end up in 1 in 12 million chance that there was another couple like them. However, this ignores the fact the witness might have gotten the wrong description or person, or that there is a smaller likelihood that a man will have a beard and no mustache.

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(3) It is thrown out because of §352 legal relevancy – the evidence substantially outweighs the probative value, and that it substantially prejudices the jury.

IV. OpinionA. Inferences – Why laypeople can’t give opinions

1. Conclusions drawn from the facts should be left to the jury.(a) I.e. if there is a fact that a man winks, what the wink means

should be left to the jury. Holden2. Exceptions –fast, hot and drunk

(1) testify that a person is drunk. (a) A witness may describe a person as drunk when they see a

person stagger and behaving erratically. (b) This is allowed because being drunk is so common place, every

one is an expert on it.(c) But cf. Under the influence is a technical definition that lay

people cannot describe (versus being drunk). (2) You can say someone was speeding(3) You can weather was hot.(4) EXAMPLES page 801:

(a) Matters of taste and smell – “it smelled like gunpowder”(b) Another’s emotion – “he seemed nervous”(c) Vehicular speed – “he was going very, very fast”(d) Voice id(e) A witness’s own intent, where relevant – “I was planning on

crossing the street” (f) Genuineness of another handwriting (g) Irrational conduct(h) Intoxication

3. FRE 701 - Opinion Testimony by Lay Witnesses (1) If the witness is not testifying as an expert, the witness' testimony in

the form of opinions or inferences is limited to those opinions or inferences which are (a) (a) rationally based on the perception of the witness, and(b) (b) helpful to a clear understanding of the witness' testimony or

the determination of a fact in issue, and(c) (c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.4. Commonwealth v. Holden 1957, 797

(1) Prosecution for murder. The court affirmed the judgment of conviction, holding the evidence sufficient. However, the court paid no attention to the following point discussed by the dissenting opinion:

(2) When the man convicted was captured and brought over to the witness’s house, the witness claimed he saw him wink. The prosecution asked what the man meant by the wink. He testified he wasn’t sure if it was a wink. He further testified that he had stated

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to police that he thought the man was trying to get him to make up an alibi for him.

(3) The court gave the instruction that the Δ endeavored to have the man make up an alibi for him. (a) DISSENT: This is a completely erroneous decision. How can

the man have known what the wink meant?(b) However, a wink could be proven by

(i) prior relationship or(ii) prior arrangement.

5. State v. Thorp 1875, 802(1) Δ is charged with drowning her son. An aquaintance saw defendant

carrying what looked to be a child and concluded who knew her son could not see if the child was hoding was her son, so, but he testified that it was his best impression that the child was her son.

(2) The conviction was overturned on appeal because the witness gave prohibited testimony.

(3) Allowable testimony: describes that the woman carried a bundle similar to the way a person carries a child.

B. Specialized Knowledge1. When an expert may testify, p. 803

(1) Expert testimony is allowed in areas where lay jurors Cannot Draw Conclusions Unassisted Or Would Find It Difficult To Do So. (a) Opinion is based upon special knowledge(b) The witness is qualified as a true expert(c) The witness must testify to a degree of certainty(d) The expert must describe the data on which opinion is based; or(e) The expert must testify in response to a hypothetical

2. Expert testimony required in some cases(1) needed to provide the CAUSAL LINK.

3. FRE 702 - Testimony by Experts (1) If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (a) (1) the testimony is based upon sufficient facts or data, (b) (2) the testimony is the product of reliable principles and

methods, and (c) (3) the witness has applied the principles and methods

reliably to the facts of the case4. People v. Collins 368

(1) The prosecution is prevented from using statistical evidence to prosecute a couple for robbery. The statistics are displayed as follows:(a) Partly yellow automobile 1/10(b) Negro Man with Beard 1/10

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(c) Negro Man with Mustache 1/10 (d) Interracial Couple in Car 1/1000

(2) By the product rule, the results end up in 1 in 12 million chance that there was another couple like them.

(3) The problem with this testimony by an “expert” is that the product rule is something that a sixth grader can do, multiply numbers.

(4) Prejudicial impact created because:(a) no basis in objective fact. Numbers made up of whole cloth.(b) Prestige of math professor creates impression of validity.

C. Facts upon which an expert may base their testimony1. FRE 703 - Bases of Opinion Testimony by Experts

(1) " The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. "(a) NOTE: this standard is opposite to legal relevance standard.

(i) Legal relevance = probative value is outweighed by prejudicial effect.

(ii) Expert testimony/otherwise inadmissible evidence = probative value substantially outweighs prejudicial effect.

(2) WHAT IT IS SAYING:(a) The data can be given before trial(b) The facts don’t need to be admissible

(i) Those facts are not disclosed unless(ii) It would assist the jury (probative value outweighs

prejudicial) 2. Lilley v. Dow Chemical 1985, G7

(1) A Vietnam Vet dies from Agent Orange. A medical doctor testifies as an expert witness. However his testimony is based not upon direct observation but rather hearsay testimony from the deceased’s wife. The facts and data upon which he relied are speculative and therefore, his testimony is struck from the record.

D. Experts may testify only to areas within their expertise1. Kaplan & Waltz, the Trial of Jack Ruby 1965, G3

(1) Belli was trying to introduce testimony by a psychologist that would support the finding of insanity by a psychiatrist. The prosecution objected that the testimony was improper if the expert had no opinion on the insanity of the Δ. I.e., not qualified to give opinion on insanity T. The evidence was finally allowed in when Belli promised

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the evidence would tie up with that of another witness who would then testify as to Ruby’s insanity.

V. Scientific EvidenceA. Current California Test – Frye Test –called Kelly Test

(1) AKA Kelly/Frye motion. 1. The evidence must be accepted by the scientific community in

that particular community. (1) This is a strict test in terms of admissibility(2) However, according to Prof, it is not enforced very well(3) The Frye theory is that the courthouse is not the place to test the

reliability of scientific evidence.(4) As long as the test is accepted but the scientific community’s

majority (in the region) the evidence is admissible.B. Federal - FRE 702 – Daubert Case

1. FRE 702 Testimony by Experts -- Admissibility by Judge.(1) If scientific, technical, or other specialized knowledge will assist the

trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (a) The testimony is based on sufficient facts or data, (b) the testimony is the product of reliable principles and methods,

and (c) the witness has applied the principles and methods reliably to

the facts of the case.2. Daubert (Supreme Court) looks at:

(1) Daubert does not follow FRE 702, the case law allows more than what is specified in the statute. Thus the courts are not limited by FRE 702. This will determine what evidence is based upon sufficient facts or data. (a) trial and error(b) test results(c) methodology(d) peer review(e) publication by the scientific community

(i) This allowed minority viewpoints to be considered in the courts

(ii) Lower courts were tending to allow this position anyway. (2) As long as there are publications of the scientific theory so that

discussion could be had on the pros and cons, as well as the theory must be based upon scientific principles and evidence.

(3) Daubert should have resulted in more theories admitted. (a) However, some judges have thrown out established scientific

tests, because but they didn’t pass the Daubert test, including fingerprint identification.

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(b) The judge that did not allow fingerprinting claimed the experts were not in agreement about the number of points required for accuracy.

(c) The rule was meant to liberalize the evidence allowed in, but has resulted in reexamination of older proofs.

VI. Demonstrative EvidenceA. The standard test is Relevancy (tends to prove or disprove)

NOT a Frye/Daubert standard.1. Admitting demonstrative evidence

(1) Where conditions are (a) substantially similar the evidence is (b) admissible and the (c) weight is determined by the jury.

2. Norfolk & W. RY. Co. v. Henderson 1922, G13(1) A child is hit on the tracks of a train. As part of the case there is

evidence introduced that the π wants to offer into evidence that it is slightly different – a reenactment of the child being hit by the train.

(2) There is a difference between the two where there are people who were told they were looking for a little girl and the operators of the train should have spotted the child long before where they had claimed they spotted it

(3) The admissibility of the evidence is examined and allowed because it is not prejudicial. (a) The jury can determine how much weight to give to the

evidence in determining its value. It is when it is prejudicial (as in Collins) that the evidence should not be allowed.

B. Difference between Scientific and Demonstrative evidence.1. Demonstrative evidence is not required to fulfill scientific

standard.2. Example. Peterson case.

(1) Prosecution offers photos of a pregnant woman from the DA's office laying in the boat.

(2) Defense objection that there was no scientific veracity because the girl was trying to be concealed; different from "dead weight". overruled.

(3) Reasoned: dissimilarities are very obvious. Last chance of misleading. Cf. Collins where map hides the difference.

(4) Probative/tendency in reasoned.(5)

C. Lie Detectors(1) Generally these tests are not accurate enough for the courts. (2) They are generally 95% accurate, however, expert testimony is

usually not allowed in unless it says what the expert will claim what it says.

(3) The prejudicial impact of lie detector tests are too great

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1. State v. Valdez 1962, G8(1) A man is charged with possession of narcotics. The parties agree in

a stipulation to the admission of evidence of a lie detector test. The evidence is not favorable to the Δ. He protests that lie detectors are not admissible evidence under the Frye test (he is correct).

(2) However, the court rules that under certain qualifications, lie detector evidence is admissible:(a) There is a signed written stipulation among the parties. (b) The admissibility is subject to the discretion of the judge(c) If the proofs are offered to evidence, the opposing party shall

have the right to cross examine the examiner WRT(i) Qualifications and training(ii) Conditions of the test(iii) Limitations and possibility of error(iv)At the discretion of the trial judge, any other matter pertinent

to the inquiry(d) If admitted, the judge shall instruct the jury that the evidence

does not prove or disprove the elements of the crime, but only indicate that at the time the test was taken the Δ was or was not telling the truth. Further, it is up to jurors to determine the weight of the evidence.

VII. Similar HappeningsA. standard: Substantial Identity of Material CircumstancesSubstantial

Identity1. Evidence that is demonstrative in conditions that are similar, the

identity must be substantial; however, NOT it doesn’t have to be (and should not have to mean) EXACT:(1) C.f. Robitaille v. Netoco G14 A woman falls down stairs claiming

that the carpet was not appropriately to the floor. The π wants to introduce evidence that in the preceding weeks, two other girls had tripped and fallen down the sames stairs claiming the carpet had tripped them.

(i) The court infers that the identity must be exact identity. (2) Where the evidence is if of uniform result in a large number of

instances, the objections to the class of evidence is minimized(a) However, there must be a substantial identity [of material

circumstances]. Where the evidence is of a uniform result in a large number of instances, the objections to the class of evidence under discussion are minimized, and the evidence was admitted…

B. Offers of NO prior similar happenings(1) Problems with introducing this type of evidence:

(a) The condition is not a static one. Just because there were no complaints about an accident before, it doesn’t mean an owner should not be aware of a potentially dangerous situation

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(2) EXAMPLE: A woman is hit in the eye by a tree while riding the “thriller” ride. The defendant wishes to introduce evidence that this injury has never happened before. (a) Trees grow – was it there before? How often does the ride go. (b) How do they prove it has never happened?(c) How do we know no one has complained? How does the

defendant know that no one has complained? Is there only one person that gets the complaint? What if the operator gets the complaint?

(d) If there was a reliable method for people to put their complaints to, then this might suffice.

(e) In addition to substantial identity, the Δ will have to show:(i) There is a place where the complaints are lodged and

registered(ii) The number of non-occurrence must be very large when

dealing with evidence of non-occurrence, more so than are the requirements for similar happenings.

VIII. Subsequent remedial measures/ CA §1151/FRE §407 Extrinsic Policy creates this doctrine.A. Evidence of Prior Settlement/Subsequent Repairs (PSSR)

(1) isIs generally inadmissible by statute CA §1151(a) If the measures were to have been taken prior to the accident

and were likely to result in less harm occurring, the evidence is inadmissible to prove negligence or culpable conduct in connection with the event.

(b) Policy: we don’t want to discourage people from repairing dangerous conditions.

(c) Cf. Engel v. United Traction -- streetcar case. Cannot use the firing of the trolley driver as evidence, even though relevant. Firing and negligent driver increases public safety. This is the extrinsic policy which motivates the doctrine.

(d) It does not apply to strict liability/products liability situations, because the statute is to prevent evidence from being admitted that might dissuade a person from correcting a dangerous situation. In a situation where there is strict liability involved, it is usually a large company that would only gain by correcting the problem. Ault v. International Harvester Company G17 -- Gearbox Case.(i) notwithstanding the dissent, the gearbox change in Ault was

not cosmetic.(ii) Ault set standard for federal evidence and other states.(iii) Dissent in Ault: automobiles change all the time, evidence

that the person changed the gearshift box after this evidence is not relevant. §352 argument.

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2. Admissibility when not introduced to establish culpable conduct or negligence.(1) Admissibility of evidence of subsequent history is admissible when

it is not admitted to show that they were culpable or negligent as to the product. I.e., evidence to impeach the witness, ownership, etc. Dagget v. Atchison, Topeka, and Santa Fe Railroad G21.

(2) Belli, in the name of impeaching the witness, gets the jury to hear of a subsequent remedial measure -- the reduction in the speed limit for trains in the town.(a) Thus, multiple admissibility allows the evidence even though

otherwise barred for extrinsic policy reasons.(3) Example: identification -- Q.: "are these the stairs the person fell

down?" A: "yes, but the handrail wasn't there at the time."(4) Example: dominion and control -- Q.: "is this how the stairs looked

at the time the accident?"A: "no, there is that railing that I put up." Q.: "oh, so you put up the railing?"

3. Rule 407.  Subsequent Remedial Measures (1) When, after an injury or harm allegedly caused by an event,

measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

B. Pleadings1. Nolo contendere

(1) Evidence of a plea bargain has no bearing on a civil trial. (2) It has the same effect of pleading guilty.(3) Some judges won’t accept a no contest pleas unless there is

potential civil liabilitiesare potential civil liabilities.(4) Policy

(a) Guilty pleas are admissible in civil trials, however if the Δ pleads innocent and a jury finds him guilty this may not be is not admissible.(i) Inadmissible hearsay. But probably an exception.

(b) Nolo contendre/no contest please were created so Δ’s could essentially plead guilty without having the guilty plea admissible in a civil case

(c) EXAMPLE: Δ is a drunk driver and hits a person. In the the criminal case, he would be inclined to plead guilty to get a lighter sentence and save judicial resources, but fear of admitting that evidence in a civil case would prevent him from doing do. Thus the would plead “no contest”

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2. FRE Rule 410.  Inadmissibility of Pleas, Plea Discussions, and Related Statements (1) Except as otherwise provided in this rule, evidence of the following

is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:   (1) a plea of guilty which was later withdrawn;   (2) a plea of nolo contendere;   (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or   (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

3. Cal. Evid. Code § 1153.  Offer to plead guilty or withdraw plea of guilty by criminal defendant(1) Evidence of a plea of guilty, later withdrawn, or of an offer to plead

guilty to the crime charged or to any other crime, made by the defendant in a criminal action is inadmissible in any action or in any proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.

(2) HISTORY:  Enacted Stats 1965 ch 299 § 2, operative January 1, 1967.

(3) C. Offers of Compromise/SettlementD.

1. Unsettled offers to compromise are not admissible in a subsequent action against the party making the offer. Esser v. Brophey G 24.(1) Policy

(a) The law favors the settlement of disputed claims without litigation, thus allowing evidence of an offer by either party would discourage such goals.

(2) Privilege(a) Similar to that of attorney/client or physician/patient.(b) The privilege belongs to those parties that are present to the

compromise, and only they are allowed to assert it. (c) It is waived unless asserted by the parties.

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(d) A party may not assert the privilege of a witness.(i) Here, privilege is claimed by plaintiff, but privilege is owned

by defendant and witness.(3) Contract

(a) Third parties are not entitled to claim the a benefit of a contract between the two parties

(4) Relevancy (a) The true reason for excluding an offer of compromise is that it

flows from a belief that prosecution of a claim would be better of avoided.

(b) Cf. Could it be used to impeach the witness? Hambly’s credibility is at issue here. Therefore, it might get in also under impeachment.

(c) Prejudicial(i) If the rule does apply, it might be offered to prove innocence,

but not guilt. There is no prejudicial impact when the policy is to protect the litigants, but not the public.

(5) To assert exclusionary rule one must be:(a) party to the settlement AND(b) party to the case(c) in Esser, only defendant is both.

(i) Witness is not party to case; (ii) plaintiff is not party to compromise.

(6) BIG NOTE: AN OFFER TO SETTLE OR COMPROMISE (a) MUST BE IDENTIFIED AS SUCH (b) AT THE TIME IT IS MADE

(7) Multiple Admissibility -- settlement admissible for impeachment.2. Negotiations/Admissions of liability during

(1) California and Federal Rules(a) When involved in negotiations to settle a case, anything said in

those discussions is Inadmissableadmissible as well. (2) Common law

(a) When an admission of liability is made it is admissible even if embraced in an offer of compromise. Esser v. Brophy.

3. Offers to pay medical expenses/Offers made of humanitarian motives(1) FEDERAL

(a) Offers to pay medical expense are inadmissible. (FRE §409)(b) Statements made in conjunction with the offer to pay medical

expenses are admissible. If someone takes the blame after an accident, this evidence is admissible(i) EXAMPLE: “Oh my God, I knew that ladder wasn’t stable

and I waited too long to have it fixed, and now look at what happened. Here, let me pay your medical bills.” Admissible

(c) Offers to pay out of humanitarian motives are admissible.(2) CALIFORNIA

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(a) Any offer made out of humanitarian motive is inadmissible.(i) No matter what the offer is, if it is made out of humanitarian

motives, it is treated as an offer to settle or compromise.(ii) Thus, not only is the offer itself inadmissible, statements

made around it are inadmissible.(iii) Including

1. Medical Expenses2. Loss of Earnings3. Pay for Child’s Education4. Buy a New House, etc

(b) Unlike FRE, offers to pay medical expenses might be used against client if they were not made out of humanitarian motives.

4. FRE Rule 408.  Compromise and Offers to Compromise (1) Evidence of (1) furnishing or offering or promising to furnish, or (2)

accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

5. FRE Rule 409.  Payment of Medical and Similar Expenses (1) Evidence of furnishing or offering or promising to pay medical,

hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

6. Cal. Evid. Code § 1152.  Admissibility of evidence of offer to compromise (1) (a) Evidence that a person has, in compromise or from

humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.    (b) In the event that evidence of an offer to compromise is admitted in an action for breach of the covenant of good faith and fair dealing or violation of subdivision (h) of Section 790.03 of the Insurance Code, then at the request of the party against whom the evidence is admitted, or at the request of the party who made the

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offer to compromise that was admitted, evidence relating to any other offer or counteroffer to compromise the same or substantially the same claimed loss or damage shall also be admissible for the same purpose as the initial evidence regarding settlement. Other than as may be admitted in an action for breach of the covenant of good faith and fair dealing or violation of subdivision (h) of Section 790.03 of the Insurance Code, evidence of settlement offers shall not be admitted in a motion for a new trial, in any proceeding involving an additur or remittitur, or on appeal.    (c) This section does not affect the admissibility of evidence of any of the following:    (1) Partial satisfaction of an asserted claim or demand without questioning its validity when such evidence is offered to prove the validity of the claim.    (2) A debtor's payment or promise to pay all or a part of his or her preexisting debt when such evidence is offered to prove the creation of a new duty on his or her part or a revival of his or her preexisting duty.

