EVIDENCE OUTLINEThe Exam:

- Closed book- 3 hours- 120 Qs- 60 either TF or HS not HS – 1 pt- MC are 2 pts- Spend 2 hrs on MC and 1 hr on TF HS NHS- Practice using the time restraints- Siegels evidence - Leanards book- Bar review books- MPRE questions on evidence- Free to write on back of exam, last page of questions- No good CA questions

o Once go trough Ques see if did under CA evidence code- Review session on 16th 10 am.

MAKING THE RECORD

Making record dictates how you tell that story to judge and jury, but also in case you have to appeal and that app ct will only have record (transcript of proceedings, exhibits, pleadings)

THE RECORD CONSISTS OF. . .

(1) The litigation’s paperwork

(2) Verbatim transcript of hearings, conferences, and trial testimony (a.k.a. “Report of Proceedings”)

o Stipulations : Voluntary agreement entered into b/w counsel for parties to a litigation respecting some matter that is before the trial ct

Stipulation constitutes a formal judicial admission Stipulation by counsel binds their principals (clients)

A statement for the record which opposing counsel affirmatively accepts as accurate An unchallenged statement for the record (not objected to by opposite side) probably

qualifies as an implied stipulation

Can either relate to procedure or evidence :

Procedural stipulation (FRE 29) : Must be in writing Evidentiary stipulation : Acts to admit/concede specified facts, relieving a

party of burden of making full-scale proof (constitutes formal judicial admission)

Problems with simple, single-subject stipulations :

(1) Remembering to state the stipulation1

(2) Making certain that ct reporter is recording it (3) Making certain terms of stipulation are clear and unambiguous (4) Getting on the record opposing counsel’s unqualified acquiescence in the

stip

o Confidence in court reporters is reflected in statutes providing that these records are to be deemed prima facie correct 28 USC §753(b)

(3) Tangible exhibits that parties offered into evidence

o Usually presented through a sponsoring witness who can identify or authenticate the item and reveal its relevance to some material issue in the case

o Three Basic Types :

Real Evidence : the “real thing” (i.e. murder weapon) Can be direct evidence offered to establish facts about the tangible things

itself Can be circumstantial evidence used as a basis for an inference that some

other fact is true

Procedure for Making the Record in Connection w/ Real Evidence :

o (1) Marking for identification Now from point mark as exhibit 1

o (2) Laying the necessary foundationo (3) Offering the exhibit into evidenceo (4) Securing an express ruling on the recordo (5) Precautionary measureo (6) Showing or reading the exhibit to the jury

FRE 803(18) : “testimonial exhibits” usually must be read into the record since most jdx will not permit this to be taken by jurors into deliberation room

Demonstrative Evidence : Not the “real thing.” Tangible material used for explanatory or illustrative purposes only (i.e. visual aid)

Two Types :

o (1) Selected : i.e. handwriting samples

o (2) Prepared or Reproduced : i.e. models or diagrams Conditions must not be significantly different and There must be testimony that exhibit is true and fair

representation Greatest risk of fabrication/distortion here

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Writing : A writing is not receivable into evidence until it has been authenticated Genuineness must be demonstrated to trial judge before jury can consider it (as

prelim matter)

How a Writing Can Be Authenticated :

o (1) By notice or request to admit genuineness

o (2) By direct evidence that proves handwriting in question identifying testimony of author or testimony of someone who

observed the writing being made

o (3) By proving handwriting circumstantially: (a) By identifying testimony of someone who is familiar w/

handwriting of person in question (b) By testimony of handwriting expert (c) By letting jurors compare it w/ genuine handwriting

specimen

o (4) By reliance on common law, statutory or rules provisions that render some writings self-authenticating or setup presumptions of authenticity

JUDICIAL NOTICE

Judicial notice is a form of evidence, substituting for more elaborate proof of facts that are :

o (1) subject to common knowledge among reasonably informed ppl in the jdxo (2) capable of accurate and ready determination by resort to sources whose accuracy cannot

be reasonably disputed

If one of these two bases for judicial notice is present, taking of notice by trial judge is mandatory if proper record is made

o This involves :

(a) On-the-record request for taking of judicial notice and for the giving of appropriate jury instruction

(b) Presentation to the ct (on the record) of any necessary backup info i.e. authoritative sources mentioned in FRE 201(b)(2)

OFFERING EVIDENCE

Laying the Foundation

o Counsel must lay a foundation that demonstrates the existence of the essential elements of some evidentiary principle on which he intends to rely

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o Making sure that judge knows why the person’s testimony is relevant to the case

Preliminary Questions of Fact

o FRE 104(a) : Prelim questions concerning qualification of witness, existence of a privilege, or admissibility of evidence shall be determined by the ct. In making the determination they are not bound by rules of evidence except those WRT privilege.

FRE 104(b) : When relevancy of evidence depends on fulfillment of a condition of fact, ct shall admit it upon or subject to the introduction of evidence sufficient to support a finding of fulfillment of that condition

o FRE 403 : Burden of introducing evidence to prove a prelim fact lies with the proponent, and must be shown by a preponderance of the evidence.

o CEC 403(a) : Proponent has burden of producing evidence as to existence of a prelim fact. To be inadmissible, ct must find that there is evidence sufficient to sustain a finding of existence of preliminary fact when :

(1) Relevance of evidence depends on existence of the prelim fact (2) Prelim fact is personal knowledge of witness concerning subject matter of his

testimony (3)Prelim fact is authenticity of a writing, or (4) Evidence is of a stmt or other conduct of a particular person, and prelim fact is

whether the person conducted themselves in that manner or made the stmt

CEC 403(b) : The ct may conditionally admit evidence under this section subject to evidence of prelim fact being supplied later in course of trial

CEC 403(c) : If the ct admits the evidence, the ct :

(1) May instruct jury to determine whether prelim fact exists and to disregard the evidence unless jury finds prelim fact does not exist

(2) Shall instruct the jury to disregard the evidence if the ct subsequently determines that jury could not reasonably find the prelim fact exists

o CEC 405 : WRT preliminary facts not governed by CEC 403

(a) : When existence of a prelim fact is disputed, ct shall indicate which party has the burden of producing evidence and the burden of proof. Ct shall determine whether the prelim fact exists, and shall admit, exclude evidence as required by law

(b) : If a prelim fact is also a fact in issue in an action

(1) Jury shall not be informed of ct’s determination as to whether fact exists (2) If evidence is admitted, jury shall not be instructed to disregard evidence if

its determination of fact differs from cts’ determination of prelim fact

Two Types of Evidence

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o Oral : Direct exam, cross-exam, deposition, or transcript of previously recorded testimonyo Tangible : Presented through sponsoring witness who identifies/authenticates it

Direct Examination

o General Rule : No leading questions

Leading question : one that suggests its own answer If questions can be answered “yes/no” it is generally going to be a leading

question

FRE 611(c) : Leading questions should not be used on direct exam of a witness except as may be necessary to develop the witness’s testimony

o Exceptions : Can ask leading questions

(1) Preliminary matters that do not go to heart of case (i.e. name, age, workplace, etc.)

When there is any dispute as to the answer, cannot be leading

(2) To provide transition from one subject of inquiry to another

(3) WRT undisputed matters where question is used as a connective

(4) Witnesses who have mental limitations or limited understanding i.e. child, language barrier, mental disability

(5) Hostile witnesses

(6) When witness gives “surprise” answers Usually when testimony is sharply at odds w/ previous depo testimony

(7) In connection w/ a witness of limit

(8) To witness whose recollection has been exhausted or has additional relevant info

Usually to refresh a witness’s recollection

(9) Hypotheticals (leading in nature) put to expert witnesses Permissible as means of providing factual basis for expert’s opinion

o EXPERT WITNESSES

Allowed to express opinion on relevant matters as long as proper foundation has been laid

FRE 702 : Witness qualified as expert by knowledge, skill, experience, training, or education

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FRE 703 : Expert can base testimony on facts or data perceived or made known to expert at or before hearing

FRE 705 : Expert can testify to his/her conclusions and explain reasons for them w/o prior in-ct disclosure of underlying facts or data (unless trial judge requires disclosure).

Four conditions must be satisfied :

(1) Validity of opinion or conclusion depends on special knowledge, experience, skill, or training not ordinarily found in lay jurors

(2) Must be qualified as an expert in the pertinent field (3) Must possess reasonable degree of certainty (probability) about her

opinion/conc (4) Must first describe data on which conc is based or must testify in response

to a hypo that sets forth such data (common law jdxs)

Experts can :

(a) Express opinion based on facts personally observed or relayed by other expert

(b) Base opinion on evidence if it is not in conflict o not permitted to weigh conflicting evidence

(c) Base opinion on hypo question embracing evidence on the record

Cross Examination

o General Rule : Can ask leading questions

Atty establishes info they want and don’t allow witness to provide any other information

Cannot ask “loaded questions” – questions assuming unproved facts Cannot ask compound or otherwise confusing questions Witness can be impeached on cross-exam if he made prior out-of-ct statements that are

inconsistent w/ in-court stmts made during direct exam

OBJECTIONS TO EVIDENCE

Initiative WRT evidentiary objections lies w/ parties (acting through counsel) and not w/ trial judge It is counsel’s obligation to register that objection on record so they can argue it later

If you do not make an objection, it is considered a waivero General Rule : An objection must be made as soon as the basis for it becomes apparent

Reasons for Forgoing Available Objections :

o (1) Trial counsel has no need to complain about every innocuous leading question put by opposition since use of leading questions as to preliminary matters expedites examination of witnesses

poses no real risk of prejudice6

o (2) Counsel does not want to run the risk that he will only underscore hurtful testimony

o (3) Does not want jury to think he is excessively obstructive or that he distrusts them

o (4) Evidence, although arguably inadmissible, actually in some way favors his client’s cause

o (5) Opposing lawyer’s offer of objectionable evidence “opens the door” for more important evidence that silent lawyer hopes to offer later

Objecting to Exhibits :

o Normally made at time exhibit is formally offered in evidenceo Can file motion in limine to obtain advance-of-trial ruling on a controversial item of

evidence

o Pre-Trial Objections to Exhibits in Complex Cases :

In complex litigation or where sensitive evidentiary questions are involved, counsel will seek pre-trial rulings on proposed items of evidence

Documents admitted in evidence unconditionally by pre-trial orders or rulings can then be used at trial w/o further order or ruling

o Specificity of Objection : FRE 103(a)(1) : Any objection must be accompanied by a reasonably specific statement of the ground(s) for it

Lawyer’s Three Aims in Making Objection :

(1) Seeking to educate trial judge on rule(s) of evidence that authorize the objection and exclusion of the challenged evidence

(2) By being reasonably explicitly, counsel is preserving a record for possible appeal in case the judge overrules his objection

(3) Making a record that supports trial judge on appeal in event he sustains objection

o A general objection is unavailing where offered evidence is admissible against some parties (although not against all of them) or

o On a particular issue (although it is not admissible as to some other issue in the case)

Necessity for Obtaining a Ruling : It is objector’s burden to secure an express ruling on his objection

OFFERS OF PROOF

Can come into play before or during an offer of evidence Can come into play when an objection is made (during examination of witness) to the offer either of

tangible or testimonial evidence

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Comes into play when counsel (w/ no objection pending and maybe no witness on stand) makes an offer to prove specified matters in order to induce ruling by trial ct as to relevance and competence of those matters

Full offer of proof is unnecessary where described evidence has been rejected as a class by the trial ct Necessity of an offer of proof after sustained objection is generally limited to direct exam

FRE 103(a)(2) : If ct excludes evidence, substance must be made known by offer or apparent through context

o Where trial ct’s ruling is one excluding evidence, the substance of the evidence must be made known by offer unless its substance was evident from the context

Two Purposes :

o Permits ct to make proper ruling on the objectiono Essential to preserve point for post-trial review

Three Basic Ways of Making an Offer of Proof During Witness’s Oral Examination :

o Tangible Offer

Proponent of rejected exhibit need only hand it to ct reporter for inclusion in the trial record

Offer of proof that commingles admissible matter w/ inadmissible is not a good offer and its rejection in toto will not be reversible error

Counsel must be specific as to what parts of a writing are included in his offer of proof Can designate portions of writing to be admitted – if not, entire exhibit is

offered Counsel must state for the record the evidential purpose of the evidence (if unclear)

o Witness Offer

When an objection has been made to witness on stand and exclusionary ruling is made by ct, examining counsel can make offer of proof through the witness (FRE 103(b))

Counsel keeps asking Q’s (outside juror’s hearing) and record becomes offer of proof

Formal offer of proof unnecessary when counsel’s question clearly calls for admissible evidence

If rejection of offered testimony was based on exclusionary rule (i.e. hearsay rule), offer of proof should include any info suggesting the inapplicability of the rule

o Lawyer Offer

Where it appears that a question in proper form was posed during direct exam and that upon opposition’s objection the ct ruled out the answer, examining counsel’s offer of proof may consist of a stmt to the ct at the time of its ruling (and on the record) showing what the witness’s answer would have been

Often ineffective when lawyer’s answer is beyond/unresponsive to witness’s answer8

Safeguard : witness’s ability to contradict the offer (he would not answer it like that)

Offer of Proof Made With No Witness on the Stand :

o Counsel will make an offer when he is doubtful of reception that his proposed evidence will receive from the trial judge and wishes to obtain a ruling (and make his record) w/o first going to expense/inconvenience of calling and examining witnesses involved

o Usually made b/c :

(1) Offering counsel has a number of witnesses (available but not present) to establish a line of facts but trial judge’s rulings suggest that he would exclude their testimony

(2) To induce a ruling WRT a line of facts

o When trial judge rejects offer of proof here, it shows that counsel could have made the described proof if permitted to proceed

o It is burden of offering party to include everything necessary to support admissibility of evidence

o Typically vital to include foundational elements (to be found in law of evidence)o Offer of proof must descend into specifics (generalities are impermissible)

Reading allegations of a pleading into record is not an effective offer of proofo Offer of proof must be made in good faith on basis of evidence that’s known to be

available/beneficialo Offering party must identify witnesses who are in position to testify to matters described in

offero Offers of proof (and objections) in complex cases are usually required to be in writing

Typical Written Offer of Proof In Complex Case :

(1) ID of the expert (2) Summary of qualifications (3) Detailed disclosure of factual data and scientific, technical, or econ

authorities and other materials relied on in making opinion (4) Clear stmt of expert’s opinion (5) Summary of reasons for opinion

Renewing Offers of Proof :

o Sometimes offer of proof must be made more than once/renewedo Usually happens when first offer was defected and is thereafter perfected

Offer of Proof Outside of the Jurors’ Hearing :

o Whether offer of proof should be presented outside jury’s hearing is at trial judge’s discretion

o Advisable b/c of potential for prejudice

JURY INSTRUCTIONS

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In most jdxs, trial judge will either require (or at least permit) participation by counsel in preparation of ct’s charge to the jury

If counsel has objections to jury instructions as given in open ct, he must make them out of jury’s hearing immediately after trial judge has concluded the giving of the charge (otherwise, waived)

General exception to instructions is insufficient to preserve error for appellate review (objections must be specific)

VERDICTS

In civil cases, usually a “general” verdict

Many jdxs also provide for “special” verdicts

o Special verdicts Trial ct directs jury to make specific written finding on each fact-issue in the case

o Incumbent on counsel to make specific demand (on the record) that trial ct submit particular fact-issues to jury

o If fed ct omits any issue of fact here, each party is taken to have waived right to jury trial on that issue unless specific (on-the-record) demand is made before jurors retire to deliberation room

Trial judge can make own finding as to any fact issue (as if there were no jury)

Polling of the Jury : and any comments made by jurors during interrogation should be on the record

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RELEVANCE

Relevancy is not an inherent characteristic of any item of evidence but exists as a relation b/w an item of evidence and a proposition sought to be proved

o If an item of evidence tends to prove or disprove any proposition, it is relevant to that proposition

Evidence does not prove things – it has a tendency to prove something Does not have to be definitive or undisputed

Whether proposition sought to be proved is provable in the case is determined by :

o (1) Applicable procedural rules o (2) The pleadingso (3) Substantive law governing the case

Three Questions for Relevance Analysis :

o (1) What proposition is the evidence offered to prove?o (2) Is that proposition properly a part of the case?o (3) Does the evidence have some tendency (in reason) to prove the proposition

identified?

If the answer to (2) is YES, move to (3) If the answer to (2) is NO, that information is irrelevant If it moves us even a tiny bit from point A to point B, then (3) is satisfied and it is relevant

FRE 401 : Relevant evidence has any tendency in reason to prove or disprove the matter being asserted

o Trier of fact determines relevance of evidence

FRE 402 : Requires evidence that is relevant be admitted and irrelevant evidence be excludedo Relevant evidence Admittedo Irrelevant evidence Excluded

Evidence is Irrelevant Because :

o (1) It is not probative of the proposition at which it is directedo (2) That proposition is not provable in the case

Relevance and Inference :

o Persuasive value of each item of evidence increases as the number of items increaseso The greater the number of items, the stronger the foundation becomes for the ultimate

inferenceo BUT, no matter how many items or how short the series of inquires are required for each of

them, they will never produce certainty

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o Have to look at items of evidence in relation to other items in order to ascertain strength of inferences

o Relevancy v. Sufficiency :

Test of relevancy is different and less stringent than the standard used (at later stage) to decide whether all the evidence on an issue is sufficient to permit the issue to go to a jury

Knapp v. State : o Facts : D claimed he had killed victim in self-defense b/c he heard of victim killing an old

man. State introduced evidence that old man died of natural causes. State was using evidence to prove story was not heard at all – not truth of falsity of the

story. Ct of appeal admitted this evidence b/c the very fact that the guy died of natural causes

as some tendency in reason to prove the proposition that D is lying (that he didn’t hear the stort). So state will always be allowed to bring this evidence in b/c it has some tendency in reason to prove/disprove the prop (some really means incy tincy little bit)

o Rule : An item of evidence is relevant when it tends to prove or disprove (however slightly) an issue at trial

Sherrod v. Berry :o Facts : D (PO) believing P was reaching for his gun, shot and killed P, who was later found to

be unarmed. It was reasonable for PO to believe (under circumstances) that P had a gun.o Police officer shot and killed a robbery suspect – the robbery suspect was unarmed – Ct

ruled the evidence that deceased was unarmed is inadmissible. Officer says I thought he had a weapon so I shot him. What prop is evid offered to prove? That it was not reasonable for the officer to shoot. Is that prop proveable? Yes b/c it tends to show that he didn’t have a reasonable basis for shooting. Does the evidence have some tendency to prove/disprove the prop? Yes, b/c there is some tendency to disprove the prop Suppose the evidence was the deceased did have a gun – what do you think now? Prof critiques the ruling in this case b/c thinks the ct ignored the word “some tendency” - says it is definitely relevant

o Only way we can defend it is looking at legal standard. And he thinks if the officer wanted to say he had a weapon it would be in and makes it more credible.

o Rule : Evidence of absence of a gun is not relevant and admissible, when it is reasonable to believe that a gun does exist.

PROBATIVE VALUE vs. UNFAIR PREJUDICE/PREJUDICIAL EFFECT

Balancing Test :

o FRE 403 & CEC 352 : Although relevant, evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion on the issues, misleading jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence (not in CEC).

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Unfair Prejudice when a factfinder might react to aspects of evidence in a way that is not supposed to be part of the evaluative process

Commonly a decision made on basis of emotion (as opposed to logical basis) or on basis prohibited by law (e.g. cant say did it last time so will do it this time)

Substantially is the KEY!!!! “Bad person,” circumstantial character, and propensity evidence usually

produce this i.e. – juror giving undue probative weight to an item of evidence

Judge gets significant amount of discretion in admitting evidence under this balancing test

Appellate cts usually defer to trial ct rulings based on FRE 403

o Don’t Be Fooled! Even if declarant is on witness stand but is testifying to out-of-ct stmts and that is being used to prove the proposition, it is still hearsay

Old Chief v. US : o Facts : Man (previously convicted of gun assault felony) was not allowed to stipulate to

existence of prior felony so as to avoid prosecution discussing details of the prior offense. Evidence of prior convictions carries danger of unfair prejudice. Probative value of bare fact of prior conviction would outweigh unfair prejudice, but

evidence of his prior assault conviction would have been improper/inadmissible to prove later assault (leads to circumstantial character and “bad person” evidence)

o Rule : Criminal D must be allowed to stipulate to commission of prior felony (where prior felony was element of later crime) and prosecution is not allowed to enter into evidence the facts surrounding the prior felony

Ballou v. Henri Studios : o Facts : In wrongful death action against D for death of J, P filed motion in limine seeking to

suppress evidence of J’s Blood Alcohol Content test. A nurse said J wasn’t too bad. TC said basically said ithe test was unfairly prejudicial and he is reversed.

FRE 403 allows ct to balance probative value against prejudice – it is up to jury to determine its reliability/credibility. Ct here, was not in position to rule that BAC test was unreliable.

BAC should have been admitted.

o Rule : In weighing probative value of evidence against its unfair prejudice, a ct may not determine the credibility of the evidence.

RELEVANCY HYPOSa. McNaughton reading

i. The law is: There is a presumption that if a child is born while a husband is living w/his wife and is not sterile – the child is presumed to be his. If a man claims he had an affair w/the wife and a DNA test found the child is 99% his– this is not admissible b/c it does not go to answer the proposition above - it is not relevant – the proposition is not proveable b/c of what the law is. So if the answer to 2 is no then don’t even go to 3.

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ii. If there was a dispute if the husband in wife and living together then the blood test means nothing and NO OTHER EVIDENCE IS RELEVANT.

iii. People seeking to overturn convictions: reluctance to revisit these cases because of our insistence on finality even tho possible to set aside guilty verdict but standard of doing so is high

b. Hypo : paints a roof w/ water proof paint and drum of paint has a 10 year guarantee and the roof starts to leak, guy has also purchased a 2nd drum of paint to prove that the paint did not live up to its 10 year warranty

i. What proposition is he seeking to prove when used drum of paint #1 and it started leaking? Drum #2 is defective

ii. Is this proposition proveable? Yes, he can try to prove that drum #2 is defectiveiii. Does the evidence have some tendency in reason to prove/disprove the proposition?

Yes. Once show that one can of paint does not live up to its warranty then it makes it more likely that there is some tendency in reason . . . Might not have much probative value but it is relevant James says it is not relevant b/c 1 drum of paint might have come from a bad batch – but Prof says that James is wrong All we ever ask is does it have some tendency !!!!!!!!!!!!

c. Morgan excerpt i. Love letter to wife, wife is married to someone else and her husband dies. Wants

to prove the lover who wrote the love letter killed the husband1. Is the letter relevant?2. what proposition is it being offered to prove? The lover had motive to kill

the husband, but how does this establish motive – there are a lot of inferences

a. 1st inference: I love you so I want to be with youb. 2nd inference: I want you for myselfc. 3rd inference: have to get rid of hubby if want her for selfd. 4th inference: lover’s plan to get rid of hubby

3. is that proposition proveable in the case? Yes through many inferences, but does not have much probative value b/c of all the inferences and it is not clear if the 1st inference necessary follows

ii. Relevance is a relative concept – the letter is relevant but it is not sufficient alone to let the case go to the jury. The probative value of the letter when connected w/ other evidence increases its probative value – so as a trial lawyer need to build the record – get the letter in and get in other circumstantial inferences so the # of inferences asking the jury to draw is not that great. Need to think about the end product – all the evidence in the record – it’s not each piece of evidence as an island – Relevance is a relative concept

2) Hypos P 94.a. 1 – This hypo is an illustration of developments in the case making it irrelevant. This would

be admissible it we were fighting about liability. There is no punitive damages in negligence cases. So it is irrelevant because # 2 is no, not because of law but because of developments in the case.

b. 2 – i. not relevant to his injuries.

ii. As to wrongful death it is relevant because the measure of damages for Wrongful Death is loss of consortium, loss of wages, loss of companionship, value of emotional relationship not relevant either.

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iii. As to ED the standard is severe ED, has to be present, but here he didn’t see it. So it is irrelevant, why he admitted liability.

c. 3 – D wants to prove he was framed. IT is provable in this case, that’s a defense. They have a motive to get him back. So it is relevant.

i. As to its PV: do the balancing test, and it would be logical even tho the PV is low, so it would be in.

d. 4 – Can prove he was at the movies he has a defense, so there is no problem, question one is ok.

i. But the question is the proposition provable in the case? Yes I guess, the meteorologist would support his alibi. So we see that the bar is very low. Tends to prove he was in the movie.

ii. Need to talk about the evidence in context. iii. So it would be relevant.

e. 5 – the problem here is that the proposition isn’t provable. Cant prove restitution as a defense to forgery so the law has made the answer to # 2 – NO!. Cant say no harm no foul so it is irrelevant.

3) Seems that the first question, what proposition is the evidence offered to prove is the overall proposition.

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LIMITATIONS IMPOSED ON RELEVANT EVIDENCE

PROBABILISTIC EVIDENCE

Rule : there must a foundation for the numbers used in statistical analysis (e.g. need to bring in experts to testify to the probability of finding a certain color car in a certain geographic area)

Lessons of People v. Collins :o must have foundation for numbers used in statistical analysis

factual foundation (there must be a factual basis for the flip of the coin) foundation for method used

o expert must establish that the methodology used is established in the fieldo can’t use statistics to divert jury from their job of finding guilt beyond a reasonable doubto can’t use statistics where there are disputed facts about an identification

The law in most jurisdictions today is: it doesn’t make sense to instruct jurors on Bayes theorem b/c it will only confuse them. But it is o.k. to use Bayes theorem to come up w/statistics to give to the jury

Rule : It is appropriate to present this kind of statistical evidence to the jury b/c all relevant evidence is admissible

Statistical evidence is relevant, but we put limitations on its use

Drug Testing accuracy is approx 98% o Data assumes that 50% of populace being tested is using an illicit substance, but if we talk

about population where we don’t know percentage of population that engages in this, statisticians use 50%

Cts are careful about using statistical evidence b/c :

o Have to be aware of underlying premiseso Lawyers/judges not comfortable about dealing w/ statistics and what they meano Afraid juries will give too much weight to statistical evidence, so has to be very accurate

Bayes Theorum Provides a way of determining how to modify evaluation of probability based on initial evidence once there is additional evidence to deal with (used to guide the jury)

o There is factual basis and experts corroborate that 0.5 is appropriate number to use

o Kammer v. Young : Facts : D appeals decision admitting statistical evidence to prove D is father of P’s

child Bayes Theorum used to calculate probability of D’s fatherhood. D also

objected to use of 0.5 as prior probability, while experts at trial indicated 0.5 was acceptable – so not DP violation.

D could challenge the reliability and trustworthiness of statistical evidence

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Rule : Admission of opinion evidence regarding statistical probability and admission of statistical probability on an ultimate issue before a jury does not violate a D’s right to due process.

Product Rule Probability of the joint occurrence of a number of mutually independent events is equal to the product of the individual probabilities that each of the events will occur.

o People v. Collins : Facts : D appeals robbery conviction on grounds it was based on probability which

was not properly introduced by prosecution and not based on well-founded/established assumptions.

Product rule assumes factors are independent (both of these are not independent)

Second level of foundation – have to show why factors are/are not independent o Burden On proponent (prosecution) to provide foundation and to

establish that proper formula is used Rule : Statistical probability may not be admitted into evidence when it is

substantially unfair and may result in introduction of techniques which can confuse the jury.

o Mathematical odds evidence is admissible if :

Odds are premised on facts in record, and Validity of method for calculating odds is established.

People v. Mountain : Trial judge must evaluate probative value of blood typing by considering other evidence on the record

o If it is probative, must then assess its potential for unfair prejudiceo If it is the only evidence, it is likely inadmissible

But, if it is admitted, defense should ask for a limiting instruction

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CHARACTER EVIDENCE

Defined : “Character” (in evidence law) means the type of person someone is (i.e. honest, generous, careless)

o Three Types of Character Evidence :

(1) Reputation (2) Opinion (3) Specific Acts

o Proponent of reputation or opinion testimony must establish that witness has knowledge or familiarity

Usually comes from years of familiarity w/ person and can come from any number of contexts, but there is no magic number

o If we don’t have sufficient evidence that proponent has sufficient knowledge, then inadmissible

General Rule : Evidence of a person’s character may not be introduced to support an inference that the person acted on specific occasion in conformity w/ that character. Propensity bar prohibits introduction of character evidence to support inferences that b/c of person’s character, they are more likely to act in certain way.

o There are several exceptions to this general rule (see below)

o Two Ways to Introduce Character Evidence :

(1) Character in issue (2) Circumstantial character evidence

Methods of Proving Character

FRE 405 : When character is an essential element in the claim, (examples: reputation in libel or slander case, loss of consortium claims, negligent entrustment) you can use following three kinds of proof :

o Reputation : Witness must qualify to give an opinion (or speak of reputation) by showing such acquaintance w/ D, the community in which he has lived and circles in which he has moved, as to speak w/ authority of the terms in which generally he is regarded.

Must know someone for a long time to be able to give a stmt regarding their reputation (i.e. – one month is not long enough to establish opinion/reputation of person’s character).

D can introduce this to show the victim’s reputation i.e. – Everyone knows/thinks D is a bum

o Opinion : Must establish foundation for giving such an opinion (must have known person for long amount of time) also see above, it applies to opinion as well

i.e. – I’ve known D for 20 years and I think he’s a bum

o Specific Acts (Specific Instances) : Specific acts are not allowed to prove character, unless:

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(1) Character is an element of the charge, or a valid defense (2) It is admitted as “other acts” evidence (3) Upon cross-exam of a witness or D

In criminal cases, circumstantial character evidence can only be introduced by the D first. Then, prosecution can cross-examine D as to specific acts in order to show D’s character witness is unfamiliar w/ D’s reputation (i.e.- for purposes of impeachment).

In civil cases, circumstantial character evidence is generally inadmissible

CEC 1102 : Same as FRE, but limited to only reputation and opinion in criminal prosecutions

Character In Issue

When character is an essential element of a claim can use ALL 3 kinds of evidences (below) to prove character

o reputationo opiniono specific instances

FRE 405 / CEC 1100 : A person’s general character (or a particular character trait) is admissible if it is an essential element of the charge, claim, or defense. Proof may consist of reputation, opinion, or specific instances of that person’s conduct (specific acts).

o Character is essential element only when it is an ultimate issue – Proof of character is an end in itself

Not being used as evidence of anything else Proponent is not asking trier to infer any other fact from the fact of character i.e. – Defamation (proof of reputation/character is the ultimate issue)

Cleghorn v. NY : o Facts : D appeals decision admitting evidence of railroad switchman’s prior negligence and

intemperate behavior to prove railroad’s negligence in accident which caused P’s injuries. Employer’s knowledge of employee’s character is an element of claim for punitive

damages and evidence is used to show that issue an essential element of the claimo Rule : In a negligence action against an employer, a party may introduce evidence of an

employee’s intoxication and intemperate habits to prove his claim for punitive damages.

Cleghorn v. NY Central and H River Ry. Co (Character is issue case). We have the general rule that can never use circumstantial character in a civil case. This is a civil case. The evidence is that D has character of being a drunk. Ct admits this evidence. For liability damages have to show that company is at fault and can’t use this kind of evidence b/c character is not an essential element of the claim. But to show that responsible for exemplary or punitive damages have to show the employer knew better – so a claim for punitive of exemplary damages places in issue the character of the employer. His character as an alcoholic is now an essential element of the claim for damages so it is admissible. The danger of unfair prejudice must substantially outweigh its probative value – but here the evidence has high probative value so the danger of unfair prejudice does not outweigh the probative value – Prof would ask the court for a bifurcated trial (in the 1st trial: the liability phase the evidence would not be admissible – can’t introduce any evidence about his past

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drinking evidence, then in the 2nd part of the trial: for punitive damages, then can bring in past behavior

Wellman p. 376 : Libel case – so character is in issue. For libel must prove: statement was not true, publication, heard by others, damages the reputation. This case concerned a newspaper ad that said negative things about the owner of a opera house. If the negative things are true, this is a defense to the libel charge. So wanted to introduce specific act evidence about opera house owner – that he had been bankrupt and had kept a mistress for 20 years etc. It is okay to introduce this specific act evidence that is relevant to D’s character b/c character is an essential element of a libel claim.

Circumstantial Character Evidence

o In a civil case can NEVER use circumstantial character evidence.

o Criminal cases : (CA and FRE)

In a criminal prosecution, the prosecution may NOT bring in evidence of D’s character that is being used circumstantially to prove D’s guilt

D may, however, choose to put his/her character in issue

o Note: D can also put character of the victim in issue.

