A. Evidence – testimony, writings, material objects, or other things presented to the
senses that are offered to prove the existence or nonexistence of a fact.
1. Direct evidence – evidence that directly proves a fact, without an inference
or presumption, and which in itself, if true, conclusively establishes that fact.
(Eyewitness evidence is direct evidence.)
2. Circumstantial evidence – relies on inferences from other facts. You must
prove fact 1 and then you want to say that fact 2 is more likely because of
fact 1. In order to determine if the evidence is relevant, you have to look at
the connection between facts 1 & 2. This is the probativeness of evidence.
3. Probativeness – the evidence has to have a tendency to prove or disprove a
B. Testimony – a form of evidence presented by calling a witness to the stand,
swearing in the witness, asking the witness questions – the responses to those
questions are evidence.
C. Motion in limine – judge rules in advance whether evidence should be kept out
D. Preliminary fact – before we can admit the evidence, we have to prove some
prerequisite to the admission of evidence itself.
1. CEC 400: preliminary fact means a fact upon the existence or
nonexistence of which depends the admissibility or inadmissibility of
E. Voir dire – a form of cross-examination permitted before the evidence is
A. Conditional Relevance
1. Important issue re preliminary facts is who will decide the fact, the judge
or the jury?
a. Judge: FRE 104(a) and CEC 405 – preponderance of the evidence
i. FRE 104(a) – the prelim fact can be determined by any
evidence, admissible or not (judge determines)
ii. CEC 405 – court determines by preponderance of the evidence
existence or nonexistence of the prelim fact if the preliminary fact
is also an issue in the action
iii. Examples of 104(a)/405 questions for the judge –
disqualification of witness for lack of mental capacity,
qualifications of an expert witness, privileges admissibility of a
confession because it’s involuntary, hearsay exceptions.
iv. Significant difference between CEC & FRE – FRE 104(a)
allows you to bootstrap, meaning you can use the statement itself
to prove a statement. No parallel clause in CEC 405 – under 405,
judge must make the determination based on admissible evidence
b. Jury (issue of conditional relevance): FRE 104(b) and CEC 403 –
evidence “sufficient to support a finding” (once the judge decides
there’s enough to go to the jury, the judge instructs the jury)
i. FRE 104(b) – when the relevancy of the evidence depends on
the fulfillment of a condition of fact, the court shall admit it upon
or subject to the introduction of evidence sufficient to support a
finding of fulfillment of the condition (jury determines)
ii. CEC 403 –
B. Discretionary Balance – need to know the code section names for these!
1. FRE 403/CEC 352
2. You make a relevancy objection, hearsay objection, etc. – then you make a
403/352 objection – if you don’t make it, it will be waived.
3. Court is required to balance the following factors: probative value v.
unfair prejudice, confusion of jurors, and undue consumption of time.
a. Prejudice – there’s a risk that the jury will use the evidence improperly
and lead to a decision based on improper considerations. (We can’t use
jury instructions to deal with this because the jurors might not be able
to disregard what they already heard.)
b. Confusion of jurors – People v. Collins: prosecutor cooked up an idea
of calling a mathematical expert to prove his case against D, and the
Product Rule of Probability was used – super confusing to the jury and
not even accurate. Risk of mathematical stuff like this leading the jury
down the wrong path.
c. Undue consumption of time – if 30 witnesses all saw the same thing,
you don’t need to bring in every single person to testify because this
will just be a waste of time. The judge can say pick your best 3, and
I’ll allow you to bring those in.
C. Specialized Relevance Rules - extrinsic policy considerations
1. Jury Deliberations (FRE 606/CEC 1150) – rule that evidence of what went
on in the jury room cannot be offered in a challenge to the jury’s verdict.
a. FRE case Tanner v. U.S. – court said if they could show by any other
evidence that the jurors had been drinking it would have been allowed
in – but they only had evidence of what went on in the actual juror
b. CEC rule is less strict than FRE – it allows evidence of conduct in the
jury room to be taken into account.
c. Prop 8 issue – does CEC 1150 exclude relevant evidence?
2. Subsequent Remedial Measures (FRE 407/CEC 1151)
a. FRE 407 – when, after an injury or harm allegedly caused by an event,
measures are taken that, if taken previously, would have made the
injury or harm less likely to occur, evidence of the subsequent
measures is not admissible to prove negligence, culpable conduct, a
defect in a product, a defect in a product’s design, or a need for a
warning or instruction. The exclusion of evidence is not required when
offered for another purpose, such as proving ownership, control, or
feasibility or precautionary measures, if controverted, or impeachment.
b. Evidence can be allowed in for other purposes:
i. Mahlandt v. Wild Canid Survival – case of the wolf attacking a
beagle and then being tied up, and then allegedly attacking a little
boy. Evidence that the wolf was tied up after the beagle attack
would be admissible under a negligence theory because it was
NOT a sub remedial measure with regard to the boy.
ii. Tuer v. McDonald – hospital changed its procedure with regard
to surgery patients and administration of Heparin after guy died
because his Heparin had been discontinued. This cannot be
offered as evidence under 407 because it was a subsequent
c. FRE 407 recently amended to include “defect in a product or its
design.” It used to track the language of CEC 1151, which says that
such evidence is inadmissible “to prove negligence or culpable
conduct.” 407 now says product defect or design defect, but 1151 does
3. Compromise Offers (FRE 408/CEC 1154) – you can’t use the fact that
people have offered to compromise as evidence because people also
compromise for other reasons.