(2) E. Restatement of In/Admissibility

1. Federal(1) Inadmissible

(a) Settlement/Compromise or offers if designated(b) Admissions made in above.(c) Medical payment or offers of such.

(2) Admissible(a) Admissions during Medical payments/offers(b) Humanitarian payments (exclude medical)(c) Admissions during Humanitarian offers/payments.

2. California(1) Inadmissible:

(a) Settlements or offers(b) Admissions during above.(c) Humanitarian payments/offers(d) Admissions during Humanitarian payments/offers.

(2) Admissible:(a) Medical Payment/offers

(i) Non- Humanitarian.(b) Admissions during above

(i) Non- Humanitarian.3. Common Law

(1) Inadmissible:(a) Settlements/Compromise or offers

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(2) Admissible:(a) All Admissions during:

(i) Settlement/compromise(ii) Medical Payment/offers(iii) Humanitarian.

(b) Medical payments or offersIX. Burdens and Presumptions

A. Definition of Burden and Presumption1. PURPOSE: to codify inferences.

(1) Reasons:(a) Intrinsic-- conclusions based on logic. Judicial efficiency.(b) Extrinsic-- conclusions based on policy decisions, NOT logic..

2. PRODUCTION: The duty of producing evidence, the burden of going forward with the evidence, or the production burden or burden of evidence(1) If you don’t meet the burden of production, then you wont get to the

burden of persuasion 3. PERSUASION: The burden of persuasion, or the risk of

nonpersuasion, or the burden of persuasion or simply persuasion burden (p. 758)

4. CONCLUSIVE OR IRREBUTTABLE or conclusive presumption (a) If A is true, then B is to be presumed without question. The court

will not entertain evidence to the contrary(b) Attack A. Undermine the originating Fact.(c) Evidence to attack B, the inference, is inadmissible..

5. REBUTTABLE Presumption (a) Opponents may attack either or both the existence of fact A or

result the logical conclusion B. Handout. (b) A rebuttable presumption is one in which the presumption can

be rebutted with evidence that is contraryB. IRREBUTTABLE or CONCLUSIVE presumption

(1) If A is true, then B is to be presumed without question. The court will not entertain evidence to the contrary(a) .

(2) The court will direct the jury(a) If they find A, then they must find B

C. Rebuttable Presumption 1. Defined

(1) A rebuttable presumption is one in which the presumption can be rebutted with evidence that is contrary.

(2) Opponents may attack either or both the existence of fact A or result B. Handout.

(3) Criminal case – burden is on the government(4) Civil trial – burden is on π

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2. PRODUCTION: Rebuttable Presumptions affect the Burden of Producing Evidence – Orthodox/Majority View/Civil Cases under Federal Rules – THAYER BURSTING BUBBLE(1) Some rebuttable presumptions have the effect of creating a burden

on one of the parties(2) Failure to produce evidence sufficient to meet the burden of

producing evidence when it is essential to a side’s case will have a verdict directed against that side.

(3) If NO evidence is offered in a rebuttable presumption, then it has theNO PRODUCTION = CONCLUSIVE EFFECT(a) same effect as a conclusive presumption. Handout -

presumptions(b) Jury instruction: “if you find A then you must find B..

(4) If the burdenPRODUCTION MET is met – (a) If sufficient evidence if offered so that a reasonable person

would conclude otherwise, then the presumption disappears. Result:(i) The trier of fact will ignore the presumption(ii) If it is a jury trial, they will not receive any instruction on a

presumption(b) EXAMPLE: π, I stamped and mailed the letter appropriately. Δ,

I have mailman as witness that the post office burned down along with the letter. No instruction to jury.

(5) However, the judge may still instruct the jury if the presumption would have been a logical one flowing from the evidence presented and there is evidence introduced that affects the burden of producing evidence in a Thayer theory: “If you find fact A, you may find fact B.”(a) EXAMPLE: π, I stamped and mailed the letter appropriately. Δ,

I have your secretary as witness that you did not stamp the letter. Instruction to jury.

3. Rebuttable Presumptions affect the Burden of Proof (persuasion) – LINGERING ON – Minority Jurisdictions (1) Presumptions do not disappear upon production of evidence of

non-B, but are always there.(2) Instruction to jury:

(a) “If you find fact A to be true, you must find Fact B, UNLESS Δ has conviced you that it is MORE LIKELY THAN NOT that Fact B is not true.”

4. California’s Unique Approach - Mixed(1) CA applies both the burden of producing evidence (bursting bubble

theory) and the burden of producing proof theory(2) Those presumptions based upon LOGIC follow the majority

BURSTING BUBBLE. (3) Presumptions based upon PUBLIC POLICY HAS THE

LINGERING ON EFFECT so as to affect the burden of proof

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(a) EXAMPLE: A person not heard from in five years is presumed dead. This is not based in logic, but public policy. So even if evidence is presented to the contrary, the jury will receive the “more likely than not” instruction

5. Δ may also use presumptions.(1) Burden is on party responding to presumption..

6. Criminal Cases – Rational Connection(1) There must be a rational connection between the presumption and

the underlying fact. Leary v. U.S. G31.(2) Criminal statutory presumption must be regarded as “irrational” or

“arbitrary,” and hence unconstitutional, unless found to be a “more likely than not” connection.

(3) Otherwise, it is a denial of due process D. Policy

(1) Presumptions are allowed in law for two reasons: (a) We don’t want juries making those choices

(i) EXAMPLE: mailbox rule. Once the mail is shown to have a stamp and put in the box, it is presumed received. A person can offer evidence that the letter was not stamped, or not properly put in box, but cannot offer evidence that they did not receive it.

(b) We want to encourage certain social policies(i) EXAMPLE: A man (who is not impotent or sterile) and

woman who are married who spend at least one night together. The woman has a child. The man is presumed to be a father because it is more important that the child has a father than to establish who the father is. Blood tests to the contrary would not change this ruling. However, CA modified it to a rebuttable presumption.

X. Judicial Notice-- NOTE: SEPARATION-TYPE SUBJECT A. Cal. Evid. Code § 450.  Judicial notice may be taken ONLY AS

AUTHORIZED BY LAW(1) Judicial notice may not be taken of any matter unless authorized or

required by law.B. § 451.  Matters which MUST be judicially noticed

(1)  Judicial notice shall be taken of the following:    (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.    (b) Any matter made a subject of judicial notice by Section 11343.6, 11344.6, or 18576 of the Government Code or by Section 1507 of Title 44 of the United States Code.    (c) Rules of professional conduct for members of the bar adopted pursuant to Section 6076 of the Business and Professions Code and rules of practice and procedure for the courts of this state

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adopted by the Judicial Council.    (d) Rules of pleading, practice, and procedure prescribed by the United States Supreme Court, such as the Rules of the United States Supreme Court, the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, the Admiralty Rules, the Rules of the Court of Claims, the Rules of the Customs Court, and the General Orders and Forms in Bankruptcy.    (e) The true signification of all English words and phrases and of all legal expressions.    (f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute.

C. CEC § 452.  Matters which may be judicially noticed (1) Judicial notice may be taken of the following matters to the extent

that they are not embraced within Section 451:    (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state.    (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States.    (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States.    (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.    (e) Rules of court of (1) any court of this state or (2) any court of record of the United States or of any state of the United States.    (f) The law of an organization of nations and of foreign nations and public entities in foreign nations.    (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (laws of organizations or nations.)    (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.

(i) EXAMPLE: (almanac). Lincoln story. Also – stock prices in the Wall Street Journal, a court would likely take notice of under (h)

D. CEC § 453.  Compulsory judicial notice upon request(1)    The trial court shall take judicial notice of any matter specified in

Section 452 if a party requests it and:    (a) Gives each adverse party sufficient notice of the requests, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and

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    (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.

E. FRE Rule 201.  Judicial Notice of Adjudicative Facts (1) (a) Scope of rule. This rule governs only judicial notice of

adjudicative facts. (b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.(c) When discretionary. A court may take judicial notice, whether requested or not.(d) When mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information.(e) Opportunity to be heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.(f) Time of taking notice. Judicial notice may be taken at any stage of the proceeding.(g) Instructing jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

1. Proof is not required of facts of which the court takes judicial notice. (1) The effect is that opposing sides cannot introduce evidence to the

contrary (unless authorized or required by law). §450(2) Facts of which the court will take judicial notice need not be

pledged. A court must read a pleading as if it contains a statement of such facts even when there is an express allegation to the contrary. Nicketta v. National Tea Co, G27

2. Psychological studies – Brown v. Board of Education G303. Policy

(1) do we want litigation turning on the jury not accepting that which is logical and universally accepted.

(2) However, this limits some areas of emerging scienceXI. Hearsay – an out of (this) court statement offered to prove its truth (of

the matter asserted).A. FRE Rule 801. Hearsay Definitions (a) (b) (c)

(1) The following definitions apply under this article: (a) Statement. A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) Declarant. A "declarant" is a person who makes a statement.

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 (c) Hearsay. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted

B. CEC § 1200.  The hearsay rule (1)    (a) "Hearsay evidence" is evidence of a statement that was made

other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.    (b) Except as provided by law, hearsay evidence is inadmissible.    (c) This section shall be known and may be cited as the hearsay rule.

C. Reasons for the hearsay rule: (1) We need to have the oath administered.(2) Allow trier of fact to determine the demeanor of the witness

(a) Demeanor is important in the creation for the hearsay rule, but not that important. If the witness is on the stand and they are asked if they remember the person saying something about the defendant to committing the crime – (i) EXAMPLE: What did you say at the time about the

commission of the crime? It is hearsay – in spite of the fact that the witness is on the stand. 1. You may ask the witness what they saw, not what they

said they saw. (3) ALLOW CROSS EXAMINATION OF THE WITNESS

2. Policy(a) So that a party in court has a chance to confront his accuser

and asses the credibility of the statement maker. Sir Walter Raleigh p 97.(i) Convicted by hearsay

1. Cobham confession under torture. No confrontation. No cross examination. Not under co-conspirator exception as confession was made after in custody.

2. Portuguese pilot. Complete hearsay. No proof of existence. No proof of truth of the statement.

(b) However, it has been used to keep exculpatory evidence out of the courtroom. State v. English G 38 . (i) Husband was convicted on evidence that he solicited his

wife to be killed. Comment at grave.(ii) However, a suspect had been caught, confessed with many

details. Not admissible. OOCA. Witness not available. No way to check the veracity.

3. Similar Occurrences -- Analogy to hearsay(1) Non- Statements offered to prove non occurrence of events

(a) Non statements are not hearsay. It is not hearsay but it is inadmissible because it is analogous to the hearsay rule, has same problems as hearsay rule.

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(b) Non-statement to prove the non-occurrence of events – there is no statement, therefore no hearsay. But it is not hearsay because it is not an out of court statement. (i) Defendant wants to offer evidence to prove the fact that the

staircase was safe because nobody had ever complained. Menard v. Cashman G 39

4. Main concern -- Credibility of OOC Declarant.(1) If only the credibility of the witness is at issue, no hearsay problem.(2) Problem occurs with multiple credibilities.

(a) Example: if witness here is someone at the scene say the blue car hit the Orange car, then the out of court speaker's credibility is at issue.

D. Non – Hearsay1. Non assertive conduct

(1) Today the hearsay rule is modified, so that actions that are based upon objective beliefs are not hearsay.(a) EXAMPLE: A doctor removes a patients appendix

(i) Historically would have been assertive conduct – i.e., it is intended to assert that the patient has appendicitis.

(ii) Today, because the reason for removing the appendix is not an actual assertion. It is done to save the patients life, versus declaring “this patient has appendicitis”

2. Expanded Scope -- historical progression.(1) Wright v. Tatham -- letters is to testator inadmissible as hearsay at

time of case.(a) Body of letter address is testator as one of sound mind, asking

advice.(b) Modern hearsay doctrine -- use this as non--assertive behavior,

and not an OOCA offer to prove truth.(2) Example: ship captain brings wife and child on voyage. Non-

assertive evidence of his belief that ship is seaworthy.(3) Example cue from inside on a cloudy day. Umbrellas being opened

on the street are non-assertive behavior showing rain.(a) EXAMPLE: Police officers raid a betting place. But, the

gamblers instantaneously destroy all the evidence, so all is left is the phones. Cops answer the phones and people on the other lines try to place bets. At trial, prosecutor tries to have cops test about the substance of the calls, i.e., people wanting to place bets, etc. (i) Former/Common Law Approach???. Each of the callers

impliedly stated, AI know you take bets@ as a premise for making the bet. This is the implied hearsay statement, and the statement is offered to prove its truth. (G, 67-68.) NOT SURE ABOUT THIS ???

(ii) Modern/FRE Approach. There is no intent to communicate or assert anything. Rather, the person just is call to place a

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bet, not trying to communicate anything one way or the other. (G, 67-68.)

(4) Conduct that is meant to be assertive is still regarded as hearsay. (a) EXAMPLE: Paul Reveres “one if by land, two if by sea” ride to

announce the British were coming.(5) A writing can be non-assertive

(a) EXAMPLE: a dossier with information about one specific officer kept by enemy spies is admissible not because of what the dossier contains, but the fact the enemies would keep such a document establishes a connection. US v. Rhoades 1958, 127

(b) However, relevancy (§ 352) might keep some of the evidence out. In the above example, they could have redacted the contents, yet admitted the dossier into evidence

(6) Assertive Conduct as is hearsay (a) Conduct may be construed as hearsay if it’s intention is to

assert something. Wright v. Doe d. Tatham G40(b) Rothschild -- his behavior of selling British currency creates a

panic. It is assertive to prove the truth of Wellington's defeat.(c) EXAMPLE: A woman commits murder, her husband flees the

country in order to implicate his guilt. She is acquitted and upon his return, she confesses. (i) At trial, the husband's flight is seen as non-assertive

evidence of his guilt.(ii) In truth, it is assertive to prove the truth of his guilt. Thus,

hearsay, therefore inadmissible.(d) Example: Old North Church.

(i) "Language of lanterns."(ii) Arbitrary sign with prearranged meaning.

(7) Rhodes , p. 127 -- spy case. evidence found at Russian spy's house. Written statement: Rhodes agreed to continue to cooperate with us."

(a) Hearsay if offered to prove its truth.(b) Non-hearsay as non-assertive conduct.

(i) Proves attention of the Soviets.(ii) One reasonable inference is that Rhodes is a spy. (iii) Similar to Tatham letters -- reveals the belief of the author.

(c) 352/403 problem still exists.3. Acts of Independent Legal Significance/Operative Fact

(1) When the value of the statements that are made where the credibility of the out of court declarant is not at issue, then the utterance is not hearsay.

(2) Contracts:(a) EXAMPLE: The out of court statement “I am giving you this

$500 for the cow.” At the time of the exchange for the cow is an admissible statement to show that a contract was formed. Hanson v. Johnson 1924, G43

(b) verbal assertion is part of the contract.

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(c) EXAMPLE: A witness states in court that a man declared out of court “I am alive” to prove he is alive. It doesn’t matter if he is truthful or not, just because he is talking is what will prove he is alive. Estate of Murdoch – false case. p103

(3) Wills are offered for what is written in them, it doesn’t matter what the intention was. Any will is written out of court, any time a provision is offered, it is offered for its truth. It doesn’t matter what the truth is, it mattered what is written. It doesn’t matter if the writer intended to do it or not, if the will is valid, then it is admissible.

4. State of Mind/non-hearsay(1) Where out of court statements are offered to prove a person’s state

of mind, whether the declarant or the listener, they are not hearsay and thus admissible.(a) EXAMPLE: A man is captured by terrorists. He is forced to carry

ammunition which carries a punishment of death. Upon his capture by security forces, he claims he carried the ammo under duress.

(b) OOCA of threat not offered to prove its truth.(c) Prove Element of Defense -- reasonable and honest fear.

(i) His testimony as to what the terrorists said to him to cause him duress (i.e. Carry the ammo or we will kill you) is not offered to prove its truth (we will kill you) but to prove he is under duress. Subramaniam v. Public Prosecutor p106.

(2) Issues where state of mind is an element(a) duress (b) self defense(c) crimes where reckless is the requisite state of mind

(i) i.e. defendant foresaw acts that might cause harm (3) KNOWLEDGE is a state of mind. NOTICE, too.

(a) KNOWLEDGE is separate and distinct from the truth of the statement.

(b) Example: Safeway -- ketchup case. Two states of mind.(i) Statement of wife offered to prove that listener has been

given notice.(ii) Offered to prove responsibility of the store is fulfilled.

1. Operative fact or2. legally significant fact

5. Animals6. Machines

(1) Electric timers are not hearsay. City of Webster Groves v. Quick 1959, 131

E. Doctrine of Limited Admissibility(1) Just because evidence is not admissible to prove its truth, it might

be admissible for other purposes.

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(a) EXAMPLE: A taped conversation with a witness that a private investigator was working for Δ on a certain day. The tape would be inadmissible to prove that he was working for Δ on the certain day, but it would be admissible to prove the witness’s state of mind at that time – that he knew there was a private investigator working for Δ on a certain day.

(b) The state of mind rule is a way that a lot of judges broaden the hearsay rule.

(2) It can even be offered for a couple of reasons(a) EXAMPLE: A store manager yells out to a woman before she

slips on the floor to “watch out, there is ketchup on the floor.” His wife overheard him yell it. The statement is not offered to prove there is ketchup on the floor, it is offered to prove that she knew there was ketchup on the floor and therefore contributory negligent (STATE OF MIND).

(b) The second reason it is offered is that it was notice that she had to show that the store did everything they could to prevent the woman from slipping in the ketchup (LEGALLY SIGNIFICANT FACT). The fact that they put someone on notice on part of the stores employees. Safeway Stores, Inc. v. Combs 1960, 106

(3) only hearsay if both honesty of witness and of OOCA declarant's veracity is at issue.(a) Example: terrorists/duress case. Only concerned with the

witness' veracity. "He told me I'd be killed." We only care if he believed.

(b) Example Safeway. Where only concerned about the credibility of the wife on the witness stand.

(c) Murdoch: we only care that the witness heard the statement of the deceased.

(4) Contracts/operative facts(a) Corn crib case. Hanson v. Johnson. Statement that "this is

your corn" is a provision of the oral agreement. Thus the truth of the statement is not important only the belief of the objective observer.

(b) This established an element of the contract.(i) True for any contract provision(ii) true for provisions of a will

(c) objective to is not important. Court is looking for what exists within the four corners of the agreement.

(d) Example: contract -- "the value of a which it is one dollar. I will sell you 5000 which is for $5,000. (i) If offered to prove that there is a promise to sell 5000 which

it for $5, 000, not hearsay.(ii) If offered to to prove the value of widgets, hearsay.

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2. McCormick theory --Statement Oriented(1) McCormick allows out of court statements where the declarant is

describing something to be allowed in under the state of mind exception.