If D chooses to put his character in issue, then this opens the door to the prosecution.

o Prosecution can thing bring in specific instances of D’s conduct to impeach D’s character witnesses (so may ask “have you heard” and/or “do you know”

o OR can put on own witnesses to testify that D had a bad reputation (witnesses can only testify to reputation or opinion, not specific acts)

o The limiting instruction is critical in this situation because asking specific instances of D’s conduct is used to ONLY raise questions about knowledge of D’s character witnesses, NOT to show D’s guilt in the case in chief.

o On one hand anything that is part of D’s reputation is legitimate for cross examination –but before prosecution goes forward judge wants to know if prosecution has evidence to show this is true to show justified in doing the cross exam. Judge is the referee – must make sure there is some basis for the cross examination.

one way a judge can do this is by requiring that there be some evidence of the arrest (Michelson) Suggestion in Michelson is that if have underlying record of arrest, this is enough to show there is some basis for cross.

or if can’t do this have to show there is some basis to show this is true (i.e. have a hearing and call people in to say yes this was his reputation in the community)

Rule : the character witness must qualify to testify to D’s character – must show that the character witnesses knew D. Must show witness has sufficient familiarity with D.

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o This is more exacting when witness is testifying to D’s reputation. Then witness must show that was familiar with circles that D moved in.

o So more exacting when witness is testifying to D’s reputation, than when testifying to opinion of D.

o Hypo #1b from Supp.#5 : if D has a reputation as an honest person so makes it less likely that he commit subornation of perjury. Can Lundquist (witness) testify to D’s reputation in the community? It sounds like they don’t practice in the same area? So is he qualified to testify to be a character witness – remember rule that must show that witness knows D and the community that D is in. So b/c they don’t practice in the same area can’t testify to his reputation in his practice area – but he can testify about his opinion of D – but 1st must establish the witness’ knowledge of D, that he is familiar with the areas where he practices, circles he moves it, etc. So must establish character witness’ requisite knowledge about D

FRE and CA: only allowed to prove circumstantial character by:o Reputationo Opinion

Cannot prove circumstantial character by specific acts!!!!!! Note: once D has put his character in issue (by reputation or opinion) –

P can then cross examine D’s witnesses or put on own witnesses. On cross, P can ask D’s witnesses about specific instances of D’s conduct. However, when P is putting on own witnesses cannot use specific acts evidence.

Camus excerpt p. 387 B/c he was charged w/murder –wants to show he has no regard for human life – so this makes it more likely that he would commit a homicide (tries to show that he had shown “great callousness” at his mother’s funeral) So this is evidence of a specific act. Prosecution cannot introduce this evidence as part of his case in chief. Assume Defense puts on character witnesses and they testify that in their opinion, D is a peaceful individual. Q: can prosecution now introduce the evidence they’ve uncovered that D didn’t cry at his mother’s funeral? A: You cannot put on own witnesses to testify to this is b/c it is specific act evidence. But can cross examine D’s character witnesses and ask them specific instances of D’s conduct – so prosecution has to show that his evidence impeaches the witness’s testimony!!!!!

o Rules about the VICTIM!!!

FRE: 404(a) The accused may offer evidence re: character of the VICTIM, the prosecution can

rebut such evidence by offering evidence of the victim’s character

o Example : the D may offer evidence of the alleged victim’s reputation for violence as tending to prove the victim was the 1st aggressor. In response, the prosecution may then offer evidence the victim’s character trait for peacefulness.

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o In a homicide prosecution, the prosecution may introduce evidence of the peaceful character of the alleged victim to rebut any evidence offered to prove the victim was the 1st aggressor – even if the evidence offered by the D is simple “V attacked me first”

These 2 exceptions, allowing introduction of circumstantial character evidence concerning the character of the D and the victim, apply ONLY in criminal cases.

CA § 1103(a): D may put character of VICTIM in issue. In CA may use ALL 3 types of evidence: opinion, reputation, and specific act

testimony to prove character of the victim.

Prosecution can then rebut this using opinion, reputation and specific acts evidence.

CA § 11103(b) : once D has offered evidence of the violent character of an alleged victim, the prosecution can offer evidence of the DEFENDANT’S character for trait for violence, in the form of opinion, reputation or specific acts evidence.

General Rule : Circumstantial character evidence is generally inadmissible

o Two levels :

(1) Civil Case – Almost never admissible (only for sexual assault and child molestation)

(2) Criminal Case – Only admissible if D puts his character in issue (opens the gate)

FRE 404(a) : Evidence of a person’s character is (in general) not admissible to prove that he acted in conformity therewith on a particular occasion.

o Exceptions :

(1) D Offers His Own Character : If the D offers such evidence in a criminal proceeding, then it is admissible. Also, this will open the door for the prosecution to rebut such evidence (using reputation or opinion).

D decides whether or not his character will be an issue in the case by calling (or refraining from calling) character witnesses

Prosecution can only utilize circumstantial character evidence on cross-exam

o Can use reputation, opinion, and specific acts if D offers evidence first (like Michelson), but not specific act evidence otherwise.

Michelson v. US : Facts : D, convicted for bribing federal agent, sought to exclude prosecution’s

cross-exam of D’s reputation witnesses regarding his old arrest for stolen property.

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o Circumstantial char evidence rules allow us to use hearsay to prove truth of matter asserted (all inferences depend on truthfulness of his reptuation)

o Once D puts his/her reputation on the table as part of defense, prosecution is free to put on own witnesses to testify as to the guy’s reputation (rebuttal)

Also could attack the credibility of his character witnesseso Prosecution may not as part of its case in chief prove anything about

D’s character as tending to show he performed the act Rule : In order to show that a D’s character witness is not familiar w/ the

D’s reputation, prosecution may cross-exam the witness regarding prior acts of the D.

(2) D Offers Victim’s Character : Same as when D offers evidence of his own character. However, in a homicide prosecution, the prosecution may introduce evidence of the peaceful character of the alleged victim to rebut any evidence offered by the D even when D simply says “V attacked me first.”

If D places character of V into evidence then prosecution can offer character evidence of the same trait of D (but in reaction to something D decided to place in issue)

CEC 1101(a) : Generally, same as FRE

o Exceptions :

(1) D Offers His Own Character : Same as FRE, except the parties are limited to opinion and reputation testimony only.

(2) D Offers Victim’s Character : Same as FRE, except not limited to homicide cases.

CEC 1103(b) : Also, once D has offered evidence of the violent character of an alleged victim, the prosecution can offer evidence of D’s trait of violence in the form of all types of evidence – opinion, reputation, specific acts are allowed.

Other Acts Evidence – Prior Bad Acts

Other acts evidence can be used in any case (civil or criminal)

In a criminal prosecution, prosecution can bring up other acts evidence as part of it’s case in chief – So D does not have to offer it first

Evidence is not offered to show that the subject acted in accordance with his or her character

Specific acts evidence can be introduced

Remember, the non-circumstantial character purpose for which the evidence is offered must be an issue in the case

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And should always consider danger of unfair prejudice. Judge should on the record that he/she has done this balancing.

o prosecution must establish that the evidence of prior acts/other crimes is relevant for a non-character purpose

o Notice that the trial court may still exclude such evidence if it is highly prejudicial to the D, or can give limiting instruction to the jury

FRE 404(b) : Other acts evidence is admissible to prove:o Motiveo Intento Preparationo Plan o Knowledgeo Identityo Or absence of mistake

CA §1101(b) : Other acts evidence is admissible to prove:o Same as FRE and adds: Opportunity

McCormick’s excerpt : (Prof says that on exam use McCormick’s as a guideline for other acts evidence!!!)

Other acts evidence admissible to: o to complete the story of the crime on trial by placing it in the context of nearby and nearly

contemporaneous happeningso to prove the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is

part. This will be relevant as showing motive, identity of actor, or intention. o (Intent by modis operandi) To prove other crimes by the accused so nearly identical in

method as to earmark them as the handiwork of the accused. The crimes must be so unusual and distinctive as to be like a signature.

o To show a passion or propensity for unusual and abnormal sexual relationso (to show absence of mistake) to show by similar acts or incidents, that the act in question

was not performed inadvertently, accidentally, involuntarily, or w/out guilty knowledge.o To establish motive. The evidence of motive may be probative of the identity of the criminal

or of malice or specific intent. An application of this principle permits proof of criminal acts of the accused that constitute admissions by conduct designed to obstruct justice or avoid punishment for a crime.

o To establish opportunity, in the sense of access to or presence at the scene of the crime or in the sense of possessing distinctive or unusual skills or abilities employed in the commission of the crime charged

o To show intent (to show w/out considering motive, that D acted w/malice, deliberation, or the requisite specific intent)

o To prove identity. Although this is indisputably one of the ultimate purposes for which evidence of other criminal conduct will be received, the need to prove identity should not be,

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in itself, a ticket to admission. Almost always, identity is the inference that flows from one or more of the theories just listed. The 2nd (larger plan), 3rd (distinctive device), and 6th (motive) seem to be most often relied upon to show identity.

o Modus operandi/signature crimes : means there is something so unusual that marks it the

handiwork of accused to prove identity --- ‘must bear such a high degree of similarity as to mark it as the handiwork of accused”

o Proximity in time b/n acts is very important! (if too much time goes by, then it is less likely it will be found to be a signature crime)

o Courts will admit m.o. evidence that occurs after the incident in question – as long as they are close in time.

o Just remember must show that it identifies the D w/out resort to D’s character Example : could use m.o. to prove identity of the recent sniper b/c sniper used a high

powered weapon w/special type of bullet Example of what is NOT sufficient for m.o. : selling heroin in balloons. There is nothing

unique about this beh’v. It is quite typical.

CA standard : Trial judge must find that jury could find D committed the prior act by a preponderance of the evidence. (preliminary question of fact)

o Note: the fact that a D was never charged with a prior act does NOT mean that the evidence is inadmissible.

o You can be tried and acquitted and the govt can still use this as prior acts evidence if can show by a preponderance of the evidence.

FRE standard : Trial judge must find that a jury could reasonably find that D committed the prior acts (this is a lower standard than preponderance of the evidence)

o This is a preliminary fact question for the judge: could a jury reasonably find that D committed the prior acts.

o Note: In general for admission of evidence it is still preponderance of the evidence – but to find that D committed the prior acts the question is if the jury could reasonably find this.

Steps for other acts evidence : Any time using other acts evidence, must clearly identify an appropriate purpose

(use McCormick’s as a guide) cannot use it as circumstantial character evidence (meaning there is the

inference that b/c you did it before, you did it this time – it CANNOT be for this purpose)

It must truly be an issue in the case Must show that have gone through the balancing test – so ct must show that it has

carefully weighed the probative value vs danger of unfair prejudice the balancing test is discretionary: and as long as judge has said on the record that

I have thought about this and I don’t feel there is unfair prejudice – then it will almost never be reversed on appeal

Summary of how Other Acts evidence is different from Circumstantial Character evidence :o It is admissible in civil and criminal cases

The rule does require that the prosecution give a D reasonable notice, in advance of trial, of the nature of the other acts evidence if the accused requests such notice.

o In a criminal case, the prosecution may offer other acts evidence as part of its case in chief

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o Specific acts evidence can be introduced, and is the primary method used under this theory (Ex’s: Beasley’s drug purchases, Cunningham’s prior theft of Demerol, Huddleston’s sale of stolen merchandise)

o Remember, the non-circumstantial character purpose for which the evidence is offered must be an issue in the case, and you should always consider the danger of unfair prejudice.

Cases and hyposo Hypo : D is accused of homicide and defense is accident (person shot is a police officer)–

prosecution as part of its case in chief wants to introduce that D 1) violated parole 2) robbed a store 3) stole a caro Q: is this evidence relevant on the issue of whether the homicide was accidental or not? o A: this evidence may show motive. He shot the police officer intentionally, rather than

accidentally b/c he was trying not be caught by the police officer for the other offenses. The evidence is introduced is of specific acts, which is another reason why this is NOT character evidence.

o Note: In an appropriate case, evidence of addiction can be motive to commit a crime. So it

is not character evidence. Usually the way this works is for motive to steel drugs.

o Note : argument that other acts show a pattern does NOT work b/c it has same problem as circumstantial character evidence – bad man theory

Other Outline

We can use evidence of conduct in order to show things other than character (i.e. – motive, opportunity, intent, identity) and if we are using evidence in this way, even though it looks like character evidence, it really is not

FRE 404(b) : Evidence of other crimes, wrongs or acts is inadmissible if offered to prove a person acted in conformity with her character.

o This evidence is admissible for “other purposes” such as proving motive, intent, preparation, plan, knowledge, identity (including signature crimes), or absence of mistake or accident. Used this way, it is not circumstantial character evidence, and D does not have to open door first.

Requires prosecution give D reasonable notice in advance of trial, of the nature of the other acts evidence if the accused requests such notice

Standard for Admissibility of Other Acts Evidence : Under FRE, it is the lowest standard possible All judge has to find is that jury could reasonably find that other act occurred, then it is admissible

o Lower than preponderance standard

o Basis for This Lower Standard :

(1) Under FRE 404(b), evidence offered for proper purpose (2) Relevance requirement (as enforced through FRE 104(b)) (3) Judge must balance probative value against unfair prejudice

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(4) They have access to limiting instruction

o FRE 404 – 412 do not require a preliminary finding by a preponderance of the evidence before admission of such evidence.

o Huddleston v. US : Facts : D, charged w/ sale of stolen video cassettes, challenged trial ct’s decision

admitting evidence of other similar acts for which D was not convicted. Rule : Evidence of a D’s similar criminal act may be admitted if there is sufficient

info to support a finding by a jury that D committed the similar act.

Distinctions b/w Other Acts Evidence and Circumstantial Character Evidence :

o Other acts evidence can be introduced in civil litigation, while circumstantial character cannot

If motive is an issue, can use other acts evidence

o In criminal case, prosecution can introduce other acts evidence as part of its case in chief Even before D has a chance to “open any door”

o Other acts evidence is specific act evidence (virtually all the time) Things that help us identify suspect as the perpetrator

Other Acts Evidence May Be Introduced to Show :

o (1) Same Transaction (“res gestae”)o (2) Purpose (existence of larger plan, conspiracy, scheme)o (3) Signature Crimes (time elapsed b/w crimes must be short, act must be unique), “MO”o (4) Passion or propensity for unusual sexual relationso (5) Act was not an accident or involuntary o (6) Motive (can be probative of ID, malice, or specific intent)o (7) Opportunity (access to or presence at scene of crime)o (8) Malice, Deliberation, or Requisite Specific Intento (9) Identity

US v. Cunningham :o Facts : A nurse, accused of stealing Demerol, sought to exclude evidence of her prior

Demerol addiction and prior thefts of Demerol. Probative value outweighed danger of unfair prejudice, here Used her addiction not as status marker, but to show motive for committing the crime Motive being addiction

o Rule : Evidence of prior bad acts may be admissible even if it tends to show propensity, if it is also relevant to show the defendant’s motive.

US v. Carrillo :o Facts : D, convicted of heroin/coke distribution, challenges trial ct’s decision allowing gov’t

to introduce evidence of other drug deals conducted by D in order to prove his identity in present crime.

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Cannot use circumstantial character to show propensity here – have to show high level “MO”

Selling drugs in balloons is common way to commit crimes – not indicative of identityo Rule : Evidence of prior crimes, used to prove the identity of the accused, must bear such a

high degree of similarity to the present offense as to make it the handiwork of the accused.

Common Scheme or Plan :

o Before evidence of a collateral offense is admissible for any purpose, prosecution must first establish by plain, clear and convincing evidence, that D committed that offense.

o Tucker v. State : Facts : D challenges trial ct’s admission of prior criminal act for which D was not

convicted, as proof of a common scheme and plan. Rule : Evidence of a prior crime, for which an accused has not been convicted, may

not be used as proof of the accused’s common scheme and plan. CONVICTION IS NOT AN ISSUE IN OTHER ACTS EVIDENCE

person can be acquitted and no matter the JDX it can be admissible because std of admission is beyond of reasonable doubt but preponderance of evidence and other sstds are way below that. Every court has held an acquittal can get in.

Cts have said std in admission of evidence is diff than conviction and fact acquitted doesn’t mean jury wont find the other act occurred.

Cts have rejected arguments about double jeopardy and fundamental unfairness.

SO DON’T MAKE MISTAKE THINK ACQUITTED THEREFORE INADMISSIBLE.

Ct says the std for admitting other acts evidence is clear and convincing evidence – higher std

CA rejects it and its preponderance and he or she can admit it subject to the balancing test

Judge needs to do 3 things in order not to be reversed has to est that one of the non circ char issues is truly an issue in the case.

o Identity etc evidence being offered truly does in non circ way tends to accomplish that

end. weighed that non circ usage and probative value for that purpose

The proponent must (because it is the proponent who must prove these things in order to introduce this evidence)

make a clear non circ reason/argument why its admissible show how the evidence really tends to prove that issue in a non

circumstantial character way. Then always think of balancing test

o Can be admissible subject to balancing testo Can be like harmony house hypo pros wants to introduce evidence D

is sex offender as proof he robbed the bank that is unfairly prejudicial – that is not in bec not necc to prove what prosecutor wants to prove.

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Balancing Test : Even if admissible, probative value needs to be balanced against unfair prejudice.

o Factors include :

(1) Strength of evidence as to commission of other crime (2) Similarities b/w the crimes (3) Interval of time elapsed b/w the crimes (4) Need for the evidence (5) Efficacy of alternative proof (6) Degree to which evidence probably will rouse jury to overmastering hostility

o Limiting Instruction : A limiting instruction may be requested

US v. Beasley :o Facts : D, convicted for distribution of illegal drugs, challenged trial ct’s decision admitting

into evidence D’s other drug-related offenses. (feeding drugs to plants case) Pattern is relevant, and this evidence shows pattern of conduct – pattern (in and of

itself) is another way of saying circumstantial character evidence Not “MO” problem – similarity and time elapsed do not meet standards Intent works – was important to show D got drugs not for experiment, but to distribute But unfair prejudice outweighed probative value, so not admissible

o Rule : Before admitting evidence of prior crimes, judge must identify the exception that applies to admission of the evidence, and evaluate whether it is sufficiently probative to outweigh prejudice.

CEC 1101(b) : Same as FRE, except standard employed is preponderance of the evidence rather than reasonableness (used in FRE).

Habit

HABIT

o Habit: a specific response to a specific set of circumstances Habit is different from character in that it is a specific kind of response

o Rule: evidence of habit is generally admissible w/out restriction! (so specific instances of habit are admissible)

there is no objection about unfair prejudice b/c we are showing a direct connection b/n habit and what we are trying to prove (acting in conformity) with habit

o Generally we prove habit by person coming in and testifying to: that have seen this person go down stairs 2 at a time on the center stair case of the Burns

building for 3 years or, I am this person’s best friend and every time he goes down stairs he goes does 2 at a time

(either will work) OR

o Same set of stairs 2 at a timeo Driver goes to rolling stop at intersectionso Corp makes record every time there is an accident

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o Physician makes an entry every time see patient So if the person goes down 2 steps at a time and then he falls and sues, no one saw

him fall, school can present testimony that everytime saw that person go down stairs – then it be contrib. negligence. Doenst matter if anyone saw the accident.

Same in coroporate context, if say I did X for Y on Y date, and corp says when do bix make records and provide docts indicating they do 3 records and they say WE HAVE NO RECORD, then its evidence of habit or course of conduct, and it is admissible.

o You can also prove HABIT OF AN ORGANIZATION Routine practice of a corporations (e.g. every time there is an accident – the corp

prepares an accident report)

o Perrin v. Anderson : has never said how many specific instances may be enough to show habit (but we do know that 5 is not enough and 8 may be enough)

Note: Perrin represents the ABSOLUTE OUTSIDE of what you can call habit.

How to Prove Habit :

o People that testify to your actions in the pasto It has to be a regular reaction to a repeated and specific set of circumstances

4 or 5 times is insufficient to constitute a habit

Habit is thought to be much more relevant than character evidence ( so we don’t put limits on it )

FRE 406 / CEC 1105 : Habit is a person’s regular practice or conduct when confronted w/ a particular kind of situation.

o Unlike character evidence, habit evidence may be used to prove that an individual’s conduct on a particular occasion was in conformity with his habit or routine practice.

o Under both FRE and CEC : Habit evidence is admissible to prove a routine practice of a corporation or other organization (not for just humans/individuals)

Perrin v. Anderson :o Facts : In civil rights action for son’s death, P contended trial ct’s admission of PO’s

testimony regarding their previous encounters w/ P’s son was erroneous. His character was not an essential element (material issue) therefore circumstantial Circumstantial character is not admissible in civil cases unless by statutory exception

o Rule : Evidence of specific instances of conduct may not be used as circumstantial evidence of a party’s character.

Character v. Habit Evidence :

o Habit can be offered in civil proceeding (to show careful/careless habit) – Character evidence cannot

o Habit can be offered in criminal proceeding – Character evidence can (but has limits)o Habit can be brought in by whomever – Character has fancy rules (can’t be brought by just

anyone)

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o Habit can be used to prove propensity (more or less) – Character evidence cannoto Habit is more specific than Character

Habit admissible w/o eyewitnesses Habit needs no corroboration (can itself be sufficient to prove doing of an act)

Sexual History Evidence

D’s History :

o FRE 413 – 415 / CEC 1108 : Prosecution can introduce circumstantial character evidence of D (prior sexual offenses committed by D)

In criminal case, prosecution can introduce it as part of its case in chief

In civil case, proponent can introduce it as tending to show sexual assault and child molestation (propensity)

Only place circumstantial character can be introduced in civil proceeding

o In both criminal and civil cases . . .

If there is substantial similarity b/w act and other character evidence, then balancing test does not apply (presumed admissible) because of the clear intent of Congress

If it is dissimilar and/or there is not sufficient specificity (not enough evidence about other act), then balancing test applies – might be admitted but judge has discretion to exclude it – because most judges don’t like it.

RAPE SHIELD STATUES

o History : before Rape Shield §’s ct’s allowed evidence of specific acts of the victim as tending to prove P’s consent (this turned a rape trial into the trial of the victim)

o Now have Rape Shield §’s – they are an exception to the general rule that D can put on evidence of victim’s character as tending to support D’s innocence

o Now, under the Rape Shield §’s: NO evidence may be offered as tending to prove consent of a woman to rape.

Rape Shield §’s ONLY apply to character evidence used to prove CONSENT to rape.

Victim’s History :

o Rape Shield Legislation – Limited use of evidence of prior sexual conduct in sexual assault cases

Common Feature : Evidence of reputation and sexual behavior is not admissible purely for purposes of showing unchaste character, as the basis for a further inference that the complainant consented to sex on the occasion in question.

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o FRE 412 : Use of circumstantial character evidence about an alleged victim of sexual assault is prohibited. You cannot show her past sexual behavior to prove consent.

Applies to both civil and criminal cases

Exceptions (Use of circumstantial character evidence is admissible) :

Prior Sexual Conduct w/ D : As opposed to prior sexual conduct w/ other people

Prior Sexual Conduct w/ Others (someone else was the source ) : When offered for purpose of explaining physical consequences of alleged rape (i.e. pregnancy, injury, etc.) – basically when explaining someone else was the source.

Unconstitutional : If excluding the evidence would violate 6th amend Confrontation Clause rights of the accused/D.

o State v. Cassidy : All rape shield statutes have an exception for evidence that is so relevant that it is constitutionally required to be admitted (6th amendment right to confront accuser and cross-exam).

Motive / Similar Acts : Some cts allow evidence offered to show possible motive for fabrication, or other behavior closely similar to behavior on occasion in question

Motion Required : D must make written motion describing the evidence and stating the purpose it is going to be offered for (and judge decides in camera if it is admissible or not)

o CEC 1103(c) : Same as FRE – allows sexual history be admitted to impeach V’s testimony (i.e. show motive to lie), which if not admitted, can violate D’s 6th amendment rights

CEC now admits specific acts of victim as form of proof Applies to criminal prosecutions

o It is jury’s job (not judge’s) to determine whether a prior sexual relationship existed – Olden So if jury can reas find the evidence exists for purposes for impeaching witness now,

like the lower HUDDLESTON STD, we have to admit it and the jury decides what to believe.

Also, must make the motion to the court what the evidence is and what is its non consent purpose it will be excluded.

1. Olden v. Kentucky : D was charged with raping P. D tried to elicit from the victim about her extra-marital relationship with Russell. D’s theory is that P concocted the rape story to protect her relationship with Russell, who had seen P get out of D’s car.

a. Q: does this evidence show that P consented to the sex?b. A: NO – this does not fall under the Rape Shield § b/c it was NOT offered to show that

b/c she had sex w/Russell that it is more likely that she had sex w/D. It is offered to show that P fabricated the story to protect her relationship with Russell. This is not a rape shield problem. The ct said this is an interracial relationship in the south.

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c. Q: what is the probative value on this evidence that P is lying?d. A: pretty high – there was discrepancy in her initial allegations of D, etc.e. KEY HOLDING: once get passed not RS stat problem, court says this evidence is highly

probative on the issue of her veracity, and therefore, that is why the court says it violates his const right. IT’s PV is so high cant exclude it. IT is like the RS stats themselves. i. It’s the PV on her truthfulness.

ii. The court is critiquing the balancing of the KYCOA. They said they didn’t analyze the fact it would impeach her testimony and the Ds right to have that done. Because they didn’t add that important factor in then the 6th Am right was violated and this evidence should be in.,

b. Then the court talks about the harmless error analysis.i. The correct inquiry is whether, assuming that the damaging potential of the cross

examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt....

Similar Happenings

CA rule is the same as FRE : similar happening evidence is admissible IFo the circumstances are substantially similar

i.e. if it was raining and slips don’t say fell when oil on it that is judges role to make sure the evidence is relevant decide if happenings are similar, probative, and relevant.

o and danger of unfair prejudice does not outweigh probative value. after determine relevant he or she has to determine that its prob value on notice or

existence of the fall is not subst outweighed by the danger of unfair prejudice.

Judges responsibility for similar happenings evidence:o admissible by preponderance of the evidenceo and that the circumstances are substantially similar

“where proponent can show that other accidents occurred under circumstances substantially similar to those prevailing at the time of the injury in question such evidence is admissible subject to exclusion by the trial court when the probative value of the evidence on the issue of defect, notice or causation is substantially outweighed by the danger of unfair prejudice”

FRE 402 : Similar happening evidence is admissible if it is :

o (a) relevant, o (b) circumstances are substantially similar, o (c) shows timing for notice, and o (d) the probative value substantially outweighs unfair prejudice.

Simon v. Kennenbunkport :o Facts : P, who had fallen on a crosswalk and injured herself, challenged trial ct’s decision

excluding evidence of similar accidents offered by her to prove defective conditions of the sidewalk.

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Evidence of ppl falling after this lady fell is not relevant o Rule : Evidence of similar happenings, if relevant and probative, is admissible as

circumstantial evidence of defective condition.

Two purposes for this evidence :

(1) To show that defective condition existed, and (2) To show city was on notice of such a condition

o Judge now has to find substantial similarity b/w evidence being offered and the event that is the subject of the dispute

Judge has responsibility to make sure similar happenings evidence offered is truly similar

Otherwise. . . (a) Evidence is arguably irrelevant (b) Even if relevant, it is arguably prejudicial

Burden On proponent

Safety History Evidence

o Evidence of no prior accidents or injuries (overall safety) can be used to show absence of defect/negligence just as evidence of hundreds of people falling can be used to show a defect

o D can either use it to show :

(1) Absence of a defect, or (2) Lack of knowledge (not on notice) of any defect if it exists

Timing

o Timing makes a difference for proving notice, but it makes little difference if we are trying to show existence of the defect

Timing is largely irrelevant if talking about extrinsic evidence o Limitation : You do have to show there has not been a change in the condition b/w the time of

the accident and the time of the evidence you are offering

CEC 210, 350, 352 : Read together by CA cts to say similar happenings evidence is admissible

Subsequent Precautions (a.k.a. Remedial Measures)

Subsequent Precautions a HYPO o Have house children like to play one falls and hurts arm and then decide to cut off branch.o If child wants to introduce evidence that cut off branch is it relevant?o Yeso If lawyers introducing behavior tending to show at fault is that what communicating?

Its not assertive. Not cutting it down to tell the world you were at fault but it could be taken as a sign

you thought there was a problem, so in that sense it is clearly relevant evidence.o Of course its relevant, and probably non assertive conduct so not worried about hearsay and if

use it against him its an admission if it is.

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o The law will decide its not such a good idea to allow this evidence to be usedo Because

If admit this evidence it would discourage people from taking steps to correct it. Even if tho it tends to show the D is at fault.

And this is the rationale for the subsequent precautions rule. o SP – Common Law: Such evidence is inadmissible to prove liability

o Rule : Subsequent precaution evidence is inadmissible if offered to prove negligence or fault

FRE 407: Subsequent precautions is NOT admissible to prove liability in a strict liability case.

CA held the opposite : policy does not apply to product liability case. Subsequent products IS admissible in product liability/strict liability cases

o FRE EXCEPTIONS - such evidence can be used to: impeach testimony to controvert feasibility

o CA: subsequent precaution is ONLY admissible to impeach

o FRE : (formal rule) subsequent measure is inadmissible to prove negligence, culpable conduct, a defect in the product, a defect in a product’s design, or a need for a warning instruction.

But such evidence is admissible when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measure, if controverted, or impeachment.

o CA : (formal rule) evidence of subsequent repairs is inadmissible to prove negligence or culpable conduct.

But such evidence is admissible for purposes of impeachment. (CA does not include feasibility exception)

o Subsequent precautions to impeach testimony: if offering evidence to impeach: have to show :

have to have statement like you see at p. 456 “it was the best combination of safety and operation yet devised” then a design change is made after the accident – this is allowed as impeachment evidence

it is not enough to say we weren’t negligent or what we did was safe – then use a design change to impeach such a statement – there has to be something more.

o Said another way: if witness says I think it was safe or unsafe – the change in protocol does NOT impeach the testimony that it was safe or unsafe

o Subsequent precautions to controvert feasibility (only FRE) Feasiblity:

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narrow version of feasibility (USE FOR EXAM): D must have contended that the measures were not physically, technologically, or economically possible under the circumstances then pertaining – so evidence of subsequent precautions can then be introduced to controvert feasibility (so in a way this is similar to impeachment)

broader version and minority view: feasibility means that which is capable of being utilized successfully

OTHER OUTLINE:

FRE 407 : Subsequent precautions taken by a party cannot be used to prove negligence, or culpable conduct (fault).

o Exceptions : However, it can be used to prove :

(a) ownership, (if disputed) SO if Tree person said I didn’t even own the tree then the fact he changed it IS

ADMISSIBLE

(b) control, (if disputed) (c) to impeach a witness, or (d) to show feasibility of precautionary measures, if contested.

Impeachment : If the same individual who testifies that the action was safe, later takes an action that is inconsistent – the evidence is admissible for impeachment. But if individual is not responsible for the change – the evidence is inadmissible.

Feasibility : Defined in two ways

o (1) Narrow (use for EXAM) – Feasibility is an issue if D contends that the measures were not physically, technologically, or economically possible (taking into acct : value, effectiveness, and overall utility)

o (2) Broad – Is an issue if D contends that measure were literally impossible

o If proponent puts ownership, control, or feasibility into controversy, the subsequent precaution rule does not apply and you can use this evidence as tending to show negligence or culpable conduct.

Rationale : Do not want to discourage people from alleviating a problem when they realize one exists.

o It is highly relevant, but don’t allow it for public policy reasons above

o Strict Liability Even though the statute does not specifically say that such evidence cannot be used for strict liability cases, policy considerations dictate that it should apply.

EXAM 36

FRE - Assume such evidence is inadmissible in SL cases. CEC – Evidence of subsequent precautions is admissible in SL cases

Tuer v. McDonald :o Facts : A surviving spouse of a man who suffered cardiac arrest after medication was stopped,

sued hospital and drs. for malpractice, attempting to admit evidence that hospital changed its policy regarding cessation of medication after the death.

o Rule : The “feasibility” and “impeachment” exceptions to the subsequent remedial measures rule should be read narrowly.

o Tuer Approach You only dispute feasibility when you testify that it is not technologically, physically, or economically possible.