(2) Under McCormick, the statement is not offered to prove its truth, i.e the room I was in had a clock radio and Elvis picture on the wall, it is offered to show that the declarant could not have made those statements without being present. (a) EXAMPLE: A 7 year old girl is molested. The girl describes the

arrangement of the furniture in the room. She tells the policemen and the mother what the room she was in looked like. At Δ’s trial, the police and mother are called to testify to what the little girl said. The court concludes it is non hearsay, they were offering to show the state of mind of the little girl. Bridges v. State 1945, G44

(b) This is a state of mind case. The girl describes the room. We are matching her state of mind to the room. The closer her description is to the room, the more relevant it is to the truth.(i) This is non hearsay purpose for the statement. The very fact

that the child has a state of mind of the picture of the room in her mind of such a room, is independently relevant because it shows that once it matches up.

(c) This conclusion is based very much on the circumstances of the case – the child has limited knowledge other than where she lives that she could draw from. Thus, the fact that she could describe anything other than her home was relevant.

3. Morgan’s theory -- Declarant Oriented(1) Morgan does not believe McCormick is correct.(2) In the example above, it is hearsay - there is a step missing. She

is saying I was in this room, and this is what the room looks like (this is offered to prove the truth), and then you can compare the steps.

XII. Exceptions where witness MUST BE UNAVAILABLEA. Former Testimony

1. Elements -- Civil TrialFormer testimony (a) Unavailability of Inability to obtain the testimony of the witness

(i) Physical absence(ii) Fifth Amendment privilege -- "as though dead."

(b) Under oath.(c) there must have been an OPPORTUNITY to cross-examine in

the former trial (i) same motives and interest by cross-examiner(ii) DECLINED OPPORTUNITY satisfies requirement.

(d) there must be an identity or substantial identity of issues, and(i) there is no difference ins a criminal trial and civil trial. (ii) testimony must be used to prove the former primary issue --

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(iii) cannot be used for secondary issue. (e) partiesParties

(i) identity of parties -- incidental as long as similar motives and interests1. example: JC and JB Wright. JC has same motives to

discredit testimony as to who started the fire in this insurance recovery case.

2. Historically -- common-law -- former testimony only allowed if each individual was the same as in the previous trial. He

(2) Former testimony can be used from Criminal to a civil trial(a) EXAMPLE: A witness at a former criminal trial refuses to take

the stand (takes the 5th) at a civil trial for the same cause of action. The testimony is admissible as long as there was the opportunity to cross examine the witnesses, there was substantial identity of issue and the parties are essentially the same.

(b) The issue of a criminal case is not guilt, but the underlying cause of action. Travelers Fire Insurance Co. v. Wright. 1958, 188

(3) Criminal Difference -- However, the confrontation clause – the 6th amendment – prevents the reverse. Former testimony in a civil trial cannot be used in a criminal trial.

2. Impeachment. Prior testimony may be used to impeach present testimony.(1) Grand jury testimony allowed to impeach (no cross-examination

opportunity).(a) Theory: same witnesses on stand. Can be cross-examined for

both former and present testimony.3. FRE § 804 (b) (1) Former Testimony

(1) (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:   (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

4. § 1291.  Former testimony offered against party to former proceeding (1)    (a) Evidence of former testimony is not made inadmissible by the

hearsay rule if the declarant is unavailable as a witness and:   (1) The former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against the successor in interest of such person; or

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    (2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.    (b) The admissibility of former testimony under this section is subject to the same limitations and objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to:    (1) Objections to the form of the question which were not made at the time the former testimony was given.   (2) Objections based on competency or privilege which did not exist at the time the former testimony was given

B. Dying Declarations1. General

(1) The underlying rationale is twofold:(a) There is an inherent reliability in their statements

(i) Who wants to die with a lie on their lips?(b) They are unavailable

(2) Arguments that deceased was atheist or had reason to lie or was on meds may be offered, however, it is still up to the trier of fact to decide

(3) QUESTION – How about prior inconsistent statements to dying declarations?

2. It must be a statement by a soon to be deceased,(1) Imminent Death -- three indicators.A person making a statement

describing the situation must be made when(a) SOM exception.

(i) “I believe I am dying” assuming that they qualify for those exceptions…

(b) Medical Doctor's statement to victim (c) Circumstances. They know when they are dying (under the

hush of death’s impending presence).(i) Example: bullet wound the chest.(ii) Admissibility per Judge decision.

(2) weWe do not give the jury the right to decide whether or not to allow admission of hearsay. They don’t care about the hearsay rule – they want to hear everything.(a) Judges and lawyers care about the hearsay rule.

3. Declaration must concern the cause in circumstances of the death.(1) Confessions of other things are not within the scope.(2) Example: "Bill shot me."

4. California rules/Common Law – declarant must die(1) CA and common law (??? Not sure) rules require people to die in

order to admit the testimony.

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(2) California may use dying declaration in civil cases(3) Common law can only use dying declaration in criminal cases

5. CEC § 1242.  Dying declaration (1)    Evidence of a statement made by a dying person respecting the

cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.

6. FRE § 804 (b) (2) Statement under belief of impending death. (1) In a prosecution for homicide or in a civil action or proceeding, a

statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

7. Federal rules: ok to admit if they live if(1) They thought they were dying, and(2) They are unavailable though alive.

C. Lawyer's argument: credibility of declarant and situation. XIII. Hearsay exceptions where UNAVAILABILITY of declarant NOT AT

ISSUE(1) These are exceptions where the circumstances surrounding the

statement make them just as reliable if not more so than if they were testified to in court.

A. FRE Rule 803.  Hearsay Exceptions; Availability of Declarant Immaterial

(1) The following are not excluded by the hearsay rule, even though the declarant is available as a witness:   (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.   (2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.   (3) Then existing mental, emotional, or physical condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.   (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.   (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has

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insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.   (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.   (7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.   (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.* * *    (10) Absence of public record or entry. * * ** * *    (16) Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established.

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   (17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.* * *    (19) Reputation concerning personal or family history. * * *  * * *    (21) Reputation as to character. Reputation of a person's character among associates or in the community.   (22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

B. Spontaneous Exclamations --Common Law = No exception1. Excited Utterance - FRE §803(2)

(1) Statements made shortly after the disturbing event of which is at issue are admitted as an exception to the hearsay rule.(a) Why? Statements made right after the event are more likely to

be real than those where memories have had a chance to fade and witnesses have come up with reasons to lie.(i) ( The fallacy is that our memories are not like cameras, and

the more startling the event, the more likely our perception of them is warped.)

(2) Identity of the declarant is not necessary for this exception – EXCLAMATIONS OF STRANGERS IS ADMISSIBLE.(a) Can be shouted out anonymously from a crowd.

1. The statement must be made about the startling event(1) RULE: If it is a description of anything else other than the startling

event, then it is hearsay(2) EXAMPLE: An auto accident with a witness exclaiming to a

policeman that he they over heard a lady lying to another policeman as to who the driver was that caused the accident. In court the

(3) prosecution attempts to introduce this into evidence. (a) The prosecutor states the startling event is the lying, not the

accident. (b) But that is not a description of the startling event in question -- a traffic accident.

(c) Therefore strike any description of the accident and then strike the “the lady is lying” because it is irrelevant without the accident.

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2. It must be made WITHIN MINUTES of the event. (a) Therefore strike any description of the accident and then strike

the “the lady is lying” because it is irrelevant without the accident. RULE: If it is a description of anything else other than the startling event, then it is hearsay

(2) Generally accepted rule is to deduct unconscious period. Cestero v. Ferrara G 47, 1971

3. CEC § 1240.  Spontaneous statement(1) Evidence of a statement is not made inadmissible by the hearsay

rule if the statement:    (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and    (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception.

4. Present Sense Impression - FRE(1) A statement that is not about the startling event may be brought in

under the “excited utterance” exception(a) Wigmore – believed this exception more reliable than the

utterance exception(b) Prior to the adoption of the FRE, the PSI required that the

person be speaking to another person. Houston Oxygen Co. v. Davis 19**, Graphics 49

(c) rationale: immediacy is better. More reliable than in court testimony.(i) Adopted sans Wigmore idea that statement must be

made to a co-observer who can corroborate or discount the statement -- or correct contemporaneously.

5. No Present Sense Impression under CEC §1241 unless(1) Can only be made if by declarant about their own activity while

engaged in such activity.(2) CEC § 1241.  Contemporaneous statement

(a) Evidence of a statement is not made inadmissible by the hearsay rule if the statement:    (a) Is offered to explain, qualify, or make understandable conduct of the declarant; and    (b) Was made while the declarant was engaged in such conduct.

6. Common Law NO exception for Excited Utterance/Present Sense Impression

XIV. Admissions -- EXEMPTION under the FRE. Admissible if hearsay is the last objection, ie, if there are no other exclusions or privileges.A. General

1. CA and Common law – (1) ANYTHING THE OTHER SIDE HAS SAID may be offered against

them.

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(2) Even admissions not based upon personal knowledge may be offered against that party. Reed v. McCord 1899, 160. (a) Defendant made a declaration -- "the dog of the machine

broke." This is considered an admission.(b) Counsel a client to say instead of the “dog of the machine broke

and caused the injury” and said “I was told the dog of the machine broke and caused the injury”(i) it then becomes hearsay, and is not an admission.

(3) Estoppel Rationale: the declarant is "estopped" from denying the admission.(a) This also APPLIES TO OPINION.(b) May deny the truth of the admission/opinion, but cannot object

to admissibility.(4) AGAINST INTEREST AT TIME OF ADMISSION.

(a) Example: Northern California mumps higher French monk for three-year term. Fired after three weeks. French monk sues, offers letter from an employer.(i) Letter excluded. Must be against interest at time of

admission (letter).2. FRE § 801(d)(2) Admission by Party Opponent

Admissions/Vicarious Liability (Non-Hearsay) (1) (2) Admission by party-opponent. The statement is offered against

a party and is (A) the party's own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth [affirmative or by silence], or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

B. Adopted Admissions(1) There are variations on the rule of admissions for example, the

opponent hasn’t made a statement, but someone else makes a statement that the opponent agrees with.

(2) The RULE: the statement is said in their presence that they (a) heard and adopted by a verbal agreement, or that (b) a reasonable person would have denied in the course of a

normal conversation.

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(i) EXAMPLE: A will’s executor makes the statement 1. that he is handing out stacks of $500 and is 2. corrected by a witness that it is $5000 stacks. 3. His silence is seen as an admission because 4. that is a mistake that someone would correct. U.S. v.

Alker G 51(c) Can be telephonic (d) Proponent must show that opponent heard the statement.

(3) However, it must be unambiguous clear that the statements are admissions(a) Example: A tire bursts while two people are driving, the

passenger is injured. Earlier, the driver was blowing up the tire and a mechanic nearby stated that the tire looks like it will blow. (Admissible, state of mind exception). (i) The man replies, “I’ll take my chances.”Ambiguous

statement.(ii) Issue – is this an admission that he knew the tire was

dangerous, or was he disregarding the mechanics assessment of the situation.

(iii) Because there is an ambiguity, the statement should not be included. Pawlowski v. Eskofski 1932, G 52.

(4) Nonverbal response. -- case-by-case(a) example: a laugh may be denial.(b) A shrug may mean acquiescence.(c) fact dependent

C. Coconspirator exception/Vicarious Admissions1. Business Partners vicarious admissions in furtherance

(1) If two people are partners who buy and sell and their business is being sued, anything that one says as a partner says is admissible and it is also admissible against the other. (a) It is imputed because they represent the same interests. (b) This is the easiest example of the vicarious admission

exception.(2) RULE

(a) The statement must be made in the course of business and(b) In the furtherance of business

2. FRE §801(D)(2) (E) Co-conspirator exemption(1) "a statement by a co-conspirator a party during the course and

furtherance of the conspiracy"(a) existence of conspiracy and participation is established by

corroborating evidence plus co-conspirator statement.(i) BIG NOTE: this is different from California. In FRE,

statement is part of proof of conspiracy.(ii) In California, proof of conspiracy must be affirmatively

established by completely separate means.

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(2) Confessions – are not admissible under coconspirators exception because they are not made in the furtherance of businessconspiracy

(3) Othello. Iago testifies as to OOCA made by Casio.(a) Statement by defendant relevant to case.(b) Admissible as admission. But only as to Casio, not

Desdemona.(c) Only admissible as to party opponent who may declaration.(d) Co-conspirator exception as to Desdemona.

3. Vicarious Admission by Employees/admissions exception(1) statement by employee imputed to employerAn employee might

make a vicarious admission against an employer[(2)] Common Law and Federal RULE:

(a) .Common Law/historic federal: The employee must be authorized to make a statement(i) EXAMPLE: An usher is not authorized to make a statement

about a theatres liability, whereas a manager might. Rudinski v. Warner Theaters, Inc. 1962, G 53

(b) The dissent in Rudinski was J. Gordon who claimed the authorization should be more expansive. iIt should apply to when a person is: (i) speaking on the subject matter to which their employment is

concerned while still employed. When the FRE came out, it appears that his view was codified in Rule §801 (d) (2) (D)1. (D) a statement by the party's agent or servant

concerning a matter within the scope of the agency or employment, made during the existence of the relationship

4. FRE § 801 (d) (2) (D) Vicarious Admission (Non-Hearsay Exemption) (1) (2) Admission by party-opponent. The statement is offered against

a party and is (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,(a) Because this is “non-hearsay” the admission

5. FRE §801(d)(2)(C) -- Statement by a Person Authorized(1) exemption for a statement by a person "authorized by the party to

make a statement concerning the subject."(2) Example: the cashier tell us to the price of an item that you pay for.

(a) This is a contract. You pay in reliance.(b) If the cashier was wrong, and the Company sues for the

balance, they cannot because:(i) cashier, by her position, is authorized to speak for the

Company.(ii) Her statements are imputed to the Company.

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6. CEC § 1223.  Admission of co-conspirator (1) Evidence of a statement offered against a party is not made

inadmissible by the hearsay rule if:   (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy;   (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and   (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence.

(2) BIG NOTE: California requires a separate proof of conspiracy and involvement.

7. California RULE - § 1222 & §1224.  Authorized Admission (Hearsay Exception)(1) §1221 Evidence of a statement offered against a party is not made

inadmissible by the hearsay rule if:    (a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and    (b) The evidence is offered either after admission of evidence sufficient to sustain finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence.

(2) CEC § 1224 (a) Statement of declarant whose liability or breach of duty is in issue   When the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that liability, obligation, duty, or breach of duty.

(i) The problem with this statute is that the missing words are “during” and the former employee can make a hearsay statement.

(ii) While the sStatutetatute does not require the statement made during in the duration of employment, C. California cases do require it.

(b) BIG EXAM NOTE: question: "in California, is a former employee's statement admissible? Answer:(i) By statute = Yes(ii) Caselaw = no

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8. Establishing Agency(1) Statements made by declarant establishing agency: “I am in the

line of work.” (2) Federal Rules:

(a) The authority of an agent cannot be proved out of the mouth of the agent. Murphy Auto Parts Co. v. Ball 1957, G57.

(b) An agent’s out of court statements as to his authority (or any other relevant matter) may be received even though hearsay, if other evidence proves he was authorized to speak. Id.

(c) Judge determines whether the evidence is admissible, the jury determines whether the evidence is persuasive.

(3) California and Common Law (a) Independent statements declaring that agency exists from the

mouth of the declarant are inadmissible(b) in California, the admission should be parsed.

(4) in Murphy -- declaration admitted as spontaneous, excited utterance. Problem: is driving for my boss really an exciting event? FRE also allows statements in one day "relate" to??

XV. Declarations Against InterestA. Common Law

1. Requirements(a) Statement made by third party who is not a defendant(b) Admissions made by a party that would be against declarant’s

(i) pecuniary or (ii) proprietary interest, or (iii) so far subjected him to the risk of civil liability.

(c) The third party must be UNAVAILABLE(2) Admissible due to its high degree of trustworthiness i.e, who is

going to say something that would expose them to civil liability, cut their chances to win a lawsuit, or show that they don’t own something that they do.

B. Federal Rules – CL + penal interest(1) For statements that affect a persons penal interests, admissibility

requires that corroborating circumstances clearly indicate the trustworthiness of the statement.(a) There is an AFFIRMATIVE BURDEN on part of the offerer

offeror to prove that it was made under TRUSTWORTHY CIRCUMSTANCES [for declarations against CRIMINAL INTEREST only -- not the other categories]. The judge gets to establish if there is a strong enough foundation to use the statement (usually factual determinations are the jury’s decision).

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(b) This is the only exception for declarations against interests (also under state of mind exceptions and business records) that lets the judge determine the reliability of the statement.

(2) FRE is concerned with false confessions. (3) Declarant MUST REALIZE THAT THE STATEMENT IS AGAINST

THEIR INTEREST AT THE TIME IT IS MADE. Look to time of statement. (a) Example: jailhouse confessions can be seen as not against

interest.. 2. FRE Rule 804 (b) (3)

(1) (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's (a) pecuniary or (b) proprietary interest, or (c) so far tended to subject the declarant to civil or (d) criminal liability [trustworthy] , or (e) to render invalid a claim by the declarant against another,

(2) that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

C. California Law – FRE + ridicule minus TRUSTWORTHY(1) Prior to 1966, § 1338 required that the witness be unavailable, and

the statement would subject them to civil penalties. Spriggs expanded to include penal liabilities (a) EXAMPLE: Police see a man and woman trading drugs back

and forth. When the police stop them, they ask the woman if the drugs were hers. She responds in the affirmative. At the man’s trial, the woman’s statement is admissible. People v. Spriggs 1964, G59

(b) Traynor wanted to allow the statement in to impeach a witness. But it is only allowed in when the witness is unavailable. People v. Spriggs 1964, G60.

(2) The statement can be one that would subject a person to ridicule, an object of hatred or social disgrace, it doesn’t necessarily have to be one that could impose jail time.(a) EXAMPLE: a man is on trial for shooting his wife. There are two

witnesses that claim she said she shot herself. This statement by the woman is admissible even though it might not effect pecuniary, civil or penal interests. People v. Parriera 1965, G60

(3) Declarant MUST REALIZE THAT THE STATEMENT IS AGAINST THEIR INTEREST AT THE TIME IT IS MADE. Look to time of statement.

(4) NO TRUSTWORTHY REQUIREMENT regarding criminality, CF. FEDERAL STATUTE..

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2. CEC § 1230.  Declarations against interest (1) Evidence of a statement by a declarant having sufficient knowledge

of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, WHEN MADE, was so far contrary to the declarant's (a) pecuniary or (b) proprietary interest, or (c) so far subjected him to the risk of civil or (d) criminal liability [no trustworthy requirement, cf. FRE], or (e) soSo far tended to render invalid a claim by him against

another, or (f) created such a risk of making him an object of hatred, ridicule,

or social disgrace in the community, (2) that a reasonable man in his position would not have made the

statement unless he believed it to be true. (3) Admissions(4) General(5) CA and Common law – (6) Anything the other side has said may be offered against them(7) This includes witnesses for the other side – example: doctors and

psychiatrist.(8) Even admissions not based upon personal knowledge may be

offered against that party. Reed v. McCord 1899, 160. (9) Counsel a client to say instead of the “dog of the machine broke

and caused the injury” and said “I was told the dog of the machine broke and caused the injury”

(10) FRE § 801 Admissions/Vicarious Liability (Non-Hearsay) (11) (2) Admission by party-opponent. The statement is offered

against a party and is (A) the party's own statement in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision (C), the agency or employment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E).

(12) Adopted Admissions

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(13) There are variations on the rule of admissions for example, the opponent hasn’t made a statement, but someone else makes a statement that the opponent agrees with.

(14) The RULE: the statement is said in their presence that they heard and adopted, or that they would have denied in the course of a normal conversation. Can be telephonic

(15) EXAMPLE: A will’s executor makes the statement that he is handing out stacks of $500 and is corrected by a witness that it is $5000 stacks. His silence is seen as an admission because that is a mistake that someone would correct. U.S. v. Alker G 51

(16) However, it must be clear that the statements are admissions

(17) A tire bursts while two people are driving, the passenger is injured. Earlier, the driver was blowing up the tire and a mechanic nearby stated that the tire looks like it will blow. (Admissible, state of mind exception). The man replies, “I’ll take my chances.”

(18) Issue – is this an admission that he knew the tire was dangerous, or was he disregarding the mechanics assessment of the situation. Because there is an ambiguity, the statement should not be included. Pawlowski v. Eskofski 1932, G 52.

(19) Coconspirator exception/Vicarious(20) Business Partners in furtherance(21) If two people are partners who buy and sell and their

business is being sued, anything that one says as a partner is admissible and it is also admissible against the other. It is imputed because they represent the same interests. This is the easiest example of the vicarious admission exception.

(22) RULE(23) The statement must be made in the course of business and(24) In the furtherance of business(25) Confessions – are not admissible under coconspirators

exception because they are not made in the furtherance of business

(26) Vicarious Admission by Employees(27) An employee might make a vicarious admission against an

employer(28) Common Law and Federal RULE:(29) The employee must be authorized to make a statement(30) EXAMPLE: An usher is not authorized to make a statement

about a theatres liability, whereas a manager might. Rudinski v. Warner Theaters, Inc. 1962, G 53

(31) The dissent in Rudinski was J. Gordon who claimed the authorization should be more expansive. It should apply to when a person is speaking on the subject matter to which their employment is concerned. When the FRE came out, it appears that his view was codified in Rule §801 (d) (2) (D)

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(32) (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship

(33) FRE § 801 (d) (2) (D) Vicarious Admission (Non-Hearsay) (34) (2) Admission by party-opponent. The statement is offered

against a party and is (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship,

(35) Because this is “non-hearsay” the admission (36) CEC § 1223.  Admission of co-conspirator (37) Evidence of a statement offered against a party is not made

inadmissible by the hearsay rule if:   (a) The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong and in furtherance of the objective of that conspiracy;   (b) The statement was made prior to or during the time that the party was participating in that conspiracy; and   (c) The evidence is offered either after admission of evidence sufficient to sustain a finding of the facts specified in subdivisions (a) and (b) or, in the court's discretion as to the order of proof, subject to the admission of such evidence.

(38) California RULE - § 1222 & §1224.  Authorized Admission (Hearsay Exception)

(39) §1221 Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:    (a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and    (b) The evidence is offered either after admission of evidence sufficient to sustain finding of such authority or, in the court's discretion as to the order of proof, subject to the admission of such evidence.

(40) CEC § 1224 (a) Statement of declarant whose liability or breach of duty is in issue   When the liability, obligation, or duty of a party to a civil action is based in whole or in part upon the liability, obligation, or duty of the declarant, or when the claim or right asserted by a party to a civil action is barred or diminished by a breach of duty by the declarant, evidence of a statement made by the declarant is as admissible against the party as it would be if offered against the declarant in an action involving that liability, obligation, duty, or breach of duty.

(41) The problem with this statute is that the missing words are “during” and the former employee can make a hearsay statement.

(42) While the statute does not require the statement made in the duration of employment, California cases do require it.

(43) Establishing Agency

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(44) Statements made by declarant establishing agency: “I am in the line of work.”

(45) Federal Rules:(46) The authority of an agent cannot be proved out of the mouth

of the agent. Murphy Auto Parts Co. v. Ball 1957, G57.(47) An agent’s out of court statements as to his authority (or any

other relevant matter) may be received even though hearsay, if other evidence proves he was authorized to speak. Id.

(48) Judge determines whether the evidence is admissible, the jury determines whether the evidence is persuasive.

(49) This allows circular reasoning. (50) California and Common Law (51) Independent statements declaring that agency exists from

the mouth of the declarant are inadmissibleXVI. State of Mind PRESENT DECLARATION OF THEN SOM. This is

OOCA, with no witness on the stand.State of mind is defined as emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health).

A. Federal and Common Law Elements1. Direct Statement of SOM.

(1) "I am so mad i could kill."He2. Unavailability is not necessary

(1) Can be brought in even if state of mind is not issue. As long as the statement is relevant.

3. TRUSTWORTHINESS(1) The judge determines whether the statement is trustworthy enough

to submit to the jury (same as under the declarations against criminal liability (Federal)).

[(2)] Versus when state of mind is a non-hearsay, then it is up to the jury to decide its credibility.

4. Must be a CONTEMPORARY statement current statement about the person’s state of mind(1) The statement must be made contemporaneously to the event that

is at issue(a) EXAMPLE: In an action to prove alienation of affection (a man

stole another man’s wife away). Π wishes to introduce evidence of conversation between him and wife: “He buys me flowers, takes me out, I love him and I don’t love you anymore.” The first parts of the statement (He buys me flowers, takes me out), would not be allowed in to prove the other man did those things. But they could be brought in to show that she thought (non-hearsay) that he treated her well. However, they would receive a jury instruction because they are prejudicial. The second part (I love him, I don’t love you) would be allowed

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under §1250 and 1251. They are statements that are about current state of mind, and are offered for their truth (she did love the other man, and was not in love with her husband). The judge would determine if the circumstances were trustworthy, and then submit to a jury. Adkins v. Brett 1920, 210.

(2) As long as the statement is said close to the time of the event, and as long is still describing present state of mind it is admissible. However, the further away from the event, the less reliable the statement.(a) EXAMPLE: action for a trucking accident, π tries to prove

vicarious liability. Δ shows the driver was not acting within scope of employment by deviating from his route. State of mind is at issue – was driver driving off course part of his employment? Π admits statements of driver10 days after the accident that state in effect “I took the alternate route because it afforded the most direct way to get to the destination.” The statement is admissible, because it is close enough in time to the accident to still show us what his contemporaneous state of mind was.This is different than if he said “I took the alternate route, because I believed that it afforded the most direct way to get to the destination…” This would only be acceptable under CEC if the statement is offered to prove state of mind and the declarant is unavailable.

(b) EXAMPLE: “I hate him” can be used to show that prior to that statement he hated him.

B. Adkins v. Brett, text p. 210 -- CA Supreme Court (1920) -- Facts : Defendant in trouble for stealing the affections of someone else’s wife – alienation by the defendant of the plaintiff’s wife. 1. Defendant objects to statements as hearsay

(1) "he buys me things and I like him and I don’t like you anymore." 2. Elements of crime:

(1) the wife’s attention was alienated and (2) defendant INTENTIONALLY made the wife alienate the husband.

(a) The statement suggests that (i) he does these things, (ii) as a result of his intentional behavior.

3. OOCA. (1) If offered to prove that he buys her things, would this be hearsay?

Yes. (2) Offer first half of statement -- "he takes me out, he buys me things,"

to show wife's SOM, i.e., affection for Δ(a) NON-HEARSAY SOM (Assuming people like people who treat

them well.) If offered to prove her state of mind . (3) 352/403?

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(a) Yes, it is prejudicial (even though the jury gets a limiting instruction).

(4) What about the second half of the statement, “I like him, I don’t like you anymore.” (a) hearsay.

(i) Statements of state of mind like this are often needed, more probative, and more reliable that an exception has been carved out.

(ii) Who’s in the best position to know what a person is thinking at a particular time. The person.

(5) Law says it must be (a) contemporaneous – statement about something that is

happening. Feeling they are having right now(i) More credibility to be given at the time the person has the

feelings then how they remember feeling about the person later.

(b) trustworthy circumstances in California §1252.(i) or the court won’t let it in.

1. (e.g. memory of how you feel about the professor now may differ after you receive your grade).

(c) Unavailability is not necessary. C. Garford Trucking Corporation v. Mann p. 64 Facts: Truck driver took

a longer route because there was less traffic then on the shorter route. 1. Defendant employer is trying to show that he was given orders to

take the shorter route with traffic, then he would be out of the scope of his work and there would be no vicarious liability.

2. HYPO #1 – on day 10 he says “I believe [present tense] it is the shorter route”(1) Statement by truck driver shortly after accident that he took the

route because it was faster although it was longer. (2) we just care that he believed it. (3) However, it is ten days later (not contemporaneous).

(a) What you believe now has relevancy to what you believed in the past but the further in the past you go, the less relevant. Closer in time the more likely your feelings are the same. A statement of present state of mind even when that present state of mind is not at issue in the case. Can use to show what they believed at some point as long as it meets the test for relevancy

3. HYPO #2 -- CEC (1250) v. FRE 803(3)– on day 10 he says “I believed it was the shorter route”(1) In this case, he says I believed – [past tense]. (2) Rule: FRE and COMMON LAW HAVE NO PAST STATES OF

MIND AVAILABLE – Why(a) Present is Contemporaneous and Reliable

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(b) For a description of past SOM: Let them get on the stand and testify to what they past tense believed.

(c) . (d)

4. FRE § 803 (3) NO “TRUSTWORTHY” REQUIREMENT(1) The following are not excluded by the hearsay rule, even though

the declarant is available as a witness:(a) (3) Then existing mental, emotional, or physical condition. )

Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

D. California Rules1. Statements of past

(1) TRUSTWORTHINESS IN CALIFORNIA ONLY/not in FRE(a) The judge determines whether the statement is trustworthy

enough to submit to the jury.(b) Cf. non-hearsay SOM, then it is up to the jury to decide its

credibility.(2) In addition to present state of mind statements, the statements can

be about past state of mind, but the further away from the time the statement was made to the time they are referencing, the less reliable it is. There are two restrictions.(a) They are allowed in if the declarant is unavailable(b) The evidence is only offered to prove state of mind.

(3) FRE and common law require contemporaneous statements – if the statement is about the past, just let them come on the stand and testify as to how they were feeling

(4) EXAMPLE: action for a trucking accident, π tries to prove vicarious liability. Δ shows the driver was not acting within scope of employment by deviating from his route. State of mind is at issue – was driver driving off course part of his employment? Π admits statements of driver10 days after the accident that state in effect “I took the alternate route, because I believed that it afforded the most direct way to get to the destination…” This would only be acceptable under CEC if the statement is offered to prove state of mind and the declarant is unavailable.

2. CEC § 1250.  Statement of declarant's then existing mental or physical state (1)  (a) Subject to Section 1252 [trustworthy], evidence of a statement

of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by

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the hearsay rule when:    (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time OR AT ANY OTHER TIME WHEN IT IS ITSELF AN ISSUE in the action; or    (2) The evidence is offered to prove or explain acts or conduct of the declarant.    (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed.

3. CEC § 1251.  Statement of declarant's previously existing mental or physical state(1)    Subject to Section 1252 [trustworthy], evidence of a statement of

the declarant's state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if:    (a) The declarant is unavailable as a witness; and    (b) The EVIDENCE IS OFFERED TO PROVE SUCH PRIOR STATE OF MIND, EMOTION, OR PHYSICAL SENSATION WHEN IT IS ITSELF AN ISSUE in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.

4. CEC § 1252.  Limitation on admissibility of statement of mental or physical state(1)  Evidence of a statement is inadmissible under this article if the

statement was made under circumstances such as to indicate its lack of TRUSTWORTHINESS.

E. Survey ResultsResults from surveys are generally admissible on two basisbases: , either they are NOT hearsay (statement oriented approach) or they are hearsay subject to an exception (declarant oriented approach).

1. Statement Oriented Approach – MAJORITY, EXAM – Non Hearsay(1) Results from a survey are not offered to prove the truth of the

statements and thus not hearsay.(a) EXAMPLE: In order to establish trademark infringement, Zippo

lighter conducts a survey by presenting its competitors lighter and asking respondent what brand it isThe statement “This is a Zippo lighter” is not offered to prove the lighter is a Zippo, but to show the respondent believed it was a Zippo.

2. Declarant Oriented Approach – Minority – Hearsay (1) The results from a survey are hearsay because the statement is

offered to show what the person is saying they believed.(a) EXAMPLE: In the Zippo survey, the statements are actually

purported to state: “I believe this is a Zippo lighter.” The

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statement is offered to show the respondent believed the lighter to be a Zippo, and thus it is hearsay. Zippo Manuf. Co. v. Rogers Imports, Inc., 1963, 228

(b) EXAMPLE: If a lady says – “I am the pope” the statement is not offered to prove that she is the pope, but rather her state of mind. In DOA – the statement reads “I believe I am the pope” and there fore there is offered to prove her state of mind.

F. Plans and Memories (Future and Past Conduct)1. Future Conduct

(1) Statements that are offered to prove present state of mind about future conduct are admissible to prove that state of mind and action in conformity with those plans. CEC 1250 (a) (2) & FRE 803 (3)

(2) A person can admit future conduct/plans statement even if the issue is not independent to the cause of action (i.e. state of mind is not at issue). (a) EXAMPLE: A wife tries to collect on her husbands life insurance

policy after his charred body has been id’d as his. There is a dispute that the body is that of another man. The insurance company offers letters written by the other man to prove that he was at the place where the body was found. In the letter, the man writes that he “plans to go to Crooked Creek . . . “ This is admissible to prove his state of mind to go to the creek and that he actually went to the creek. Mutual Life Ins. Co. v. Hillmon 1892, 215

(3) The statement must be one of present [continuing] state of mind: “I plan to got o Crooked Creek” but not “Yesterday, I made plans to go to Crooked Creek”(a) SOM To prove future action Mutual Life Insurance Co. of New

York v. Hillmon p. 215 Facts: Widow wife suing on husband’s life insurance. Issue over identity of victim. Insurance company claims it was Walters and not her husband, Hillmon. (i) Body Identified as Hillmon by vaccination scar, clothing, and

statement by Brown. 1. Brown later confesses to murder; confession never

signed.(ii) Evidence that Walters is victim.

1. Two letters. One to his sister – that he would be leaving with Hillmon in three days and traveling to Crooked Creek. a. Ins. Company wanted to offer these letters and b. that Walter had never been heard from again.

(iii) Letters previously excluded. 1. Heretofore, OOCA to prove the truth of future actions not

admissible. (iv) Tough cases make bad law. Supreme Court creates new

precedent.

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1. Theory -- plan to travel has relevance to whether a travel occurs.a. Walter’s plan to travel to Crooked Creed would

appear to have relevancy (tendency in reason) as to whether he did it or not. i. the problem is hearsay. ii. a plan is no more then a state of mind. iii. S. Ct says it is circumstantial to prove that he did

something in the future. iv. State of mind exception used to prove conduct.

(v) : "present plans if offered to prove future actions is SOM exception."1. FRE §803(3) "intent, plan... design...".

2. CEC §1250(a) (2) "The evidence is offered to prove or explain acts or conduct of the declarant."

(4) As long as the statements are admitted to prove the conduct of declarant, they are admissible under the state of mind exception. People v. Alcade 1944, G 66.(a) EXAMPLE: Frank is on trial for the murder of Bernice. The

prosecution wishes to introduce the statement of Bernice to roommate: “I am going out with Frank tonight.” The statements were offered to prove that the declarant went out with Frank that night and were admissible.

(5) Statements that are a combination of the two (“we made plans yesterday, were going to go next week”), the courts will make a foundational decision.

(6) Arguments to keep out State of Mind(i) Does the declarant’s behavior have to be relevant?

1. It might be not relevant or prejudicial, but that is up to the trial court below.

2. You would argue irrelevant as to what the deceased said(ii) CA court was wrong(iii) Then prejudicial impact, then allow only the part where they

would meet someone (as opposed to using person’s name)(iv)To admit statement would violate the confrontation clause

(7) People v. Alcalde (1944) -- G 66 -- Facts: Married man living in a hotel under the alias "Frank" dated decedent. Decedent told her roommate that she was "going out with Frank tonight" (she was found dead the next day). (a) Prosecution wants to offer as statement of then state of mind to

prove future action of the declarant.. (b) Majority Holding (pre CEC) –Hellmon would allow statement to

show that she was going out with "Frank." (c) Dissent (Roger Traynor) – lays out his arguments on why he

disagrees with the analysis:

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(i) Prejudicial impact too great. Why? Admissible to show she was going out, but not to prove Frank's future actions. 1. In Hellmon, Walter's letter not offering to prove that

Hellmon had gone to Crooked Creek but only that Walter went to crooked creek.

2. Here, no probative value to Bernice's statement re her own actions. Those are established by other evidence.

3. The only real significance is that Frank went with her. Therefore the real value was to prove that Frank went out with her.

4. You may use present memory to prove declarant’s future conduct but cannot use past tense (she remembered planning) to prove a third parties conduct.

(d) Counter argument. Bernice's state of mind declared to her roommate showed future plans. Same as Hillmon. Plan to go to a place called Crooked Creek same as plan to meet someone named Frank. Limited admissibility. The weight of the evidence is determined by trier of fact, but admissibility is determined by the SOM exception. Also, SOM notice to roommate. Probative. (i) Real issue: 352/403 question. Confrontation clause

question.(ii) CEC allows the declarant’s present plans to do something in

order to prove the declarant’s conduct. His agrees with the dissent in People v. Alcalde.

(8) People v. Majors Decision -- Facts: (per professor) – “I got some guys coming over from Arizona to buy some drugs.” Do you mind leaving, Chris is coming over to buy some drugs?” In both cases declarants were found dead the next day. In both cases the “guys” / Chris were charged. In both cases the judge allowed the statements in. But attorney never objected so it was not overruled.(a) California Supreme Court Interpretation -- A similar case where

the statement was objected to went to the Cal. S. Ct. which concluded that it was admissible under the Alcalde rule.

(b) Cal. S. Ct. read the statement to include declarant’s conduct and third party’s conduct as well.

(c) In Cal. It can show conduct of both. Really being used to prove third party’s conduct because you usually don’t care what the declarant did, but ultimately it is used to show third parties conduct.

(d) Traynor’s dissent was not interpreted by the Cal. S. Ct. the way Traynor intended it. Other states read the statutes the way that Traynor intended.

(e) Objection: (i) Irrelevant as to what decedent did, (ii) Cal. S. Ct. Wrong, (iii) Prejudicial impact, can admit evidence without name

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a. Violates confrontation clause because statement cannot be cross-examined.

2. Past conduct – Sheppard limitation(1) No state of mind statements about memories are admissible to

prove conduct of declarant or others. CEC 1250 (b) & FRE 803 (3). (a) EXAMPLE: A woman is poisoned and the prosecution wishes to

admit her statement (prior to her death) that her husband poisoned her. The statement was “My husband poisoned me.” This is inadmissible because it is offered to prove that a thing actually happened (conduct) and is a memory. Shepard v. United States 1933, 218.