CEC 1151 : Same as FRE, but CA allows evidence to be admissible in strict liability cases

o EXAM Under CEC, evidence of subsequent precautions can only be introduced for purpose of impeachment – not the other things (unlike FRE)

Offers in Compromise / Settlement Negotiations

o Rule : So policy says cannot introduce evidence of settlement, or effort to settle, as tending to show negligence or affecting the validity of someone’s claim

So evidence of settlement is inadmissible and evidence of discussions about settlement are also inadmissible to prove liability– even if you talk about the facts in settlement this is inadmissible

Some ct’s take the Davidson approach – where there has to be some recognizable language that indicates it is an attempt to settle the case

CA court : need some formal indication that it is an effort to settle (If the statement admits liability and seeks to secure relief against liability, then it is an admission, not a negotiation and it will be admitted as evidence)

ON FINAL IT WILL BE CLEAR NEGOTIATIONS HAVE BEEN DONE

o Where there is claim of an insurance co’s bad faith in failing to pay a claim – then evidence of the insurance’s company offer to settle IS admissible to show bad faith. I think this is because such evidence is not offered to prove liability but to show bad faith. This is true under FRE and CA (in CA it is codified)

FRE 408 : Settlement offers cannot be introduced as evidence as tending to show liability or as a reduction in the value of someone’s claim.

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o Rationale : Lay people will just assume person giving money is doing so b/c they are responsible. People have to be able to discuss these issues without worrying about it being used against them later.

o Exceptions : Settlement offers can be introduced for some purposes other than to show liability :

(1) To impeach a witness (2) To show a witness’s bias (3) To negative a contention of undue delay (4) To obstruct a criminal investigation or prosecution (5) Insurance bad-faith

o Davidson v. Prince : Facts : In negligence action against D, P appeals decision of trial ct admitting letter by

P to D’s employers on ground that letter should have been excluded as stmt of compromise.

Cannot offer these stmts to prove liability, but can use it to impeach the witness

o Impeachment is not proving matter asserted – just credibility of witness Rule : In order to exclude a stmt from evidence as an offer in compromise, the party

seeking exclusion must show that the stmt was made in compromise negotiations.

FRE 409 : A party that offers to pay or does pay part of medical bills or other expenses of opposing party is inadmissible to prove liability.

o BUT, if you make an admission in the course of this convo, then it is admissible

o Rationale : Don’t want to discourage ppl from making offers – to encourage humanitarian impulse

There is difference b/w settlements and offers to pay med bills, expenses

When Do Negotiations Begin :

o At Common Law We have to use “magic words” in order to discuss case w/o opposition i.e. – “just for sake of argument”... “let’s assume”, etc. It means that if you make a mistake in negotiations and don’t say magic words, then it

becomes an admission

o Modern Evidence Rules We now protect discussions that are aimed at settling a matter so that parties can freely talk about merits of the case w/o worrying that if negotiations break down then those discussions can be used as evidence of liability

Apology An apology or other stmt of fact during course of negotiation is inadmissible

CEC 1152 : Same as FRE but renders inadmissible any discussions related to either settlement offers or humanitarian offers to pay

o As far as when negotiations begin, a CA court has said that “if a proposal is tentative and any statements made in connection with it are hypothetical and the offer was made in

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contemplation of mutual contention, then it is an offer to compromise.” It is roughly similar to the Federal Rules.

Offers to pay expenses o Federal Rule 409 – good Samaritan rule

Evidence of furnishing or offering or promising to pay medical hospital or sim expenses occaisioned by an injury

Unlike Rule 408, which covers offers to compromiseo The advisory committee drew a distinction. Discussion of the occurrence is necessary to

promote settlement; discussion of the occurrence is not required for a person to make a good Samaritan offer.

o You offer to pay medical expenses in the course of your conversation sorry for provoking bull into goring you. Victim sues: your statement is admissible because its an admission the policy doesn’t exclude it.

Unlike if settlement discussion and make the same statement then it wouldn’t be admissible.

o CA has good Samaritan rule 1152 Combines good Samaritan and settlement In compromise OR from humanitarian motives The consequences is that the conversation in connection with the offer is excluded So the hypo from above the statement would be inadmissible under CA law.

RELEVANCY II HYPOS

Hypo P 406 Get 1-5

#6

This is not sufficient because it is just three other robberies, it has to be unique. Some might say you can use the more general identity but courts have been careful to say that identity is not an excuse to circumvent the circumstantial character rules.

P 432 Questions1) T: It is relevant, this is classic circ character evidence, there is no doubt about it. We allow the D

in a crim prosecution to introduce evidence of the victim to show that victim conformed with character, one of the 2 traditional we allow. Only reputation and opinion as well, D would be allowed to do it.

2) F under federal rules, This is specific acts evidence but there is a caveat.a. T In CA can use SAE to prove the character of the victim, sec 1103 – he or she may use

all three forms.3) T Specific act evidence not in FED it wont get in (but in CA you cant)

a. BUT HERE the defense is SD a potential argument tending to show he is fearful of the victim, more likely V attacked first may be able to introduce it – this is the Ds state of mind.

b. Offered to show SOM is ok, but offered as tending to show behavior of person then wont get in. Here the prejudice is fairly substantial, judge might exclude, give a limiting instruction, not sure.

c. In CA don’t have to worry about it but admissible for both purposes. 39

4) T not being offered to prove truth of the matter asserted, but fear, so it is not hearsay in CA and Fed

a. Couldn’t admit this in CA as evidence of the victim’s character because if offered to show character it becomes hearsay, because now using to prove the truth of the matter asserted. Depends on the truthfulness of what he was told.

5) T a. CA 1103b once D offers evidence of Ds character for violence P can rebut for introducing

Ds character for violenceb. 404a1 If offers character of V then can do the same character for the D.c. So if opening up character as issue might be opening it up for yourself.

2) Hypos 438 – 439 a. 1

i. Michelson sets a std for character evidence witnesses:1. the witness must show such an acquaintance with the D in the community...as

to speak with authority2. The point he has to know the D for a period longer than a month.3. So even tho this would be opinion or rep there needs to be sustained

relationship or familiarity.4. So he isn’t qualified here and his evidence would not be in.

b. 2i. Admissible to show motive because a lot to lose if he was caught. We would have to

do the balancing test and the probative value is strong. ii. This is a classic non character usage, tends to show have a reason to kill officer.

iii. Also its first degree murder and you need to show premeditation.c. 3

i. Modus operendi – should be inii. So it tends to identify him as the perpetrator of the alleged crime.

iii. If we are using 404b it is not circumstantial character, it’s a signature crime, he has a particular way of doing it.

iv. And the argument is identity, it tends to show his identity, it identifies him as the person who did the crime.

v. But is this unusual for being a pickpocket? vi. Also want to show where the crime took place and there would be no sufficient time to

copycat.vii. SO WITH SIGNATURE, THE CLOSER YOU ARE IN TIME YOU ARE OK

viii. It would depend on the judge, might depend on the community as well.ix. Not character, offered for ID and it comes in.x. In CA the std is preponderance of the evidence that the D committed the other act

xi. In Fed Ct its reasonable jury could find – much lower std. As long as judge satisfied D could’ve committed other act the evidence is admissible.

xii. So if there is an objection, judge has to decide and apply the correct srd so he brings in the judge and listens to his testimony

1. In Ca if he thinks its credible its in, if not, not.2. In Fed it would be: would anyone believe him? And usually the answer is yes.

d. 4i. It would not be in because we know his identity.

ii. Identity is not an issue.

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iii. We know it was X who kicked him, so its not an issue.e. 5

i. Character not in because civil trialii. Habit tho it would be in because it was a habit

3) HYPO p 4761. it is relevant for absence of notice.2. if we can say 3000 have traversed this surface over a year and she is the first

one who fell it has some tendency in reason to show there is not a defect. 3. But there is nothing in the fact pattern about conditions but in this place can

say its more probative because people traversed this surface under a variety of conditions and no one has fallen and judges have tended to accept that if have sufficient # of occurrences

4. so safety history evidence is like sim happenenings and judges will admit this5. it was admissible

4) Hypos p 476a. 1

i. It’s a SPii. P would say impeaches managers testimony because if testified not worn down fact

replaced...iii. But HERE X said to replace it – not B who testified!!!iv. So its not impeaching him.v. We don’t know who ordered the replacement and absent that its

vi. INADMISSIBLE because didn’t show by a preponderance of the evidence that B was the one who did it.

vii. Have to prove person testifying replaced the strips. b. 2

i. He ordered it so we can use itc. 3

i. Should the P be allowed to discover this evidence?ii. Std for discovery: anything reasonably designed to be relevant evidence – very broad.

iii. So this is a trick question.iv. So since there is a POSSIBILITY that it might become admissible you are entitled to

discover it, and since we know that if a person says something about control impeachment etc we might be able to use this, the SP

v. So we would be able to discover it.5) Hypos P 484

a. 1i. It’s HS

ii. In CA but its an admission but you have to show it was authorized.iii. Under FED tho its an admission it was within the CSE.iv. IS it excluded because of negotiation?

1. Hes not authorized, then it becomes admissible. IF company don’t want drivers making offers of settlement but make his statement admissible in company.

v. also, is this a bona fide settlement also would say its not. vi. his desire to settle also shows reflection so not excited utterance.

b. 2

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i. admissible ii. this is addressed by stat now

iii. but now with bad faith ins when offered to show bf that denial of the claim is bad faith that is different than offer in compromise.

iv. its just tending to prove bf and that’s different v. now CA evidence code and FED been amended now to say this proof is exempted

from policy and can now be admitted to show bf on apart of the ins company. vi. fact willing to let her keep money and continue policy tends to show bf.

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HEARSAY

FRE 801(c) and CEC 1200 : Hearsay is a stmt, other than the one made by the declarant while testifying at trial/hearing, offered in evidence to prove the truth of the matter asserted therein.

FRE 802 : Hearsay is not admissible except as provided by FRE, S.Ct., or Congress

FRE 805 : Hearsay within hearsay is admissible if each stmt falls w/i an exception

Purpose of Hearsay Rule : To prevent reliance on credibility of an out-of-ct declarant. Law seeks to guarantee the right to party against whom such evidence is sought to be introduced to meaningfully cross-examine the out-of-ct declarant.

o Hearsay rule guards against misperception, misrecollection, misstatement, and insincerityo Safeguards in trial procedure reduce risks (i.e. – cross-exam, ability of jury to observe

demeanor)

Definitions of Hearsay :

o Assertion-Centered Approach : An out-of-ct stmt is hearsay when it is offered in evidence to prove truth of the matter asserted.

“Declarant” FRE 801(b) : a person who makes a statement “Credibility” : Testimonial qualities of sincerity, narrative ability, memory, and

perception

Catch-All Hearsay Provision :

o FRE 807 : Where a stmt is otherwise excluded as hearsay, but has equivalent circumstantial guarantees of trustworthiness, it may come in if the ct determines that :

It is offered as evidence of a material fact It is more probative on the point for which it is offered than any other evidence which

the proponent can procure through reasonable efforts AND The general purposes of these rules and the interests of justice will best be served by

admission of the stmt into evidence

The proponent must give the adverse party sufficient notice that it intends to offer the stmt, and the particulars of it, including the name and address of the declarant.

o There is no residual/catch-all provision to hearsay rule in CEC (*check*)

Personal Knowledge of Witness :

o FRE 602 : A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence of personal knowledge may, but need not, consist of witness’s own testimony.

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o CEC 702 : Testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter. Against the objection of a party, such personal knowledge must be shown before the witness may testify about the matter.

May be shown by any otherwise admissible evidence, including his own testimony

Limiting Instructions : Should be given when evidence has dual purpose

o If counsel does not immediately ask for limiting instruction, it is considered waivedo FRE 105 & CEC 355 : When evidence which is admissible as to one party or for one purpose

but not admissible as to another party or for another purpose is admitted, the ct, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

Sixth Amendment Crap : 6th AMEND ANALYSIS COMES BEFORE HEARSAY ANALYSIS

o An unavailable witness’ out of ct stmt may be admitted w/o violating Confrontation Clause (6th Amend) so long as it has adequate indicia of reliability.

To meet this test, the stmt has to either :

(a) Fall w/i a firmly rooted hearsay exception, or (b) Bear particularized guarantees of trustworthiness

o Namely, the D must have had the opportunity to cross-exam the declarant to determine whether the stmt was reliable

o In determining whether the stmts are admissible, we add another inquiry : Whether the evidence being offered against D is “testimonial” in nature

If testimonial, 6th amend makes it inadmissible whether or not it would otherwise have been admissible under hearsay rules (applies to both state and fed gov’t)

What is testimonial? (ct’s job to figure out “what “ is testimonial)

o Stmt to police or police interrogationso Affidavits and other stmts given under oatho Custodial examinationso Former testimony where D did not have an opportunity to cross-

examine D (i.e. grand jury testimony) – only admissible where declarant is unavailable and D had an opportunity to cross-exams

If the stmt is NOT testimonial , the stmt’s admissibility is merely a matter of applying evidentiary rules regarding hearsay and various hearsay exceptions

Four Testimonial Infirmities :

o (1) Ambiguityo (2) Insincerityo (3) Faulty perceptiono (4) Erroneous memory

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Basic Hearsay Problem :

o Forging a reliable chain of inferences, from an act or utterance of a person not subject to contemporaneous in-ct cross-exam about that act or utterance, to an event that the act or utterance is supposed to reflect

o Links required in chain of inferences :

First link from the act or utterance to the belief it is thought to express or indicate Second link from declarant’s assumed belief to a conclusion about some external

event that is supposed to have triggered the belief, or that is linked to the belief in some other way

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HEARSAY ANALYSIS

Four Hearsay Inquiries :

o (1) What is the out of court “statement?”o (2) What is asserted in the out of court “statement?” (what was the person saying?)o (3) Is the “statement” being offered to prove the matter(s) asserted?o If yes, move on. If no, then it is NOT HEARSAY.o (4) If it is hearsay, does it fit within an exception?

State v. English : Hearsayo Facts : D would like to present evidence of 3rd party’s confession at another trial for murder

for which D is charged. Evidence is plain hearsay b/c not under oath

o Rule : Out-of-ct confessions of 3rd party to a murder for which D is charged is not admissible at D’s trial.

US v. Brown : Hearsayo Facts : D, charged with tax fraud, objects to gov’t introducing evidence of agent’s testimony

that 90-95% of all tax returns prepared by D were overstated. Ct held only way she could have come to this conc was to talk to taxpayers or go over

records. B/c these went into forming her conc that forms were overstated (i.e. truth of matter that D was guilty of overstating them), they were hearsay.

This doesn’t sound like hearsay because we know that she looked at the returns and can testify what she saw.

But she cant conclude they were overstated without talking to the people, taxpayers, or review the underlying documents.

That is a hearsay problem because you cant rely on her testimony because they cant cross examine the people that she talked to.

The defense counsel should have objected and if counsel had done so the judge might have questioned her and found out if it was based on hearsay or not. This is a rare instance where a court rescues a lawyer from not doing his job. Ordinarily this case would have been sustained.

Point : sometimes you have to go a little bit deeper than what is on the surface to see if there is hearsay

o Rule : Evidence which is directly derived from out-of-ct stmts of parties not present at trial constitutes hearsay.

STATEMENTS NOT HEARSAY

STATEMENTS NOT OFFERED FOR THE TRUTH OF THE MATTER

Where regardless of the truth or falsity of the stmt (i.e. content), the fact that it has been made is relevant, the stmt is not hearsay, and thus admissible

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Estate of Murdock : Not hearsayo Facts : Estate of deceased wanted to intro evidence of witness’s testimony indicating husband

died after wife (“I am alive”). Evidence is not offered to prove stmt was true; usefulness of stmts do not depend on

declarant’s memory, perception, or sincerity, but his ability to speak. Not offered to prove truth of matter asserted in stmt, but plain fact that a stmt was

made Probative value outweighs unfair prejudice - could offer limiting instruction if

concernedo Rule : Hearsay rule excludes out-of-ct stmts that are not offered to prove truth of matter

asserted

Subramanian v. Public Prosecutor : Not hearsayo Facts : P, arrested for unauthorized possession of firearm, claimed he was acting under duress

of terrorists. Stmt of terrorists not admitted by trial ct. Evidence of terrorist’s stmts are offered to prove stmts caused duress, not to prove

what they said was trueo Rule : Out-of-ct stmt offered to prove truth of duress is not hearsay

Vinyard v. Vinyard Funeral Home : Not hearsayo Facts : P, who fell and was injured at D, wants to introduce evidence that D had heard

previous complaints about slippery floor. P introduced stmts to show D was on notice (regardless of truth of stmts), not that the

floor was slippery or there was a defect (matter asserted) Could ask for limiting instruction to have jury only consider evidence of D’s

knowledge and not for the pavemento Rule : Out-of-ct stmts introduced to prove notice and knowledge of unsafe conditions are

not hearsay.

Johnson v. Misericordia Hospital : Not hearsayo Facts : P, suing D for negligent hiring of a Dr., offered evidence of Dr.’s being negligent at

other hospitals Evidence was shown to prove D’s (the hirer) knowledge and availability of evidence.

It was not offered to prove Dr. was incompetent (matter asserted). D could ask for limiting instruction to prevent use of evidence in proving any issue

other than D’s knowledge. I.e. limiting instruction that the evidence should be used for showing the fact that there were records that Dr. was incompentant and not to show he was actually negligent

Also, since the probable value of this information is high (should have researched this information), we cannot exclude it

Review: Limiting Instructions: FRE 105 and CA 355 Limiting instructions are given upon request if evidence has dual purpose. If you don’t make the objection then you waive it.

o Rule : Out-of-ct stmts offered to prove the existence and availability of info regarding competence and professional qualifications are not hearsay.

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STATE OF MIND

Fun-Damental v. Gemmy :o Facts : Novelty toilet mfg sued D for copying toilet bank. D argued P’s testimony about

consumer confusion was inadmissible hearsay. Stmt was not offered to prove P was selling Toilet at lower price to other retailers, but

to establish that customers who made stmts were confused – SOM of customerso Rule : Stmt offered to prove declarant’s SOM is not hearsay (FRE 803(3))

Hernandez:o He was selling cocaine. Ds defense is he was being set up, he wasn’t being approached about

cocaine, about selling his room for a porno.o Gohlson, the informant, was also in the porno biz and he has set up people before. o The government wanted to offer the testimony of agent Saulnier that the DEA got information

that D was a drug dealer. o D says that is hearsay. An out of court statement offered to prove the truth of the matter

asserted. o Govt says they are trying to use this to explain the motivation behind DEA’s investigation.o CT says no! That doesn’t make sense and not true because later they used this in closing

argument “known cocaine trafficker.” o Govt used this to show his guilt and this is hearsay. The state of mind if DEA is irrelevant.

1) Circumstantial or Indirect Evidence of Declarant’s State of Mind Is not Hearsay a. DTrump sues Cuban because of the benefactor. At trial Cuban says he did borrow some ideas

but we are friends and we have these discussions and he intimated that it would be ok for me to run with the idea.

b. Trump denies this and Trump wants to introduce testimony that before Benefactor went on the air he said Cuban is a punk and now he thinks he is as smart as I am.

c. Is this evidence relevant tending to show that he did not invite Cuban to share his idea. d. Tends to show Trump doesn’t like Cuban so tends to show they weren’t friends.e. If we use it in that way, is that hearsay? f. Matter asserted is that Cuban is not that smart. Trump is not trying to prove that here, he is

trying to prove something else.g. This is called Circumstantial or Indirect evidence of state of mind

i. Tends to show feelings but indirectly.

INDEPENDENT LEGAL SIGNIFICANCE (Operative Conduct)

Extra-judicial utterances provable despite the hearsay rule b/c they are the operative conduct of the speaker

The words themselves have meaning – are not used to prove the truth of the matter asserted There is no question of trustworthiness of the utterance

o i.e. – making a promise, speaking of a slander, printing of a libel, speaking of marriage vows, words accompanying giving of a gift (but not words to show past or future intent)

Ries v. Bank of Santa Fe : Not hearsayo Facts : P sought to introduce evidence of D’s oral stmt of guarantee to prove existence of oral

K and guarantee.

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Stmts were not offered to prove truth or falsity of matter asserted therein (that oral K/guarantee existed). They were offered by P as proof that stmts were made.

o Rule : Out-of-ct stmts offered to prove words of legal significance were made are not hearsay

ASSERTIVE & NON-ASSERTIVE CONDUCT

Non Assertive Conduct is not hearsay, Assertive Conduct is hearsay1) Neo – being arrested for computer hacking

a. He saw the police and he ran would’ve thought he was guilty. b. If offer that conduct tending to prove his guilt, could say he was afraid.c. This is called NON ASSERTIVE CONDUCT.

i. Neo does not want to give off a message, he is just acting because of his fear the police were after him.

ii. And if try to introduce the evidence it is not hearsay because it is not assertive conduct.

2) Time to get back in classrooma. He intends to communicate a message – that is Assertive Conduct. b. And Assertive Conduct is Hearsay if it is being used to prove the truth of the matter asserted. c. In evidence law this is a distinction.d. Assertive conduct – conduct where the actor intends to communicate a message, that is

hearsay.

Assertive Conduct :

o Person is clearly trying to communicate a message

o FRE 801(a) & CEC 225 : Statement – A ‘statement’ is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion – assertive

conduct

Assertion : Not defined in FRE but has connotation of a forceful or positive declaration

Nothing is an assertion unless it is intended to be one Some non-verbal conduct (i.e. pointing suspect out in lineup) is equivalent of

words, assertive in nature, and can be regarded as a statement

o For H/NH Part of Exam ID lineups are hearsay

Non-Assertive Conduct :

o If person does something only for purpose of benefiting himself and acting in accordance w/ his belief, then we don’t have hearsay problem

o They are not intending to communicate anythingo Perception, memory, or narration (or their equivalents) of the actor are minimal in the absence

of an intent to assert and do not justify loss of evidence on hearsay groundso Non-assertive conduct is considered not hearsay

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o Focus on motivation, the nature of the conduct, and the presence or absence of a reference to determine the weight that should be given to the evidence

Rains – person opens umbrella o They are not trying to communicate that its raining. Putting on sweater, this is all non

assertive conduct. At CL this is hearsay, but not anymore.

PM of Canada – that is assertive conduct because he is eating to prove a point.

US v. Zenni :o Facts : While lawfully searching D’s apt, gov’t agents answered phone of callers who placed

bets. Betters’ calls were non-assertive conduct which was not intended to assert anything It is the act of betters calling, not what they are saying in calls that goes to prove

matter asserted (sincerity of out-of-ct declarants are not at issue) Betters were calling only to benefit themselves (did not know what was going on)

o Rule : Implied assertions, or non-assertive conduct are excluded from the hearsay rule

Commonwealth v. Knapp :o Facts : D was charged w/ aiding/abetting C in the murder of W. C’s suicide after the murder

is introduced as evidence of his guilt.o Rule : Act of suicide committed by person suspected of a crime is an implied assertion of

guilt.

Silver v. NY Central Railroad : o Facts : P is suing D for damages suffered as result of low temperatures in train car and NY

railroad introduced evidence of absence of complaints. Lack of complaints did not show they intended to communicate they were comfortable

to porter anything – they were acting in accordance w/ their belief that everything was fine

This was variant of non-assertive conduct and is admissible (not hearsay) SO AS LONG AS NON ASSERTIVE IT IS NOT HEARSAY AND WE DON’T

EVEN WORRY ABOUT TRUTH OF THE MATTER ASSERTED.o Rule : Evidence as to absence of complaints is not excluded under hearsay rules when

offered to prove that no defects exist.

3) McCormicka. 3 ways non assertive conduct

i. No words at all – just use umbrella that is ok.ii. Actions with words – customer refuses room offered to show room isn’t cold that is

also ok, not hearsay. 1. But Customer says its too cold that statement is hearsay.

iii. Words of action, not assertion1. Words of promotion used to show confidence in employee.

4) Woman says I am the pope, evidence to show that he is insane. a. It is not hearsay because it is not being proved to show she isn’t the pope. b. Used to prove she is insane that is ok, but this is the second example where declarent centered

approach would get it wrong.50

c. In order to think she is insane I would have to think she is the pope.

US v. Jaramillo-Suarez :o Facts : D objects to admission of pay/owe sheets and recorded drug transactions into

evidence, contending they constitute hearsay. Does not matter they intended to communicate to themselves by filling in pay/owe

sheets – but there was an assertion being made Not hearsay : Not used to prove truth of matter asserted (that transactions actually

took place), but rather that someone was trying to communicate this (by filling out sheets) and that the property was being used in connection w/ other evidence placing D at apt.

Relevant b/c tends to prove proposition that some money exchanged hands for drugs P/O like calls in Zenni

o Rule : Drug-related documents used as circumstantial evidence of character and use of place where they were found do not constitute hearsay.

5) US v. Rhodesa. Wants to present evidence that Rhodes is guilty of espionage. b. It is relevant because the fact that they collected information about him has some tendency to

show that he was a target of interest and is, therefore, not hearsay.c. Having collected this information and going to lengths to try to conceal it.d. We aren’t trying to prove the truth of the matter asserted.e. So there are 2 potential uses:

i. Hearsay: says he was a spy, but that’s hearsayii. They collected information about this guy went thru trouble to conceal it so has some

tendency in reason to suggest he was a spy for them. 1. we can talk of existence of document theres large parts of this document jury

can see that aren’t prejudicial. 2. So Defense counsel must make the objection because the probative value is so

high. Now the defense counsel would ask the judge to edit the document, delete the 2 paragraphs that he is a spy.

a. CALLED REDACTING and could judges would redact the argument.

NON-HUMAN EVIDENCE

People make statements – not machines or animalso Both FRE 801(a) and CEC 225 use the term “person”

As long you have laid foundation for accuracy of the machine (meaning it was properly calibrated, it measures what it purports to measure, and it was operated properly) there is no hearsay problem – b/c we do not worry about perception, memory, or credibility of machines or animals.

City of Webster Groves v. Quick :o Facts : D was arrested for driving at excessive speed. D objects to admission of reading of an

electric timer which was used to measure its speed. Officer was at trial and testifying to personal knowledge (FRE 602, CEC 702) Circumstantial guarantees of trustworthiness are satisfied when officer is cross-

examined as to accuracy of electric timer device.o Rule : Non-human evidence does not make statements and is not hearsay

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A. CHECKLIST: STATEMENTS NOT HEARSAY :

1. Not Offered For Truth : “I’m still alive” in case where issue is who died first. Content is not important; merely the fact that declarant said something. Or “I own Blackacre,” uttered by a person claiming ownership through adverse possession. The statement is offered to show an open and notorious claim of ownership, and/or notice to the rightful owner.

2. State of mind : Offered to show effect on someone’s mental state or belief, probable cause, provocation, knowledge or fear. Examples:a) “that parking lot is slippery when wet” as tending to show noticeb) “that man raped your wife” as tending to show provocationc) “he killed three men in Vegas”d) “X threatened to shoot you on sight” as tending to show self defense (i.e. D feared

X)

3. Indirect evidence of state of mind : Eddie Murphy states “Michael Jackson is a child molester.” The statement is offered as tending to show Eddie does not like Michael.

4. Operative Facts; or Words of Independent Legal Significance : Words forming a K, words of donative intent accompanying a transfer of property, words of a wedding vow are examples. a) Explanation : the words themselves have legal effect; we are not concerned with

their truth. If the words were spoken a K was formed, a gift was made, or a marriage occurred. That the words were spoken in jest or with some other intent may constitute a defense.

b) Example : A says I offer to sell you my book for $5 and B says I accept – it does not matter if A was telling the truth – A’s words have independent legal significance)

5. Non-assertive conduct : Conduct not intended as an assertion. a) Example : the fact that person fled the scene of a crime to escape arrest, offered

as evidence of his guilt. His act of fleeing is non-assertive conduct if he is only trying to escape arrest.

b) Example : when a person opens his umbrella – not trying to communicate it was raining – just trying to stay dry.

a. assertive conduct – conduct is intended to communicate a messageb. nonassertive conduct – conduct that is not intended to communicate a

message

c) 3 Kinds of Non-Assertive Conduct :1) pure action2) action accompanied by words3) words of action

d) For purposes of test, conduct is usually non-assertive unless hypo says something which indicates that action was done to assert something

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a. Example : if fled scene of crime to draw suspicion upon himself, this is assertive conduct. As opposed to simply fleeing scene of crime, which is non-assertive conduct.

e) CA evid code 225 : “statement” means (a) oral or written verbal expression or (b) nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression

a. This rule distinguishes b/n assertive conduct and nonassertive conduct by an omission. The rules do not include any discussion of nonassertive conduct, which means that it’s not hearsay – Omission was intended to create non-assertive conduct rule

6. Non-human evidence : Machines (e.g. radar, breathalyzer, clock) and animals do not make “statements” as defined in FRE 801(a) and CEC 225.

a. Machines and Animal do not constitute hearsay

b. Laying the foundation : w/machines you must 1st establish that it was working properly. Once you establish that it was working properly, it is admissible.

HEARSAY HYPOS

1) Issue of the declarant testifying to his or her own statement: what would happen if they found declarant and he got on the stand and said “I told the police I committed the crime” - this is still hearsay b/c it is “ a statement, other than one made by the declarant while testifying” (this always comes up on Tests) . Also if you don’t remember what happened and only remember what you told someone else about it – this is hearsay

2) Hypos – 114 a. 1- not hearsay

i. The prosecution wants to show he was afraid and less likely he would attack X first. That self defense was less likely.

ii. Not HS because I am not trying to prove X hit him, but saying that if A said this then it is less likely that X was afraid. So it would be in.

b. 2 – not hearsayi. Out of court statement is that A told B that X tried to kill him.

ii. Is it being offered to show the proof of the matter asserted? No.iii. The prosecution is trying to do makes it less likely the victim would be playing around

with a pistol with someone who wanted to kill him. We don’t care if he tried to kill him, just making the X’s Alibi less likely.

iv. Offered to prove the Ds alibi is untrue. Rebutting the D’s alibi. And tendency to prove it.

v. Start with hearsay and then move to relevance. c. 3 – hearsay

i. The out of court statement is that A called B and said X is trying to kill her, A and that she just wants it over.

ii. And that’s what they are trying to prove, to break his alibi. iii. Either it is hearsay....oriv. He is not claiming self defense so its not relevant maybe I am missing this one...

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3) DON’T FORGET THE MORGAN EXAM

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EXCEPTIONS TO THE HEARSAY RULE

EXCEPTIONS WHERE DECLARANT’S AVAILABILITY IS IMMATERIAL

For all of the exceptions under FRE 803, the declarant’s availability is immaterial

EXCITED UTTERANCESSPONTANEOUS AND CONTEMPORANEOUS EXCLAMATIONS

When you are under stress of exciting event, your power to reflect and perhaps fabricate is gone

Requirements for Admitting Excited Utterance :

o (1) Startling enough to cause shock to lead you to emotional stateo (2) It has to be natural, impulsive – NO TIME FOR REFLECTIONo (3) It has to be immediate or clearly connected w/ occasion that forces you to make that

utteranceo (4) Do not worry about contemporaneous at all

CA and Fed cts/majority don’t say it has to be contemporaneous time interval, beyond which declaration would not be spontaneous, is at ct’s

discretion Caveat: Has to be evidence of some kind that declarant is under effect or stress of

exciting event when statement is made (but it could be hours later)

If declarant is able to perform a task that requires reflection in the time before making the stmt, then stmt is not considered an excited utterance (reliability lies in lack of reflection).

o As a way of limiting reach of exception, we say that statement has to relate to the event There must be evidence of an act itself admissible independently of declaration that

accompanies it

FRE 803(2) : Excited Utterance (“Res Gestae”)o Stmt relating to a startling event or condition made while declarant was under the stress of

excitement caused by the event or condition.

Because FRE 104(a) states that judge is not bound by rules of evidence (except privilege) when determining whether evidence is admissible, ct can use the hearsay evidence itself as evidence of the excited utterance (can “bootstrap”).

IN FED CAN BOOTSTRAP FOR EU

CEC 1240 : Spontaneous Statemento Evidence of a stmt is admissible by the hearsay rule if the stmt:

(a) Purports to narrate, describe, or explain an act, condition, or event perceived by declarant, and

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(b) Was made spontaneously while declarant was under stress of excitement caused by such perception.

NO BOOTSTRAPPING IN CA FOR EU

Bystanders : Can also make excited utterances or spontaneous stmts o Bystanders do not have to be involved in the occurrence to make an excited utteranceo Problems w/ Bystanders : Cannot gauge personal knowledge of event (required)

i.e. – where did they hear it, did they see the event themselves

Rationale for this Exception :

o By eliminating reflection, self-interested conduct becomes impossible Desire to lie requires time and reflection to develop

o Speed is not only guarantee of truthful responseo Good deal of reliance placed on shock (and emotion generated from it) provided it is severe

enough to still the reflective facultieso Emotions can cloud perception – so person can only remember isolated incidents (look to PSI

expn)

Value of stmt should be measured by opportunity to cross-examine the hearer as to the surrounding circumstances, the speed of the reaction, and the unemotional condition of the speaker

Truck v. Michling : Hearsay, not admissible Husband and wife....and he dies eventually from wounds suffered and the widow sues

trying to get the benefits. She needs to prove it happened and the evidence she provides is her own testimony. The question is: is this admissible as an EU. Part of the foundation is there – excited event to have bulldozer run over you when

youre driving. The problem the court identifies is that there is not a suff showing the accident

actually occurred because the widow is using the HS statement by itself that the accident actually occurred. It is the only evidence she has.