(b)(2) EXCEPTION: CEC § 1260 Estate planning, trusts and wills.

Statements that a declarant made to the effect of “I made a will” are admissible even though past conduct (memory) because the declarant is unavailable.

(3) Most jurisdictions have this exception and it is very narrow.G. Physical Condition

1. Common Law (1) Statements given to a treating physician are generally admissible.

Ritter v. Coca-Cola 1964, G69(a) Statements to a treating physician have an inherent credibility to

them because you have a motivation to not lie to the doc(b) However, you can’t use doctor’s statements when you are there

to get testimony, only when you are there for bona fide treatment

(c) The statement must be made directly to the physician.(d) The reason this exception was expanded is because it was

probably difficult for juries to distinguish between statements made for diagnosis and those made for testimony.

2. FRE Rule § 803 (4).  Page 1012 Hearsay Exceptions; AVAILABILITY OF DECLARANT IMMATERIAL(1) The following are not excluded by the hearsay rule, even though

the declarant is available as a witness:   (4) Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

(2) Allows in statements made for the purpose of medical diagnosis or treatment and describing medical history, or past or present symptoms

(i) A statement by a mother to the doctor about the child for the purpose of medical treatment are admissible. Page 235.

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(ii) A statement by a patient to a doctor about the diagnosis of another doctor is not admissible. Id.

(3) The feds have expanded the rule to include diagnosis so that it will be allowed for testimony.(a) It isn’t clear how far the courts will go in allowing in information

surrounding the cause of the declarant’s medical condition: “I hurt my back when I stepped in a pothole” vs. “I broke my leg when the car driven by the defendant hit me”(i) Two part TEST: Motive must be consistent with the

purposes of obtaining medical treatment,(ii) The content of the statement must be such as is

reasonably relied upon by physicians in providing medical treatment or diagnosis.

(4) They also don’t mention doctors – so the person in the reception area can testify as to what the problem is. You can include the pharmacist.

(5) Also expands 803 (3) to allow statements such as “My back hurt me yesterday, and it still hurts today”

3. CEC § 1253. Page 1342 STATEMENTS FOR PURPOSES OF MEDICAL DIAGNOSIS OR TREATMENT; CONTENT OF STATEMENT; CHILD ABUSE OR NEGLECT; AGE LIMITATIONS(1) Very limited scope -- cases / issues involving children.

(a) Under 12 years old at time of statement of injury.(b) Minor at time of proceeding.(c) Child abuse or neglect

4. § 1250 -- used to bring in statements made to healthcare workers. (1) Includes OOCA of then existing physical sensation, mental feeling,

pain, or bodily health. Same as FRE 803(3), (a) only includes present. This would not include statements that

my back hurt me yesterday and still hurts me today. Cf. §FRE 803(4).

5. § 1251 –brings in statements describing PREVIOUS feelings, health et cetera. (1) "Declarant’s statement of mind, emotion, or physical sensation

(including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible when"(a) BUT IN CEC WITNESS MUST BE UNAVAILABLE. (b) CEC WILL NOT ALLOW IF THE PLAINTIFF IS AVAILABLE

(USUALLY ONLY WRONGFUL DEATH).(c) HOWEVER, CA IS BROADER IN THAT IT DOES NOT

REQUIRE THAT THE STATEMENT BE FOR DIAGNOSIS OR TREATMENT.

(2) FRE AND CEC FOR PRESENT STATEMENTS ARE THE SAME. (i) FRE AND CEC ARE SIMILAR BUT DIFFERENT: if

1. CEC REQUIRES UNAVAILABILITY of

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2. FRE REQUIRES DIAGNOSIS OR TREATMENT and (ii) C/L REQUIRED A DOCTOR FOR PURPOSES OF

TREATMENT (UNAVAILABILITY NOT REQUIRED). DID THIS APPLY TO PRESENT AND PAST

(iii) COMPARE "PRIOR CONSISTENT STATEMENTS."6. California -- use §1250

(1) Statement can be said to anybody. It doesn’t have to be said to a doctor.

(2) However, the witness must be unavailable, so it would likely be used in a wrongful death case.

(3) The statement does not have to be for diagnosis or treatment. 7. CEC § 1251.  Statement of declarant's previously existing mental

or physical state(1)    Subject to Section 1252, evidence of a statement of the

declarant's state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if:    (a) The declarant is unavailable as a witness; and    (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation.

XVII. Past Recollections RecordedA. Requirements

(1) Witness made or adopted (examined and verified) a record, based on firsthand knowledge

(2) When the record was recorded it was fresh in the witness memory(3) The witness must be available to testify; but the memory must

be unavailable because they have forgotten(a) only when we have this situation, does this hearsay exception

apply to the subject matter of what they wrote(4) Joint (cooperative) records are admissible.

(a) Question: Do you need both people ??? (5) The codes do not preclude admittance if there is partial memory

(but should have forgotten most of the facts). (a) The writing’s contents may be read into evidence, but the writing

itself may NOT be admitted UNLESS offered by adverse party.(i) QUESTON: Is this because it is PRR or because

Admissions???(ii) Use of deposition transcript or prior testimony at later

hearing: past recollection recorded plus former testimony. 1. Whenever a depo or other prior test is read into evidence

at a subsequent trial or hearing, the transcript itself is hearsay and so too is the testimony given. The exception for the testimony itself is prior testimony, but

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the exception for the transcript=s use is PRR. So, whenever prior test is used like this, must call court reporter who testifies that: a. (1) recorded information;b. (2) while fresh in memory; c. (3) does not recall everything recorded/heard; but d. (4) knows it was an accurate recordation.

2. Question: is the transcript also admissible under business records exception?.

2. Common law(1) If a part of the memory is available, then common law would not

allow the evidence in. 3. Elements.

(1) Memorialized /written(a) Witness must have authored the document; or "cooperative

entry" –one party calls information to another who writes it.(2) at the time or shortly thereafter

(a) Better than memory.(3) Witness has "insufficient recollection"

(a) If witness remembers part of it the C/L would not let in. But the codes do not preclude admittance if there is partial memory (but should have forgotten most of the facts).

(4) Witness who wrote the notes is on the stand and (5) swears to the accuracy of the record.

(a) FOUNDATIONAL REQUIREMENT that although the hearsay is only going to come in if you do not remember the substance of the writing but somehow you need to affirm in court to swear under oath that what you took down was accurate.

(b) Query: wouldn't this require comparison with memory of the event?

4. "Insufficient recollection" requirement(1) Witness should have no memory of the writing, just a memory of

having written it accurately.. (2) If the witness’s memory is refreshed then they need to testify from

their memory. (a) “Present recollection refreshed.” Not “past recollection

recorded.” (b) Do not confuse the two. (c) Present recollection refreshed is not even hearsay – it is just

straight testimony. (3) Because document has been used to "refresh memory" the door

has been opened. Opposing party can request that a document is offered into record (for impeachment purposes).

(4) If witness is present but cannot remember then it meets the unavailability requirement for all FRE purposes.(a) But not in California or common-law.

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5. Document is read into the record if foundation established.(1) Document is not entered as an exhibit.

(a) An exhibit can be read by the jury over and over.(2) Party opponent may have the document introduced as an exhibit.

6. Adams v. The New York Central Railroad Co. -- Facts One lawyer knows what he is talking about and the other doesn’t. Defense investigator went out and questioned the plaintiff. Defense is the insurance company. (1) If the defendant is trying to get in the plaintiff’s statements why isn’t

this admissible. (a) Because the investigator has to refer to his notes. (b) The notes are a separate layer of hearsay. (c) Both must pass hearsay rule or it does not get in

(2) 7. CEC § 1237.  Past recollection recorded

(1)    (a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:    (1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;    (2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;    (3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and    (4) Is offered after the writing is authenticated as an accurate record of the statement.    (b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

8. FRE Rule § 803 (5).  Hearsay Exceptions; Availability of Declarant Immaterial(1) The following are not excluded by the hearsay rule, even though

the declarant is available as a witness:     (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

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(2) Question: there doesn't appear to be a requirement for the declarant to testify as to the accuracy of the writing.

XVIII. PRESENT RECOLLECTION REFRESHED -- not hearsay, just testimonyPresent Recollections Refreshed or Revived

XIX. Anything can be used to refresh the memory of the witnessXX. Not really a hearsay exception because nothing is being offered into

evidence. XXI. Once the object has been brought in to refresh the memory, the

opposing counsel may submit it to the jury.XXII. If someone’s memory seems too good, then ask the witness if they

have refreshed their memory from any documents. If the answer is yes, then you can have the document entered into the evidence

XXIII. The witness’s ability to refresh the memory may be tested by opposing counsel. Page 246. A. Baker v. State p 242

1. anything can be used to refresh a witness's memory. (1) their written notes or a walrus organ. (2) Song, object, word. (3) If it refreshes their memory they can then testify as if they never

needed refreshment.(4) Proust -- Remembrance of Things Past.

2. Once the object has been brought in to refresh the memory, the opposing counsel may submit it to the jury.

3. The witness’s ability to refresh the memory may be tested by opposing counsel. Page 246.

B. Courtroom tip:1. If someone’s memory seems too good, then ask the witness if

they have refreshed their memory from any documents. 2. If the answer is yes, then 3. you can have the document entered into the evidence.

(1) Even if it is not their own document, could be third party’s notes of event that they have reviewed and are testifying to.

4. Careful if refreshing the plaintiff’s memory because the document could have privileged or damaging information that the other side now gets to read.

(a)XXIV. Business Records/Public Records-- FRE 803(6), (8); CEC 1271, 1280.

A. Requirements1. A writing, made soon after event

(1) ONE JURISDICTION – New Hampshire – allows oral reports to be admissible. However, this is strange because the reason the records are admissible is because they are written and memory doesn’t have time to fade them. Geralds v. Champlain G73

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2. Made by a person responsible to take information accurately (duty) (1) EXAMPLE: alleged agreement b/t gentleman and lady. She has

given title to the home and he pays for the taxes, expenses, etc. but she gets to live there until she dies. This was an oral agreement. The man tells social worker of the arrangement. The social worker records it in her files. Those files are now being offered into evidence because guy is trying to throw out the lady. The court admitted the statement. Kelly v. Wasserman, handout.(a) The social worker’s records are admissible under the business

records exception. (b) Because the other two levels of statements (the oral agreement

and the statement from the man to the social worker) are admissible either because they are not hearsay or subject to exception (operative fact and admissions), then the final level of hearsay along with its exception becomes admissible.

(2) EXAMPLE: An accident that kills π’s relative. The π’s wish to admit the police record of the accident. The report contains hearsay statement by a witness at the accident. The report is not allowed in because of the third person statement.(a) The policeman's statement is admissible as a business record.

Such a record can be shown as untrustworthy by proving that the person who wrote the report is not under an obligation to be accurate; or is not recording it in a trustworthy manner.

3. "Appropriate Witness" on the stand -- "custodian of records."Someone can testify as to the proper keeping of the records (1) A The person who is responsible to keep keeps the records must

be present.(2) Must testify as to how records are recorded and kept.

4. Recordation must relate to the function of the business. (JX)(1) Majority – will not let evidence in unless it relates. CA and FED

follow majority jurisdiction. (a) EXAMPLE: Railroad accident. In the course of the internal

investigation, the engineer made a statement, then died. The Δ wishes to admit this as a business record. However, the court declared the railroad was not in the business of investigating accidents. (This is a stretch). Palmer v. Hoffman 1943, 270.(i) However, post litem motem. Because the record was made

after the accident, it may be tainted by the Company's knowledge that it was to go to trial.

(b) EXAMPLE: An auto accident. The pedestrian claimed a car ran a light; however at the hospital he tells a story that is favorable to Δ to the attending physician, who wrote it into a report. In an attempt to get the report into evidence, Δ claims the report is a public record. However, the doctor is not interested in the

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specific details of the accident, so he is unlikely to accurately report it. Williams v. Alexander 1955, 263.

(c) It is an admission, but the problem is the recording they are trying to get in (remember, it is TWO layers of hearsay).

(2) QUESTION – what is the minority jurisdiction (???) B. CEC § 1270 Business Defined

(1) As used in this article, “a business” includes every kind of business, governmental activity, profession, occupation, calling, or operation of institutions, whether carried on for profit or not.(a) A person who collects baseball cards, if he regularly records

and keeps records, may be able to submit those records. C. CEC § 1271.  Business record

(1) Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:    (a) The writing was made in the regular course of a business;    (b) The writing was made at or near the time of the act, condition, or event;    (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and    (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

D. Public Records/Medical Records(1) Some states treat medical records the way they treat public records(2) Evidence of a writing is not made inadmissible by the hearsay rule

if:(a) It is made by or in the scope of a public employee(b) Made near in time(c) Sources indicate its trustworthiness.

(3) Addition to the business records exception – public employee(4) SUBTRACTION – don’t need the custodian or witness.(5) Why? The government doesn’t want to waste its employee’s time.

That is why it APPLIES TO MEDICAL DOCTORS. People v. Kohlmeyer 1940, G72. (a) Note – some jurisdictions make a note of what the findings of

the doctor are based upon. (i) EXAMPLE: If the document is based upon the subjective

thoughts of psychiatry, then it is hearsay because the doctor has not been certified as a witness nor subject to cross examination. However, if the document bases its findings upon something hard like an x-ray, then it is admissible.

(b) Kohlmeyer -- defendant seeks to admit medical records that tend to show his grandmother suffered from manic depression. He seeks to defend by assertion of incompetency (insanity), and that heredity can play a part.

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(i) Held: the opinions/diagnoses of the deceased doctor are admissible as expert testimony brought in through the hearsay exception of business records.

(ii) The history of the patient was excluded as hearsay.(iii) Opponent party can

1. bring in expert to refute the opinion allowed in under the business records exception -- although the expert would be subject to cross examination

2. discredit the debt doctor by attacking opinions, qualifications, et cetera..

(c) all declarants can be attacked -- even for dying declaration, credibility can be attacked.

2. CEC § 1280.  Record by public employee -- no custodian needed. (1)    Evidence of a writing made as a record of an act, condition, or

event is not made inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies:    (a) The writing was made by and within the scope of duty of a public employee.    (b) The writing was made at or near the time of the act, condition, or event.    (c) The sources of information and method and time of preparation were such as to indicate its trustworthiness.

3. FRE Rule § 803 (6) Close enough to CEC § 1271E. Trustworthy Requirement

(1) A business record might not be admissible if they were created under circumstances that would put their reliability in doubt.

(2) If there are statements that are hearsay within the business document – for example, an excited utterance – the trustworthy requirement only goes to the making of the record.

(3) post litem motem(a) after the accident – records are unlikely to be admissible

(4) ante litem motem(a) before the accident – records are likely to be admissible

2. Federal Rule and CEC 1271 (d) "Lack of Trustworthiness" Clause(1) A record that satisfies the requirements of Rule 803(6) may

nevertheless be excluded if “the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” Litigation records are an example.(a) EXAMPLE: Railroad accident. In the course of the internal

investigation, the engineer made a statement, then died. The Δ wishes to admit this as a business record. (i) However, because the Δ was making the statement in

preparation for trial, they have an inherent untrustworthy quality about them. Palmer v. Hoffman 1943, 270. 1. Post litem motem.

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(ii) A "check log" is admissible because it was made before the accident.1. Ante litem motem

(b) EXAMPLE: Police arrest reports. Police are considered to be on one side of the litigation and in anticipation of being litigated.(i) Post litem motem.(ii) Confrontation clause issue: business records exception

would allow someone other than the arresting officer to testify..

(c) However, accident reports are trustworthy, because the police are not on one side or the other of the litigation.

(2) If π wants to get in the opposing side report then admission, but possibly business record if it had shown the Δ was at fault (it is more trustworthy).

F. Absence of Business Record(1) Federal and all jurisdictions pretty much allow where the absence

of a record is not made inadmissible by the hearsay rule if the business would have regularly recorded the information. (a) If one person claims they paid the debt and the business state

they have no record of the debt being paid, they can show that it wasn’t received by the absence of the record.

2. CEC § 1272.  Absence of entry in business records(1)    Evidence of the absence from the records of a business of a

record of an asserted act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the nonoccurrence of the act or event, or the nonexistence of the condition, if:    (a) It was the regular course of that business to make records of all such acts, conditions, or events at or near the time of the act, condition, or event and to preserve them; and    (b) The sources of information and method and time of preparation of the records of that business were such that the absence of a record of an act, condition, or event is a trustworthy indication that the act or event did not occur or the condition did not exist.

XXV. Prior IdentificationA. California Federal

(1) There is no requirement of an absence of memory (unavailability) (2) They are not required to testify that they made the statement as a

true reflection of what as observed (a)

(3) All that is required is they are on the stand(4) Witness must testify that they identified a person even if they don’t

remember identifying them. (a) Must be identifying about a crime or other occurenceoccurrence

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(5) Practical Reason – if the witness id’s the person in court, the defense will just say “Of course you id’d them, they are in an orange jumpsuit”(a) EXAMPLE: A man passes $10 counterfeit bill. Bar maid cannot

remember at trial what the man looked like who passed the bill to her, but she recognized them at the time when she pointed them out to the police. Her statement of when she pointed them out to the court previously is being offered for its truth. An exception is created because the declarant who made the statement is on the stand now subject to cross now about her statement, how it was taken (immediately afterward); there was a need to get it in, she can’t remember. US v. Barbati 1968, G79. (why is this under EXPANDING in the syllabus???)

(b) Barbati was originally an "expanding hearsay" type exception, which was then codified as §801(d)(1)(C).

2. CEC § 1238.  Prior identification(1)    Evidence of a statement previously made by a witness is not

made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying and:    (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence;    (b) The statement was made at a time when the crime or other occurrence was fresh in the witness' memory; and    (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time. Cf. FRE §801(d)(1)

B. Federal rules(1) Subject to cross and it must be made after perceiving the person

C. FRE Rule 801 (d) (1).  Definitions (1) The following definitions apply under this article:

 (d) Statements which are not hearsay. A statement is not hearsay if--   (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (C) one of identification of a person made after perceiving the person;

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D. Differences --1. Federal -- no need to testify that prior identification was accurate.

No requirement that identification was close and time to the occurrence or crime.

2. Both give opportunity for cross-examination upon presentation of prior identification

E. Common Law – hearsay/no exceptionXXVI. Expanding Hearsay Exceptions

A. General – Only Federal Exception(1) There is no common law or CA exception

(a) Supporters have lobbied for it, but each year it gets shot down(2) Out of every 100 criminal cases that use this exception, 80 times it

will be prosecution getting the evidence in.(3) In civil cases, the ratio is 50/50.