The atty says that is bootstrapping. You say you are putting in HS evidence and the fact it happened is HS itself.

And court says cant do that unless have evidence of the event that caused the excited utterance. So she would have to bring in coworkers or someone who saw the accident to prove the excited event, then she might be able to introduce t

NOW you can bootstrap in federal courts. 104: In making determinations of preliminary fact the federal court is not bound by rules of evidence.

BUT in CA and in EXAM you cannot do that. You are bound by Michelin. CA does not have an equivalent to Rule 104. But there are a couple of cases the evidence is admissible, but they argue the statement by Mr. Michelin isn’t hearsay and that is just wrong.

So in exam under CA law if EU case, YOU CANNOT BOOTSTRAP, you must have admissible evidence that you can use before you have EU.

Reasons in this case even with the bootstrapping why these statements wouldn’t be in (so even with 104 he thinks it would not get in):

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Don’t know how much time took place and the more time that took place the less likely it is there is an excited utterance.

The fact he drove home, driving indicates reflection. Do I need to stop etc those are all reflective responses. And he lived 30 mis away. So there is a question why it is an EU.

o Rule : An excited utterance must raise presumption that it is spontaneous utterance of thought created by or springing out of the occurrence.

PRESENT SENSE IMPRESSION

After we look to excited utterance exception, we see studies that show that when ppl are under stressful events their perceptions are likely to be faulty (emotions can cloud perception)

We then created new exception to deal with this (basically, an exception to the excited utterance exception)

FRE 803(1) : Present Sense Impressiono A stmt describing or explaining an event or condition made while declarant was perceiving

the event or condition, or immediately (within seconds not minutes) thereafter. o Describing the Event while it’s happening is the Key.o Corroboration is not necessaryo Declarant must have personal knowledge, but they don’t have to be in court to testify

o There is no parallel CEC provision for present sense impression

State v. Jones :o Facts : At D’s trial for sexual assault, state introduced stmts of two unknown declarants which

were heard by prosecution’s witness on police radio as present sense impression. Once ct determines it is present sense impression, there is no req for

corroboration As long as ct can ensure person was describing event, other person does not

have to have been there to make it admissible If counsel does not make the objection here, he waives it Ct bootstraps here – uses trucker’s stmts to demonstrate that cars were involved in

underlying exciting event.o Rule : Under present sense impression exception, corroboration by an equally percipient

witness is not invariably required as a condition to admissibility of stmts.

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ADMISSIONS

General Rules :

o If statement of party is offered against that party, it is admissible – but they have the right to explain it afterwards

We want to establish its authenticity (“are those your words?”) Even if you think at the time that the stmt is in your interest and if stmt is offered for

this purpose and no one else’s, as long as it is being offered against you, it is an admission

o Under FRE, admissions are an exemption (not hearsay – there is no admissions expn to hearsay rule)

o Under CEC, admissions are an exception

These admissions “exceptions” do not require personal knowledge as a preliminary condition to admissibility

o FRE and Common law do not require stmts by a party opponent be against his interesto In a civil action, admissions by a party of any fact material to the issue are always

competent evidence against him, wherever, whenever, or to whomsoever made.

Rationale :

o These types of stmts are deemed trustworthy b/c no one is likely to make stmts against himself if those stmts are not true.

It is not based upon reliability (not reliable just b/c it’s the party’s stmt)o At the end of examination, declarant can deny he made the stmt, can claim why it is forged,

can explain why he made it, or can tell jury that there is other evidence in case and that they should not have to believe it

FRE 801(d)(2) : The stmt is offered against a party and is . . . o FRE 801(d)(2)(A) : the party’s own stmt in either an individual or representative capacity,

or

CEC 1220 : Evidence of a stmt is admissible by the hearsay rule if offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the stmt was made in his individual or representative capacity.

o Regardless of what capacity you make stmt in, it can be used against you in any other capacity.

Reed v. McCord :o Facts : In personal injury action, D objects to P’s introduction of D’s own out-of-ct stmts

regarding cause of injury to P’s intestate.

For Exam : In H/NH, an admission is hearsay (under FRE) In MC and T/F, an admission is not hearsay under

FRE

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If D had indicated that he did not have personal knowledge (just heard the story), his stmts would only be an admission that he had heard the story – it would not be an admission of the facts of the story

o Rule : Out-of-ct stmts of a D, made w/o Ds personal knowledge, regarding cause of an accident, are admissible against the D.

1) Most people say its contrary to interest, that would be an admission.a. But that is only one kind of admission.b. Admission for lawyer is ANY STATEMENT by a party against the interests of party. c. meaning the person might not think or know it was against his interest when he said it. d. E.g. I am hammered then accident. When he said it he didn’t know it was against him but it

was.

Adoptive Admissions

FRE 801(d)(2)(B) : A stmt of which the party has manifested an adoption or belief in its truth, or

CEC 1221 : Evidence of a stmt offered against a party is admissible if the stmt is one of which the party, w/ knowledge of the content, has by words or other conduct manifested his adoption or belief in its truth.

2) With admissions we say if the person says as “this is what happened” its an admissioni. But if he says someone told me its not an admission and turns on the language.

ii. How the party says it is KEY. iii. And if our presumption is wrong he is welcome to prove it is wrong

Admission By Silence :

o Essential Question: Whether reasonable person under the circumstances would have denied the stmt?

o He thinks P 405-406 should read McCormicks on evidence MUST PROVE for admission by silence:

Statement was heard by the party Understood by the party Subject is within party’s knowledge No physical, emotional, or legal impediment preventing person from

responding

o Silence tends to prove an admission b/c if it were not true, a reasonable person would speak up

o When we do admission by silence it is always connected to an accusation or statemento Mere silence in light of accusation is not enough have to show there is some reason for

person to deny the statement (otherwise it is not an admission by silence)

o Where D is under arrest Silence in the face of accusatory stmts does not in any way constitute an admission of the truth of the stmts, nor create any inference of guilt.

b. 1221 CA: admission by silence must be attached to a statement that is not excluded by hearsay – evidence code covers this, another species of adoptive admission.

i. i.e. if don’t deny it treat as true.59

ii. The accusatrion is admissible.

c. FED 801 d2b admissions by silence are NOT hearsay. admissions by silence as well as any sit where party manifests his or her belief in truthfulness of out of court statement.

i. once we say not admission by silence it is defined as NOT HS.

d. Rule: the preliminary questions of fact regarding intent to adopt a statement are decided by the judge

US v. Hoosier :o Facts : In trial for armed robbery of a bank, D objects to admission of prosecution’s witness

testimony regarding stmts of D’s girlfriend about the amt of money that they had. If stmts had not been true, D (or any reasonable person) would not have remained

silent D told friend he was going to rob bank GF said it in his presence to a good friend

Here, they did not need to bootstrap b/c they had additional independent evidence (even though hearsay) of him robbing the bank.

o Rule : Stmts of a third party may be used against a party if the latter has manifested adoption or belief in the truth of the stmts through his words/actions.

State v. Carlson :o Facts : In prosecution of D for possession of narcotics, prosecution introduces stmts of D’s

wife (basically incriminating the poor guy), made in his presence. D merely shook his head. If judge decides this is not an admission by silence – (that his behavior does not show

that he believes in truthfulness of statement) – her accusation becomes inadmissible hearsay

Can’t let jury decide b/c this is a question of admissibility and it could “contaminate” jury

o Rule : A party’s intent to adopt, agree with, or approve of another person’s stmt (a precondition to admissibility of stmts under adoptive admission) constitutes a preliminary question of fact for judge.

Under federal rules if something falls out of the admission category, it goes back to being hearsay – so have to find some exception to the hearsay rule to get it in

Authorized Admissions/Admissions by an Agent or Employee

1. CA: in order to admit a statement by an employee against an employer, the statement must be been authorized.

1. Absent some proof that the employee was authorized to make statements on behalf of the company, the statement is not admissible.

2. CA §1222 : authorized statement of employees are admissible, but only upon sufficient proof of authorization.

3. CA §1224 : If a claim lies against employer b/c of employee’s negligence, the employee’s statements are admissible. But the CA supreme ct has said this § does NOT change the rule on authorization)

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4. Practically speaking, this means that in CA, you have to put the employee on the stand if wants his/her testimony

2. FRE does NOT require authorization.

3. FRE 801(d)(2): A statement of an employee/agent concerning a matter w/in scope of employment or agency IS admissible against an employer.

1. Remember under FRE – this is defined as NOT hearsay. (anything under FRE 801 is NOT hearsay)

2. So under FRE, the rule is greatly relaxed compared to CA.

3. Independent consults are NOT agents for purposes of federal rules. (Sabel v. Mead Johnson)

4. Do NOT need personal knowledge under FRE.

5. Mahlandt – Federal Rules gives another basis besides authorization – course and scope (CA disagrees) SO IN FEDERAL COURT EITHER PROVE AUTHORIZATION OR CONCERNS SOMETHING WITHIN THE SCOPE OF EMPLOYMENT. AND DEFINED AS NOT HEARSAY

i. REMEMBER: In CA, this would not work.

FRE 801(d)(2)(C) : a stmt by a person authorized by the party to make stmt concerning the subject, or

o Almost always going to be a lawyero Can bootstrap to prove authority, but also need additional independent evidence tending to

prove authority/authorization before stmt can be admitted

FRE 801(d)(2)(D) : a stmt by the party’s agent or servant concerning a matter w/i the scope of the agency or employment, made during existence of the relationship, or

o Does not require personal knowledge on part of the agento Can bootstrap to prove agency or employment relationship and the scope thereof, however

also need additional independent evidence to prove liability

CEC 1222 : Evidence of a stmt offered against a party is admissible if :

o (a) Stmt was made by a person authorized by the party to make a stmt(s) for him concerning the subject matter of the stmt, and

o (b) Evidence is offered either after admission of evidence sufficient to sustain a finding of such authority, or, in the ct’s discretion as to the order of proof, subject to the admission of such evidence.

CEC 1224 : 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 declarant, evidence of a stmt

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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.

o There still must be proof of authorization (Big Mack is good law in CA)

o If a claim lies against an employer b/c of the employee’s negligence, then stmts of the employee are admissible

Big Mack Trucking v. Dickerson :o Facts : In wrongful death action by P, D appeals decision of trial ct admitting stmts of D’s

agents against D on grounds that it had not authorized the agents to speak. Problem 1 : Driver was not authorized to speak to PO on behalf of D, so we cannot

introduce this as admission against employer on that basis Problem 2 : Driver talks to VP of D; he is authorized to do that but we cannot admit

that Convos b/w companies and their employees are not admissible as admissions1. so the evidence is HS and not admissible. 2. Since you did not call Leday you cant bring this evidence because its HS.3. Just call employee as a witness.4. But cant rely on the employee’s statement

o Rule : Under TX law, agent’s hearsay stmts are admitted against the principal as vicarious admissions only when trial judge finds (as preliminary fact) that stmts were authorized.

o Under FRE, this would have been admissible b/c these stmts were made in the course of employment (no need for authorization)

If driver told the cop “It was my fault,” this would be inadmissible as the admission of fault is not within the scope of his employment.

o But under CEC, likely inadmissible (hard to imply authorization)

Exculpatory Statements :

o If the jury finds that exculpatory stmts were untrue, and that D made them voluntarily w/ knowledge of their falsity, the jury may consider the stmts as circumstantial evidence of Ds consciousness of guilt.

Mahlandt v. Wild Canid :o Facts : Trial ct refused evidence of 3 conclusory stmts against D made by director of research

center Stmts were internal and only for use by company to try to figure out what happened Note and oral stmt admissible b/c made by Poos (employee) and were related to scope

of employment b/c they were adoptive admissions made in the course of employment; evidence of board minutes not admissible b/c no agency relationship there.

Are they authorized? No. So under Big Mack it is inadmissible, they sound like statements of Leday to Stiles.

If look at opinion that is what the court says – it is not authorized as far as admission. The evidence is admissible tho because it was about a matter within the course and

scope of his employment.

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The Federal Rules do something interesting: this rule about authorization is too restrictive works against RS, so if a statement by agent concerns a matter within the scope of their employment then it is admissible against the employer. They are expanding the scope.

Notice what the court says toward the end: no balancing, no worry about unfair prejudice. Rule 403 isnt a ground for excluding statements because its an admission – goes right back to rationale for admission.

i.e. because its an admission there is no reliance on trustworthiness and its in because they are a party and as a party they can respond to it.

o Rule : FRE 801(d)(2)(D), which makes stmts made by agents w/i the scope of their employment admissible, does not require personal knowledge on the part of the agent.

Independent consults are NOT agents for purposes of federal rules. (Sabel v. Mead Johnson)o What Constitutes Agency? (cts look to control)

(1) Power of the agent to alter the legal relationship b/w the principal and third parties or himself

(2) Existence of a fiduciary relationship toward the principal WRT matters w/i scope of the agency

(3) Right of principal to control agent’s conduct WRT matters w/i scope of the agency

Sabel v. Mead Johnson :o Facts : A party injured by meds seeks to introduce evidence of stmts made by the drug mfg’s

employees and outside experts during a brainstorming session. In order for agency relationship to exist, the principal must have the right to control

agent’s conduct; the agent must have power to alter the legal relationships b/w principal and third parties; and there must be a fiduciary relationship towards principal.

o Rule : Out-of-ct stmts made by outside consultants during an informal brainstorming session do not constitute admissions.

Co-Conspirator Statements Exception

Statements made by co-conspirators are authorized by all other conspirators

CA §1223: Admission of Co-conspiratoro Evidence of a statement offered against a party is not made inadmissible if:

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 (if the declarant is arrested

and then makes a statement, he is no longer in furtherance of the conspiracy, so it’s inadmissible)

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The statement was made prior to or during the time that the party was participating in that conspiracy

This means if you get into a conspiracy later, statements from before can be used against you – like getting on a train.

And the evidence if offered either after admission of evidence sufficient to sustain a finding of the facts specific in subdivisions (a) or (b), in the ct’s discretion as to the order of proof, subject to the admission of such evidence.

I.e. CANNOT BOOTSTRAP!!!!! (Procedural Note: the court can allow the party to admit the hearsay evidence

before there has been a showing of proof that the conspirator actually was part of the conspiracy. The judge can give an instruction to the prosecutor that he will allow on the grounds that the prosecutor provide the foundational evidence thereafter. If the prosecutors fails to prove the foundational elements, there is usually a mistrial.)

Statements made by conspirators are admissible against a conspirator even if they are made prior to joining the conspiracy. (this is true in CA and under FRE)

FRE: defined as NOT hearsay (and can bootstrap)o But rules are similar (announced in US v. DiDimenico) – The limitations:

Must show D was in conspiracy The statements must be relevant to THE conspiracy that is before the court (if

there are 2 conspiracies, the statement must come from the one conspiracy that is relevant to the case at bar)

And in furtherance – if statement is made in furtherance of conspiracy, then it is admissible

Late joiners of a conspiracy take the conspiracy as they find it and are responsible fore everything that happened, even prior to when they joined (traditional rule: US v. Goldberg)

Statement not made “in furtherance” are hearsay – the standard of review is clearly erroneous when lower court find that statements were made “in furtherance” (US v. Doer)

o Doer : Ct of appeal held that conspirator’s discussion of red curtain (in a whore house) was not intended to induce the customer to join the conspiracy or assist in the conspiracy. Also Doer’s statement to his half brother (“I can’t believe – I don’t believe that you don’t know what’s going on”) was used to mock the half-brother’s lack of knowledge of the club, not to further the ends of the conspiracy.

The D’s involvement in a conspiracy and existence of a conspiracy are preliminary questions of fact to be answered by judge. Court decides by preponderance of the evidence (more likely that not)! This does not determine whether D is guilty or not – just a preliminary question to determine D’s involvement (Bourjialy v. US)

o Hearsay statements may be used by court under FRE 104 to determine preliminary questions of fact (such as whether the conspiracy exists and whether D was involved)

o The decision in Bourjialy was made despite the bootstrapping rule (which D argues here), which requires that independent evidence is required to show that there actually is a

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conspiracy. However, the court notes that the plain meaning of FRE 104, and the FRE were created after the decision, which described bootstrapping.

o FRE: Can bootstrap.

o CA: cannot bootstrap (need independent evidence)

o TODAY: a modified FRE 802(d)(2) says that there must be independent evidence of foundational elements before the judge determines by a preponderance of the evidence that a conspiracy existed, that the declarant was involved, that the D was involved, and that those statements were made in “in furtherance” of the conspiracy.

(this means that under the FRE the judge just can’t look at just the statement itself – you need more evidence than just the statement. But as long as you have independent evidence then the judge can also look at the statement itself. In CA, the judge cannot look at the statement at all! Can only look at the independent evidence)

So we have in the FED RULE: yes you may bootstrap, but you cant rely exclusively on out of court statements to prove he was part of the conspiracy.

FRE 801(d)(2)(E) : a stmt by a co-conspirator of a party during the course and in furtherance of a conspiracy.

o Must be additional independent evidence tending to prove authority/authorization before stmt can be admitted

Can use stmts of a co-conspirator (bootstrap) to lay the foundation for the existence of the conspiracy, but will need more than just these stmts to prove that D was a member.

What is “In Furtherance Of ” ? (Garlington/Doerr)

o When stmt is part of information flow b/w conspirators intended to help each perform his role

o Examples : Stmts made to recruit potential co-conspirators Stmts seeking to control damage to an ongoing conspiracy Stmts made to keep co-conspirators advised as to progress of the conspiracy Stmts made in an attempt to conceal criminal objectives of conspiracy

o Narrative declarations (mere “idle chatter”) and casual convos are not stmts in furtherance of Not every stmt made by co-conspirator can be seen as an admission

US v. Doerr :o Facts : D appeals trial ct’s decision to admit out-of-ct stmts of co-conspirators against D and

Pixley (another member of conspiracy). “The red curtain looks ridiculous” Stmts are in furtherance of conspiracy if they intend to help conspirators perform their

roles Things that are admissible in this exception are things that really move the

conspiracy forward, not idle chatter. We will only admit statements that move it forward and that is a major limit.

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o Rule : In order to admit stmts of a co-conspirator against other members of a conspiracy, judge must determine that some reasonable basis exists to conclude that stmts were in furtherance of the conspiracy.

What is the Standard of Admission ?

o If stmt is not in furtherance of conspiracy, it can be admissible for the person speaking but not admissible on behalf of other conspirators

o When preliminary facts relevant to FRE 801(d)(2)(E) are disputed, offering party must prove them by a preponderance of the evidence.

Bourjaily v. US :o Facts : D, convicted for possession and distribution of cocaine, contends that hearsay stmts of

another party should not be used to determine the existence of a conspiracy. Preponderance standard (below) does not have to do w/ jury’s determination of

burden of proof on substantive issues (evidentiary standard does not relate to burden of proof)

In order to determine existence of conspiracy, ct can rely on probative value of co-conspirator’s stmts

Ct allowed phone stmts in to demonstrate D’s involvement in transaction (ct bootstrapped)

S.Ct. did not have to address question of whether additional independent evidence was necessary here b/c bootstrapping or not, there was enough evidence to show D was a member of conspiracy.

o Rule : In order to admit an out-of-ct stmt under FRE 801(d)(2)(E) to show D’s membership in a conspiracy, there must be additional independent evidence tending to prove the existence of conspiracy and his participation in it.

You can bootstrap, but only to lay the foundation for the existence of the conspiracy, not D’s membership in it.

CEC 1223 : Evidence of a stmt offered against a party is admissible if :

o (a) Stmt was made by declarant while participating in conspiracy to commit a crime or civil wrong and in furtherance of objective of that conspiracy,

o (b) Stmt was made prior to or during time that party was participating in the conspiracy, and you take the conspiracy as you find it

o (c) Evidence is offered either after admission of evidence sufficient to sustain finding of facts specified in (a) or (b), or, in ct’s discretion as to order of proof (subject to admission of such evidence).

(*) Both FRE and CEC allow counsel to introduce a co-conspirator’s stmts before a proper foundation has been laid

o i.e. – before they prove D is a co-conspirator (at judge’s discretion)o If counsel does not lay the foundation eventually, there will most likely be a mistrial

(contamination of jury)

US v. DiDomenico :66

o Facts : Prosecutor sought to intro stmt of co-conspirator (made in furtherance of conspiracy) against the other co-conspirator.

Co-conspirators are each others’ agents (and principals) and principal is bound by agent’s words and deeds (as long as they are w/i scope of agency) so that admission by one is an admission by all and can be used against all as “their” admission.

Stmt need not be against declarant’s interest (admission not grounded in trustworthiness)

o Rule : Stmts of co-conspirators (made in furtherance of conspiracy) are admissible as admissions b/c conspirators are each other’s agents, and the principal (co-conspirator) is bound by his agent’s stmts w/i scope of the agency.

STATE OF MIND AND PHYSICAL CONDITION

Statements expressing declarant’s state of mind at time of the utterance either by direct evidence (hearsay) or indirect evidence (not hearsay) are deemed as exceptions to the hearsay rule when the

feelings are material

o Soapdish Hypo First Statement “bitch” – The matter asserted is that she is a bitch so its circumstantial

evidence of Decs statement of mind so it is not HS. Hag – same thing. I hate her so much – that is HS because that is what we are trying to prove the matter

asserted. The question now is: issue is SOMind of third person.

Is the testimony reliable in terms of how she feels of Sally Field. She is talking about how she feels at the moment.

This is why there is a SOM exception to HS rule.

State of mind exception : o where the person’s state of mind is an issue in the case,o the person’s statement of a presently existing state of mind or condition is admissible

(this is the exception for out of ct hearsay statements that go to prove the truth of the matters asserted)

Declarant’s THEN-EXISTING Mental, Emotion, Or Physical Condition/State/ PRESENTLY EXISTING SOM

CA and FED the same besides CA’s foundational/trustworthiness element and CA allows implicating third parties

The statements MUST be in the PRESENT TENSE to fall under this exception.

State of mind : is a statement of a person’s PRESENTLY EXISTING state of mind or condition

o Statements of intent, feeling, motive, and plan (otherwise known as state of mind statements) are excepted from the hearsay rule

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o CA and Fed rules include : statements about physical condition. Statements about how person feels physically at the moment also fall under the state of mind exception.

Note : When talking about present statements of physical condition it does not matter who you are talking to. As long as physical condition is an issue it will fall under the exception – this concerns present physical condition

CAVEAT : under FRE, statements of past physical condition are admissible if made for purpose of medical diagnosis or treatment. (See exception below for Medical Diagnosis or treatment)

o Limiting instruction : Where evidence is admissible for one purpose, but not another, judge must use his discretion to prevent misuse of evidence by the jury. Defense counsel must request and in liminine instructions.

HILLMON DOCTRINE : if have statement of intent to go someplace we make inference that actually went to the place you said you intended to go.

o So statement of declarant’s intention to do certain acts is admissible to prove that he actually did those acts.

o Lesson of Hillmon case : Lesson: statements of intent to go someplace falls under state of mind exception and can make inference that actually went to the place you said you intended to go

SHEPARD LIMITATION ON HILLMON DOCTRINE : Hillmon doctrine only operates when the out of ct statement concerns something to be done in the future.

o So Hillmon doctrine cannot be used to look backwards. Cannot use this statement to prove a belief about what happened in the past.

CA § 1250 : Embraces Hillmon doctrine and says state of mind includes evidence of intention or plan. (The rule say: allows admission of declarant then existing state of mind emotion or sensation when offered to prove the same)

CA §1250(b) : This incorporates the Shepard limitation and says that statements of memory or belief are NOT admissible under this exception. (but see next exception: if declarant is unavailable and state of mind is issue in case, then past state of mind is admissible in CA!!!!)

CA §1252 : CA adds a foundational element. Evidence is inadmissible if the declaration was made under circumstances indicating lack of trustworthiness. The person opposing the evidence has burden of showing lack of trustworthiness.

FRE 803(3) : state of mind evidence is admissible to prove emotion, sensation and feeling. And embraces Hillmon (through Advisory Committee’s comments) and embraces the Shepard limitation. But does NOT have the additional element of trustworthiness (but counsel can still argue the suspiciousness of the statement to the jury)

Implicating Third Parties 68

o CA Pheaster/Alcade rule : You can use a declarant’s out of ct statement about an intention to do something in the future to prove that a 3 rd party was there as well (US v. Alcade)

o FRE : Cannot use declarant’s out of ct statement about an intention to do something in the future to put the 3 rd party there as well. You cannot implicate the actions of anyone else (US v. Pheaster)

NOW TO THE RULESo FRE 803(3) : A stmt of the declarant’s then existing SOM, emotion, sensation, or physical

condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a stmt 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.

Offered to show effect on someone’s mental state or belief, probable cause, provocation, knowledge, or fear

Trustworthiness is immaterial

o CEC 1250 :

(a) Subject to CEC 1252, evidence of a stmt of the declarant’s then existing SOM, emotion, or physical sensation (including stmt of intent, plan, motive, design, mental feeling, pain, or bodily health) is admissible by hearsay rule when :

(1) Evidence is offered to prove declarant’s SOM, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or

(2) Evidence is offered to prove or explain acts or conduct of declarant (Hillmon Doctrine).

(b) This section does not make admissible evidence of a stmt of memory or belief to prove the fact remembered or believed.

Hillmon Doctrine :

o You can use SOM exception to prove someone’s intention to do something in the future

SOM of declarant does not have to be an actual issue in the case SOM of declarant is used inferentially to prove other matter which are in issue

o Burden : Is on opposing party to show declarant did not actually follow through on his intention

When performance of act by individual is an issue in case, his intention (SOM) to perform that act may be shown. From that intention, trier of fact may draw inference that person carried out his intention and performed the act.

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o Codified in CEC 1250(a)(2)o Although FRE 803(3) is silent regarding Hillmon doctrine, it is known to be in effect

Limitations on the Hillmon Doctrine :

o (1) Shepard Limitation Can only be used prospectively (looking to the future) – cannot use declaration of something remembered from the past

Both FRE and CEC incorporate Shepard as a limitation on Hillmon Doctrine

Shepard v. US : Limits Hillmon Doctrine Facts : D appeals trial ct’s admission of wife’s stmt shortly before her death

which indicated that D had poisoned her.o Declarations of memory (pointing to events in the past) are clearly

hearsay and do not fall w/i the SOM exception (expn does apply to present feelings, emotions, and stmts of future intents)

o First wanted to intro this as dying declaration (but not under sense of impending death), so then moved to bring it in as SOM (motive)

Rule : Declarant’s direct present stmts of SOM may not be used to prove past event

o (2) Implicating Third Persons Renders stmts of intent by a declarant admissible only to prove his future conduct– not the future conduct of another person

Under FRE, you cannot use the statement of someone’s intention to do something in the future to put another person in the situation. However, CEC allows this.

US v. Pheaster : Facts : In prosecution for kidnapping of Adell, D objected to trial ct’s

admission of testimony of witnesses regarding hearsay stmts of the kidnapping victim (that Adell said he was going to meet Angelo in parking lot).

o Under FRE, we cannot use this kind of stmt to prove conduct of anyone other than declarant (cannot use it to prove Angelo was in parking lot)

1. FRE can only use it to put declarant where intention places them and to show actions of the declarant (and not anybody else)

o Under CEC, we can use this to prove someone else’s conduct (can use this evidence to place Angelo in pkg lot)

Rule : Hillmon doctrine allows admission of hearsay stmts to prove intentions of a declarant – even if intentions involve another party’s actions.

Will Exception To Memory or Belief Even though a statement may be one of memory or belief offered to prove the fact remembered or believed, it is admissible if it relates to the declarant’s will.

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Declarant’s PREVIOUSLY Existing Mental or Physical State

o CA evid code : you CAN admit evidence of declarant’s PAST state of mind, if the declarant is unavailable AND state of mind is an issue in the case

Don’t forget the foundational/trustworthiness element

o FRE : past state of mind is NOT admissible.

Example : “last week, I hated Joe” – this is still a declaration of state of mind, but declarant is talking about something from the past. (FRE: not admissible, CA admissible if declarant is unavailable and declarant’s state of mind is an issue in the case)

o CEC 1251 : Subject to CEC 1252, evidence of a stmt of declarant’s SOM, emotion, or physical sensation (including a stmt of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the stmt is admissible if :

(a) Declarant is unavailable as a witness, and

(b) Evidence is offered to prove such prior SOM, 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 SOM, emotion, or physical sensation.

o FRE : Non-existent. FRE does not allow past SOM

Restriction on Admissibility of Stmt of Mental or Physical State

o CEC 1252 : Evidence of a stmt is inadmissible under this article if the stmt was made under circumstances as to indicate its lack of trustworthiness.

US v. Hernandez :o Facts : D, arrested for drug transaction w/ undercover agent, objects to decision of trial ct to

admit out-of-ct stmts of US customs official indicating D was drug smuggler. Prosecution here relied on stmts of customs official to prove D’s guilt and not as

evidence of agent’s SOM; even so, agent’s SOM is irrelevant and thus inadmissible o Rule : Out-of-ct stmts, offered to prove SOM of a party, must be relevant to the case at issue

in order to be admissible

Indirect Evidence of State of Mind :

o Not using words to prove truth of matter assertedo Not dependent on content of the words

Ex. : Direct “I hate Ashley.” Indirect “Ashley is a stinky coont.” Direct goes to prove truth of matter asserted (my hate for Ash), where Indirect is not

used to prove Ash really is a stinky coont, but rather that I don’t really like her.

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Differences b/w FRE and CEC :

o FRE – if declarant is talking about his SOM at some point in the past, it does not fit the exception and is not admissible

o CEC - if declarant is ‘unavailable’ and makes a stmt of declarant’s past or previous SOM, it is admissible

o Under FRE, you cannot use the statement of someone’s intention to do something in the future to put another person in the situation. However, CEC allows this.

Rationale for SOM Exception :

o (1) Who better to know declarant’s SOM than declarant SOM is declarant talking about his or her own SOM, not the SOM of another

o (2) People do not have motive/tendency to misrepresent how they are feeling

o When a person expresses his/her SOM, anything about how it is interpreted goes to the weight given to that evidence, not it’s admissibility (i.e. diff interpretations or meanings of “I hate you”)

Adkins v. Brett :o Facts : In action for alienation of affections, P introduced stmts of his wife indicating she had

spent time w/ D on many social occasions. D objects to admission of wife’s stmt on hearsay grounds.

Offered as tending to prove she was alienated from her husband, it is hearsay (to prove truth of matter asserted) - admissible under SOM exception

Fact that she tells husband about other guy tends to show she is alienated from husband, but is unfairly prejudicial if goes to jury (to prove alienation and cause of alienation) two usages

To avoid unfair prejudice, can ask for limiting instruction (not cause of alienation)

Can use this as indirect evidence of her feelings for her husbando Rule : When intention, feelings, or other mental state of a person at a particular time is

material to the issues under trial, evidence of such person’s declarations, although hearsay, is admissible as an exception to hearsay rule.

Surveys as Evidence of Declarant’s SOM :

o Answers to surveys are hearsay b/c they are out of ct stmts usually used to prove truth of matter asserted (what the results of the survey are) – but they are admissible under SOM exception

o Surveys are trustworthy (no memory/perception problems), convenient (all those ppl don’t have to testify in ct), and lack danger of falsification (why would they care)

Zippo v. Rogers :

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o Facts : In action for unfair competition and trademark infringement, P introduced evidence of survey where individuals confused Zippo lighters w/ Roger’s (D).

Company laid the foundation for admissibility of surveys (credibility/protocols) Judge was saying even it it’s not admissible under SOM exception, he is going to

admit it b/c it is necessary – both FRE and CEC won’t allow judges to do that Hearsay inadmissible unless provided for by law (rules of evidence, S.Ct., etc.)

o Rule : Properly conducted surveys constitute admissible hearsay under SOM exception b/c they are stmts of present SOM, belief, or attitude.

MEDICAL DIAGNOSIS AND TREATMENT

These are stmts made by a patient to a doctor when they are being treated or diagnosed medically

Fed rules have made statements of medical diagnosis or treatment admissible.

FRE: So statements of past medical history/of past physical condition are admissible “I had a headache last week” if made for purpose of medical diagnosis or treatment.

FRE 803(3): hearsay exception for statements of physical condition, medical history or past symptoms

CA does NOT have this general provisiono CA has §1253: but this only applies to statements of alleged victim of child abuse or

neglect and only covers statements of past abuse or neglect From book: These statements may be made in response to questions asked by the physician

or made to anyone associated with providing medical services, e.g. ambulance attendants, nurses, or even family members. Statements are limited to those made for purposes of medical diagnosis or treatment

FRE 803(4) : Stmts 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 are admissible.

CEC 1253 : Same as FRE but also adds :

o This section applies only to a stmt made by a victim who is a minor at the time of the proceedings, provided stmt was made when the victim was under the age of 12 describing any act, or attempted act, of child abuse or neglect.

o “Tender Years” Exception : Stmts by children of “tender years” usually admissible, but have to show indicia of trustworthiness.

Under CEC, the stmt must have requisite trustworthiness (CEC 1252) or else it is excluded / inadmissible

Under FRE, lack of trustworthiness goes to weight of evidence, not its admissibility

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o Stmts can be made in response to questions asked by dr. – not totally spontaneouso No memory or perception problems here (talking about how person feels at that moment)

Cts will draw the line where stmts regarding causation enters the realm of fault o No assurances of reliability and therefore inadmissible

These stmts can be made to a doctor, or anyone associated w/ providing medical services (i.e. ambulance attendant, nurse, or even family members)

Two Part Test For Determining Admissibility :

o (1) Declarant’s motive must be consistent w/ purposes of obtaining medical treatmento (2) Content of the stmt must be such as is reasonably relied on by physicians in providing

medical treatment or diagnosis

Stmts made by victim of rape regarding the rape to physician are admissible FOR EXAM If dividing line is cause of accident/injury (why, how, etc.) the stmt is admissible

o Stmts allocating fault or responsibility are not admissible

BUSINESS RECORDS

Business records exceptions : records kept in the ordinary course of business and related to the conduct and affairs of the business are admissible

Most business records contain at least 2 levels of hearsay: o he person who actually gets the info – the person w/the knowledge o then a bookkeeper records the info

Multiple hearsay : this comes up all the time with business records. MUST ANALYZE EACH LEVEL OF HEARSAY!!!!!!!!!!!!!!!

o Example: Police officer goes to scene of accident and prepares a report – this report is hearsay if it is offered as tending to show who was at fault in the accident – Say that the officer who prepared the report talks to officer who is out on the scene (the investigating officer) – this is the 2nd level of hearsay but it is okay b/c the investigating officer has duty to report

3rd level: investigating officer got the info from the bystander – may or may not be able to get in the statements from the bystander

FRE 805 and CA rule : if hearsay w/in hearsay it remains admissible if each hearsay statement meets an exception to the hearsay rule

CA AND FRE: there must be a duty to the business on the part of every person who makes up the information on the business record in order for the business records exception to apply (Every jxn follows this rule!!!!)

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o Said another way: There must be a business or official duty to report for every person who make a part of the business record – if this is missing, then that part of the record is excluded

Example from a case : The problem with the police report is that it was based on statements by 3rd parties. Once we introduce someone into the mix who has no duty (i.e. the bystander, the victim) – then the business records exception no longer applies

Just have to call 1 person (normally the custodian of records) to testify that the way the record was prepared was accurate – this person must lay foundational elements: identify , method of recordation, etc.

o So normally custodian of records can lay the foundational elements

CA 1270 : definition of business is very broad (any govt agency, profession, occupation, callings, non profit organizations)

CA 1271 : Business records exception (more strict than FRE)o writing made in regular course of businesso writing made at or near the time of the act condition or event (proximity requirement)o custodian of record or other qualified witness must testify to identity of document and

mode or preparationo source of info and time and method of preparation of record indicates it is trustworthy

FRE 803(6): Custodian of records (or other qualified witness) must testify to the following foundational elements:

o record was made at or near the time of the evento record made by or was from information transmitted by a person with knowledgeo record was kept in the course of a regularly conducted business activityo it was the regular practice of that business activity to make the record

FRE: Term “business” includes: business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

CA and FRE : ABSENCE of an entry in a business record is admissible as well

CA’s business records exception, unlike FRE, does NOT include statements of opinion .

o CA : a medical prognosis is NOT admissible under the business records exception b/c a prognosis is an opinion of how victim will fare in the future. (a diagnosis is covered by CA’s business records exception but NOT a prognosis) (see hypo #4 p. 299)

FRE business records exception DOES include statements of opinion.

Proponent of evidence has burden of proving each of foundational elements and have to call the custodian of records or a qualified witness

1. US v. Duncan Evidence: insurance companies’ records – the records contained medical records prepared by

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hospitals and statements of doctors w/in insurance co records are hospital records.The custodian of records identifies all the insurance records – he is able to identify the mode, time of preparation, etc.So there are 2 levels of hearsay in this problem – you don’t know how the hospital records were prepared so don’t know trustworthiness of hospital recordsSo proponent of evidence has failed to satisfy business records exception for hospital records b/c did not put on custodian or records for hospital to testify to the hospital’s records’ foundational elements. Here the proponent of the evidence failed to call the custodian of records or a qualified witness from the hospital to testify – b/c this level of hearsay was not satisfied it does not fall under the business records exception

FRE : if business does not rely upon the info, then it is not admissible under the business records exception. (this is the majority opinion in Williams v. Alexander)

o Example : hospital recording who is at fault is not admissible under this exception b/c this is not the business of a hospital

CA rule : info such as collected in Williams v. Alexander is admissible as long as overall recording of info in consistent with the normal course of business – CA rule agrees with the minority in this case (so hospital recording who is at fault is admissible as long as normal business records exception is met)

Computer records are treated like any other record! Depending on the complexity of the computer program – may have to testify how the info is generated. But as a general matter we treat computer records just like any other record

Note: Every court has said that newspaper articles or a reporter’s notes do not fall under the business records exception.

o Can’t really use newspaper articles for anything – they are hearsay

BUSINESS RECORDS MADE EXCLUSIVELY OR PRIMARILY IN ANTICIPATION OF LITIGATION

o So it is a 2 part process : (from Yates v. Bair transport) determine if they are business records. If yes go the step 2. Are they prepared exclusively or primarily in anticipation of litigation?

If yes, then only admissible if it is offered into evidence by the opposing party (the party against whom the record was made)

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o If there is another purpose for the records (a dual purpose) e.g. safety, then business records exception might apply

o Lesson of Lewis v. Baker : If the report is not prepared by the person in the accident, then it is more trustworthy. The mere fact that the report might be of some use in litigation does not mandate its exclusion. So only doc’s prepared exclusively or primarily in anticipation of litigation are inadmissible. If there is another purpose for the document (e.g. safety) then could argue not exclusively prepared in anticipation of litigation. Look at what motivation is of party in preparing the doc or having the doc prepared (this is the question that matters)

Today most major businesses have custodian of records whose job it is to keep corporate documents (primary person if there is question of admissibility of business records)

o But that does not have to be the person who testifies it can be any person who is knowledgeable about content of business record and how it is complied (both CEC and FRE)

Both CEC and FRE define business very broadly : Anything that is a profession, business, occupation, calling, non-profit organizations, etc. (includes gov’t organizations) can be a business record.

Under CEC and FRE, ct/judge has discretion to exclude evidence brought under business records exception if he finds it was prepared in such a way or under conditions that indicate record was not trustworthy

Foundational Requirements for Business Record :

o Custodian or other qualified witness must testify to : (a) identity of document, and (b) mode of preparation OR

o Opposition can stipulate that the document is a business record

Other basic requirements :

o (1) Writing must be made in regular course of businesso (2) Writing must be made at or near the time of the act, condition, or event (CEC language)o (3) Source of info and time/method of preparation indicate record is trustworthy

You cannot take business records of Entity A and say b/c Entity B has it as part of its records, it is admissible as part of a business record

FRE 803(6) : A memo, record, report, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses,

o made at or near the time by, or from information transmitted by, o a person with knowledge, o 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 memo, report, record, or data compilation, o all as shown by testimony of the custodian or other qualified witness, or by certification

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o unless source of info or method of circumstances of preparation indicate a lack of trustworthiness.

o The term “business” as used in this pgph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

CEC 1271 : Evidence of a writing made as a record of an act, condition, or event is admissible when offered to prove the act, condition, or event if :

o (a) The writing was made in the regular course of businesso (b) The writing was made at or near the time of the act, condition, or evento (c) The custodian or other qualified witness testifies to its identity and mode of its

preparation, ando (d) Sources of info and method and time of preparation were such as to indicate its

trustworthiness

Under FRE, opinions and diagnoses are admissible Under CEC, diagnoses are admissible, but opinions/prognosis (future) are not admissible

What is “Regular Course of Business” :

o If an accident report is prepared primarily or solely in anticipation of litigation, it is inadmissible as a business record

o Palmer v. Hoffman : Facts : D sought to exclude train engineer stmts, exculpating the railroad, made after

P’s accident. Records prepared primarily or exclusively in anticipation of litigation are

inadmissible Rule : An accident report, which is not directly related to systematic conduct of a

business, is not admissible under business records exception.

o But, if the records are offered into evidence by the opposing counsel, this supplies the missing reliability, and the documents become admissible (no longer self-serving)

o Yates v. Bair Transport : Facts : In action for work-related injury, P attempted to introduce reports of doctors,

prepared by defendants in a related action, against D. Some of reports admissible b/c gets around Palmer problem In Palmer they

were created in anticipation and possibly self-serving (makes them less trustworthy)

o but if they are to benefit opposing party they are not quite self-serving Burden lies with proponent (has to establish liability)

Rule : Reports made in regular course of business for the purpose of litigation are admissible under business records exception when they are offered by the part against whom the reports were prepared.

o The mere fact that a record might ultimately be of some value in the event of litigation does not per se mandate its exclusion ct can weigh trustworthiness

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o Lewis v. Baker : Facts : In action for damages, P appeals trial ct’s decision to admit report introduced

by D detailing P’s accident and injury. This case is a limitation on Palmer it applies only when a document is

prepared in anticipation of litigation, but otherwise, the ct just weighs its trustworthiness

Rule : A memo or report of an accident, kept in the regular course of business, is admissible when prepared by a party not involved in the accident.

Implicit in both CEC and FRE, the person compiling the record must have a duty to report – otherwise their stmts are inadmissible

o Purpose of Exception : To admit business records into evidence w/o calling those who had obligation to prepare them to the stand.

It was not intended to allow a hearsay exception for inadmissible hearsay stmts of third parties who are under no duty to report (Johnson)

o Johnson v. Lutz : Facts : In action against D, P contends that a police report of the accident which

caused death of deceased was erroneously admitted. Police report does not meet exception b/c report contained stmts of third

parties (bystanders) not responsible for preparation of report and those stmts lack the reliability implicit in business records

Rule : Stmts of third parties contained within a written report prepared during regular course of business may not be admitted into evidence under business records exception.

“Outsider Info” : Johnson excludes information by a third party w/ no duty to report (“outsider”), where offered for its truth, unless some other hearsay exception applies to that “outsider’s” statements. Sometimes, stmts by “outsider” reflected in business record may be admissible not for its truth but for some other purpose.

o Hearsay Within Hearsay FRE 805 : often trustworthy but not always admissible

o US v. Vigneau : Facts : In case against D alleging money laundering, gov’t wants to introduce records

of him sending money through Western Union to prove he was money laundering. If there was independent evidence that D actually filled out forms (no

authentication), stmts would constitute a party-opponent admission and would fall within exception in FRE 801(d)(2). BUT Gov’t cannot use the WU forms themselves as bootstrap-proof that D made the admission

If WU clerk had verified D’s identity, it would have been business record (but did not)

Rule : Business records exception does not embrace stmts contained w/i a business record that were made by one who is not a part of the business if the embraced stmts are offered for their truth.

Under CEC, if we have an overall pertinent record to diagnosis or treatment and there is a stmt within that that goes to fault, it is admissible (minority)

o Not every level of hearsay must meet an exception for admissibility79

o ON EXAM Under CEC, we say this is admissible (if it is mostly about treatment/diag w/ a little about fault, then usually admitted in CA)

Under FRE, stmts made in a business record must be independently admissible as non-hearsay or as a separate exception to the hearsay rule

Williams v. Alexander :o Facts : P appeals trial ct’s decision admitting hospital records which described the manner in

which P was injured. Two levels of hearsay : (1) Hospital’s business record and (2) Medical

diagnosis/treatment Narration of cause of patient’s injury is not relevant to the function of a hospital as a

business Here, details of accident and cause were not relevant to treatment or relied upon in

diagnosis Ct can deal w/ this by redacting or editing the inadmissible material

o Rule : It is not within the regular course of a hospital’s business to make a detailed record of the manner in which a patient was injured.

Admissibility of Computer Generated Business Records :

o General Rule : We treat computer records just like any other business record (presumed reliable unless opposing party can prove otherwise)

o FOUNDATIONAL REQUIREMENTS :

A witness is competent to lay the foundation for these records if they : (a) Demonstrate that computer record is what the proponent claims (b) Are sufficiently familiar w/ the record system used and (c) Can establish that it was the regular practice of the business to make the

record

Absence of Business Records :

o General Rule : The absence of information from either business or official records is admissible as tending to prove that the fact never happened

o CEC 1272 / FRE 803(7) : Evidence that a matter is not included in the memo, reports, records, or data compilations, in any form, kept in accordance w/ the provisions in business records exception to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memo, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate a lack of trustworthiness.

Cts do not admit articles or newspaper reporter’s notes as business records

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OFFICIAL / PUBLIC RECORDS

FRE 803(8) : Official Records Exception: Excepts from hearsay rule public records and reports. Records, reports, statements or data compilations, in any form, of public offices or agencies, setting forth:

o the activities of the office or agencyo or, matters observed pursuant to duty imposed by law as to which matters there was a duty

to report. EXCLUDING in criminal cases matters observed by police officers and other law

enforcement personnelo or in civil cases and proceedings and against the Govt in criminal case, 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 CA and FRE : cannot introduce official records against a D in a criminal case

(see below)

CA 1280 : Official Records Exception (this is very similar to business records exception – except do NOT need custodian of records to testify)

o writing must be made by and w/in scope of duty of a public employeeo the writing was made at or near the time of the act, event or occurrenceo sources information and method of preparation indicate trustworthinesso if document is certified, it is admissible under official records exception

Burden on opponent to show the information is not trustworthy In CA : the info must be based on govt official’s observations, so in CA conclusions

are probably not admissible. (see hypo #3 p. 299) The FRE is much broader for official records. ******

FRE: Conclusions made in investigative reports are admissible under the FRE Official Records Exception

o the conclusion can be based in part on person who are NOT employees of the govt.

Beach Aircraft :

CANNOT introduce official records against a D in a criminal case!!!!!!!!!

o Note : Normally if something fails one exception to the hearsay rule, it could still be admissible under another exception. But under FRE (see below) that is not the case. Under FRE, this is the one case where this principle does not apply.

o FRE : When it comes to something that is an official record and it is offered against a D in a criminal case, you cannot admit into evidence under any rule

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o CA rule : does not follow above FRE – if there is some substitute for cross examination then it may be admissible against a D in a criminal case. The CA records statute says that official reports may be admissible against a D in a criminal case

United States v. Oates

FRE : Police records are admissible if they relate to routine, non adversarial matters in criminal cases. (talking about the things like in Grady: trial ct admitted reports and serial numbers and receipts of weapons which were prepared by the Irish police)

FRE 803(8) : Records, reports, stmts, or data compilations (in any form) of public offices or agencies, setting forth :

o (A) activities of the office or agency, or matters reported with regularity

o (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 PO’s and other law enforcement personnel, or

o (C) in civil actions and proceedings and against the gov’t 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 a lack of trustworthiness.

A lot broader than in business records exception

Conclusions and reports made by gov’t officials are admissible – even if they were based on, considered or included statements of “outsiders” with no duty to report.

o Stmts of the outsiders (w/ no duty to report), however, remain inadmissible

Beech Aircraft v. Rainey :o Facts : In action against D, P (surviving spouse of deceased pilot) sought to exclude an

investigative report, which was in favor of D, that was prepared by the gov’t. Treat it exactly same as business record – conclusion/opinions of gov’t officers are

also admissible under official records exceptiono Rule : Factually based conclusions and opinions are within the scope of the public records

exception under FRE 803(8)(C).

If there is self-authentication (under FRE 902), then we do not need to call custodian under FRE – but the evidence is subject to objections regarding content of the document (i.e. need for redaction). In CA, have more to prove to show it was a business record, but if you do, custodian does not have to testify.

General Rule : Public records cannot be introduced against a D in a criminal proceeding

o Under FRE, ct (in Oates) says if something is in fact an official record and fits this part of prohibition and is inadmissible, we cannot invoke ANY other exception to hearsay rule to make it admissible

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Most of circuits follow the general rule (especially w/ police reports) : PO report is inadmissible offered against crim D offered under this exception or ANY OTHER exception

o CA does not follow this rule public records can be introduced against D in crim proceeding

CEC does not contain language of limitation

US v. Oates :o Facts : D, on trial for possession and intent to distribute heroin, appeals trial ct’s decision

admitting a chemist’s report and worksheet which concluded that powder in possession of D at the time of his arrest was heroin.

Ct notes that there is large problem w/ trustworthiness in these records chemist prepared this document in anticipation of litigation (Palmer problem) so even in CA it wouldn’t get in

Ct could have said this was inadmissible under business records expn (anticipation of litigation), but instead chose to argue it was a official record b/c Congress clearly intended these types of reports not to be admissible against Ds in crim proceedings (confrontation clause problems

o Rule : Law enforcement and gov’t reports prepared in regular course of business are not admissible against a D in a criminal proceeding.

Exception : Reports of law enforcement personnel may be admitted into evidence when reports do not prove the gov’ts case in chief.

o Law enforcement reports are admissible in criminal prosecutions if they relate to routine, non-adversarial matters.

o US v. Grady : Facts : At his trial for conspiracy to violate the Fed Firearms Law, D attempted to

exclude reports of serial numbers and receipts of weapons discovered by POs. Congress was concerned w/ gov’t using such evidence to prove their ENTIRE

case, but that was not the case here circumvention of limitation (most circuits do this)

Oates does not apply if PO report concerns routine, non-adversarial matter Rule : Reports of POs or other law enforcement personnel are admissible against a

criminal D when they are not used to prove the gov’ts case.

o Both FRE and CEC follows Grady rule

CEC 1280 : Evidence of a writing made as a record of an act, condition, or event is admissible when offered in any civil or criminal proceeding to prove the act, condition, or event if all of the following applies :

o (a) The writing was made by and w/i the scope of duty of a public employeeo (b) The writing was made at or near the time of the act, condition or evento (c) Sources of info and method and time of preparation were such as to indicate its

trustworthiness

Absence of a Public Record :

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o FRE 803(10) / CEC 1284 : Evidence of a writing made by the public employee who is the official custodian of the records in a public office, reciting diligent search and failure to find a record, is admissible when offered to prove the absence of a record in that office.

Differences b/w FRE and CEC :

o Under FRE : Public records cannot be introduced against a D in a criminal proceeding Can admit public records if gov’t report conclusions are based on third party

observations, but third party’s statements are inadmissible

o Under CEC : Public records can be introduced against a D in a criminal proceeding Cannot admit entire report if gov’t report’s conclusions are based on third party

observations

PRIOR CONVICTIONS

o Judgments of Previous Conviction : (this means the use of a judgment of conviction to prove that a person committed the act he was convicted of – this is hearsay b/c the conviction is an out of ct statement made by a judge or jury used to prove the matter asserted that D did it)

o CA §1300 : a final judgment of conviction of a felony is admissible in a subsequent civil action to prove any fact essential to the judgment of conviction.

It also includes nolo contendere pleaso Not admitting civil liability = nolo contendre

Convictions for misdemeanors and other minor crimes are NOT included in this exception

Note: this section ONLY allows use of prior felony convictions in CIVIL actions.

o Examples of why this rule came into being : (note these cases are NOT the law today)

Marceau v. Travelers Ins : (1884) USSC held that evidence of a murder conviction was inadmissible to prove that the insured was intentionally killed.

Burke v. Wells Fargo : (1867) evidence of conviction of robbery was held inadmissible to prove the identity of the robber in an action to recover a reward.

o FRE § 803(22): Prior conviction evidence is admissible in a criminal prosecution if the conviction is a

prior conviction of the person accused in the present proceeding.

Pleas of nolo contendere are NOT included in this exception. So they are in admissible under the FRE.

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o FRE 803(22) : Evidence of a final jgmt, 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 jgmt, but not including, when offered by the gov’t in a criminal prosecution for purposes other than impeachment, jgmts against persons other than the accused.

o The pendency of an appeal may be shown but does not affect admissibility.

CEC 1300 : Evidence of a final jgmt adjudging a person guilty of a crime punishable as a felony is admissible when offered in a civil action to prove any fact essential to the jgmt whether or not the jgmt was based on a plea of nolo contendere.

Differences b/w FRE and CEC :

o Under FRE :

It is a crime punishable by more than one year’s imprisonment Nolo contendere plea cannot be used

o Under CEC :

It is a crime punishable as a felony Nolo contendere plea can be used

o Civil or criminal?

TREATISES AND COMMERCIAL LISTS

o CA §1340 : Commercial lists and publications that are generally used, and relied upon as accurate, in the course of business are admissible as an exception to the hearsay rule

o CA §1341 : Historical works, books of science or art, and published maps or charts made by persons indifferent as between parties are admissible ONLY WHEN OFFERED TO PROVE FACTS OF GENERAL NOTORIETY AND INTEREST

o Example : may NOT admit a medical treatise in a medical malpractice suit under this § b/c it does not discuss matters of general notoriety

o But Kelli Bluebook may.

o FRE §17 : Commercial lists are an exception to the hearsay rule. This is essentially the same as CA’s provision. But the list is more comprehensive and clearly covers stock price reports.

o FRE §18 : this is the treatise exception. You can ONLY INTRODUCE TREATISES IN CONNECTION WITH EXPERT TESTIMONY

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o this is NOT limited to facts of general notorietyo Statements from a treatise (if satisfies above) can be read into evidence, but CANNOT be

received as an exhibit.

Note: this exception is particularly useful in conjunction w/cross examination as illustrated by the Wellman excerpt (p.301-303)

CHILD & SPOUSAL ABUSE

CEC 1360 : In criminal prosecution where victim is a minor (under 12), stmts describing any attempted or performed child abuse or neglect on the child by another is admissible if all of the following apply :

o (1) Stmt is not otherwise admissible

o (2) Ct finds it to be sufficiently reliable

o (3) Child either :

(a) Testifies at proceeding, or (b) Is unavailable as witness – in which case stmt may be admitted only if there is

evidence of child abuse or neglect that corroborates stmt made by the child.

CEC 1370 : Applicable to stmts by adults subjected to physical abuse (i.e. spousal battery victims).

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EXCEPTIONS REQUIRING UNAVAILABILITY

For all of the exceptions under FRE 804, declarant must be unavailable

Unavailability

o FRE 804(a) : Unavailability of witness includes situations in which declarant –

(1) Is exempted by ct on ground of privilege concerning subject matter of declarant’s stmt

5th amend privilege (not incriminate self, testify against spouse, etc.)

(2) Persists in refusing to testify re: subject matter of declarant’s stmt despite order of ct

i.e. – someone in contempt b/c refuses to testify

(3) Testifies to lack of memory of subject matter of declarant’s stmt

(4) Unable to be present or testify b/c of death or then-existing physical/mental illness

(5) If not present at hearing and proponent (person who wants to admit hearsay) has been unable to procure declarant’s presence despite diligent efforts

Not unavailable if proponent has caused declarant’s inability to testify i.e. murder or pay witness not to testify

o CEC 240 : Same as FRE 804(a) except CA does not make lack of memory a ground for unavailability.

DYING DECLARATIONS

FRE 804(b)(2) : In a prosecution for homicide or a civil action or proceeding, a stmt made by a declarant while believing that declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

o In civil case, if declarant does not die, he/she must be unavailableo Personal knowledge is required

a. In federal rulesi. in criminal case must die,

ii. but in civil case must be “believed impending death” but the declarant does not have to actually die.

1. but the declarant was unavailable.a. If not at hearing and person made diligent effort to find him then

its ok. Basically have to make efforts to find them.2. Needs personal knowledge as well.3. also cant be the cause of the person’s unavailability.

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CEC 1242 : Evidence of a stmt made by a dying person respecting the cause and circumstances of his death (must die) is admissible against the hearsay rule if the stmt was made upon his personal knowledge and under a sense of immediately impending death.

1) declaration relates to cause and circumstances of the declarant’s death.2) statement was made on the declarant’s personal knowledge3) declaratnt was in sense of impending death4) declarant must actually die.

Two Requirements for Introduction of a Dying Declaration :

o (1) Have evidence that declarant was under sense of impending death (where reliability comes from)

o (2) Personal knowledge – have to show that declarant’s statement is based upon his/her observation

o Distinctions :

CEC In any case (civil or crim), declarant does actually have to die and declarant has to have personal knowledge of what they were stating.

FRE In criminal cases, declarant does actually have to die. In civil cases, declarant does not have to die (must be related to cause/circumstances of declarant’s believed impending death).

Weight and Admissibility :

o If the proponent can meet the foundational requirements (i.e. can show that he had personal knowledge and that the stmt was made in moment of impending death), the stmt will be admitted, and then all other will go to the weight or credibility of the evidence

i.e. – prosecution can attach this evidence This applies to all evidence that is admitted b/c of an exception

Soles v. State :o Soles

If person dying says someone killed him Soles is prosecuted for murder of Long and the statement is “Soles has shot me and

now I am going to die.” As we can see the problem is the lawyer would like to cross examine the declarant about how he knows Soles pulled the trigger.

There are some things about this that makes us want to admit it i.e. why we admit dying declarations:

Necessity – without an exception we would lose this evidence and in many homicide cases a statement by the victim is going to have a strong tendency in reason to prove who the assailant is.

Reliability – if a person knows that he or she is about to die there is an inherent trustworthiness about what saying. The assumptions is:

o Person has nothing to gain by lying at that point.o People don’t want to die with a lie on their lips, a Judeo-Christian idea.

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A problem with the case: In this case tho he says he died of wound to his head it could have impacted

function to his head. We tell the opponent that he can introduce evidence that will destroy the

credibility of the evidence. Another problem: they were driving away and the wound was on the back of his head,

so how does Clifford know who shot him? Are the facts based on personal knowledge, we don’t know how he knew.

So we say dying declarations are admissible as long as there is some evidence that the person who makes the dying declaration has observed facts he or she is talking about.

This is really admissible as a matter of policy, it doesn’t answer all the HS objections, but it answers enough of them.

Another issue in Soles: the Ds lawyer after says its admissible says give instruction to jury that this statement has come in, but if you decide that Clifford didn’t know he was about to die then you should ignore the statement.

This is really about division of responsibility. Preliminary Question of Fact – where the issue is admissibility of evidence,

whether the statement was a dying declaration, it is a PQOF and the trial judge has to decide.

o This means any time there is one of these questions and there is a preliminary QOF the person who wants to introduce this evidence has burden of showing he knew he was going to die.

o Most of the time the std is a preponderance of the evidence standard.o Once the judge rules on this the jury does not decide this again. o So the lawyer trying to get the instruction is wrong.o Also, the Ds lawyer can also bring in evidence that they should not

believe it. They have to credit the statement, but they don’t have to believe it.

o So the judge decides this. In CA, boy’s stmts might have been problem b/c personal knowledge is required (but

was questionable here) – but admitted under FRE b/c not explicit requiremento Rule : In admitting hearsay stmt under dying declaration exception, it is duty of the judge

(not the jury) to determine whether stmt was made under sense of impending death

Judge and Jury Roles :

o Judge makes the decision (Gatekeeper) If the question goes to admissibility of the evidence

When issue is whether proffered piece of evidence is admissible whether or not an exception to hearsay rule applies and whether proponent has made

a sufficient showing of the foundational facts

o Jury makes the decision (Credibility) If the question goes to the weight or credibility of evidence

When issue of fact arises and evidence bearing on it is such that reasonable person could find either way

who is to be believed and whether they should credit/discredit the evidence

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FORMER TESTIMONY

o Hypo There is a trial and P wins and D appeals on technical grounds (jury instructions) and

COA reverses and remands for new trial. While the appeal is pending a critical witness for P disappears. The P calls the court reporter from the first trial and wants the court reporter to read

the testimony and the D objects because its hearsay. Is he right?

The biggest reason this is HS because its an OOC statement offered to prove truth of matter asserted.

Actually, It’s 2 levels of HS:o The statement itselfo Court reporter will read from transcript. That too is OOC statement.

Former Test is HS because its in another hearing. THIS IS TRUE FOR DEPOSITION TESTIMONY AS WELL. So its HS but we create an exception.

o If the declarant is unavailable and there is identity of issues then the former test is admissible as an exception to the HS Rule.

Traveler’s Fire Insurance v. Wright :o Facts : In action by P to recover proceeds from insurance pursuant to a fire, D sought to

introduce transcript of P’s criminal trial for arson. (Evidence was admissible) P had same motive/interest to discredit witness in crim trial (in cross-exam) b/c wants

to show it was not arson and collect from D (issues are the same who caused the fire)

Parties in both trials need not be identical (crim civil proceeding) The court was grappling with the case law and the court is saying we made a mistake.

The identity we need is the identity of issues and because the issue in the first trial is the credibility of E and B and the issue in the second trial the civil case is the credibility of E and B therefore the former testimony exception should be applied. Because the requisite liability is present.

So Wright is expansion of former testimony exception. Once there is an identity of issues, even if the parties are different, and even if the proceedings are different, the underlying reasoning works.

The test is reliable because when JB is reliable he has to discredit him, we can presume there is cross examination.

So ct says we can use the exception. Cts don’t worry about how good the lawyer is.

Former testimony is an exception to HS when: The Declarant is UNAVAILABLE and There is a motive to cross examine

o Which relates to identity of issues idea and opportunity to cross examine is present

o Then the exception will be applied.

o Rule : Former testimony of witness in crim trial can be used in subsequent civil trial if (1) witness is unavailable, (2) there was opportunity to cross-exam by party to whom evidence

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is offered against or by party whose motive in cross-exam was the same, and (3) issues at two trials are the same.

CA § 1290-1292 o Declarant must be unavailable!!!!

Unavailability defined in CA rule 240: exempted or precluded by a privilege (5th A right against self incrimination exempts and spousal exception may preclude you from testifying), declarant is dead or cannot attend due to physical or mental infirmity, declarant is absent from court and cannot be found, but that only applies if the proponent has made diligent effort to secure declarant’s testimony). Proponent (person who wants to invoke this exception has burden of showing unavailability.

Normally, a person cannot secure his own unavailability, and then invoke the former testimony hearsay exception. HOWEVER, if the value of the case does not justify the expense of traveling to testify, that satisfies unavailability.

o CA §1291: Offered against a party to the former proceeding, Or a successor in interest the former testimony is admissible if: it is offered in the 1st proceeding by the party

against whom it is now being offered. also admissible if: the former testimony is offered against one who was a party the

former proceeding who had the right and opportunity to cross examine the declarant with the same or similar motive as she/he has in the present proceeding.

o CA § 1292 – Offered against one NOT a party to the former proceeding. Admissible if: offered in a civil proceeding the party to the former proceeding had the right and opportunity to cross examine

the witness AND the part the former proceeding had an interest and motive to cross examine the

witness similar to that of the part against whom the testimony is being offered.

CEC 1291 :

o (a) Evidence of former testimony is admissible if declarant is unavailable as witness and :

(1) Former testimony is offered against a person who offered it in evidence in his own behalf on the former occasion or against a successor in interest of such person, or

(2) Party against whom former testimony is offered was a party to action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant w/ an interest and motive similar to that which he has at the hearing.

o (b) Admissibility of former testimony is subject to same limitations/objections as though declarant was testifying at the hearing, except that former testimony offered under this section is not subject to :

(1) Objections in the form of the question which were not made at the time the former testimony was given

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(2) Objections based on competency or privilege which did not exist at the time former testimony was given

CEC 1290 : “Former testimony” means testimony given under oath in :

o (a) Another action or in a former hearing or trial of the same actiono (b) A proceeding to determine a controversy conducted by or under supervision of a US

agency o (c) A depo taken in compliance w/ law in another action, oro (d) An arbitration proceeding if the evidence of such former testimony is a verbatim

transcript

CEC 1292 : Only applies to civil cases (if parties are different, second proceeding has to be civil)

o (a) Evidence of former testimony is admissible if :

(1) Declarant is unavailable as a witness

(2) Former testimony offered in a civil action, and

(3) Issue is such that party to action/proceeding in which former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing.

o (b) Admissibility of former testimony (under this section) is subject to same limitations/objections as though the declarant were testifying at the hearing, except that former testimony offered under this section is not subject to objections based on competency or privilege which did not exist at the time the former testimony was given.