2. Material 3. Pre-trial notice requirement

(1) Cannot spring request to create this new case-specific exception during trial;

(i) Must give prior notice to opposing party, including name and address of the hearsay declarant

4. Need Exists -- Evidence offered is the most probative evidence on the particular issue(1) there is NO better way to prove it than by this evidence (2) Statement does not fit within any of the hearsay exceptions, but

circumstantial guarantees of trustworthiness are of equivalent strength as in the recognized exceptions.(a) EXAMPLE: An insurance case where a clock tower is destroyed

by lightning. The insurers wish to prove the damage was preexisting, and the evidence they have is a newspaper account of a fire in the tower 60 years before. No one is alive to testify to the fire, so they wish to submit the newspaper into evidence. The newspaper is similar to an ancient document in that it is old (30+ years for CEC) (FRE = 20+ years). However, it is not a document that a person relies upon, like a deed. It is not a business record, because the newspaper is not in the business of getting the news right, they are in the business of selling papers. However, the news does have an interest in getting the story correct, and the town was so small that there would be people to dispute the fact of a fire in a major town building had it not happened. The paper is allowed in, but the exception is only based on the facts of this specific situation. Dallas v. Comm. Union Assurance Co. 1961, G74.

(3) Pretty much anything can be brought in (a) EXAMPLE: A man is burned when a mechanic pours gasoline

into a carburetor. The mechanic is instructed to go into another

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room immediately and write everything down. The mechanic subsequently dies. The Δ shop is trying to get the written account in. The court cites Rule 804 (b) (5) which is now Rule 807, to allow in the writing. They state that it is similar enough to past recollections recorded as to be admissible, even though the man was not there to testify. Turbyfill v. International Harvester Co. 1980, 305. -- (i) Goldman considers this an improper use of the expanding

hearsay exception. Because post litem motem, these assertions are untrustworthy.

(4) In Barbati, Judge Weinstein allows the testimony because(a) the declarant is in court and maybe cross-examined.(b) The identification was contemporaneous, thus reliable similar to

present sense impression.(c) The need for the evidence is great because of witness loss of

memory.(d) This results in a specific exception which is a fairly common

occurrence. Narrow and limited to its facts. Such that it is codified in the FRE subsequently.

(5) Judge Wisdom's proposal is more radical -- creates a formula to create a narrowly tailored exception for a unique occurrence. Codified in FRE §807.(a) Equivalent circumstantial guarantees of trustworthiness --

here analogy to business record exception (reporters want to get it right, their job depends on accuracy to avoid ridicule to the writer and the paper); ancient document exception -- although should be relied upon document (deed) by people with an interest, the paper has continued at least two generations with good reputation.

(b) evidence of a material fact -- here, material to weather the fire damage occurred previously or contemporaneously.

(c) better than other evidence procurable through reasonable efforts -- those who were alive at the time of the fire party third dead or were too young to remember accurately.

(d) interest of justice is served best by admitting the statement.(e) Sufficient advance notice to adverse party

(i) must include the statement and the particulars of it, including name and address of the declarant.

B. FRE Rule 807.  Residual Exception (1) A statement not specifically covered by Rule 803 or 804 but having

equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and

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(C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

XXVII. Ancient document (1) An ancient document is a document that is old that people rely

upon for their important matters (like a deed). At least 30+ years for CEC and FRE is 20+ years.

XXVIII. Prior Inconsistent Statements Offered to Prove Truth of the Matter Asserted A. admissible for its truth -- Impeachment – non hearsay

(1) Prior inconsistent statements tends to show a lack of credibility of the witness

(2) Similar to non hearsay state of mind and operative facts in character – the types of hearsay that are admissible as nonhearsay.

B. Offered for its Truth vs. Offered for Impeachment vs. Offered for its Truth1. Common law

(1) Only admissible for witness credibility, (a) Statements can’t be offered to prove the truth

2. California(1) Allows ALL PRIOR INCONSISTENT STATEMENTS to be

OFFERED FOR THEIR TRUTH proof, not just for impeachment purposes, IF(a) Declarant must be given the chance to explain or deny the prior

statement at in some point in the trial. CEC § 770.(i) §770. “Evidence of inconsistent statement of witness;

exclusion; exceptions -- Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: (a) the witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) the witness has not been excused from giving further testimony in the action.”

(2) People v. Green. 16-year-old arrested for selling drugs. Statement upon arrest that Green supplied; testimony at preliminary hearing which varied from original testimony; trial testimony where witness feigns memory loss.

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(a) This case creates a new exception which is later codified in the CEC.

(b) The code allows prior inconsistent statements as evidence if the witness is there to be cross-examined. Logic: the jury never listens to the limiting instructions for impeachment, and if the witness can be cross-examined, then confrontation is fulfilled.

(c) Problem: by itself, prior statement may not have had enough "indicia of reliability" to be admissible.

(d) Problem: inconsistency makes prior statement less trustworthy, not more.

(e) Problem: once admitted, like all hearsay exceptions, the evidence is sufficient to convict. (i) Goldman argues this to the Supreme Court of California.(ii) For many years, prior inconsistent statement not enough to

convict(3) The jury’s duty is to determine either which story to believe, or if the

witness lacks any credibility at all. (4) CEC § 1235.  Inconsistent statement --

   Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770.(a) §770. “Evidence of inconsistent statement of witness;

exclusion; exceptions -- Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless: (a) the witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or (b) the witness has not been excused from giving further testimony in the action.”.

(5) Cf. FRE §801(d)(1)(A) -- California admits all inconsistent statements -- need not be under oath or made in court.

3. Federal Rules --(1) The statement must be made

(a) IN COURT and(b) UNDER OATH

(i) Can be depositions, grand jury testimony, it doesn’t have to be subject to cross examination

(ii) It can only be offered for proof if it was given under oath. (c) Declarant must be PRESENT FOR CROSS EXAMINATION(d) in order to be admissible as a prior inconsistent statement.

(2) FRE Rule 801 (d) (1) (A).  Definitions (a) The following definitions apply under this article:

(d) Statements which are not hearsay. A statement is not hearsay if--   (1) Prior statement by witness. The declarant testifies at the

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trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or

C. Constitutional Issues – APPLY ONLY TO CRIMINAL TRIALS1. Due Process (compulsory)

(1) A Δ in a criminal trial must have access to cross examine a witness who makes prior inconsistent statements as a Constitutional consititional right. (a) EXAMPLE: Chambers v. Mississippi 1973, 359. Defendant

sought to use the OOCA a man who had confessed to three different people he was the shooter. Defendant calls the shooter as witness. On the stand, he recants and provides an alibi. Defendant is not permitted to cross examine him.(i) Mississippi has never adopted the Declaration against

Interest Criminal Liability Exception.. (ii) Voucher Rule. It also does not allow a party to impeach their

own witness on the belief they are vouching for their credibility.

(iii) The combination of the two (voucher and no declaration against penal interests) served in keeping vital, exculpatory evidence away from the jury, which in turn, violates the due process clause.

(iv) THE CONFRONTATION CLAUSE PROVIDES FOR CROSS EXAMINATION AGAINST WITNESSES AGAINST THE ACCUSED.

2. Confrontation Clause(1) Any hearsay exception first requires necessity (unavailability).

(a) A demonstration of unavailability is not always required. Ohio v. Roberts 1980, 317 315 (i) the court finds sufficient indicia of reliability.

1. This is a firmly rooted exception -- former testimony. This is deemed to be sufficient index of reliability by itself.

2. It occurred at preliminary trial, sworn testimony, where the defendant's lawyer in effect "cross-examined" the defense witness it called.

3. The court found that the witness was constitutionally unavailable.

4. Lack of the witness on the stand does not run afoul of the decision in Green. Dictum opined that the presence of the witness was not necessary for prior testimony to be admitted. ,

(2) Civil trials(a) A party does not have constitutional rights to confrontation.

(3) Criminal trials

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(a) There is a Constitutional right to confrontation (the Confrontation Clause) (i) As long as the witness is present to testify for cross

examination, then they have met the requirements for the confrontations clause. California v. Green 1970, G82.

3. Reliability (1) Hearsay that is presumptively constitutional/declarant unavailable

due process argument (a) Hearsay that has and adequate indicia of reliability, a test met

when the evidence either falls within a (i) "firmly rooted hearsay exception" or (ii) bears "particularized guarantees of trustworthiness."

(2) a firmly rooted exception is presumptively constitutional, while those that are not, then the government bears burden of proving their reliability by establishing their trustworthiness. Ohio v. Roberts 1980, 315.

(3) Firmly Rooted Hearsay exceptions:(a) The reliability is inferred (but can be rebutted under the

circumstances – burden on the defendant)(i) Business records(ii) Former testimony(iii) Dying declaration

1. although its application is unreliable, and likely the declarant knows his testimony will be used in court (see testimonial, below).

(iv)Public records(4) Nonfirmly rooted exceptions (burden on government):

(a) if classified as nonfirmly rooted then the reliability is not inferred and the government bears the burden of showing that the exception is reliable(i) Residual exception (FRE fact specific, need, trustworthy)(ii) Excited utterance

4. Testimonial (1) In addition to reliability requirement for admitting out of court

statements, there is also a confrontation requirement for statements that are testimonial in nature

(2) Court overrules (well, the prof calls adding to it) the above “Hearsay that is presumptively valid” with new test (a) statements that are testimonial in nature require the Δ to be

allowed to cross examine. Crawford v. Washington 2004, Handout.

(3) Roberts is not overturned, because in Roberts they were still allowed to cross examine at a preliminary trial.

(4) The Crawford court does not address “dying declaration” exception, or where children’s testimony is admitted through admissions to adults.

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(5) Test: (a) Would a reasonable person feel their statements might be used

as a testimony at a trial? (6) Testimonial statements

(a) Testimony at a preliminary hearing(b) Before a grand jury(c) Or at a former trial(d) And to police interrogations

CHARACTER EVIDENCE

I. Character at issueA. Generally admissible

(1) When character is at issue, evidence of a person’s habit is generally admissible.(a) EXAMPLE: a train wreck, employer sued for negligent

entrustment. The π attempts to introduce the man was drunk most nights he worked. This evidence would not be admissible to prove that he was drunk the night of the train wreck, however, it would be admissible to prove that the company negligently employed him. Cleghorn v. NY Central 1874, 384

(2) In general, it is only admissible when character is at issue, except in criminal trial where Δ calls the witness (see below).

(3) Character vs. reputation(a) Character is how the person actually is, reputation is how they

are perceived B. The ONLY 3 Times Character Is ALWAYS in Issue.

1. Reputation in a Defamation/Libel Case & damages(a) Establishing a person’s reputation in a libel case – truth is a

defense.(i) No problem was offering evidence of character to prove truth

of the statement.(b) In addition to that Establishing a person’s reputation in a libel

case would help establish how much a π has been harmed . Wellman, the Art of Cross Examination 1962, 385. (i) what is the reputation before the day of the statement and(ii) the reputation the day after as a result of this lie (iii) thus, even if the published defamation is a lie, there would

be no damages if his bad reputation can suffer no more.2. Negligent Entrustment -- [keeping a drunkard on the job as a

switchman in a train yard.] Two questions:(1) Was the switchman drunk on that particular night?(2) The switchman's character trait for drinking was notice to the

company.

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3. Child Custody : Parents =Character.C. Character v. Reputation

1. character:(1) evidence goes to the truth of a person's disposition -- violent,

peaceable, truthful, mendacious, drunk, sober.(a) In switchman case -- employee's character establishes

negligence by negligent entrustment.2. Reputation:

(1) goes to defamation damages(a) change in reputation

(2) truth of character is irrelevant.(3) Value: reputation can have independent value

D. Type of Character Evidence allowed in testimony when character is in issue.

(1) Specific acts(2) Someone’s opinion of you and(3) reputation

(a) on a scale of unreliability – the order:(i) specific acts(ii) opinion(iii) reputation

II. character offered as circumstantial evidence/conformity of characterCharacter Offered As Circumstantial Evidence/Conformity of Character OF THE DEFENDANT and VICTIMA. In General -- character evidence cannot be used to show action in

conformity with character.B. Civil cases -- ISSUE IS CREDIBILITY.

(1) Whether plaintiff or defendant - Cannot offer to show conformity with conduct with one exception – impeachment(a) EXAMPLE: “He is a liar, he is lying now.”

C. Criminal Cases -- Regarding the Character of the Defendant1. General – the “Mercy Rule”-- exception to allow the defendant to

show that the crime charged is not in conformity with his character. Thus, the character evidence must be relevant to the charge.(1) In general, evidence of character is not admissible unless it is at

issue.(2) However, in a criminal case, Δ may call a character witness.

(a) The reason is that if you believe the defendant has a character trait inconsistent with the crime committed that in and of itself is enough to raise a reasonable doubt

2. Common Law – Reputation only(1) The character evidence must be related to the charges.

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(a) EXAMPLE: Δ is charged with stealing, Δ can’t offer evidence that he is not violent – it must be a violent crime offering evidence that he is peaceful.

(2) Reputation of the Δ in the community is the only evidence the Δ can offer when character is circumstantial evidence.(a) Reputation is the combination of the rumor mongering mill of

people’s unfounded opinion. Roosevelt 398, 1938(b) Must be testimony from someone in the community.

3. PROSECUTION CAN REBUT WITH CROSS EXAMINATION AND SPECIFIC ACTS -- not offered for their truth, but to impeach the knowledge of the witness about the defendant.(1) For a defense attorney, caution should be used when selecting

witnesses(a) If they are unaware of something significant – a prior offense of

Δ, it affects the credibility(b) If they do know that Δ had a prior conviction, the prosecution

might show that the person has stupid judgment. Michelson v. U.S. 1948, 387.

(2) Prosecution can ask about Knowledge of a false arrest.(a) Suppose prosecution knows that Δ was arrested in high profile

manner, but the charges are false. (i) The prosecution needs to show a good faith belief that the

report was publicized and the people knew. (ii) That is all the legal and ethical obligations that need to be

established. The evidence is admissible(b) Are you allowed to ask if there was an incident that is NOT

KNOWN in the community? (i) NO! The issue is not did the person do it or not do it; it is

“does he have the reputation.”(ii) However, if the testimony is that of opinion, the answer might

be different.(3) Even a misreported story is fair game -- prosecutor need only have

good faith that the charge was publicized, even though a lie.D. Expanded to allow reputation AND OPINION ( because the jury has

always heard both reputation and opinion). Personal opinion influences the reputation one perceives.1. BATTERED WOMAN PROVISION -- California – V’s Specific

Behavior & Rebut w/Δ ‘s Specific -- (1) Allows into evidence the victims prior specific behavior (not the Δ’s

own behavior)(2) The price to be paid:

(a) Once the Δ has offered v’s prior specific behavior to show the Victim isy are violent, not only can prosecution respond by showing v was peaceful; but they can show Δ’s prior specific acts violent acts.

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(b) If Δ brings up v’s violent past, prosecution can show v’s peaceful past

(3) Why?(a) Women’s groups wanted to show that an abused woman who

killed her spouse had been subject to specific instances of abuse.

2. Federal – Homicide/Self Defense Exception -- this by implication says that the victim was a violent person.(1) Evidence that a victim was an aggressor is not admissible

character evidence unless the victim is dead.(i) EXAMPLE: Δ claims he killed V in self defense.

(b) Then the prosecution can bring character evidence to refute that because the person is dead.

(c) Prosecution can only bring in reputation evidence.3. CEC § 786.  Character evidence generally

(a)    Evidence of traits of his character other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness.

4. FRE Rule 404.  Character Evidence Not Admissible To Prove Conduct; Exceptions; Other Crimes (1) " (a) Character evidence generally. Evidence of a person's character

or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:    "(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2), evidence of the same trait of character of the accused offered by the prosecution;   " (2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;    "(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609. (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on

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good cause shown, of the general nature of any such evidence it intends to introduce at trial."

5. FRE Rule 405.  Methods of Proving Character (1) (a) Reputation or opinion. In all cases in which evidence of

character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

6. Δ Can use evidence of opinion or reputation for Δ or anyone else(1) EXAMPLE: Suppose Δ wants to show evidence that the victim is

actually an agressor. Suppose they want to show evidence to the victims character traits for violence. (a) Not only do we let Δ offer the character trait when relevant. You

can offer victims character trait to show that they were an aggressor.

7. Rape Cases(1) Prior to rape shield laws, a woman consenting to sex with anyone

was admissible. (a) Now, it is not.

(2) However, if it is prior sexual consent with this Δ that is considered so relevant that it is not blocked

(3) Kobe Bryant : defense claim that three partners in 72 hour period could cause injuries exhibited by the victim. Sexual relations after rape are admissible

(4) Thus, if the prosecution wanted to block evidence of multiple partners, the prosecution would not be allowed to use evidence of physical injury.

(5) If prosecution has evidence of injury that might be consistent with a sexual act, then evidence of prior sexual relations would be relevant and therefore admissible.(a) It did not go to consent – it went to force and injuries.

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E. IF CHARACTER EVIDENCE IS OTHERWISE ADMISSIBLE, THEN IT IS ADMISSIBLE FOR ITS TRUTH.

III.EVIDENCE OF HABIT/ROUTINE – Civil & Criminal (CA & CL???) -- higher probative value, thus less prejudicial impact in the balance. THIS IS NOT CHARACTER EVIDENCE -- DIFFERENT DOCTRINE. THIS IS ADMISSIBLE.

1. Specific, Routine & Continuous(1) General rule is that evidence of habit or routine is admissible as

long as its probative value is not outweighed by its prejudicial impact

(2) Evidence of a persons character is not admissible, however, description of habit is admissible(a) EXAMPLE: π is a careful driver can be rephrased ‘π had a

deathly fear of trains and whenever he approached a railroad crossing, he would get out of his car and look both ways”

(3) This is much more probative than character evidence. 2. FRE Rule 406.  Habit; Routine Practice

(1) Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

IV. Modus Operandi – the Prosecutor’s Rule/Prior Crimes Rule -- PRIOR BAD ACTS (ACCUSED, CONVICTED, ACQUITTED) USED TO ESTABLISH THE TENDENCY OF THE COMMISSION OF THE PRESENT CHARGED OFFENSE BY THE DEFENDANT.A. Evidence that establishes identity of a person

(a) EXAMPLE: These burglars go to rich neighborhoods and in big beautiful homes. Before they leave they turn on all the faucets. It is their signature. We learn that the law says when you offer something to prove that they sign their name to the crime, if you now find a group of homes with all the faucets turned on, you should be able to bring this up in court against these guys.

(2) Called the prosecutors rule, but defense can use it to show someone else committed the crime.

(3) Can be used in a civil trial B. Type of evidence

1. Need clear and convincing evidence(1) All alleged bad acts from all previous occasions -- convicted,

acquitted, accused -- must be RE-PROVEN IN THIS COURT(2) You must offer in the same kind of evidence the first time those

guys were tried.

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(a) E.g. You must bring in fingerprint experts to testify that the same people committed that same crime.

(b) Opinion and reputation are not allowed (3) A conviction is not required.

(a) It is as if you a trying the current crime and the past crime.(i) Issue – is this double jeopardy?(ii) Δ can sumit evidence that exonerated him (or didn’t) at first

trial.2. California/Common Law/Federal

(1) Evidence of crime even when prior acquittal is admissible(2) But the actual acquittal or conviction cannot be introduced – it is

hearsay(a) EXAMPLE: a burglary where there is evidence that it was

committed in the same neighborhood and the burglar took a white dishtowel from the woman’s home. The court admitted the evidence of the prior burglary even though he was acquitted. People v. Massey 1961, G 88

(3) It also lets other people know that the person had priors, which is probably truly prejudicial. (a) Still must weight prejudicial impact, but in most cases, the

probative value will outweigh it.3. Uniqueness of the crime

(1) The crime must have a unique character, something that would tie the identity of the perps to each circumstance(a) EXAMPLE: A man wakes up and finds a dead man in his living

room. No one is ever prosecuted for the crime. Two years later, the same thing happens. The court state the crime is not unique enough to admit the evidence of the first happening. Court said the evidence should be excluded because the defendant was not convicted, basically said that it was not unusual enough. Professor believes that this is unique enough to get it in. Tucker v. State 1966, 421.

(b) EXAMPLE: a burglary where there is evidence that it was committed in the same neighborhood and the burglar took a white dishtowel from the woman’s home. The court admitted the evidence of the prior burglary due to the unique nature of the white cloth – which was not all that unique. People v. Massey 1961, G 88

4. Threshold Question for the Judge(1) Before this evidence is introduced to a jury, the judge determines

whether it is relevant C. Other Situations in which Evidence of Other Crimes Admissible

(1) To complete a story of a crime by placing it in the context of nearby and contemporaneous happenings(a) EXAMPLE: taped conversations of drug dealer to show that he

was “dealing”

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(2) To prove an existence of a larger plan or scheme(a) EXAMPLE: Evidence of previous fraudulent scheme admissible

as evidence of conspiracy(3) To earmark the crimes proven as committed by one so similar as

must be committed by the Δ (4) Passion for abnormal sexual relations(5) To show the act was not done inadvertently

(a) The similarities need not be as similar for identification nor need to establish a unifying plan

(6) To show motive – i.e. avoiding punishment for a crime(7) To establish opportunity(8) To show that Δ acted with malice or intent

(a) Example; Δ possesed two stolen credit cards. It is unlikely he would return a woman’s purse that he took from her home.

(9) IdentityV. Character Evidence to Attack or Support Credibility of the Witness

A. FRE Rule 608.  Evidence of Character and Conduct of Witness (1) (a) Opinion and reputation evidence of character. The credibility of

a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (a) (1) the evidence may refer only to character for truthfulness or

untruthfulness, and(b) (2) evidence of truthful character is admissible only after the

character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

(2) (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, MAY NOT BE PROVED BY EXTRINSIC EVIDENCE. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (a) (1) concerning the witness' character for truthfulness or

untruthfulness, or (b) (2) concerning the character for truthfulness or untruthfulness of

another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

(3) NOTE: subsection (a) (evidence of character and conduct) is subject to 403 analysis. Subsection (b) is not subject to a 403 analysis even if very prejudicial.

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2. FRE Rule 609.  Impeachment by Evidence of Conviction of Crime (1) (a) General rule. For the purpose of attacking the credibility of a

witness,   (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, (if it is a felony), and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and   (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonestly or false statement, regardless of the punishment.

3. CEC § 787.  Specific instances of conduct(1)    Subject to Section 788, evidence of specific instances of his

conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.

4. CEC § 788.  Prior felony conviction(1)    For the purpose of attacking the credibility of a witness, it may be

shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony unless:   (a) A pardon based on his innocence has been granted to the witness by the jurisdiction in which he was convicted.   (b) A certificate of rehabilitation and pardon has been granted to the witness under the provisions of Chapter 3.5 (commencing with Section 4852.01) of Title 6 of Part 3 of the Penal Code.    (c) The accusatory pleading against the witness has been dismissed under the provisions of Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense.    (d) The conviction was under the laws of another jurisdiction and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in subdivision (b) or (c).

VI. Impeachment - Exception to the prohibition on character evidenceVII.

A. Five methods for impeaching a witness’s credibility(1) To show they have a reputation for dishonesty(2) Attacked by mistakes they make(3) bias(4) defects in ability to perceive(5) prior inconsistent statements

B. Attacking their character for truth and veracity 1. Showing that they are not truthful is a way to discredit credibility.

(1) Show that they have a character trait for lying. We can’t show the defendant has a propensity to lie, but we can show the witness or defendant witness does.

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2. What kind of evidence can you attack the witness with:(1) Reputation that the person is a liar(2) Witnesses opinion that the person is a liar (3) Specific Acts

(a) Common law – specific acts are fine(b) Federal law – can be used as long as relevant(c) California law – can’t be used unless it is a felony conviction

(i) or misdemeanor in criminal.C. Prior Bad Acts – Federal

1. 10 year time limitation(1) Subject to judicial discretion

(a) Can be longer or shorter2. Felony - Subject to a 403 analysis -- admitted unless the

prejudicial effect is substantially greater than the probative value.(1) It doesn’t matter what the felony is

(a) Some felonies have no connection with truthfulness - There is no logical connection. (i) This is a holdout from when felons were not at first allowed

to take the oath. (ii) As a concession they were allowed, but the jury was told

they were felons.3. Defendant/Witness burden shifts

(a) Where the witness is the defendant, the felony will be admitted if the court determines that the probative value outweighs the prejudicial effect to the defendant – FRE 608(i) EXAMPLE: In the Sorge case where she is on trial for

abortion, the bringing up prior bad acts that are the same bad acts she is on trial for. FRE says here it would be too prejudicial to and it would not be admissible.

4. Felony – is it untruthful or dishonest???(1) If it is a felony that has to do with U/D, then it is not subject to a 403

analysis5. Misdemeanors – only dishonest/false

(1) Only misdemeanors that show –(a) dishonesty and false statements

(i) These are not prevented by 403 (it doesn’t matter if relevant or prejudicial)

(2) Un convicted un truthfulness with out limitationD. Prior Bad Acts – California

1. Felonies must meet 352/Beagle (1) Guidelines (Beagle) were made to assist judges in exercising 352

discretion when the evidence is a prior felony:2. Dishonest

(i) Whether the prior felony tended to show dishonesty1. The less it showed dishonesty, the less likely to be

probative and not allowed in.

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3. Remoteness in Time(i) Remoteness in time – how long ago did it happen?

1. Beagle – take time into consideration, now CA has a remote time rule

4. Not to Similar to Current Crime(i) Similar in issue

1. The more similar the crime, the more prejudicial it is to the defendant committing the crime.

2. The more similar, the less likely5. Examine Other Options

(i) Are there other crimes that are related to truth in honesty that Δ committed as opposed to what is being offered that are less similar or prejudicial

6. Possible Deterrence of Defendant(i) The court should take into the fact the defendant might be

dissuaded in testifying1. If it is likely to result in the defendant not being able to

testify, then the court to take into consideration People v. Beagle .

(2) The victim’s bill of rights – Prop 8 – confirmed the above guidelines in allowing in evidence. (a) They stated nothing was to be construed as taking away,

relevance, hearsay and 352.(3) Convictions - MORAL TURPITUDE STANDARD – California

(a) Felonies that can’t be used as a matter of law:(i) if the crime if one of moral turpitude, then it can be used to

impeach(ii) if not, then you should not be able to use

1. there is no relevancy to his honesty2. you might run into a due process problem

a. the relevancy is non existent(iii) Drug possession

1. Drug possession for personal use of drugs is not a crime of moral turpitudea. Corruption of others if you are trying to sell the heroin,

but this is different from personal possession. People v. Castro 1985, G91

(4) Misdemeanors - Harris(a) Prop 8 only applies to criminal trials.

(i) Harris allows admission of evidence of prior misdemeanor against a witness, as long as it is relevant to credibility

(ii) The case might not apply with equal force if the situation were reversed where the prosecution was trying to get in the evidence against the accused as opposed to this situation where the defense was trying to impeach the testimony of the witness for the prosecution.

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(5) CA does not allow unconvicted bad acts in a criminal case.(a) However, if relevancy is the key… then unconvicted bad acts

should be. But we don’t know. 7. California - CIVIL CASES

(1) Only prior felony convictions, period(i) Prior act on the character, the only bad act you can use is a

prior felony conviction(b) 352 applies, but it is unlikely to used because judges will not

think it will be as prejudicial(i) any felony conviction that is relevant can be used to show

that they should not be believedE. New York follows the English (wide-open) Rule:

(1) Anything is admissible to show the person is likely to perjure themselves on the witness stand.

(i) EXAMPLE: Woman on trial for abortion. Prosecutor asks her about previous instances where she performed abortions. They can ask her repeatedly and confrontingly. People v. Sorge 1950, G90.

F. Statutes1. Federal - FRE 608 & 609 – probative of untruthfulness

(1) Can use opinion and(2) Reputation(3) Specific instances if

(a) Not a conviction for a crime (i) you can offer evidence of un-convicted acts to attack the

credibility of the witness(b) As long as it is probative of truthfulness.

(i) EXAMPLE: if the crime is one of assault, that doesn’t really have anything to do with a person being a liar.

(4) Admissible even if they have never been convicted of it.2. FRE Rule 608.  Evidence of Character and Conduct of Witness

(1) (a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for

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truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

3. FRE Rule 609.  Impeachment by Evidence of Conviction of Crime (1) (a) General rule. For the purpose of attacking the credibility of a

witness,    (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and    (2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonestly or false statement, regardless of the punishment.(b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted, and that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year, or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.(d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in

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a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.(e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible.

G. Attacked by mistakes they make - Specific Related Errors1. Specific unrelated errors

(1) Impeaching credibility by showing they have made specific unrelated errors.

(2) EXAMPLE: (a) You stated you approached the accident site after emerging

from a church. (b) On cross, you state they are coming out of a porn shop

(i) They don’t care where witness is coming from because they only care who caused the accident

(ii) However, it becomes relevant because it tends to reflect poorly on the believability of the witness

(iii) UNRELATED To the case itself, it is only related to the witness’s credibility.

2. California - § 352 (1) Evidence that is extrinsic to the case is inadmissible as irrelevant (§

352)3. Federal and Common Law – Collateral Matter Rule

(1) Even for impeachment purposes, it must be intrinsic to the case (2) EXAMPLE: A man testifies he is with Δ the night of the murder and

every night two months before. The prosecution brings in an officer who saw Δ in another city a month before, thus impeaching the witness. The courts exclude the officers testimony, as it was unimportant to the case whether or not the man was in one town or another a month before the murder. State v. Oswalt 1963, 499(a) Prof is not convinced about the decision in this case. He thinks

that this is just as important to show that the alibi could be wrong about the night in question if he is wrong about that other night.

H. Defective Capacity(1) What is defective capacity?

(a) eyesight, infirmities, psychological problems(b) If it means the witness might have an infirmity when it comes to

being able to observe the truth, (i) it is always material and you can always result to extrinsic

evidence

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I. Bias 1. California/ Federal

(1) Evidence that one side is bias against the other is admissible.(2) Bias evidence is always material and if it is material, then you can

resort to extrinsic evidence (as opposed to intrinsic)(3) Evidence to show that a biased statement is not frivolous is

admissible. (a) EXAMPLE: A man is on trial for bribery of police. He claims the

policeman is biased against him and muttered the words “I’ll get even with you.” He attempts to introduce evidence of a beating he gave to the police officer three years earlier and that is why the man got him back. He also admitted evidence the police man raped his wife and that is why he beat him. An appeal the evidence will be submitted to the jury for consideration.

(4) Federal - Bias of a witness is not only proper by cross examination, but by extrinsic testimony of other testimony. Greatreaks v. US 1954, G105.

(5) It is up to the jury to determine how long a bias may last. It can go back for many years.

2. Common Law(1) Must lay a foundation in order to admit evidence of bias

VIII. Prior inconsistent/consistent statements to rehabilitate or impeachA. Common Law –

1. Must lay a foundation(1) Before an attorney can submit questions to a witness that are

meant to impeach a witness, a proper foundation must be laid.(2) This is to give the time, place and circumstance of the statement

that will allow a witness to perhaps recall a statement rather than implicate him with impeachment.

2. Admissible only for impeachment, not for the truth(1) The prior inconsistent statement does not have to be under oath

B. CA / Federal 1. The witness must be given an opportunity to explain or deny; or 2. the witness is not excused

(1) EXCUSED – the witness is not called again. (a) don’t ask them questions about the prior statement, you can

resort directly to introducing evidence. (This distinguishes from the common-law rule; expressly removes need for foundation.) As long as they have the opportunity to be recalled, then that evidence can be introduced

C. California – it is admissible to impeach and for its truth1. CEC §770 - Evidence of inconsistent statement of witness

(a) Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:

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    (a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or    (b) The witness has not been excused from giving further testimony in the action.

2. CEC § 769 – Inconsistent statement or conduct(1) In examining a witness concerning a statement or other conduct by

him that is inconsistent with any part of his testimony at the hearing, it is not necessary to disclose to him any information concerning the statement or other conduct. (This distinguishes from the common-law rule; expressly removes need for foundation.)

3. CA once admissible to impeach, it is admissible for its truthD. Federal – it is admissible to impeach

1. or Under Oath for its truth(1) if the PIS is made under oath, then it can be admissible for its truth.

Larkin v. The Nassau Electric RR Co. 1912, G107.(2) Under oath:

(a) Grand Jury testimony(i) this is where confrontation clause problems arise. See

Crawford.(b) Depositions(c) Trials and Hearings

2. FRE Rule 613.  Prior Statements of Witnesses (1) (a) Examining witness concerning prior statement. In examining a

witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

IX. Prior Consistent Statements (FRE nonhearsay)Prior consistent statements are statements made by a witness (usually D) in order to show that they are in fact telling the truth about their situation. Prior statements are admissible to show only in response to allegation of fabrication and only if prior to the day the person had reason to make it up.

A. Purposes of Admissibility1. Common Law

(1) Not Admissible as Substantive Evidence. (2) Admissible to Rehabilitate Credibility or to Rebut Charge of Recent

Fabrication

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2. CEC § 1236 & 791(1) Once admissible to rehabilitate against a charge of recent

fabrication, they are admissible for their truth. 3. FRE 801(d)(1(B) (non-hearsay)

(1) Once admissible to rehabilitate against a charge of recent fabrication, they are admissible for their truth

4. FRE 801 (d) (1) (B) Prior Consistent Statements(a) A statement is not hearsay if--

   (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is * * * (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive

B. Motive to Fabricate (Recent Fabrication)The other party is claiming the “gap in time” is suspicious. That is why the π is allowed to introduce evidence that they were acting consistently.

1. Common Law/ CEC/FRE(1) The prior consistent statements are admissible up until the day

there is an alleged motive to fabricate existence of the PCS. Barmore v. Safety Casualty Co. 1962, G 108.

C. Witness Makes Prior Inconsistent Statement1. CEC/FRE

(1) The prior consistent statement is admissible up until the day the opposition claims witness made prior inconsistent statements.

(2) Whichever is later of the Motive to Fabricate or the PIS, is the latest time the evidence will be admissible.

X. Cross ExaminationA. Should be brief

(1) The rule is honored in the breach than in the observance(2) Billy Sunday’s – evangelist – folks no souls are saved after the first

20 minutesB. Questions

1. Short2. Simple

(1) Don’t use prior and subsequent, use before and after3. Directed at a single point

C. You are allowed to ask leading questions on cross, you should ONLY ask leading questions

(1) Sometimes there might be strategic value to having them answering a direct question

(2) But it is dangerous to risk, and you should start out with yes/no questions

D. Listen to the answer(1) Avoid tunnel vision

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E. Try not to ask a question you don’t know the answer to(1) This is easier in civil cases

(a) You have depos and interrogatories(b) No lawyer should try a civil case w/o knowing the answer

(2) Criminal trials(a) More difficult, you should at least have an idea

F. Don’t argue with a witness unless you know you are going to win(1) Juror’s love nothing better than to see a lawyer get there

comeuppanceG. Don’t repeat the story/ don’t allow the witness to repeat the story

(1) The more times a story is repeated, the more likely it is to be believed

H. Don’t (in cross) ask a “why” question(1) Anything is admissible when asked a why question

I. Cross examination is the foundation for closing argument(1) Bring it out only during closing(2) If the other side has not responded, it is too late for the other side to

refute your closing(3) Example: hair curler left out in the morning of Scott Peterson.

J. Quit while you are aheadXI. Best Evidence Rule

A. Contents of the Writing to be Proved(1) The contents of a writing must be proved by the introduction of

the writing itself, unless the absence can se satisfactorily accounted for. Herzig v. Swift 1945, 689.

(2) It only involves questions where the content of the writing is being offered, but the original is not produced. (a) EXAMPLE: Nixon transcripts. HR Haldeman, who was COS to

Nixon was asked about the Watergate tapes. He testified after John Dean testified. He listened to the tapes and stated that when he heard them, that nothing untoward happened.Cross – examination, “is what Mr. Dean testified to confirmed by the reports?” We know the tapes are a recording, (writing). Objection? Overruled. He is being asked to testify about what he heard in oval office compared to what Dean testified to. The tapes would be better evidence, but by law, they are not the best evidence

(3) IF YOU TESTIFY WHAT YOU SAW IN A WRITING, NEED TO BRING IN THE WRITING. If dean testified to what was on the tapes, would need to bring in the tapes.

(4) The parties are entitled to examine the best evidence available. (5) This rule applies to photographs as well as written documents and

videos. B. Must Have Entire Document; Duplicate must be Dup of Entire DocC. FRE Rule 1001.  Definitions (similar to common law)

For purposes of this article the following definitions are applicable:

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1.  Writings and recordings. (1) "Writings" and "recordings" consist of letters, words, or numbers, or

their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

2. Photographs . (1) "Photographs" include still photographs, X-ray films, video tapes,

and motion pictures.3. Original .

(1) An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

4. Duplicate - admissible (do not include common law) (1) A "duplicate" is a counterpart produced by the same impression as

the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original.

(2) Duplicates are admissible unless questions are raised as to its authenticity, or if it would be unfair to admit in lieu of original.(a) EXAMPLE: if the pages are renumbered, missing paragraph or

a cut out recording. But the objection must be raised.D. Objections

(1) If it is apparent the witness is acting as a conduit to the information contained in a writing, then the best evidence rule comes into play.

(2) EXAMPLE: Where did you get the numbers for the total income for last year? If the witness is acting as a conduit for the document, then the best evidence rule comes into play. The manner in which they had given their testimony, they have made the writing the issue.

(3) Burden is on offeror E. California – Secondary Evidence Rule

1. The Rule(1) You don’t need the original unless there is some dispute or it

wouldn’t be fair. (2) This differs from fed and common law, because they have the

preference on the original (3) You can’t admit oral testimony unless

(a) the original is lost or destroyed, or(b) if the proponent shows neither the writing or the copy is

procurable(c) or the writing is collateral

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2. Burden – on the objector, unless oral testimony3. Criminal Cases CEC § 1522

(1) You cannot allow in oral testimony unless the other side has the original which they have not made available to the other side.

(2) Can’t testify to papers that you have the other side can get it in but not if you got it.

(3) Burden is on proponent in both oral and writing. In a criminal act, a court shall exclude all secondary evidence if you have the evidence and you are not willing to introduce it.

F. Types of Secondary Evidence1. Duplicates

(1) Electronic copies(a) This is not a duplicate. If it is a duplicate, then it is secondary.(b) Most likely not allowed in federal(c) Easier to get in CA

2. Handwritten3. Oral Testimony

G. Hierarchy (1) If the original is destroyed in a fire, then there is a hierarchy in CA.

(a) EXAMPLE: police take pictures of a film instead of confiscating the actual film. Issue – best evidence. (Con Law - need to take the work as a whole.) You have to bring in the whole original that was played so that the jury can make a determination. But what if the film was ruined in a fire. CEC since 1999 there is a hierarchy of secondary evidence in CEC.