SEE SUPPLEMENT #3 FOR EXAMPLES OF CA RULES

THE Federal Rule is MORE RESTRICTIVE – not nearly as broad as in CAo The testimony is only admissible

To a party in the proceeding Or a successor in interest

Partnerso Wright works

Child inherits claim from parent Co or private entity purchases biz and have sim claims

o BUT THERE MUST BE A RELATIONSHIP WHERE IN CA THERE CAN BE NO RELATIONHIP WHATSOEVER AND ITS STILL ADMISSIBLE

FRE 804(b)(1) : Testimony given as a witness at another hearing of the same or a diff proceeding, or in a depo taken in compliance w/ law in the course of the same proceeding or another proceeding, if the part 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 – is admissible as an exception to hearsay rule.

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o Declarant must be unavailable (b/c if available, want them to testify so jury can see demeanor, etc.)

Four Requirements for use of Former Testimony :

o (1) Inability to obtain testimony of a witnesso (2) Must have been opportunity to cross-examine witness in the former trialo (3) Must be an identity (or substantial identity) of the issues, ando (4) Must be an identity (or substantial identity) of the parties.

Definitions :

o Opportunity : If a party offers a witness, they need only have the opportunity to cross-exam them (do not need to actually have done it) to admit the testimony in a subsequent proceeding.

Applies even if your witness says something that surprises you This is the most important component

o Predecessor in Interest : Generally refers to predecessor from whom present party received the right, title, interest, or obligation that is at issue in the current litigation (i.e. – persons in privity).

There must be a legal relationship b/w the parties i.e. – someone who has purchased or inherited a right to sue, or a partner Beyond these narrow categories, former testimony cannot be used against

someone not a party to a prior trial

o Identity of Issues : In order to admit former testimony, the issue in the first trial must be similar or the same as the issue in the second trial

Issue Preclusion Person who was not a party to a prior litigation is not often permitted to use issue preclusion against party who had a full & fair opportunity to litigate in prior action

FOR EXAM : Assume there is no issue preclusion (just want to know whether former testimony can come in)

When an issue that has been examined in prior proceeding arises in second action :

(1) Under former testimony exception, testimony given in the first action may be admissible as evidence in the second (FRE 804(b)(1))

(2) Under exception for jgmts of conviction, the jgmt in the first action may be admissible as evidence in the second (FRE 803(22))

(3) Under doctrine of issue preclusion (aka collateral estoppel), jgmt in first action may preclude relitigation.

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o If so, issue has already been decided for purposes of second action and evidence on the precluded issue is not admissible.

o If jgmt is used merely as evidence, it can be contradicted w/ other evidence and second trier can reach a different result from first trier.

o Identity of Parties : Important only WRT the parties as against whom such testimony is offered

Identity of all parties is not an independent requirement in all cases

US v. Salerno :o Facts : 2nd circuit reversed district ct’s decision to exclude former grand jury testimony of

witnesses who were unavailable for D’s trial. US appealed. Can a criminal D introduce evidence of a Grandjury Witness who pleads the 5th (now) Witnesses in GJ said we aren’t part of the conspiracy and members on trial now aren’t

members of the conspiracy. Govt goes ahead with case and get witnesses who implicate Ds. Ds now call the witnesses who said they were ok, but now they plead the 5th. The reason witnesses testified in GJ is because they had immunity. Test comes out

unfavorable so they revoke the immunity so now the Ds cant call them and invoke their 5th amendment right.

Acc to the SC the Ds cant now use the GJ testimony under the FT exception because: Govt doesn’t have motive once testimony was not to their liking. Ds say this is unfair, had you liked their test you would’ve used it against us.

o The SC disagrees. o The Govt doesn’t have the motive, so acc to the SC reliability is

missing. The FT exception rests on notion it is reliable because the party to the first proceeding has this motive to question to challenge the underlying testimony and if that’s missing the reliability is not there.

o Court remands this case because there is a question whether the motive is there, so they remand it.

SCt said fairness is not the issueo Former testimony is admissible b/c they find it reliable b/c the party

who is involved in first proceeding had motive/opportunity to cross-examine and if that motive is missing then reliability does not exist

Requisite similar motivation/interest was not found – therefore inadmissible This exception is based on reliability of former testimony – this was not

reliableo Rule : In order to permit crim D to introduce (against gov’t) grand jury testimony of a

witness who asserts the 5th, it must be shown that gov’t had same motive at the trial as it did at the grand jury hearing.

If civil case is the second proceeding (and former testimony comes from prior criminal case) :o Former testimony is admissible against a party to an earlier proceeding OR a successor in

interest Beyond narrow categories, former testimony is inadmissible against someone who was

not party to prior proceeding (not nearly as broad as CA statute) For Exam Apply rule in narrow sense (must be some legal relationship b/w

parties)

If criminal case is the second proceeding (and former testimony comes from prior civil case) :94

o You cannot do this if the parties are different b/c it would be in violation of the Confrontation Clause (6th amend)

o Testimony from a criminal case can be introduced in a subsequent civil case where it appears that :

(a) Witness Unavailable – Impossible to get testimony of witness who testified in crim case

(b) Opportunity to Cross-Exam witness in prior crim case (c) Identity of Issues – motive and interest in cross-exam was the same in crim case (d) Identity of Parties – identity of all parties not required

DECLARATIONS AGAINST INTEREST

Fedr Rule 804b3: Declaration Against Interest 4 elements Statement must be against one of 4 interests:

o Pecuniary (costs money)o Proprietary (subjects you to loss of personal or real property)o Penal/criminal (statement that would subject declarant to penal

liability)o Expose to civil liability or invalidate a civil claim.o And CA includes social interests as well

have to have personal knowledge (peculiar means of knowing the facts) And the declarant must be unavailable

o 804a talks of unavailability Privilege Refuses to testify Lack of memory – not in CA Unable to be present Cant get his attandnce

Corroborating circumstances doesn’t exist in CA.

Acc to ct: 2 stage analysis: o First so the offered remarks come within the hearsay exception as a

Statement Against Interest i.e. see aboveo Second, if they do, and if the interest is vs. the person’s PENAL

interest, then is there sufficient corroboration to clearly indicate trustworthiness from Barret

NOTE : IF YOU HAVE A PARTY TO A PROCEEDING AND EVIDENCE OF AN OUT OF CT STATEMENT IS OFFERED AGAINST THAT PARTY, DO NOT USE THIS EXCEPTION B/C WITH THIS EXCEPTION YOU MUST NOT BE A PARTY TO THE PROCEEDING AND BE UNAVAILABLE.

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I .e. Use ADMISSION

FRE 804(b)(3) : A stmt which was at the time of its making – o so far contrary to declarant’s pecuniary or proprietary interest, or o so far tended to subject declarant to civil or criminal (penal) liability, or o to render invalid a claim by the declarant against another, o that a reasonable person in the declarant’s position would not have made the stmt unless

believing it to be true.

o Stmt tending to expose declarant to crim liability (penal interest) and offered to exculpate accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the stmt.

US v. Barrett :o Facts : D convicted for theft and sale of stamps, appeals trial ct’s decision excluding out-of-ct

stmts of an unavailable declarant which exculpated D from the theft charge.o Rule : Where declarations against criminal interest exculpate an accused, FRE requires

that corroborating circumstances establish the trustworthiness of the declaration.

Williamson v. US :o Facts : D appealed from his conviction on ground that H’s stmts (originally that he got it from

someone else, then changing story to say he got it from D) introduced by gov’t as declaration against interest were hearsay and inadmissible.

Harris says in the end it was Williamsons drugs and in trial of Williamson Harris isn’t around.

We have to find its against Decs interest but the Dec is unreliable here. A reasonable person in Harris’s psotion would make the statement because it would

subject him to liability but less liability. So the SC is saying before you admit these statements you have to make sure the

statement you are introducing the part that is relevant is truly against the person’s interests. Just the fact talking about conspiracy isn’t enough. A reasonable person might make this statement even tho it isn’t true to shift the blame put himself out of trouble.

A good way of putting it: would a reasonable person in his situation make that statement if it false.

Preliminary question of fact (FRE 104(a)) for judge is whether part of stmt that would be admissible is against declarant’s interest.

Stmts of co-D are usually viewed w/ suspicion (reasonable person would have mad stmts even if they were untrue, thus not truly a declaration against interest)

o Rule : FRE 804(b)(3) does not allow admission of non-self-inculpatory stmts, even if they are made w/i a broader narrative that is generally self-inculpatory (Broad Narrative Approach)

Rationale : Assume ppl do not say things that subject them to negative consequence unless it is true o We have the requisite reliability and trustworthiness b/c of that assumption

o Standard of trustworthiness goes beyond minimal corroboration, but cannot be so strict as to be utterly unrealistic

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Proponent Must Show :

o (1) Declarant is unavailable

o (2) Stmt was truly against declarant’s interest at time it was made (pecuniary or proprietary)

objective standard – reasonable person

o (3) Declarant must have personal knowledge

o (4) Declarant had no motive to falsify the facts

CEC 1230 : Same as FRE but also lists social interests (as one of declarant’s interests)

o Social Interests : Created such a risk of making him an object of hatred, ridicule, or social disgrace in the community

GM v. General Casualty :o Facts : In order to recover proceeds of insurance policy, P attempted to introduce signed and

written confessions of his employees which had admitted to having misappropriated his funds. Ct held these were sufficient declarations against interest (confessions subjected

employees to pecuniary liability) – admissible.o Rule : In civil action against an employer’s insurer, written and signed confessions are

admissible to prove the fact and the amount of the loss.

Admissions v. Declarations Against Interest :

o Admissions do not have to be against a declarant’s interesto Declarations against interest require declarant to be unavailable, but admissions do not require

thato Declarations against interest require declarant not be party to an action, but admissions do

FAMILY HISTORY (HOW TO PROVE THE IDENTITY OF YOUR PARENTS)

o CA § 1310 : statements concerning family history (e.g. date and place of births and deaths of family members and facts about marriage, descent, and relationship)

declarant must be unavailable no requirement of personal knowledge inadmissible if statement made under circumstances indicating lack of

trustworthinesso CA § 1311 : allows similar statements by a relative or family friend

declarant must be unavailable proof that declarant was so closely associated with the subject of the statement that

she/he is likely to have accurate information on the matter declared or is related by blood or marriage

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inadmissible if statement made under circumstances indicating lack of trustworthiness

o CA §1316 : allows use of certificates of marriage, baptism, or other ceremonies

o FRE §804(4) : allows statement of family history if: declarant unavailable no requirement of personal knowledge declarant so closely associated with the subject of the statement that she/he is likely

to have accurate information on the matter declared, or is related by blood or marriage

o FRE 803(11) and (12) : allows introduction of religious records, marriage certificateso FRE 803(13) : allows use of family bibles, records, etc.o FRE 803(19) : Public Reputation among members of a person’s family concerning birth, adoption,

marriage, divorce, death, legitimacy, ....or other similar fact of personal or family history.

Ancient Writings : made admissible by FRE 803(16) [over 20 years old] and CA 1331 [over 30 years old]

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EXCEPTIONS REQUIRING AVAILABILITY

PRIOR IDENTIFICATION

This exception means: an out of ct statement of a prior identification of a person may be admissible in court. (See CA and FRE)

CA §1238 : Statement of Prior ID is an Exception to Hearsay rule: (Note: all 4 req’s must be met in order for 3rd party to confirm the i.d.)

o id must be made when the event or occurrence is fresh in the person’s mindo the declarant must testify at trial o and be able to testify that at the time made the I.D. it was reasonable accurate/ must

indicate that id was a true reflection of his or her opinion at the timeo declarant must have personal knowledge

Note: if declarant established ALL above requirements, but now the declarant doesn’t remember – a 3rd party may confirm the id. But if some elements are not met, then a 3rd party may NOT confirm the id.

FRE 801(b): statement prior id is defined as NOT hearsay :o declarant must testify at trial and be subject to cross examination

Note : There is NO requirement under FRE that declarant establish personal knowledge or that he testify that i.d. was accurate

Under FRE: as long as declarant is present for cross exam – that is end of inquiry. So FRE much simpler than CA rule.

FRE 801(d)(1) : Stmt is not hearsay when declarant testifies at the trial or hearing and is subject to cross-exam concerning the stmt, and the stmt is :

o (A) inconsistent w/ the declarant’s testimony, and was given under oath subject to penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or

o (B) consistent w/ the declarant’s testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive, or

o (C) one of identification of a person made after perceiving the person.

US v. Owens :o Facts : Foster, who was beaten bad, ID’d D as assailant out of ct, while he was hospitalized.

At D’s trial Foster indicated that he did not remember D due to lapse of memory. Raising personal knowledge through cross can go to weight of evidence, but not

admissibility Declarant must testify (subject to cross-exam); testimony that he remembered making

the ID is critical (proponent has met req of FRE exemption) Rejects Confrontation Clause violation b/c declarant is on stand and is subject to cross

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o Rule : Admissions of out-of-ct stmt of a declarant identifying a person does not constitute violation of Confrontation Clause (6th) or hearsay rule, even if declarant later testifies to lack of memory of his own stmt – i.e. personal knowledge is irrelevant..

o FRE 804(d)(1)(C) : Stmt not hearsay when declarant testifies and is subject to cross-exam and stmt is one of ID of person made after perceiving the person

o In CA, it is more problematic :

If person cannot remember who they ID’d, you have questions as to whether they can also confirm it was fresh in their mind at the time

Because we do not bootstrap in CA, we cannot have an officer testify that declarant made the ID (declarant must do this himself)

CEC 1238 : Evidence of a stmt previously made by a witness is admissible if the stmt would have been admissible if made by him while testifying and :

o (a) stmt is an ID of a party or another as a person who participated in a crime or other occurrence,

i.e. – declarant must have personal knowledge

o (b) stmt was made at a time when crime or other occurrence was fresh in witness’s memory, and

o (c) evidence of the stmt is offered after the witness testifies that he made the ID and that it was a true reflection of his opinion at the time

Differences Between FRE and CEC :

o FRE is an EXEMPTION to the hearsay rule

If it meets the requirements, it is defined as not hearsay

True Reflection Declarant does not have to say ID was true reflection of her opinion

o However, declarant does have to testify and remember making the ID

Personal Knowledge Personal knowledge is an implicit requirement (not in statute)

Fresh in Memory No requirement that ID was made at time occurrence was fresh in declarant’s memory

o If not fresh in declarant’s memory, goes to weight, not admissibilityo i.e. – any prior ID is admissible under FRE

Burden On D/opponent’s atty to raise those issues agoing to the weight of the ID

o CEC is an EXCEPTION to the hearsay rule

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Requires the foundational showing to be admissible hearsay : Fresh in declarant’s mind, True reflection of her opinion, and Declarant must have personal knowledge

o PO testimony : In FRE, officer can testify that declarant made the ID/stmt, so long as foundation has been laid, but in CEC, the officer cannot testify that declarant made the ID b/c we cannot bootstrap in CA

Rationale : Better than anything we can do in court When the witness IDs the person who committed the crime, there are not many options – declarant just points; but if there is a lineup, she picks them out w/ others.

o It is more reliable, (earlier ID is more reliable) o It is not suggestive, ando It is closer in time to incident.

PRESENT RECOLLECTION REFRESHED

witness can be shown anything that might tend to refresh memory. This is NOT evidence – the item used to refresh memory is not evidence

o CA § 771 : This rule says that before you use an item to refresh memory you must produce it to other side so can review the evidence. If that item is not produced, the testimony of the witness concerning such matter will be stricken

o FRE 612 : if a writing used to refresh recollection the ct in its discretion may order it produced – prof says the ct almost always orders it produced to other side

How Past Recollection Recorded is different from Past Recollection Refreshed:o Past recollection refreshed: this is NOT evidence, you are merely refreshing witness’

memory. And witness can be shown anything that might refresh memory.

It is an accepted technique to make lawyers help witnesses remember things they saw or heardo It literally can be anything that might help to jog the witness’s memory

Item that is used to refresh that person’s memory is not evidence (but a tool), except :o Once witness testifies, opponent is entitled to see whatever it is that was used to refresh

recollection

o Statutes say, opponent is . . . (a) Entitled to see the thing that was used (b) They may cross-exam witness using that item

Under certain circumstances, they may be able to introduce it into evidence

CEC 771 : Production of Writing Used to Refresh Memory

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o (a) Subject to (c), if a witness (either while testifying or prior) uses a writing to refresh his memory WRT any matter about which he testifies, such writing must be produced at hearing at request of an adverse party, and, unless the writing is produced, testimony of witness on that matter shall be stricken

o (b) If the writing is produced at hearing, adverse party may (if he chooses) inspect the writing, cross-exam the witness concerning it, and introduce in evidence such portion of it as may be pertinent to testimony of the witness

o (c) Production of the writing is excused and testimony shall not be stricken if the writing :

(1) Is not in the possession or control of the witness or any party who produced his testimony concerning the matter, and

(2) Was not reasonably procurable by such party through use of ct’s process or other available means.

o CEC defines “writing” very broadly (CEC 250) – pretty much anything is covered under definition

FRE 612 : If a witness uses a writing to refresh memory for purpose of testifying, either (1) While testifying, or (2) Before testifying (if the ct in its discretion determines it is necessary in interest of justice), an adverse party is entitled to have the writing produced at hearing, to inspect it, to cross-exam the witness on it, and to introduce in evidence those portions which relate to testimony of the witness.

o If it is claimed that writing contains matters not related to subject matter of testimony, the ct shall examine the writing (in camera), redact any portions not so related, and order delivery of the remainder to the entitled party. Any portion withheld over objections shall be preserved and made available to app. ct. in event of an appeal.

o If a ct shall make any order justice requires (except that in crim cases where prosecution elects not to comply), the order shall be one striking the testimony or declaring mistrial (if ct in its discretion determines that interests of justice so require).

FRE is a little less specific than CEC

PAST RECOLLECTION RECORDED

This exception means: when record something and it is offered as tending to prove what the recorded document says – this is hearsay. But it is an exception to hearsay rule if it meets the req’s below:

FRE : It is an exception to hearsay rule if:o The record was made or adopted by the witness at a time when the witness’ memory was

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o And that witness can presently vouch for the fact that when the record was made or adopted by him, he knew it was accurate. (so basically declarant wrote it or vouches for it and must be made when fresh in memory)

o declarant establishes had personal knowledge of ito no longer can remember that which they have recorded

the record can be a record written by someone else for the purpose of recording declarant’s statement (this includes police reports)

the document does not go to the jury – it is read to them only way it goes to the jury if it opponent chooses to introduce it into

evidence adopted means: you have to have seen say the police report and say it was

accurate

CA §1237: It is an exception to hearsay rule if:o show that statement was made or recorded by witness at a time when event occurred or

was fresh in the witness’ memory o must show that record refreshes witness’s memory

document may only be received into evidence if opponent introduces it

So CA: you do NOT need to have seen (adopted or created) the police report. Witness just has to say what I told officer was accurate. Then officer can get on stand and say it was accurate. So CA is more lenient than FRE.

FRE 803(5) : A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by witness when the matter was fresh in witness’s memory and to reflect that knowledge correctly. If admitted, the memo or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

o BASIC REQUIREMENTS :

Witness’s memory of event is insufficient Stmt must have been made or adopted by witness While matter was fresh in witness’s memory Must reflect witness’s memory and knowledge correctly Can only be read into evidence by proponent (admitted as evidence only by adverse

party)

Appears in section of FRE which says availability of declarant is irrelevant (FRE 803) o Problem is, you have to have declarant in court to show they have sufficient memory of

incident though, so they pretty much by default have to be available (i.e. – if dead, not admissible)

CEC 1237 :

o (a) Evidence of a stmt previously made by a witness is admissible if the stmt would have been admissible if made by him while testifying, the stmt concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the stmt is contained in a writing which :

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(1) Was made at time when fact recorded in the writing actually occurred or was fresh in witness’s memory,

(2) Was made : (i) by the witness himself or under his direction, or (ii) by some other person for purpose of recording witness’s stmt at the time it

was made

(3) Is offered after witness testifies that stmt he made was true stmt of such fact, and

(4) Is offered after writing is authenticated as an accurate record of the stmt

o (b) The writing may be read into evidence but the writing itself may not be received in evidence unless offered by an adverse party (same as FRE)

BASIC REQUIREMENTS

o Witness’s memory of event is insufficiento Must have personal knowledge (at time past recollection recorded was made)o Writing has to be made at time event actually occurred or was fresh in memoryo Must testify that whatever was recorded was trueo Writing must be authenticated (someone testifies that writing was accurate rec of stmt)o Can only be read into evidence by proponent (admitted as evidence only by adverse party)

Both FRE and CEC Intent is to place proponent in same position had person been able to remember incident; if allow writing to go in, trier of fact would have more than if declarant had just testified

Distinction b/w FRE and CEC :

o CEC admissible if stmt is either (1) made by witness, or (2) stmt made by someone else at witness’s direction for refreshing witness’s memory

i.e. – if cop writes something down at declarant’s direction, can be used

o FRE limited to stmts either made by declarant or where he has adopted writing of someone else

i.e. – where declarant has written something down or expressly adopts cop’s stmts

Baker v. StateBaker (D) was convicted of 1st degree murder and robbery. A police officer was on the way to the hospital with the victim when the victim said that the victim expressly mentioned that D (Baker) was not one of his assailant. At trial, the police officer did not remember this incidentEvidence: D attempted to introduce a police report prepared by another officer in order to refresh the witness’s memoryTrial ct did not permit D to refresh witness’ memory on the grounds that the officer did not have personal knowledge of the report in question. Rule: a report or memo prepared by another party may be used to refresh a witness’ memory at trial. In cases where a memo is used to refresh memory, the memo is merely a stimulus which is not

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admitted into evidence – but the witness must swear that he is genuinely refreshed. Ct’s often confuse Present Recollection Revived and Past . Past recollection recorded is actually admitted at trial and is therefore is subject to more stringent requirement such as personal knowledge – if D had sought to offer the police report as a record of past recollection would have subject to this more rigorous standard. In the case of present memory revived – the testifying witness is not required to vouch for the accuracy of the stimulus used to boost his memory. Therefore the trial court erred in preventing D from refreshing the witness’ memory. D was entitled to refresh the memory of the key police witness

HEARSAY EXCEPTION HYPOS

b. Dying Declarationsi. Hypos page 145

1. 1- is the declarant really under a sense of impending death, we have conflicting evidence. The prosecutor says hearsay and he wants to introduce other evidence and it is that a nurse 5 mins earlier talked to A and said he was fine. The judge believes them both.

a. At first blush might say judge doesn’t know and you have to show more likely than not and if that’s the construction then the evidence is inadmissible HS.

b. But there is a second way to look at it. maybe since the nurse talked to him 5 mins earlier maybe there was a sense if impending death, maybe there was an episode and the evidence would be ok.

c. in order to make the argument, the proponent is going to have to deal with the timing issue. We need to know he wsa really under a sense of impending death and

d. if the judge is not certain you lose, it has to be a perponderence.2. 2- You can let it in because you can let in any testimony. You don’t argue to

the jury that they cant use it, but that the statement wasn’t true. So the nurse can testify.

a. so we aren’t saying whether the jury can hear the statement of the dead person, once it is in it is in.

b. but the nurse’s testimony is in because we aren’t telling the jury to believe it.

c. EU, PSIi. Hypos 159.

ii. 1- ten mins after P appeared to be in pain not paramedic said take it easy.1. Yes it is HS but probably an EU. 2. court will prob find it EU, the reaction is out of sorts. Courts say if have

response inappropriate and nonresponsive and out of context tends to show its an EU and most courts with ten mins and this reaction will say its an EU and it will be admissible.

3. cant say for sure but most likely.iii. 2 -

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1. The officer doesn’t know who the declarant is. It is more of a problem here than booth because the person needs to show personal knowledge. Here the officer has no way of knowing if the bystander saw the accident or is reporting what other people said. Impossible to know how they would prove it.

2. Also, this doesn’t sound like an EU, sounds like a statement with a reflection.

iv. 3- based on a case.1. victim ass and brain damage and in hospital for 7 weeks and when person goes

home see photo of accused and victims reaction si that he killed me, court ruled its an EU.

2. Usually the excited event is it happening but here it was seeing the photo and the statement was excited – look at the statement itself – he killed me. Its admissible under exception to hearsay rule.

v. 4 – a timing problem.1. I saw 2 men walk away from where abandoned. Cant be an excited utterance

because responding to request for assistance.2. it cant be a PSI because these 2 calls take place roughly the same time. the guy

wasn’t making the statement as the guy was walking away from the truck and it si not a PSI.

3. and of course in CA it does not get that far.

e. Admissionsi. Hypos P 167-68

1. 1- a. it is HS because it is being proved to offer that she did it (I missed this)b. it is an admission because it doesn’t matter whether the person who

made the statement knew it would hurt them.c. Its an admission because once its offered against her its an admission

and its admissible. d. We don’t care about motivation for statement.

2. 2- a. It is HS b. Then we have to ask would a reasonable person in this situation deny

the statement if its untrue.c. here a reasonable person would deny the statement. d. under Fed it is not HS (or an exemption)e. Under CA it’s HS and an exception

ii. Hypos 1721. 1-

a. it is admissible under Federal rules because it is within the course and scope of employment because the letter discusses something within the CSE and it is admissible. So it is admissible because it is not HS (an exemption).

b. There is no explicit proof of authorization so ....c. But this IS admissible in CA because we find there is IMPLICIT

authorization, he was authorized because only got paid if

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superintendent thought it was ok. So it would be HS but an exception to the HS rule.

2. 2 – a. Federal Rules: It might be admissible because the man is not authorized

to admit fault but under the Fed Rules that is only part of the inquiry. IS he in CSE: yes he is. And if it can be shown that the manager’s responsibility that the environment is supposed to be safe then the statement “it’s the store’s fault” might be within it.

b. In CA: it wont be admissible because he is not authorized. And it is tough to say there is implicit authorization in this case.

c. So there might be a difference between CA and Fed in this case.

f. Former Testimony Hypos 199i. 1 –

1. Not admissible because there was not a diligent effort to see if the witness was available. Not a sufficient showing of diligent effort. Failure to check the phonebook etc are things expect epole to do and it’s the proponents job to do these things.

ii. 2 – 1. Because this is a crim trial of lawyer did DDiligence could compel a witness to

come witness in felony trial could be compelled because of reciprocal service of process. So the witness is not unavailable, i.e. because not suff diligence.

iii. 3 – 1. This is a deposition of a party, and CA has a stat that a party’s deposition can

be ised for any purpose. And Courts have held that bec of that stat I can use a deposition which is HS which deprives jury ability to observe as a substitute.

2. Couple of Fed cts had held depositions in under FT exception.a. Bec FRCP limit subpoenas so that if someone is outside 100 miles they

are unavailable.

iv. 4 – 1. There is an identity of issues so it would meet the exception. 2. Even tho diff cases and parties, the underlying issue in the procesution is who

started it and if the jury believes the witness D is acquitted i.e. there is a strong motivation for prosecution to discredit witness.

3. Now the motive is the same. Therefore, under CA law no problem we only need identity of issues.

4. Under Fed rules is the city a SII? And is it to the officer? The state brought the case, not the officer. Unless get a fed ct willing to stretch boundaries it will nto be admissible in civil case because the state was the party and neither the city or the officer is a party.

v. 5 – 1. Based on a real case. Couple of things going on. D wants to introduce

evidence from a prior proceeding but there are problems.2. First need to make sure unavailable – not a problem here.3. Then does it fit under exceptions –

a. D said its admissible under 1291a – offering it against a party that offered it in previous proceeding, CA says if offer it and you don’t like it too bad, it can be offered against you.

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i. But here ct said that this is only if offer it on direct, if you present the witness and they didn’t do that. This critical evidence was on cross.

ii. This was also a different prosecuter in a diff county.b. well if not that then basic former test exception. Once the person says I

used drugs the prosecution had a motive to discredit it, they argued they had the same or similar motive in terms of adimitting the testimony

i. and the court rejected it. Yes its concerned when it impeaches testimony but its not the same as the interests of the prosecution here. There really isn’t the same or sim motive here.

c. so the court says its inadmissible.d. Under the Fed Rules this becomes an easier case to say no. It is diff

parties and diff prosecuters so the argument would have to be pros A is a SII in terest with pros B but it wouldn’t work.

e. So inadmissible under both.

g. Declarations Against Interest Hypos 209-210i. 1 –

1. it is HS, is it admissible?2. at the time he made the statement it didn’t expose him to liability because 3. no evidence D knew the statement was against his interest at the time he made

it. Didn’t know anyone was arrested or anything else.4. An additional factor:

a. You must be able to show the D knew or should have known at time made statement it was against his or her penal interest.

5. must show some kind of pot connection otherwise we cant say it’s a DAI because not against any interest.

6. This is distinguished from admissions. In admissions doesn’t matter if knew against interest or not, here it does. So NEVER EVER when see a party in a statement offered against a party do you talk about a declaration against interests.

ii. 2 – 1. It is HS.2. IT is a DAI. 3. A reas person wouldn’t make this statement even to his spouse because would

subject to liability.4. Privilege makes it argument. IT says confidential communications are

absolutely priv either spouse can stop the other one from saying it.5. The problem with the reas person wouldn’t do this, how many people know of

privilege – not many. So the argument is do we ascrible to the declarant knowledge of the privilege. Some say assume knowledge of law and others say no reas person in declarants positions.

6. so there is not a right ans to this one but always have to look for how the statement is truly against the person’s interest.

7. This is the preliminary question of fact, is the statement one in the person’s position something he would say.

iii. 3 –

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1. would be admissible because B is unavailable and its against his civil interests wouldn’t expect a person to say it unless it was true.

iv. 4 – 1. We can invoke the CA social interest. It would ruin his reputation. 2. Under the federal rules:

a. Pecuniary interest because of child support payment if you can prove he knew she was pregnant otherwise not a DAI. If you cant then this probably isn’t in.

b. Civil liability because sex harassment claims – emp empee relationship.

v. 5 – 1. statement is X said I shot D and D tried to break up the fight. There is no

doubt its HS, so is it a DAI.2. on cross tho he says he is going to take the beef for Ds crime. 3. This is where the federal additional condition comes in. The corroborating

evidence idea we see the statement is not trustworthy so that’s the end of the inquiry the judge cant admit statement because lacks corr.

4. Also inad under CA rule. Because a reasonable person in Decs position would because D threatened him and he is going ot the Youth authority and most CA judges would say its not reliable and not a DAI.

3) THE REST OF THE HYPOS ARE ON REGULAR SHEETS, SORRY DUDE

4) SEE MORGAN EXAM #2

5) Jeaopardy – wasn’t there for it.....But here are the answers

First question of Jeopardy- not enough admissible evidence to make the argument you want to make- You can’t establish personal knowledge on the part of the declarant (??)- Answer is D

Second question- Answer is B

Third Question- A.- Nancy is not a party. This is a criminal prosecution.- CA does not have statement for purposes of medical treatment/diagnosis exception.

Fourth question- C, this is a Hillmon doctrine question.

Fifth question- D- In a criminal case, it’s only permissible under the FRE if it’s a homicide prosecution or a civil case.

This is attempted murder, so dying declaration does not apply.Sixth question

- E.Seventh Question

- Inadmissible- Declarant can’t show personal knowledge

Eighth question

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- C- Non-assertive conduct.

Ninth question- D- Only need motive and opportunity in a civil case.

Tenth question- D

Eleventh Question- Does the fact that she made mistakes in one case have some tendency in reason to show she made

mistakes in this case?o Yes. o You have to use the editor’s out of court statement from the previous case to prove the truth

of the matter in this case (??)o But as the chief editor of the newspaper, we can imply he has authorization to speak about his

employee’s work.- So the answer is C.

Twelfth Question- A- CA doesn’t have the present sense exception. Under the federal rules, it would be hearsay, but

admissible. Since CA doesn’t have it, it’s inadmissible hearsay.- CA only has excited utterance

And that’s the end of hearsay.

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IMPEACHMENT AND CROSS-EXAMINATION

CROSS-EXAMINATION

o 3 STAGES OF EXAMINATION Direct Cross Redirect

Direct examination: NO leading questions Exceptions : CAN asking leading questions for:

preliminary, undisputed matters adverse witnesses very young witnesses or witnesses that have demonstrated having a very tough time expert witness – but there are a whole set of rules for that

Cross examination Once party is finished can ask leading questions And you should only ask leading questions Opp to control witness. In a contentious case with smart lawyer you have a recipe for disaster. When the witness tries to run away you can ask judge to instruct witness

to ans the question

Redirect Back to nonleading questions.