H. Statutes1. CEC § 1520.  Proof by original

(1)    The content of a writing may be proved by an otherwise admissible original.

2. CEC § 1521.  Secondary Evidence Rule(1)    (a) The content of a writing may be proved by otherwise

admissible secondary evidence. The court shall exclude secondary evidence of the content of writing if the court determines either of the following:     (1) A genuine dispute exists concerning material terms of the writing and justice requires the exclusion.     (2) Admission of the secondary evidence would be unfair.    (b) Nothing in this section makes admissible oral testimony to prove the content of a writing if the testimony is inadmissible under Section 1523 (oral testimony of the content of a writing).    (c) Nothing in this section excuses compliance with Section 1401 (authentication).    (d) This section shall be known as the "Secondary Evidence Rule."

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3. CEC § 1523.  Use of oral testimony(1)    (a) Except as otherwise provided by statute, oral testimony is not

admissible to prove the content of a writing.    (b) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of a copy of the writing and the original is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence.    (c) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the proponent does not have possession or control of the original or a copy of the writing and either of the following conditions is satisfied:   (1) Neither the writing nor a copy of the writing was reasonably procurable by the proponent by use of the court's process or by other available means.    (2) The writing is not closely related to the controlling issues and it would be inexpedient to require its production.    (d) Oral testimony of the content of a writing is not made inadmissible by subdivision (a) if the writing consists of numerous accounts or other writings that cannot be examined in court without great loss of time, and the evidence sought from them is only the general result of the whole.

4. CEC § 260.  "Duplicate"(1)    A "duplicate" is a counterpart produced by the same impression

as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent technique which accurately reproduces the original.

XII. AuthenticationA. Foundation must be LaidB. Handwriting

(1) Can offer the handwriting along with the defendants undisputed handwriting to the jury and ask them to compare.

(2) Have a person who is familiar enough with the persons handwriting(3) Expert testimony

C. Phone Calls1. Phone Call Receiver

(1) FRE §901, Authentication and Identification(2) Illustration of ways – voice of identification of voice,

(a) Self Identification(i) A. in the case of a person, circumstances, such as self

identification (i.e., “Joe’s Bar & Grill” when called)(ii) B. in the case of the business (same as before)

(3) Evidence that the call was made to the person by the number assigned at the time by the telephone company.

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2. Caller - CA, FED and Common (1) Content of conversation

(a) EXAMPLE: “I just got a letter from you about purchase of widgets . . .”

(b) only they would know because the person wrote themselves a letter

(c) It is not an absolute(i) It is not a question of believability; it is a question of

admissibility. Just because the jury gets to hear it, doesn’t mean they will believe it.

(2) If you can’t identify it, then it is inadmissible, it is IRRELEVANT, and it will be thrown out.

D. Self Identification in Writing(1) Mere Recitation of Authorship on the Writing Is NOT Sufficient to

Authenticate It as Having been Written by that Author: Mancari v. Smith 1940, G 111.

(2) Just because a writing has a name on it, it doesn’t mean that has been established to belong to Δ

2. Chain of Custody(1) The reason for this is because of forgeries.

(a) EXAMPLE: Keegan v. Green Giant Co. A man bit into a piece of metal which had allegedly been included in a can of peas. The metal can and label surrounding it were submitted for evidence. It was not allowed because the label had not been authenticated.

(b) What would you have to do to authenticate? Receipt for purchase of the store and go to the store where you got it from, and then ask where they got it from. If you do that you would probably satisfy the Green Giant Peas court

E. Statutes1. FRE Rule 901.  Requirement of Authentication or Identification

(1) (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:    (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.    (2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.    (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

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    (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.    (5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.    (6) Telephone conversations. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.    (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.    (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.    (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.    (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.

2. FRE Rule 902.  Self-authentication (1) Extrinsic evidence of authenticity as a condition precedent to

admissibility is not required with respect to the following:   (1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution.   (2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in

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the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine.   (3) Foreign public documents. A document purporting to be executed or attested in an official capacity by a person authorized by the laws of a foreign country to make the execution or attestation, and accompanied by a final certification as to the genuineness of the signature and official position (A) of the executing or attesting person, or (B) of any foreign official whose certificate of genuineness of signature and official position relates to the execution or attestation or is in a chain of certificates of genuineness of signature and official position relating to the execution or attestation. A final certification may be made by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of official documents, the court may, for good cause shown, order that they be treated as presumptively authentic without final certification or permit them to be evidenced by an attested summary with or without final certification.   (4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority.   (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority.   (6) Newspapers and periodicals. Printed materials purporting to be newspapers or periodicals.   (7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin.   (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments.   (9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law.   (10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be

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presumptively or prima facie genuine or authentic.   (11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record--      (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;      (B) was kept in the course of the regularly conducted activity; and      (C) was made by the regularly conducted activity as a regular practice.   A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.   (12) Certified foreign records of regularly conducted activity. In a civil case, the original or a duplicate of a foreign record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration by its custodian or other qualified person certifying that the record--      (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters;      (B) was kept in the course of the regularly conducted activity; and      (C) was made by the regularly conducted activity as a regular practice.   The declaration must be signed in a manner that, if falsely made, would subject the maker to criminal penalty under the laws of the country where the declaration is signed. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

3. FRE Rule 903.  Subscribing Witness' Testimony Unnecessary (1) The testimony of a subscribing witness is not necessary to

authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing.

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4. CEC § 1400.  Authentication defined(1)    Authentication of a writing means (a) the introduction of evidence

sufficient to sustain a finding that it is the writing that the proponent of the evidence claims it is or (b) the establishment of such facts by any other means provided by law.

5. CEC § 1401.  Authentication required(1)    (a) Authentication of a writing is required before it may be

received in evidence.    (b) Authentication of a writing is required before secondary evidence of its content may be received in evidence.

6. CEC § 1417.  Comparison of handwriting by trier of fact(1)    The genuineness of handwriting, or the lack thereof, may be

proved by a comparison made by the trier of fact with handwriting (a) which the court finds was admitted or treated as geniune by the party against whom the evidence is offered or (b) otherwise proved to be genuine to the satisfaction of the court.

7. CEC § 1420.  Authentication by evidence of reply(1)    A writing may be authenticated by evidence that the writing was

received in response to a communication sent to the person who is claimed by the proponent of the evidence to be the author of the writing.

8. CEC § 1421.  Authentication by content(1)    A writing may be authenticated by evidence that the writing refers

to or states matters that are unlikely to be known to anyone other than the person who is claimed by the proponent of the evidence to be the author of the writing.

PRIVILEGESIn general, there are no codified privileges in the FRE. People follow case law and look to proposed rules of federal evidence to guide them.

XIII. Attorney-Client PrivilegeA. Communication between A/C is Privileged for the ClientB. Exceptions

1. Not a privilege for the attorney(1) The attorney can’t use it to protect themselves(2) If the client wishes the attorney to testify he can make him (3) The privilege applies only in the courtroom. However, there might

be ethical concerns if you as an attorney divulge your clients secrets outside of the courtroom.

2. Ongoing Crime(1) If the communication is that of an ongoing crime, the attorney can’t

use the privilege. Clark v. State 1953, 589 (a) But the strange thing in Clark is that it was the lawyer who was

furthering the crime, not the defendant. (2) Items returned to an attorney

(a) The items themselves are not covered(b) However, the client that gave them to you are

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(i) But this is not very clear and not tested 3. Identity of the client

(1) SOME JURISDICTIONS STATE THE A/C privilege can be forced to turn in the identity, but majority are that identity are protected

(2) Obtaining a lawyer(a) Cant bring in evidence of time of hiring and(b) Why the lawyer was hired(c) Evidence of obtaining a lawyer is not constitutional (6th

amendment, right to counsel), however, evidence that a client secured a lawyer for another is admissible. United States v. Liddy 120

4. California/Federal – Necessary Agent(1) The privilege embraces not only oral or written statements but

actions, signs or other means of communicating information by a client to his attorney

(2) An attorney’s secretary, stenographer or clerk is covered.(3) It cannot be invoked unless the client intends the communication to

be confidential (4) A litigant cannot silence a witness by having him reveal his

knowledge to the attorney. Any person who is in the room will destroy the privilege unless they are:(a) A parent with their child: or (b) Someone necessary to the defense

(i) EXAMPLE: if the attorney brings in a doctor to examine the client, or the client gets a doctor and brings him to the attorney, then the doctor is an agent of the attorney and the A/C privilege applies. City of SF v. Superior Court 1951, 586.

(c) There is a translator – the roommate of the defendant to come to the jail with him. The prosecution brings in the third party to testify.

(5) Eavesdroppers cannot waive the privilege. Clark v. State 1953, 589 5. Work Product – California Rule

(1) Work Product – (a) Work product is more broadly defined,(b) It is easier to break the privilege

(2) Attorney/Client Privilege(a) The A/C is narrower(b) It is much stronger, it is harder to get around

6. Who is covered –CA and Supreme Court cases (1) In a corporation there are levels of people who are covered by the

A/C privilege in an action: C. The control group/Covered Group

(1) President(2) Board of Directors(3) Mid level executives

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D. Lower Level1. Subject must relate to duties

(1) The following group, the subject matter must relate to their duties.(a) Managers – probably covered(b) Sales – covered(c) File clerks – questionable

(i) You might be able to include them. Harper & Row v. Decker G117.

2. Instructed by Superior to talk to Attorney E. Statutes

Reasonable belief that disclosure is important to prevent someone from hurting someone. This brings the A/C rules in line with the ethics rules. Lawyers have no ethical obligation to keep confidential that their client will go out and hurt someone. They are at liberty to tell, but it is not required. Understand these are future harms.

1. CEC § 950.  "Lawyer" (1)    As used in this article, "lawyer" means a person authorized, or

reasonably believed by the client to be authorized, to practice law in any state or nation.

2. CEC § 951.  "Client"(1)    As used in this article, "client" means a person who, directly or

through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity, and includes an incompetent (a) who himself so consults the lawyer or (b) whose guardian or conservator so consults the lawyer in behalf of the incompetent.

3. CEC § 952.  "Confidential communication between client and lawyer"(1)    As used in this article, "confidential communication between client

and lawyer" means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

4. CEC § 953.  "Holder of the privilege" (1)  As used in this article, "holder of the privilege" means:

    (a) The client when he has no guardian or conservator.    (b) A guardian or conservator of the client when the client has a guardian or conservator.    (c) The personal representative of the client if the client is dead.    (d) A successor, assign, trustee in dissolution, or any similar representative of a firm, association, organization, partnership,

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business trust, corporation, or public entity that is no longer in existence.

5. CEC § 954.  Lawyer-client privilege (1)    Subject to Section 912 and except as otherwise provided in this

article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:    (a) The holder of the privilege;    (b) A person who is authorized to claim the privilege by the holder of the privilege; or    (c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.    The relationship of attorney and client shall exist between a law corporation as defined in Article 10 (commencing with Section 6160) of Chapter 4 of Division 3 of the Business and Professions Code and the persons to whom it renders professional services, as well as between such persons and members of the State Bar employed by such corporation to render services to such persons. The word "persons" as used in this subdivision includes partnerships, corporations, limited liability companies, associations and other groups and entities.

6. CEC § 955.  When lawyer required to claim privilege(1)    The lawyer who received or made a communication subject to the

privilege under this article shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege under subdivision (c) of Section 954.

7. CEC § 956.  Crime or fraud(1)    There is no privilege under this article if the services of the lawyer

were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud.

8. CEC § 956.5.   Disclosure necessary to prevent criminal act likely to result in death or bodily harm(1) (First of two; Operative until July 1, 2004)   There is no privilege

under this article if the lawyer reasonably believes that disclosure of any confidential communication relating to representation of a client is necessary to prevent the client from committing a criminal act that the lawyer believes is likely to result in death or substantial bodily harm.

9. CEC § 957.  Parties claiming through deceased client(1)    There is no privilege under this article as to a communication

relevant to an issue between parties all of whom claim through a

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deceased client, regardless of whether the claims are by testate or intestate succession or by inter vivos transaction.

10. CEC § 958.  Breach of duty arising out of lawyer-client relationship(1)    There is no privilege under this article as to a communication

relevant to an issue of breach, by the lawyer or by the client, of a duty arising out of the lawyer-client relationship.

11. CEC § 959 Lawyer as attesting witness(1)  There is no privilege under this article as to a communication

relevant to an issue concerning the intention or competence of a client executing an attested document of which the lawyer is an attesting witness, or concerning the execution or attestation of such a document.

XIV. Patient Physician PrivilegeA. No Privilege in Personal Injury CasesB. No Privilege in Criminal Cases CEC § 998C. No Privilege if other Records Offered into Evidence

(1) Suppose you are suing the employer and employee for negligent supervision when he suffered a heart attack. The employee offers into evidence his medical records that he has no preexisting medical conditions. The defense has proffered the medical records. They would NOT have a privilege because if they offer evidence that your employee has no condition, the door has been opened ot the other side. You can’t hide behind the privilege

(2) The statute applies to civil and criminal defendants and plaintiffs alike

2. CEC § 996.  Patient-litigant exception (1)    There is no privilege under this article as to a communication

relevant to an issue concerning the condition of the patient if such issue has been tendered by:    (a) The patient;    (b) Any party claiming through or under the patient;    (c) Any party claiming as a beneficiary of the patient through a contract to which the patient is or was a party; or    (d) The plaintiff in an action brought under Section 376 or 377 of the Code of Civil Procedure for damages for the injury or death of the patient.

XV. Patient-Psychotherapist Privilege 1. Patient Litigant Exception

(1) There is a patient litigant exception but it is much more narrowly construed. (a) The only way it will apply is if there is a more than a nominal or

passing crux of the lawsuit (i.e. pain and suffering from a slip and fall is nominal) (i) EXAMPLE: Menedez brothers claim abuse at the hands of

their fathers in an imperfect self defense. Because their

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defense rested in a major way on their mental state, the privilege is waived.

2. No Criminal Case Exemption for Patient-PsychotherapistB. Doctors

(1) Must be a MD, PHD in psychology, family counselor, or licensed social worker.

C. Who holds the privilege?(1) Lifschultz case – the doctor does not have a right to the claim, only

the patient (2) Takings clause, records are not taking(3) Clergy – the privilege goes both ways – the priests are entitled to

the privilege(a) As long as the confidentiality is one of the tenets between the

priest and parishioners (b) Communicated in confidence

D. Waiver – CEC § 1024(1) If a patient threatens the doctor or anyone, then they waive the

privilege to those days that they are a threat. (2) As long as they believe or have reason to believe they are in

danger, then the privilege is waived(3) Only the information in which there is reason to believe there was a

harm. Menedez v. Superior Court 620.(a) It is not clear if future sessions are protected, but past ones still

areXVI. Reporter Privilege

A. Source (1) A source is someone telling about someone else. (2) It is not a person who goes along on a crime

B. CEC § 1070: Prevents Court from Holding a Reporter in Contempt for Failure to Reveal a Source.

(1) Cannot Fine.(2) Cannot Subpoena Because No Way to Enforce.(3) Can Strike Answer, Enter Default, etc. (4) Can Shift the Burden of Proof to the Reporter. (G, 232.)

2. Exception to CEC 1070: (1) Cannot be Used to Circumvent a Court’s Authority to Control

Lawyers, Issue Gag Orders, etc.: Farr.(a) EXAMPLE : Manson trial, crt issued gag order. Newspaper

printed article containing information that was subject to gag order and could only come from someone involved in the case. Reporter reveals it came from an atty in the case, but refuses to reveal which atty. Held: Court may req disclosure despite CEC 1070. Analysis: Court’s inherent authority to control the rules of litigation, to issue gag orders, to subject those who violate gag orders to discipline cannot be thrown aside by CEC 1070.

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This is a SOP argument B legisl cannot control court’s inherent authority. Farr v. Superior Court, G 142

3. Cant be Used as a Defense in a Libel Suit(1) EXAMPLE: A new article describes a man as a thief. The man sues

for libel and the newspaper claims truth as a defense. However, they refuse to give up the source. The court responds by shifting the burden the defendant and thus will make him lose his case. Carey v. Hume 1974, G137.

Common Law, Federal Law & California LawXVII. Marital Disabling Privilege – belongs to witness spouse

A. Common Law(1) Both parties own the privilege. (2) There is a criminal exception if a crime is perpetrated against the

spouse or child of the spouse. B. Federal and California

1. Only the witness spouse owns the privilege(1) If the spouse is on trial for abuse of the other, or the spouse is the

victim of the spouses behavior, then the privilege does not apply to either party(a) EXAMPLE: A man violates the Mann act – the white slavery act

by bringing a woman across the state line for prostitution. Later he marries her. She refuses to testify against him in court, and is forced to testify against him by the prosecution. Held that she can be forced to testify because if she is a victim then she probably did not make the choice not to testify. Wyatt v. US 1960, G149.(i) However, the Prof disagrees with the holding to the facts in

this case, because it sounds like she is the brains in the family.

2. They must still be married. (1) As long as they are currently married, the person has the privilege

to refuse testifying against the person. Even if the communication happened before they were married.

XVIII. Privileged Communication between the spouse – belongs to speaker1. Was it made in confidence?

(a) If it was, you have the right to prohibit eavesdroppers from testifying.

(b) The spouse has a right to override it and force the spouse to reveal the confidential communications.(i) CEC § 987.  Communication offered by spouse who is

criminal defendant1. There is no privilege under this article in a criminal

proceeding in which the communication is offered in evidence by a defendant who is one of the spouses between whom the communication was made.

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(ii) EXAMPLE: H & W at trial, H on trial. He wants to call wife to testify. She can’t refuse on privilege. On confidential privilege, if spouse wants her to he can force her to.1. this only applies to criminal.

2. Was it made during the course of the marriage(1) If you have a right to not to testify against your self, you have the

right to not allow your H or W to testify against you. (2) The privilege belongs to the speaker – they are trying to prevent the

witness spouse from divulging their information(3) Trammel is protecting marriage, Melski is protecting

communication.(a) This communication can be thought of retrospective. It can

protect communication that took place during the marriage.(b) If the underlying rationale of two rules are different, then there

are two separate and distinct rules. XIX. Government Privilege

A. Criminal action(1) If the government is asserting a criminal action against a defendant

and asserts a privilege B. Civil Action – Government as Plaintiff

(1) If the government were suing and the defendant brought an action relevant to their defense, and the gov asserted a privilege. (a) Likely there is a taking clause problem, because the gov should

not be entitled to bring the action(b) Or you can do something a lot less draconian – you can shift the

burden C. Civil Action – Government as Defendant

1. Requirements for the Government to assert the privilege(1) Formal claim(2) Lodged by the head of the department in charge of the matter(3) After personal consideration(4) In camera review by the judge

XX. Executive Privilege (1) If not a matter of national security, then it falls within the territory of

the judiciary. B. Civil CasesC. Criminal Trials

1. Secrets that are a matter of national security are entitled to the privilege.

2. Court MAY Conduct an in Camera Review

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