FRE 611 / CEC 776 : Ct shall exercise reasonable control over interrogation/presentation of evidence so as to make such presentation effective for ascertainment of truth, time-conscious, and witness protection (from harassment and embarrassment).

o Leading Questions :

Are not allowed in direct examination (except as necessary to develop witness’s testimony)

Are usually allowed on cross-exam and when party calls hostile or adverse party Cannot use leading questions to develop your own witness’s testimony

Four Potential Aims of Cross-Exam :

o (1) Discrediting the testimony of witness being examinedo (2) Using testimony of this witness to discredit the unfavorable testimony of other witnesseso (3) Using testimony of this witness to corroborate the favorable testimony of other

witnesses, ANDo (4) Using testimony of this witness to contribute indep’ly to favorable development of own

case

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Scope of Cross-Exam : Cross-exam is often limited to the matters testified to on direct examination

o Witness’s credibility can always be attacked on cross-examo WRT impeachment and credibility, you are not limited by the scope of matters brought on

direct

Two Broad Classes of Cross-Exam :

o (a) If you want to use witness to support part of your case, you do not want to attack his credibility

o (b) If witness is harmful to your client’s case, want to attack his credibility – discredit that person

FRE 611(b) : Cross-exam should be limited to subject matter of direct exam and matters affecting the credibility of the witness. Ct may (in its discretion) permit inquiry into additional matters as if on direct.

CEC 773 : Witness can be cross-examed WRT any matter w/i scope of direct exam. Cross-exam of witness by any party whose interest is not adverse to party calling him is subject to same rules as direct-exam.

1) 10 commandments of Crossa. Be brief short succinct

i. Simplest kind of lawsuit is complex – jury picks it up quickly and don’t want them to stop listening

ii. Shorter time on feet better – in and out.iii. Never more than 3 points

1. 2 better than 32. 1 best of all

b. Short questions, plain wordsi. Car, not vehicle

c. Never ask anything on cross besides leading questioni. Never – explain, or what happened, next

d. On Cross you never ask a question to which you do not already know the answeri. If you dont know the answer, forgo it.

e. Listen to the answeri. Usually the cross examining lawyer doesn’t listen

f. Don’t Quarrel with the Witnessg. Don’t give the witness the opportunity to repeat their direct evidenceh. Never permit the witness to explain anything on cross examinationi. Avoid the one question too manyj. Save the ultimate point for summation

i. You ant jury thinking what it was about and then tell them in summation

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IMPEACHMENT

CA and FRE : Any party may impeach a witness. So you CAN impeach own witness. (Both CA and FRE got rid of rule that can’t impeach own witness)

o Limitation of rule that CAN impeach OWN witness : If you know that witness will testify in a certain way, you CANNOT present a witness solely or primarily to get inadmissible evidence before the trier of fact – Hogan

Impeachment Defined :

o (1) To derogate or impair a witness’s credibility, o (2) Show inconsistencies in testimony, o (3) Show bias, o (4) Witness’s untruthful character, oro (5) Showing witness has mental or sensory defect.

FRE 607 / CEC 785 : The credibility of a witness may be attacked or supported by any party, including the party calling him.

o You should not attack credibility of a witness by impeaching them when you are proponent calling them and are unhappy w/ the way they testified – can only impeach if they give “surprise” answer.

o US v. Hogan : Facts : In order to implicate D w/ drug charges, the gov’t sought to introduce stmts of

a witness regarding a drug exchange despite the fact that the witness later denied the stmts.

Admitting hearsay evidence under guise of “impeachment” is unfairly prejudicial

Out of ct hearsay stmts are not admissions b/c witness was not agent/authorized of D

This is declaration against interest, but inadmissible b/c he was available He wants to get in the confession but he cant get it in because its HS.

o It’s a declaration against interest – but he is available. Meaning its inadmissible HS. Cant use it to prove the truth of the matter asserted.

o Jury will get to hear the confession. Court says its impermissible.

o It’s a balancing test analysis sorta tho they announce a hard and fast rule.

o Rule is cant all witness when primary purpose is to admit inadmissible evidence and all the rules are the same way.

it has to be clear in advance the party presenting the witness knows they are introducing otherwise inadmissible witness

if you are genuinely surprised and can show that to the court then you will be allowed.

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Rule : A party may not introduce a witness it knows to be hostile for the primary purpose of eliciting otherwise inadmissible hearsay testimony under guise of impeachment.

Methods of Impeachment : 2 Basic ways to impeach a witness

o Through Cross-Examination :

Trying to elicit details that will show there are reasons not to believe this person

Allowed a lot of latitude to test person’s credibility : Not limited to scope of direct Can cross-exam to matters that are collateral to witness’s testimony

in olden when D wanted to show victim was dating Russell – that was impeachment. Wasn’t allowed but that’s what he was trying to do wanted to suggest bias

o By Introducing Extrinsic Evidence : Documents, other people, etc.

Anything other than cross-exam (introducing docs, calling other witnesses, etc.) can be used for impeachment if we are attacking witness’s credibility

Less latitude here – Allowance is more limited : You can always cross-exam when you are allowed to introduce extrinsic

evidence BUT, there will be times when you can cross-exam, but are not allowed to

introduce extrinsic evidence

Ways to Use These Methods o Impeachment by Contradictiono Character of the Witness

Prior bad acts Prior convictions Bad reputation for truth and veracity

o Psychiatric Conditiono Prior Statements to Impeach or Rehabilitateo Bias

Impeachment By Contradiction

Collateral matter rule : Cannot impeach or contradict by extrinsic evidence on a collateral issue. You cannot bring in extrinsic evidence about any issue that is not relevant to any issue in the case. You may cross examine about collateral matters, but cannot bring in extrinsic evidence about collateral matters.

Test to see if it is Collateral : If issue cannot be proven by party’s case in chief, then it is collateral and you cannot introduce extrinsic evidence (McCormick’s defn: a matter is collateral is the matter itself is irrelevant to establish a fact of consequence to the litigation)

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o Anytime dealing with witness’ credibility to THIS case (the case before the court), then credibility is NEVER considered collateral.

o Examples of extrinsic evidence : testimony of another witness physical evidence

So what this rule means is : If you don’t get witness to admit to a collateral matter on cross exam– you CANNOT bring in extrinsic evidence to contradict the witness. So cross examiner is precluded by witness’ answer on a collateral issue.

Collateral matter restriction does NOT apply if the collateral matter is raise by witness on direct examination

In CA there is no Collateral Matter Rule. The commission said that judges should treat it as unfairly prejudicial under the balancing test. So in CA there is only a collateral matter policy.

Back to other outline

Impeachment By Contradiction : You can contradict a witness’s testimony by bringing in other people.

o i.e. - W1 may be impeached by presenting W2, who contradicts W1 on some point

o FRE : There are no rules for impeachment by contradiction in the FRE.

o Collateral Issue Rule : A witness cannot be impeached upon matters collateral to the principle issues being tried.

Collateral Matter When the matter is not part of the main issue in the case

o If it is a collateral matter, you cannot introduce extrinsic evidence, you can only cross-examo If it is not a collateral matter, you can introduce extrinsic evidence

Purpose of Collateral Issue Rule :

(1) Avoidance of undue confusion of issues, and (2) Prevention of unfair advantage over witness unprepared to answer

concerning matters unrelated or remote to the issues at hand

Credibility Not Collateral : Issues that go directly to credibility of witness (i.e. perception, memory, bias, etc.) are not considered collateral b/c trier of fact has to make decisions on which witness to believe, etc.

o State v. Oswalt : Facts : In order to impeach credibility of D who claimed he was in another city on the

day of the robbery, prosecution introduced evidence that one month before robbery, D was in Seattle.

Admission of PO evidence constituted prejudicial error and was excluded

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Can discredit witness by showing someone else’s recollection of incident / occurrence is different

It is not important that the guy was in Seattle before this incident (collateral matter)

Rule : A witness may not be impeached based on matters collateral to the principal issues being tried at the trial.

o While cross examiner is allowed to question witness about collateral matters (for credibility), he is concluded by the answers

If the matter could have been proven as part of /D’s case in chief, then it is not collateral

FRE : Collateral matters cannot be brought in for purposes of impeachment CEC : If judge feels a matter is collateral, they can exclude it at their discretion

Cross-Exam is NOT Extrinsic Evidence : Rules upholding the exclusion of extrinsic evidence offered to impeach witness on ground of it being collateral do not govern the scope of cross-examination

o US v. Copelin : Facts : D, charged w/ possession of coke, appealed trial ct’s admission of D’s positive

drug test for purposes of impeaching his testimony. There was no introduction of extrinsic evidence – impeached by own stmts on

cross US v. Copelin : D accused of selling coke. D says it wasn’t him and he is not

familiar with coke at all. And says he only knows about drugs from what he has seen on t.v. Prosecutor, however, knows that D has tested positive for drugs on at least 2 prior occasions. Prof says this seems like it is a collateral issue. The evidence that he tested positive for drugs before is relevant b/c impeach testimony that he doesn’t even know what drugs look like. But prosecutor only asked D questions on cross examination. So it is okay – no extrinsic evidence.

It is proper becauseo it is not extrinsic evidence – he just asked him, and gets him to

acknowledge that its trueo truthfully, this is not even considered collateral. o Because the trier of fact has to determine credibility, issues that go to

credibility are never considered collateral. It means that if he had denied this, then the judge would

probably allow the test results Some courts have done that extrinsic in cross isn’t allowed,

wont let the cross examiner open this up. Most court would let this in tho

although it has potential for unfair prejudice, since it has similarity to crime charged, but its not a big problem because its probative on truthfulness.

o the court tho at this point DC said court shouldve given a limiting instruction sua sponte.

o But the DC circuit abandoned that rule, the lawyer must ask for the limiting instruction.

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Rule : A party may impeach the credibility of a witness based on contradiction by introducing evidence of the party’s prior bad acts.

o US v. Drake : Facts : Trial judge allowed witness’s character to be impeached by cross-exam

questions regarding his education, and witness claimed this was improper use of extrinsic evidence.

Rule : Cross-exam questions referring to extrinsic evidence do not actually constitute extrinsic evidence for purposes of FRE 608(b).

Impeachment By Character

This is different than circumstantial evidence from before Impeachment by char means what im doing is trying to show witness

shouldn’t be believed because of character I AM NOT TRYING TO PROV EAN ELEMENT OF THE CASE, which

was before. So before we were saying the D did not bribe the officer because it was his

character, proving an element of claim or defense Here its not what we are doing. Shouldn’t credit this testimony because

he has a character for being untruthful Hes a liar so don’t believe him So keep this separate in your mind Rule 608 FRE a

o I may prove character for impeachment purposes only if it goes to the truthfulness or untruthfulness of a witness

cant say an alcoholic tending to prove under influence difference between drinking that night vs he drinks all the

time. have to show if I am going to use the circ character I have to

show truthfulness or untruthfulness 608 a

o can use reputation or opinion I knew him for 20 years he is a terrible liar

608 b o evidence of specific acts aren’t admissible to prove charactero however, the judge may allow inquiry into specific acts probative

of truthfulness on cross examinationo so no extrinsic and its not required, its up to the judge

CEC 780 : Ct or jury may consider in determining credibility of a witness, any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including :

o (a) His demeanor while testifying and manner in which he testifies This is critical

o (b) The character of his testimony

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o (c) Extent of his capacity to perceive, recollect, or communicate any matter about which he testifies

o (d) Extent of his opportunity to perceive any matter about which he testifieso (e) His character for honesty or veracity – or their opposites

Owenso (f) Existence or non-existence of a bias, interest, or other motive

Oldeno (g) A stmt previously made by him that is consistent w/ testimony at hearingo (h) A stmt made by him that is inconsistent w/ any part of his testimony at hearing

He testifies car went through sign, but he told someone else it stoppeso (i) Existence or non-existence of any fact testified to by him

This is more contradiction Can attack credibility by proving this

o (j) His attitude toward the action in which he testifies or toward the giving of testimony Was she angry, etc Sometimes lawyers try to provoke a reaction

o (k) His admission of untruthfulness Copelin Doesn’t happen a lot but it’s a powerful tool

FRE : No technical equivalent to CEC, BUT can assume that above mentioned categories are permissible grounds for attacking credibility under the FRE as well

o FRE 608 : Can impeach someone w/ their character for untruthfulness (only circumstantial character evidence you can use)

o Once a witness’s character for untruthfulness has been attacked, other party can rebut that by introducing evidence of witness’s good character can only use testimony about reputation/opinion

Circumstantial Character Evidence v. Impeachment By Character :

o Circumstantial Character Used to prove an element of the case

o Impeachment by Character Used the witness’s character so as to ruin credibility

IMPEACHMENT BY PRIOR BAD ACTS

FRE 608(b) : specific act evidence is generally inadmissible to prove or disprove truthful or untruthful character.

o But : on discretion of judge, counsel may on cross exam inquire into specific instances of conduct that reflect on witness’ character for truthfulness (e.g. lying on a job application, plagiarism, etc.)

US v. Owens : D, a military marksman, said that while cleaning rifle he shot his wife by accident. Prosecution wants to introduce evidence that D lied on an application for a job as a Warrant Officer. (this is collateral). So prosecution is impeaching D’s character for

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truthfulness. The theory is that if willing to lie on such a job application, then he is willing to lie on the stand. This is a specific act. Prosecution got D to admit that he lied on the application and that he had 3 prior convictions (on the job application D lied about not having any priors). 2 of the convictions are admissible (the one where he assaulted and battered his 2nd wife is not admissible b/c it was unfairly prejudicial b/c this was murder of 3rd wife. Note: if D had been steadfast, that he never lied on the application, the prosecution could not have introduced any extrinsic evidence.

CA §787 : In civil cases CANNOT use of evidence of specific acts of a witness to prove character in an attempt to attack or support the credibility of a witness.

o This does NOT apply in criminal cases.

On Cross Exam: you CAN refer to extrinsic documentso Questions during cross exam that refer to contents of records are NOT extrinsic

evidence

o Note: if open the door on direct as to a collateral issue, then there is much more latitude on direct (see above)

o Also note: some ct’s have said that if foundation for an impeachment document can be laid through the testimony of the very witness whose character for truthfulness is being impeached (i.e. the witness says the document is accurate), such documents are sometimes admitted despite the rule against extrinsic evidence. ON FINAL EXAM: WE WILL NOT FOLLOW THIS RULE! So purposes of the exam, the document is inadmissible.

BASICALLY CANT BRING IN ANY EXTRINSIC DOCUMENTS ON CROSS IF HE TALKS ABOUT IT ON DIRECT YOU CAN BRING IN EXTRINSIC

EVIDENCE SO IF IMPEACH ON SPECIFIC EVIENCE OF BEING UNTRUTHFUL CANT

BRING IN EXTRINSIC EITHER FROM OTHER WITNESSES OR OTHER DOCUMENTS

CA DOES NOT HAVE AN EQUIVALENT TO 608 b. I can prove untruthfulness by reputation or opinion only in civil cases

OTHER OUTLINE

o Generally : One way you can impeach a witness is to show witness has committed a prior bad act

BUT can only do so through cross-exam – not through extrinsic evidence

o FRE 608(b) : Inquiring into specific instances of conduct that goes to the witness’s honesty or truthfulness is at the discretion of the judge in both criminal and civil cases.

US v. Owens :

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Facts : Prosecution questioned D regarding his prior convictions and his intentional omission of these convictions from his application for warrant officer position.

o Prior acts themselves were not introduced as evidence which is probative of D’s character (not extrinsic) – but prior act of intentional falsehood under oath

Rule : A party may impeach a witness by eliciting on cross-exam admission to a prior act of intentional falsehood.

o CEC 787 :

In civil cases , CEC does not give the judge the discretion, and

You can show the witness’s character for truthfulness (or lack thereof), but specific act evidence is not admissible to attack credibility (even on cross-exam).

In criminal cases , you can b/c of the passage of Victim’s Bill of Rights.

US v. Drake : D’s on trial for fraud. D testifies that the did not have training to recognize fraud. So defense is did not have t he intent to commit fraud. On direct D testified that he majored in psychology. This is opening the door b/c this is a collateral issue. On cross exam prosecutor gets D to admit he does not have a degree in psychology. The prosecutor’s questions about D’s education background are relevant b/c D opened the door to these question on direct exam. D’s claim on appeal is that prosecutor kept referring to extrinsic evidence during cross exam. But see rule above this is o.k. Other side can always ask to see the documents if doubt they exist – the one objection is that could be made is assume facts not in evidence – but ct says this is waived b/c when counsel made the objection, counsel had already let a number of similar question in. If counsel had said, objection assumes facts not in evidence when opposing counsel on cross was asking questions about the documents – this would have been sustained and opposing counsel would have had to ask questions another way – but counsel waived objection by allowing such questions in before objecting

o Hearsay Statements :

FRE 806 : When a hearsay stmt has been admitted, you can attack the credibility of declarant

Allows impeachment of hearsay declarant to be supported by any evidence which would be admissible for those purposes if the declarant had testified as a witness.

Evidence of a stmt or conduct by declarant at any time, that is inconsistent w/ declarant’s hearsay stmt, is not subject to any requirement that declarant may have been afforded an opportunity to deny or explain.

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If party against whom hearsay stmt has been admitted calls declarant as a witness, party is entitled to examine declarant on the stmt as if under cross-examination.

CEC 1202 : Evidence of a stmt or other conduct by a declarant that is inconsistent w/ declarant’s hearsay stmt is admissible to attack declarant’s credibility – even though he is not given opportunity to deny or explain such inconsistent stmts.

Any other evidence offered to attack/support credibility of declarant is admissible if it would have been admissible had declarant been a witness at the hearing.

Deponent of depo shall be deemed hearsay declarant

o EXAM If it’s hearsay and it’s admitted and . . .

Declarant is unavailable – You cannot introduce extrinsic evidence of specific conduct, etc.

Declarant is available – You can call declarant to stand to discuss those untruthful stmts, etc.

o Saada Problem here is how do I impeach statement of hearsay declarant under the provisions

of the rule? Saadas are on trial – this is a good example of what younger talked about. There are

multiple ways to use Ds gets favorable testimony for their case from one of their witnesses They get woman to say judge made excited utterance inconsistent with ins fraud

theory Prosecution said we should be allowed to introduce extrinsic evidence of Judge’s

incompetence and dishonesty all highly probative

but these are specific act evidence and only way can impeach for character is reputation and opinion

court says this isn’t allowed tho, otherwise cant impeach Yaccarino Rule 806 can impeach HS declarant by any evidence can do it if witness So court says couldn’t bring in extrinsic evience of act if he were there, therefore, cant

do it here also.o CA has a sim stat about attacking a HS D credibility

Reads the same.

IMPEACHMENT BY PRIOR CONVICTIONS :

These rules apply in criminal AND civil cases!

SO, For FED conceptually

o IF felony inloves dishonesty – then always in because always probativeo If for other felons

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If witness is a D in a criminal prosecution it is admissible subject to internal balancing test (lower std because takes out substantial – just 51-49/and burden shift)

Basically it’s easier to exclude if offered for impeachment If anyone else, any other witness, admissible subject to a general balancing test

IN CA for any witness in a criminal proceeding any felony conviction can be usedo Subject to balancing testo Moral Terpitude stdo This is because of const amendmento The statute 788 only deals with civil trials

There is no limit on type of felony and the evidence can only be introduced through cross or introduction of the record of judgment so its narrower than fed version in that sense

Felony impeachment rule: belowo Note: these rules apply only when there has been a conviction OR a plea of guilty.

FRE 609(a): nature of the felony conviction makes a difference. If a felony is of a certain type, then going to imply a standard that is much more exacting.

FRE 609(a)(1): this involves prior convictions having 1 year or more prison terms or death penalty. Prior convictions are admissible if:

o for a D in a criminal case who is the witness - priors are admissible if the probative value for truthfulness is not outweighed by the danger of unfair prejudice.

This is a lower standard than under FRE 403 b/c all have to show here is that prejudice outweighs probative value (don’t have to show that is “substantially” outweighs).

And here have also switched burden of proof to the govt (the proponent of the evidence) to show it is not unfairly prejudicial

o for a witness who is not the D , you do normal 403 balancing to see if can admit the prior conviction. Burden of proof is normal.

Note: under regular balancing under FRE 403: it says if probative value is substantially outweighed by danger of unfair prejudice. This is a higher standard than in (1) above. And burden of proof here is on the opponent of the evidence.

So the balancing test tells us that crimes that are NOT probative of untruthfulness are inadmissible.

FRE 609(a)(2 ): does NOT require a balancing for prior crimes involving dishonesty/false statements (b/c this evidence is so probative that there is no balancing to be done)

o To be a crime of dishonesty MUST fall under one of categories below: Perjury or subornation of perjury (the crime of persuading another to commit

perjury) False statements Criminal fraud Embezzlement, or false pretense, or any other offense in the nature of crimen

falsi, the commission of which involves some element of deceit, untruthfulness, or falsification.

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Crimen falsi means: crime which involves some element of deceit, untruthfulness, or falsification.

Examples: fraud, embezzlement, swindling, etc. (these are admissible regardless of length of punishment.

609(b): creates a presumption that a conviction more than 10 years old cannot be used to impeach a witness’ credibility. So if want to use a prior conviction that is 10 years old or more, you have burden to show in the interest of justice that the probative value of the conviction substantially outweighs its prejudicial effect.

Also if you are pardoned or prior is annulled or have certificate of rehabilitation, then the prior is not admissible

Evidence of juvenile adjudications is generally NOT admissible (but in a criminal case a ct may allows evidence of a juvenile adjudication of a witness other than the accused if ct believe this evidence is necessary for a fair determination of the issue of guilt or innocence)

o Note: when prior felony is very similar to the crime charged in the case in chief, then probably not admissible b/c unfair prejudice would outweigh probative value. Note this is especially true under the FRE when it is the D testifying in a criminal trial.

o Crimes not considered crimen falsi and therefore fall under 609(a)(1) are: Property crimes (larceny, theft, robbery, shoplifting) Crimes of violence, and Narcotics offenses

US v. Wong : Prior crimes offered to impeach involve mail and Medicare fraud. D charged here w/17 counts of mail fraud. So prior crimes are very similar to the present crime charged. FRE 609(a)(2) does not require balancing for prior crimes involving dishonesty/false statements.

US v. Brackeen : D charged w/1 count aiding and abetting an armed bank robbery and 2 counts unarmed bank robbery. D plead guilty to the 2 counts unarmed bank robbery. During trial of aiding and abetting an armed bank robbery, D claimed he didn’t know the other guy was armed. Evidence: D was impeached with his 2 guilty pleas to unarmed bank robbery. This is NOT a crime involving dishonesty/deception b/c it does not fall into one of categories listed above.

CA : this only applies to criminal trials. And in general applies to any witness in a criminal trial.

CA uses Moral Turpitude standard : If a prior felony involves moral turpitude, then it is admissible for impeachment purposes subject to the balancing test.

o CA Supreme Ct: said the balancing test remains for this. Therefore, judges still have to balance - once decided something involves moral turpitude then see if danger of unfair prejudice substantially outweighs probative value.

Burden is on the opponent of the evidence to show unfair prejudice. (so this is the normal balancing test w/the normal burden of proof)

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o Moral turpitude means: a general willingness to do evil that has some bearing on a witness’ truthfulness in testifying.

o Almost every felony involves moral turpitude. EXCEPT: It is NOT moral turpitude to involved in a conspiracy to tattoo a minor Simple possession of an illicit substance does NOT involve moral turpitude.

Every other felony will involve moral turpitude. So if it is possession w/intent to sell – this does involve moral turpitude.

o Note: in CA there is no distinction in the balancing test to be applied whether it is the D testifying to just another witness. However, the danger of unfair prejudice is always greater for the D, so courts take this into consideration. However, it is not explicit in the rule.

Note: this CA rule came into being in the case of People v. Castro. CA Constitution Revision: art. 1 §28 says any prior felony in a criminal axn may used for any purpose w/out limitation. But there is a federal Constitutional limit (the 14th A due process clause limits what felonies may be used to impeach a witness’ credibility) So then CA Sup. Ct came up w/above rules in Castro.

FRE and CA: if you do NOT take the stand (you don’t testify) then NOT entitled to raise and preserve for review the claim of improper impeachment w/a prior conviction

o Supreme Ct says that the decision whether to put D on the stand has to be made in advance of judge ruling whether prior convictions are admissible.

o Luce

BACK TO OTHER OUTLINE

o FRE 609(a) : Evidence of a witness’s prior convictions may be admitted when the crime is punishable by death or imprisonment in excess of one year and its probative value outweighs its prejudicial effect

Arrests are not sufficient here, they have to be convictions

This rule only applies to criminal prosecutions Civil Cases – D’s prior convictions must be introduced in civil cases, even

when prejudice outweighs probative value (no balancing test for accused only) – there must be balancing test, however, for witnesses other than the accused

Burden Prosecution has burden to show evidence is admissible

o Internal Balancing Test :

FRE 609(a) has within it an internal balancing test that is different from FRE 403

Lower standard of exclusion “outweighs” rather than “substantially outweighs”

Interpretation Reversed burden of proof124

o FRE 609 – Burden on proponent of impeaching evidence to prove probative value outweighs unfair prejudice

o FRE 403 – Burden on prosecution to show evidence’s probative value is “substantially outweighed” by unfair prejudice

US v. Sanders : Facts : D, convicted of assault w/ dangerous weapon, appeals trial ct’s decision

admitting evidence of D’s previous convictions for assault and possession of a dangerous weapon.

Rule : FRE 609(a)(1) does not allow admission of prior convictions for impeaching a witness’s credibility, when the probative value does not outweigh its prejudice.

o In Limine Motions : D may, before taking the stand, ask the trial court to rule in limine whether a particular conviction will be allowed to impeach him. If the ruling goes against D, D can then elect not to take the stand.

But if he doesn’t take the stand, the in limine ruling will not be reviewed on appeal, at least in federal courts.

o Luce v. US : Facts : D who did not testify at his trial appealed decision denying his motion to

exclude evidence of D’s prior conviction w/o balancing probative value against prejudice.

If you don’t like result of motion in limine, you can’t appeal it You have to actually testify b/c we don’t know what their testimony would

have been therefore we don’t know whether it would have been proper to impeach it

Rule : A D must testify at his trial in order to be entitled to raise and preserve for review the claim of improper impeachment w/ a prior conviction.

o FRE 609(a)(2) : For purposes of attacking a witness’s credibility, evidence that any witness was convicted of crime shall be admitted if it involved dishonesty or false stmts, regardless of punishment

In FRE criminal cases, test is pure felony impeachment rule (no balancing test) :

Crimen Falsi : The following are crimes that involve dishonesty or false stmts

(a) perjury (b) false stmts (c) criminal fraud (d) embezzlement (e) false intent (f) crime w/ element of deceit, untruthfulness, or falsification

US v. Wong :

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Facts : D, charged w/ many counts of mail fraud, challenges district ct’s admission of his previous convictions involving crimes of dishonesty and false stmts.

o Drafters of FRE thought that some crimes were so indicative of a person’s character/credibility that prejudice does not matter and cannot be considered

Rule : A ct does not have discretion to exclude as unduly prejudicial, evidence that witness had previously been convicted of a crime involving dishonest or false stmts

US v. Brackeen : Bank robbery is not considered one of those “crimes involving dishonesty or false stmts”

o FRE 609(b) : If the conviction is more than 10 years old, then it is inadmissible unless the probative value of the conviction substantially outweighs its prejudicial effect.

However, proponent must give adverse party sufficient advance written notice of intent to use such evidence to provide adverse party w/ fair opportunity to contest use of such evidence.

o FRE 609(c) : If a person has received a pardon or certificate of rehabilitation, then such evidence is inadmissible.

o FRE 609(d) : Juvenile criminal adjudication is inadmissible for impeachment

o FRE 609(e) : If the conviction is on appeal, it does not make the evidence inadmissible.

o CEC 788 : (more restrictive) Allows use of evidence of any felony convictions to attack credibility of a witness subject to a balancing test (probative value substantially outweighed by prejudicial effect).

Can introduce through cross-exam of witness or introduction of record of conviction

Limitations in Criminal Prosecutions Against D : DP clause of 14th amend limits this rule by allowing only crimes of moral turpitude to come in when offered in criminal prosecution

However, this is very broad since virtually all crimes involve moral turpitude.

In CA criminal cases, test is moral turpitude impeachment rule + balancing test :

o Any felony conviction involving moral turpitude is admissible even if immoral trait does not involve dishonesty

Admissible for impeachment as long as it meets balancing test Burden is on D

There is no definition for moral turpitude, but some crimes that do involve are :

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o Conspiracy to tattoo a minor, rape, and possession for sale of controlled sub

Crimes that do not involve moral turpitude are :o Conspiracy to commit misdemeanor, and simple possession of

controlled sub

IMPEACHMENT BY BAD REPUTATION FOR TRUTH OR VERACITY :

FRE and CA : allow us to introduce evidence of a witness’ character for untruthfulness to impeach his credibility

FRE 608(a): may attack credibility of a witness by opinion or reputation evidence only to show reputation for untruthfulness.

o You may show witness’ reputation for truthfulness ONLY IF witness’ character has been attacked for untruthfulness.

o Can’t use this approach for anything else (e.g. bad memory – this rule only applies to reputation for truthfulness)

FRE 608(b) : specific act evidence is generally inadmissible to prove or disprove truthful or untruthful character.

o But : on discretion of judge, counsel may on cross exam inquire into specific instances of conduct that reflect on witness’ character for truthfulness

CA has 2 tier system o civil case §786 : can present evidence about witness’s character for untruthfulness but

not anything else. In a civil case, can only attack victim’s character for truthfulness and nothing else.

o criminal case : §786 does not apply to criminal cases. So can introduce evidence about anything against any witness character (e.g. bad eyesight, bad memory etc.) You are not limited in criminal cases to presenting character for just untruthfulness.

And can admit this against any witness in a criminal case for any purpose.

CA §787 : In civil cases CANNOT use of evidence of specific acts of a witness to prove character in an attempt to attack or support the credibility of a witness.

o This does NOT apply in criminal cases.

o Other Outline

o Generally : The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation

o FRE 608 : You can attack witness’s reputation for untruthfulness and rehabilitate that reputation w/ truthfulness (but that is all you can do under FRE). There are two limitations

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(1) Evidence may refer only to character for truthfulness and veracity, but not for other characteristics.

(2) Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence.

If witness’s memory is questionable have to do that w/i context of witness’ testimony (have to show that person’s memory is suspect)

o CEC 786 : Same as FRE, except not limited to opinion and reputation.

In criminal prosecutions, any character trait of the witness is allowed

Not limited to traits of truthfulness and honesty – can impeach the character of a witness on ANY topic using reputation, opinion, or specific act evidence

CA passed truth in evidence amendment o In crim ases all statutory limitations are removed – 786, 787, and 790

do not apply A witnesses’s credibility may be attacked or supported using character evidence about any relevant topic – i.e. poor memory or alcoholism. Proponent may use any form of character evidence – reputation, opinion and specific act evidence

o Witness cred in a crim investigation only can be used for anythingo So can introduce evidence person is an alcoholic that tending to show

under influence D and Ps can do it

In civil cases, such limitations do exist

Limited to traits of truthfulness and honestly, and reputation and opinion

o FRE 610 / CEC 789 :

Religious Beliefs : Evidence of a W’s religious beliefs to attack credibility by arguing the beliefs show (un)truthfulness is not allowed under FRE 610. But it may be used to show bias.

Impeachment By Psychiatric Condition

Generally : Psychiatric conditions can only be used if they attack credibility (e.g. memory, hallucinations)

Standard : If you want to cross or introduce extrinsic evidence about a witness’s psychiatric condition, you must show

o (a) The nature of the illness, and o (b) How that illness affects the credibility of the witness.

o You also must show that the evidence presented is :

(a) Relevant (b) Not Collateral

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However, issues of psychiatric condition will almost never be collateral b/c they go to the witness’s credibility and issues that directly affect witness’s credibility are never considered collateral

o Burden Proponent has burden of showing psychiatric condition affects witness’s credibility

o US v. Lindstrom : Facts : At D’s trial for mail fraud and conspiracy to commit mail fraud, D was not

permitted to examine prosecution’s chief witness about her psychiatric condition for purpose of impeaching her credibility.

Certain mental disorders have high probative value on issue of credibility By denying D’s opportunity to confront witness, judge violated D’s 6th (CC)

rights Ct says this is not collateral impeachment – credibility not ever collateral

Rule : Evidence of a witness’s psychiatric condition can be admitted in order to impeach the credibility of the witness.

Conservative List of Emotional or Mental Defects that Materially Alter Accuracy of Testimony :

o (1) The psychoseso (2) Most or all neuroseso (3) Defects in the structure of nervous systemo (4) Mental deficiencyo (5) Alcoholismo (6) Drug addictiono (7) Psychopathic personality

Impeachment By Prior Inconsistent Statements

Can impeach witness by a prior inconsistent statement anyway I want to as long as meet conditions

can cross, or say nothing let him testify bring extrinsic evidence first and hopefully have splash

but the conditions: o you must give the person an opportunity to explain or deny making the

inconsistent statemento can do after the fact or on cross but you must give that person an opp

Fed Rule 613 a proponent is not required to disclose content of incons statement before

examining him about ito can go right into it isn’t it true you said….

Rule does to prohibit abuse:o If opposing counsel made a request have to reveal content of

inconsistent statement in chamberso Designed to make sure basis for cross examinationo AND 613 B

1. Don’t have to examine witness before using extrinsic129

2. Can do either one as long as give witness an opp to explain or deny making the statement

CA is the same 768, 769, 770 BUT!!!!!!!

o Ca does not have the word prior in those statuteso Its not there.o AND it means if a witness makes an inconsistent statement after he or

she has testified and can impeach the witness with an inconsistent statement after testified

1. This is not possible AFTER under the fed ruleso And its happened

So nowadays don’t ask anything, then excuse witness, then bring in impeaching evidence let it sit around and then call him back

Almost everytime have inconsistent statement would love to use it as truth of matter asserted

CA says once its in it can impeach and be used to show truth of matter assertedo so can in our case to say use it to prove act was disgraceful

Fed rule is much narrowero 801d1: prior incons made under oath is defined as not hearsayo So if its made during a trial in another procedding it can be used to

impeach and prove truth of the matter asserted otherwise it is only for impeachment and can get a limiting instruction

o So in Coles can impeach testimony but cannot be used to prove behavior by the river

o Supplement 6 – summarizes treatment of federal and state prior inconsistent statementso If the inconsistent statement relates to a collateral matter, courts will allow you to cross (their

discretion) but cant introduce extrinsic if its collateral

Generally : A witness can be impeached by a showing that he made statements before the trial that are inconsistent with those in his testimony at trial. However, you are not asserting the truth of the matter.

o A prior inconsistent stmt may not be proven w/ extrinsic evidence when the stmt is being offered solely for collateral impeachment.

Collateral Impeachment When stmt is not independently relevant to some issue other than impeachment.

o If prior inconsistent stmt concerned something independently relevant, then extrinsic evidence would be admissible.

Independent Relevance Prior inconsistent stmt can be indep relevant b/c it goes to one of substantive issues of suit, or can be indep relevant b/c it goes to bias or perception.

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o FRE does not explicitly require inconsistent stmts be independently relevant before they can be proven w/ extrinsic evidence – but arguments above can be used as rule of thumb (implicitly retained) as guideline for FRE 403.

FRE 613 : Extrinsic evidence of prior inconsistent statements may be used in impeaching the witness.

o Extrinsic Evidence : Such evidence is allowed but w/ the following limitation:

Opportunity : The witness must be afforded an opportunity to explain or deny the evidence, and the opposite party is given the opportunity to interrogate the witness about the evidence.

The offering party need not reveal the stmt prior to examining a witness about a prior statement. That is, the examiner may get the witness to deny making such a statement before introducing the inconsistent statement into evidence.

o If prior inconsistent statements were made under oath at a trial, hearing, other proceeding or a deposition, it is considered not hearsay per FRE 801(d), which is admissible to prove matter asserted.

o If prior inconsistent stmts were not made under oath, they are considered hearsay and can only be used for impeachment purposes.

Prior inconsistent stmts that do not meet these foundational requirements are admissible for impeachment ONLY.

CEC 768-770 : Same as FRE except ANY inconsistent stmt is available for purposes of impeachment (not just prior stmts).

o Same as FRE : You do not have to show the witness the writing, you do not have to disclose the stmt while examining the witness, and you can introduce extrinsic evidence as long as the witness is examined about it, is not excused by the ct, or has the opportunity to deny or explain the evidence.

o Different from FRE : Prior inconsistent stmts under oath are not considered not hearsay as in FRE.

It is hearsay, but it is admissible as an exception to the hearsay rule under CEC 1235

CEC 1235 : Creates exception to hearsay rule to allow inconsistent stmt to be used to prove the truth of the matter asserted, as well as for impeachment.

o In CA, if you make a stmt even after you testify, you can be impeached by that as well

Impeachment/Rehabilitation By Prior Consistent Statements

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Prior consistent statements are not generally admissible to rehabilitate the witness. So cannot rehabilitate a witness using prior consistent statements

Only admissible to rebut a showing of recent fabrication or improper influence or motive

TIMING IS EVERYTHING. o If prior consistent statement is made after the allegation of recent fabrication or improper

influence or motive, then inadmissible.

o But if prior consistent statement is made before the allegation of recent fabrication or improper influence or motive, then it is admissible.

FRE : If a prior consistent statement is admitted can be used to both rehabilitate the witness AND prove the truth of matters asserted b/c it is defined as not hearsay by the federal rules.

CA : A prior inconsistent statement must 1st be introduced and then a prior consistent statement may used to rehabilitate witness (help the witness out on his testimony). (note timing provisions above apply)

OUTLINEAMIYO

FRE 801(d)(1)(B) : Prior consistent statements are not hearsay if offered to rebut a charge of recent fabrication or improper influence or motive.

o Can Only Be Introduced If Proponent Shows :

(1) That the witness’s testimony has been attacked as recently fabricated or influence by a motive to lie, and

(2) That the witness made the prior stmt before the time of the alleged fabrication or before the time that he or she was subject to the alleged motive to lie

o Tome v. US : Facts : In prosecution for sexual assault by father, gov’t sought to introduce out-of-ct

stmts made by victim in order to rebut implicit charge that daughter had motive to fabricate stmts.

Prior consistent stmts have no relevance to refute the charge unless the consistent stmt was made before the source of bias, interest, influence, or incapacity originated.

If made after, stmts is not admissible Rule : Out-of-ct consistent stmts made after the alleged fabrication, or after the

alleged motive arose, are not admissible under FRE 801(d)(1)(B).

CEC 1236 / 791 : Evidence of prior consistent stmts is admissible to support credibility only when :

o (1) A prior inconsistent stmt made by the witness has been admitted for the purpose of attacking his credibility, and the prior consistent stmt was made before the inconsistent stmt, or

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TIMELINE : |---Statement A (I hate cats)---- Statement B (I love cats)---- [Trial] --- Statement C (I hate cats)---|

At time of trial, Statement B is a prior inconsistent stmt, while Statement A is a prior consistent stmt – then Statement A is admissible.

Here, no requirement that there be a charge of bias, fabrication or improper motive

o (2) There has been a charge of recent fabrication, bias, or other improper motive made against the witness, and the prior consistent stmt was made before the bias, fabrication, or improper motive is alleged to have arisen

o If we meet this standard, stmt can be used to rehabilitate and prove truth of the matters asserted

Summary of Difference Between FRE and CEC :

o In CEC, a prior consistent stmt may be introduced after evidence has been offered of a prior inconsistent stmt by the witness

If prior consistent stmt was made before prior inconsistent stmt, then it will be admissible to rehabilitate the testimony

o In FRE, you cannot do this

Impeachment By Bias

Can impeach a witness by showing he is biased against a party.

CA and FRE : may use extrinsic evidence to prove the existence or non-existence of bias.

CA § 780(f): specifically states that bias is an issue properly considered by the trier of fact.

FRE does not have a specific provision for bias but the USSC has said may use extrinsic evidence to prove bias in Abel

Generally : All courts allow impeachment of a witness for bias.

o Bias may be shown by use of extrinsic evidence.

Some of the Ways Bias Can Be Shown :

o (a) There is a relationship b/w witness and one of the parties,o (b) You can show that a witness has a like/dislike for one of the parties,o (c) If it appears that witness’s testimony has been bought,o (d) Allegation of “quid pro quo” testimony,o (e) Witness is a member of a group that would tend to be biased.

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US v. Abel :o Facts : Trial ct admitted evidence that a witness, Mills, was a member of a gang which

required members to commit perjury. Membership in Aryan Brotherhood shows membership in group that would be biased Name of organization would be highly prejudicial (can redact it), but membership is

probative US v. Abel: D is indicted for bank robbery. 2 cohorts pled guilty, and one, Ehle, agreed to testify against the D and identify him as a participant in the robbery. D sought to counter this testimony with testimony from Robert Mills that he was friendly w/both men, had spent time together with them in prison, and that Ehle had told him that he was planning to falsely implicate the D in order to receive more favorable treatment from the govt. The prosecution sought to discredit Mill’s testimony by introducing testimony by Ehle that Mills, the D and the witness were all members of the Aryan Brotherhood, a secret prison gang that required its members to deny the existence of the gang, and to commit perjury, theft, murder on each other’s behalf. The trial ct ruled that the probative value of the proposed testimony outweighed its prejudicial effect, and allowed the testimony, although it ordered the prosecution to refrain from mentioning the name “Aryan Brotherhood”. The USSC 1st said the FRE does not contain a specific provision allowing use of extrinsic evidence to show bias of a witness – but holds that the drafters of the FRE did NOT intend to eliminate this basis method for impeaching a witness – in part b/c of the Confrontation of the 6th A for criminal D’s. In part Ct also relies on the c/l which universally allowed this form of impeachment without limitation. Bias can be proven by extrinsic evidence. Held: testimony re: membership in the Aryan Brotherhood is admissible b/c it is highly probative on the issue of bias, even w/out a showing that he witness actually subscribed to the tenets of the gang. And USSC found that the trial judge place enough limitations on the scope of Ehle’s testimony to avoid undue prejudice.

o Rule : Evidence of bias, w/o more, offered for impeachment of a witness, is admissible if it

makes a fact to which the witness has testified more or less probable.

IMPEACHMENT AND CROSS-EXAMINATION HYPOS

SEE PAPER FOR 1 SET

a. P 515 Hyposi. 1

1. under the federal rules under the discretion of the drugs, yes. Its an instanced of conduct reflective of his untruthfulness

a. a little like michaelsonb. if other sides objects you might have to have the evidence c. but you wont be allowed to bring it ind. but you can cross him about it

ii. 21. yes, you can refresh his memory

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2. when refresh recollection the item used is not evidence3. so if the person say they recall then its not evidence it is their testimony so this

is permissible4. smart opposing counsel will object and say this should happen outside jury5. but you can do this

iii. 31. no, esp on exams.

iv. 41. the doct is extrinsic 2. the statement confesses plaigerism3. x has denied it4. this is an inconsistent statement 5. offered for impeachment purposes as to show the inconsistency of his

statement does not run afoul of the rule and can be admitted. v. 5

1. classic 608 b would be permitted.b. P 536 hypos

i. 11. since all the crimes are mds cant use 6092. so even under ca or fed since not felonies inadmissible saying its evidence of

untruthful character3. this isn’t crimen falsi so its not going to work4. so its not admissible to impeach her testimony at all5. BUT can we use A to cross the ministers testimony that shes peaceful

a. Its not admissible because shoplifting has nothing to do with it, its not that shes honest but that shes peaceful

6. fed rules don’t talk about types of crimes just years7. but can use B (not A) to impeach his testimony because that would impact her

reputation so that you can say, minister, do you know….8. remember: michaleson said can impeach a char witness by asking them

specific instances of conduct that might have an impact on them, it’s a form of impeachment

9. it must be interms of: did you know or have you heard10. And remember, this is in the form of a limiting instruction, not for the truth of

the matter asserted but the credibility of the character witnessii. 2

1. Buzzy, a witness, has been arrested for possessing MJ2. cant do it. Cant say that the witness is an alcoholic therefore, his testimony is

not credible because might have been under the influence3. the answer is no, we cant impeach him4. its not a conviction yet5. one is innocent until proven guilty6. so inadmissible

iii. 31. under the federal rules we have to go through our hierarchy2. none of those crimes are not crimen falsi don’t fit within the definition so it

wont fall under that3. so the court has to since its X who is being prosecuted we have to use the

internal balancing test4. so the govt has the burden and

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5. the evidence can be thrown out if outweighs without the substantial6. so rape would be excluded in fed court because its really sim to crime7. the heroin doesn’t go to truthfulness again high danger of unfair prejudice

telling them d sells heroin likely to be excluided by fed ct because of probative value not outweighing

8. grand theft not under CF maybe has a little more prob alue but not as worried about unfair prejudice, but he thinks that if a fed judge does her homework and considered this carefully and said it was probative and doenst think UP is great and gives appropriate limiting instructions it might survice

9. Under CA – a real illustration as to difference of Const amendment10. all three are in because involve moral turpitude11. so all have balancing test and it’s the standard one, D shows and subst

outweigh12. he thinks the first one will be excluded because of the similarity.13. the second one he has seen a case where the court allowed it in because

unfairly prej and the judge did his homework (this is the heroin)14. last one will get in for sure – grand theft. Esp when theres not a connection

between conviction and crime being charged and COA’s don’t reversec. P 541

i. It would be sustained under fedii. In CA its now permissible

d. Hypos 545i. 1

1. In Fed - it is admissible but we can talk about it in cross, but no extrinsic 2. cant do it in CA because it’s a civil case and a specific instance of conduct, the

amendment doesn’t applyii. 2

1. person seeking cross has the burden, without more information we don’t know2. so cant introduce it simply to suggest his memory is bad – it’s a topic other

than truthfulness3. only argument might be able to think of is that drug addiction has affected his

mental ability and if its true, like a psychiatric problem, and perception is inaccurate and memory is shot then I can introduce it but I would have to have an expert

iii. 31. it might be relevant because he destroyed Acme’s disc so it shows hes biased2. has some tendency in reason to suggest either

a. shade testimony about acmeb. or just lie

iv. 41. this is mental illness but we don’t know which one2. so if want to cross acme would have to prove nature of mental illness3. and that it impacts some part of his ability to perceive properly4. would have to show nature and effect

e. Hypo on P 5481. guy wants to introduce evidence that she has a mental illness and under the

care of a psychiatrist2. 2 ways might be able to use

a. evidence tending to support alibii. Is it relevant?

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ii. No, because issue is battery, who broke up isn’t relevantiii. So if hes judge says inadmissible to spport his alibi

b. Tending to impeach her testi. Its under cats in lindstrom, but the proponent has not satisfied

the burdenii. Being treated for depression wont do it

iii. Proponent has to bring in evidence what shes being treated for and if it fits in one of lindstrom categories then in

iv. But courts wont let this in absent showing of relevancev. Until show evidence goes to credibility wont get in

f. Hypos 565i. 1

1. objection is sustained2. imp principle not in book

a. v makes statement before trial but by time of trial she says not recollection

b. a failure of memory does not lend itself to introduction to prior inconsistent statement, because people do forget sometimes

c. so cases say theres nothing to impeach hered. because fact she said something happened before is not consistent with

saying I don’t recallii. 2

1. he doesn’t think its an inconsistent statement2. people start fighting and then stop3. the point:

a. if trying to introduce something as incons statement, you must show it was inconsistent with some part of test

b. so if he was judge he wouldn’t let it iniii. 3

1. have person on stand starts to testify and then becomes evasive, I don’t remember, answers some and not others

2. result is different3. way to state rule:

a. if court finds claim of loss of memory is suspect, then the prior statement may be admitted on theory that it impeaches witnesses claim of loss of memory

b. judge has to make the recordc. its imp in CA because 125? Because can use it to prove the truth of the

matter assertedd. under Fed same rule but a problem

i. impeaches claim of loss of memory but the statements aren’t under oath and not for truth of matter asserted and is it even relevant?

ii. He thinks while court can say loss of mem is suspect and former statement is admissible for impeachment, but its not relevant

iii. What Y told X isn’t important or iv. Unfairly prejudicialv. So real problem under federal rule unless made in court

iv. 41. that objection will be overruled

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2. shows why rules have changed3. only requirement is that I give person ultimately a chance to explain or deny

the statement4. if the opp counsel want the statement disclosed they can do that in chambers

but not req to tell witness anythingHYPOS p. 545

1. Question: X is indicted for child molestation. The victim is A, his 12 year old stepdaughter. At X’s trial the prosecution calls A, who testifies that she has no recollection of any molestation by X, or having testified before a grand jury. The prosecution seeks to read into the record a transcript of A’s testimony before the grand jury, describing X’s acts of molestation. X objects. Is X correct?

Answer: The objection is correct b/c there is NO testimony to impeach – the testimony is simply that the witness does not recall. That is the basic rule followed by CA and the FRE.

3. Question: X is prosecuted for robbery of a gas station. Y, a co-D, is tried 1st and convicted. At X’s trial, the prosecution calls Y who proves to be a recalcitrant witness and testifies that he and a friend had gone to the gas station together and that he, Y, had committed the robbery. Y gives an “I don’t remember” answer to the prosecutor’s question as to whether X was the friend with him at the gas station. In answer to the prosecutor’s questions seeking a description of the friend, Y gives evasive and “I don’t remember” answers. Y gives an “I don’t remember” answer to the prosecutor’s questions as to whether Y had given a statement to B, a police officer, as to who was with him at the robbery. The prosecutor calls B and represents that B will testify that Y told him that X was his accomplice and told him the part each played in committing the robbery. X objects to B’s proposed testimony, on the ground that Y’s prior statements are not inconsistent with any part of Y’s testimony. How should the court rule?

Answer: The objection should be overruled. Where a witness’ testimony that he does not remember is suspect, the trial court can deem such testimony not credible and admit a prior statement under the inconsistent statement rule.

People v. Green: prosecution sought to prove the D guilty of selling pot to a minor. At a preliminary hearing, the minor testified under oath that the D had left the pot with the witness for sale. He told the police the same thing. At trial, the witness testified to several of the facts he stated in his testimony at the preliminary hearing. The witness acknowledge having possession of the pot, but claimed he did not remember where or how he had gotten it. The CA Supreme Ct ruled that the trial ct could properly disbelieve that the witness no longer remembered how the pot came into his possession. The Ct then held that, in light of the witness’s testimony regarding the incidents surrounding the acquisition of the pot and his deliberate evasion of the critical issue, the trial ct properly deemed his testimony an implied denial that the D furnished him with the pot. On that basis the witness’ prior statements to the contrary were properly admitted as prior inconsistent statements to impeach him AND to prove the matters asserted under CEC 1235.

The same is true under the FRE, but in hypo #3 the witness’ statement to the police officer could only be used for purposes of impeachment. The D would be entitled to a limiting instructions b/c that prior inconsistent statement was not made under oath at a trial or hearing – so can’t be used to prove the truth of the matters asserted. Danger of unfair prejudice? It has no relevance beyond impeaching Y’s claim of failed

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memory. So relevance is marginal and danger of unfair prejudice is substantial b/c of the jury’s potential hearsay usage of the statement.

2. Question: X is charged with the murder of A by use of a beer bottle in a barroom fight. X claims that he struck in self-defense when A came at him with a knife. There were no witnesses to the killing. B testifies for X that shortly before the final encounter he saw A and X fighting in the bar with their fists, and that A was getting the best of it; that X was retreating as if he were trying to stop fighting; and that he, B, stepped in b/n A and X, stopped the fighting and then left the bar. On cross exam, B has no recollection of making any prior statement to C. The prosecution calls C to testify that a week after the killing B told him that X started the earlier fight with A and he (B) heard X say during that fights that he was going to get a gun a shoot A. X objects. What result?

Answer: Waltz says the objection should be overruled. He argues B’s testimony infers that A was the aggressor in trying to stoop the fight, b/c B testified that X was retreating and trying to stop fighting. Professor Williams says that this is a close case and would sustain the objection. He does not believe that B’s prior statement is necessarily contrary to anything B has testified to. B’s testimony did not concern the beginning of the hostilities. B’s testimony is merely that when he observed the fight, X was getting whipped and was retreating. Since people do start fights and wind up wishing they had left the other person alone. If that was the case here, B’s earlier statement is not inconsistent. The point to be made is that before an “inconsistent” statement is admitted, you must show it is inconsistent with some portion of the witness’ testimony!!

4. Question: X is prosecuted for assault w/a deadly weapon upon A. X calls B, who testifies that A was approaching X with a gun in his hand when struck by X with a billiard cue. On cross, the prosecutor asks B, “Didn’t you state after X’s encounter with A that A had no weapon in his hand when he was struck by X with the billiard cue?” X makes a lack of foundation objection, in that no time, place , persons present are given. Is X correct?

Answer: objection overruled. CA and FRE specifically provide that one does NOT have to disclose any facts to a witness before questioning her concerning a prior inconsistent statement.

FRE: D’s counsel is entitled to request that the Ct order that the alleged inconsistent statement be revealed.

CA: does not contain this provision.

g. HYPO 571i. 1

1. obj be overruled2. like Acme hypo, showin acts of destruction shows bias, ax to grind and bring

in evidence as tending to show and saying to jury why shouldn’t put so much weight on person’s testimony

3. and because go to bias….bring in extrinsicii. 2

1. most say objs should be sustained2. mere fact arrest is a weak inference3. there is a specific case4. the danger of UP outweighs PV – too tenuous

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PRIVILEGE

Generally : Privilege is a discussion of the rules that protect communication

o Spousal Privilege : Spouses have the right not to be forced to testify against one another

Spousal Communication Privilege If you communicate in confidence to your spouse, then you cannot be forced to disclose that information

o Priest – Penitent Privilege : The law recognizes this relationship to be confidential The person who is doing the communicating is the one who holds the privilege Even if the communicant decides to reveal the info (penitent waives privilege), the

priest can refuse to testify

Policy Reasons to Maintain Such Privilege :

o (1) There are certain relationships where the gov’t should not have authority to compel disclosure of such confident communication

o (2) Important right of ppl involved to have free communication – not be fearful that info will be disclosed against their will

o Ct can’t compel disclosure, not even in discovery (unlike say subsequent precautions) – no gov’t agency, (cts, congress) can compel disclosure :

Right to privacy (Particularly doctor/patient) Right not to incriminate yourself (Particularly atty-client)

Privilege does not withhold the use of tremendous amounts of highly probative evidence

CEC 911 : “No privileges other than those specifically given by statute” are recognized

CEC 910 : Privilege is inviolate in every proceeding

CEC 901 : Defines “proceeding” very broadly Privileges apply to any setting where testimony may be compelled (broad range of possibilities)

o Privacy Privilege seems to be constitutional (not really an exception)

Who is Holder of the Privilege ?

Person who generally communicates is holder of privilege Only holder of the privilege can waive it

o i.e. – if you decide you don’t care if anyone hears what you said to your atty If holder of privilege waives it, then it is considered waived for all purposes

CEC 912 : Defines ways you can waive the privilege

o (1) If holder discloses significant portion of the communication (constitutes entire waiver)o (2) If at hearing, holder does not object to introduction of privileged communicationo (3) If holder files lawsuit (and suit is related so privileged info comes out via that – i.e. extent

of previous injuries/medical condition for civil personal injury suit)

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o (4) In criminal case, if claim incompetence of counsel (considered waiver of privilege b/c ct has to see what atty knew and what as said to him)

No one can comment on an exercise of privilegeo i.e. – if invoke atty-client privilege, you can’t use it to show or make inference of any

guilt/liability b/c it would penalize you and basically make privilege pointless

Ct cannot require disclosure of info that is claimed to be privileged – even if other side says it’s really not privileged

o You have to come up w/ own info to provide basis for the ct – ct cannot compel to reveal information that you claim is privileged

CEC 918 : Creates a presumption of privilege o Any time there is communication b/w these people, there is a presumption that there is a

privilegeo Makes it exceedingly difficult to defeat a claim of privilege

If I talk to lawyer in confidence (not at party with everyone around) CA stat creates a presumption that the communication is privileged. Anyone who seeks to defeat it, has to overcome the presumption.

Because the court cannot rely on priv to make ruling the advocate has to come p with info that is indepenedant of communication to argue its not privileged.

o A communication by any form of agency employed or set in motion by client is within the privilege

FRE No parallel provision in FRE but similar principle, whereas CEC has specific statutory language

o Congress rejected elaborate statutory scheme

FRE 501 : o (1) In federal cases, common law will apply and fed cts therefore can rely on precedent

Fed cts can thus create new privileges through precedent b/c it is common law o (2) In a diversity action (fed ct apply state law), apply privilege law of the state (state law

controls)

o FRE 104(a) : In determining claim or privilege the ct may not rely upon the claimed privileged information (cannot force the privilege holder to disclose the info to determine if it is privileged or not) sounds like bootstrapping??

Diff from 104(b) – which allows ct to rely upon very information to determine whether it is hearsay, etc.

Atty – Client Privilege :

o Holder of Privilege : The person who sought to be or actually is a client Client someone who consults an atty for purposes of seeking legal advice (not

necessarily retained) Goal is to protect this person and urge them to communicate to the atty

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o In CA we define this privilege as “communications b/w a client and any person reasonably believed by client to be a member of the bar”

If you are person claiming to be lawyer, your communication is still protected

o CEC 952 : Privilege protects all info transmitted in confidence by a client to his or her atty Confidence Must take reasonable steps to ensure conversation is private

Legal opinions given by lawyer in response to client is privileged

If you have to disclose shit to 3rd parties to help the atty, that is privileged i.e. – communication w/ PI is necessary to representation, also paralegal &

secretary

a. City Co of San Franciscoi. Dr examines patients at behest of atty

ii. CT says not Dr patient because not for treating himiii. But since its at diretion of atty and necc for atty to know condition for legal adviceiv. Therefore, protected by ATTY CLIENTv. So now in CA see stat and HANDOUT.

vi. So legal secretary, PI, ACCT, whoever helps the lawyer is protected by AC priv so long they treat it as confidential.

vii. Fed Rule it’s the same so by case law Fed has done the same thing and covered by ACP.

Even if client is dead, the privilege still survives Basically as long as there is estate in existence, the privilege still exists

o CEC 955 : Atty for a party must invoke the privilege on behalf of her client if she is present and there is an attempt of forced disclosure

places legal and ethical duty on atty to protect privileged communication

o The privilege protects communication – not the underlying information

Crime Fraud Exception : The one place where we don’t protect atty/client communication

o Where person consults w/ atty for the purpose of committing a crime i.e. – if ask atty whether this is insider trading is legitimate – if client asks legitimate

legal question and then uses info to commit a crime, this exception does not apply – b/c we want to encourage ppl to get info about the law

On the other hand if asks lawyer how to do insider trading but w/o getting caught – he consulted w/ lawyer for purpose of committing fraud, therefore this communication is not protected

o If a client does not intend to commit a criminal or fraudulent act, the privilege protects the client’s communication even if counsel acts w/ a criminal or fraudulent intent in giving the advice

o Does not apply to communications about client’s past criminal or fraudulent acts

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US v. Woodruff : o Facts : D challenges prosecution’s questioning of his atty regarding the communication b/w D

and the atty about the time and place of the former trial (he jumped bail – independent crime). Ct found atty was not acting as an atty, just a messenger for the ct no legal advice

given Testimony was necessary as only means to show D’s notice of time/place of hearing

o Rule : Compelling disclosure of communication b/w an atty and his client regarding the time and the place of the client’s trial does not constitute a violation of the atty/client privilege.

o No direct rule in CEC about this, but would follow this ruling

o Zolin – CF Church of Scientology to conceal evidence govt entitled to from discovery. Govt got info from former person working there and indication there was lawyers

were not actively involved Sceintology wanted to use the lawyers to conceal the evidence Govt gets former emp and gives ct a trans of meeting with lawyers SCI then says ACP And P says CFE and we should look at camera to see what happened SCt says its lower then preponderance, this is not disclosure to the govt so the SC said If good faith belief by a reasonable person could conclude there might be a problem

with CF, then the court MAY (not shall) order an in camera The person asking the ct to look as the burden for producing evidence – and the evidence must be lawfully obtained

But once reas person then the court may order a hearing Then Judge decides.

Corporations and Atty/Client Privilege :

o Control group test No longer valid Communication is privileged when an employee/former employee speaks at the

direction of mgmt w/ an atty regarding conduct or proposed conduct within the scope of his employment

viii. He is more partial to std by Jon Kaplan when we know if something is privileged in co setting.

1. the communication was made by an employee at the direction of the corp superior (ordered)

2. it was done in order to secure legal advice from counsela. purpose, why co collecting it

3. Treated as confidential by both co and atty4. There is some indication the purpose for the communication is to secure

legal advicea. There is some notice that for legal advice, some objective indication

this is the way its being used.

Atty must be authorized by mgmt to inquire and must be seeking info to assist counsel in performance of any of the following fxns :

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Assessment of whether employee’s conduct would bind corp, Assessment of legal consequences of conduct, or Formulating appropriate legal responses WRT that conduct

o Upjohn v. US : Facts : D objects to lower ct’s order compelling disclosure of confidential

communications b/w D and employees of its legal counsel. S.Ct. says this is privileged but does not specify any standard If communication was made by current employees of corp at direction of a

corporate superior to counsel (in house or counsel that corp uses), in order to secure legal advice

o Two Caveats : (1) Communication must be treated as confidential w/i the corp (2) Has to be some indication that info is being collected to

allow corp to secure legal advice Rule : A corp’s atty/client privilege should not be limited only to those in the corp

who are in a position of control.

Work Product Doctrine :o Federal Work Product Doctrine : A party may obtain disco of documents and tangible things

prepared in anticipation of litigation by an atty/agent of the opposing party only upon showing of substantial need and showing that party seeking disco cannot w/o undue hardship obtain the substantial equivalent from other sources

PRIVILEGE HYPOS

b. Hyposi. 1

1. so when the client said I didn’t know the V was going to be there, that sounds like a converston

2. so this is diff than woodruff3. so its priv4. client is expressing it was done in confience so it wold be treated as

confidential communication5. the hard part here is the lawyer is not being ethical because lawyer shouldve

objected and refused on behalf of his client6. What if ordered to test

a. CA stat – give atty duty to claim priv on behalf of client if he is absent, unless the client as already indicated to you he or she is willing to waive the priv

b. The holder of the priv is the client and not the lawyer, only the client is able to waive the priv and that is what happened here.

c. TC and lawyer were chastised in sim CA caseii. 2

1. Bailiff overhears convo between lawyer and client2. The ans is that the client and lawyer didn’t take reasonable steps. If know

people are present then duty is to have convocation in place where people cant hear it

3. don’t have convo in restaurant.144

4. so in this case the B CAN testiy because they didn’t take reasonable steps5. there are times when a lawyer can waive it for client like if turn over a million

boxes to drown out discovery courts have let it in6. but typically lawyer cant waive it for client7. so if lawyer said it to B then we would say that priv is not waived

iii. 31. IF you as a client disclose a substantial part of priv convo then you have

waived the priv2. so if file a lawsuit against a lawyer and disclose some of info discussed with

lawyer you’ve waived AC privilege.3. so if claim that lawyer has acted unethically or not so good then the priv is

waived.4. the real problem is when the lawyer sues the client it becomes harder to say

how far we will construe the waiver.a. Its case by case

iv. 41. if have report by client prepared for lawyer, cant be compelled to disclose this

report2. so the real Q is it priv and then we cant require the refreshing of recollection.3. there is a huge Q as to whether its priv4. because the report as more than one purpose, its to secure legal advice but its

been shared with another dept5. courts have a tough time with these sits6. courts have said the TC must determine if the dominant purpose of report was

to secure legal advice then priv (like biz recored) provided the other conditions are met

7. so if judge need a hearing to determine the dominant purpose8. if the real purpose is to advice or … internal or external then it may still be priv

even if a copy goes to another dept9. provided and he refers us back to the Kaplan test to see how deal with it

a. requested from supb. for legal advicec. treated as confidentiald. some indication on doct that its for that purpose

10. if any of those things are missing the report can be used11. so we don’t require the co to make 2 reports but we do make sure they do those

thingsv. 5

1. CA case law says the authorization was implied and lawyers disclosure was a waiver of the privilege

2. Ct implies authorization priv been waived and it can be used3. on exam don’t presume authorization, find it and if its implied there must be

more than thisvi. 6

1. closer to Upjohn2. prepared report by superior3. from ins carrier for confidential transmittal to atty4. and it looks like only purpose for report was litigation5. and as long as treated as confidential 6. it will be priv and therefore excluded from evidence

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7. good example of Upjohn where bases are coveredvii. 7

1. not enough information2. ins carrier requeting report but none of other factors present3. no info how it was treated don’t know if marked as confidential4. if see this on exam its not priv because its not enough.

Questions:1) Is it true that under the federal rules, the person dying does not

need to have personal knowledge of the events (of course in CA they do)?

2) Can we bootstrap under Fed law for Excited Utterances? 3) Under CA law, is there a HS exception for normal adults for

medical diagnosis or treatment?4) Get Hypos p 233-2345) What is the STD for prior convictions in impeaching a witness in

CA?

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