4. Liability Insurance (FRE 411/CEC 1155) – evidence that a person was
insured is inadmissible to show negligence.
a. Difference between FRE and CEC:
i. FRE 411 says evidence that a person “was or was not insured”
will not be admissible.
ii. CEC 1155 says evidence that a person “was insured” will not
5. Plea Bargaining (FRE 410/CEC 1153) – these are different from other
rules because the evidence is inadmissible in ALL cases, not just certain
III. Character Evidence – “French rules” – everything is permitted except that which is
A. Character: Propensity – using character evidence as propensity evidence is
prohibited. (Using it to show that D is a bad man and therefore it’s more likely
that he engaged in this conduct.)
1. The problem with character evidence isn’t that it’s not relevant – it’s that
it can be TOO relevant. There is a tendency to draw too strong an inference
from character evidence.
2. Character rules DO exclude relevant evidence, so this was a Prop 8
problem in CA. But then CEC 1101 was amended after the enactment of
Prop 8 to add words that are not found within the fed rule. “Or whether a D
in a sexual act did not reasonably and in good faith believe that the victim
consented” – this makes it clear that this would be among the alternative
theories of relevance that would allow prior bad act evidence. The CA
legislature reenacted the entire statute to save it.
3. Good character evidence – you can only hear the bottom line conclusion –
in my opinion, he’s an honest man, etc. Cross-examination is allowed with
respect to BAD acts. Prosecution can rebut your good character evidence
with bad character evidence. Evidence of good character rarely introduced
for this reason – they don’t want to be cross-examined re bad character
4. When character evidence is allowed in:
a. FRE 405(b)/CEC 1100 – Character directly in issue – for example, a
child custody case. Evidence would show if woman is a good mother.
Libel case – can show rep is already so bad that he had no rep to be
damaged – his rep is directly at issue here.
b. FRE 404(b)/CEC 1101(b) – To show preparation, intent, knowledge,
opportunity, identity, motive, plan or negate accident or mistake. Can’t
show rep/opinion evidence, but can show evidence of specific acts.
i. U.S. v. Trenkler – D was accused of building a bomb for a
friend to use to blow up his father, and an officer was killed by the
bomb. To prove that he made this bomb, they wanted to offer
evidence that 5 yrs earlier he made a very similar bomb. The
theory is that the 2 bombs are so similar that this proves his
identity as the bomb-maker.
ii. U.S. v. Stevens – reverse use of FRE 404(b). D offers
evidence of a prior/subsequent bad act by someone else to show it
was not him. Victims were robbed/assaulted and they picked out
a photo of D and identified him in a lineup. A few days later
another robbery took place in the same location and very similar
ways. Reason to believe the robberies were done by the same
guy. Victim of 2nd robbery said D was NOT the guy who did it.
D wants to say that since the other man perpetrated the 2nd crime,
it was NOT he who committed the first.
B. Propensity Exceptions – there are times when we allow people to go through the
propensity box to actually show propensity.
1. Character: Sex Cases
a. FRE 413 – applies to sexual assault in criminal cases. If D is charged
with sexual assault (doesn’t have to have been convicted/charged for
the prior occasion.) Admitted for any purpose for which it’s relevant –
can come in to show propensity.
b. FRE 414 – applies to child molestation in criminal cases. Separate
rule of admissibility only for child molest cases. If D is on trial for
child molestation, prior offenses of child molestation are allowed in.
There is no cross-admissibility for sexual assault/child molestation.
c. FRE 415 –
d. CEC 1108 – if D is accused of a sexual offense, evidence of D’s
commission of another sexual offense is admissible – very broad
definition of sexual offense, even includes pornography offenses.
e. CEC 1109 (enacted after outrage over the OJ trial) – all evidence of
prior domestic violence is admissible, even DV against someone other
than the victim in this case.
f. Reputation “Have you heard” v. Opinion “Do you know” – FRE now
allows evidence to be offered in the form of both reputation and
2. Character: Victim
a. CEC 1103 – allows opinion, reputation, or evidence of specific
instances of the victim of the crime for which D is being prosecuted –
D must open the door for this evidence.
i. This is one of the sections specifically referred to in Prop 8 as
an exception, so it is preserved in its entirety. They did this to
save the rape shield law, which is also part of 1103.
ii. When D opens the door to attacking the character of the victim,
prosecutor can rebut that evidence with evidence of good rep,
good opinion, and good conduct of the victim.
iii. CEC 1103(c) – the rape shield law – clearly keeps out relevant
evidence. Limits evidence of sexual conduct with other
individuals other than the D himself.
b. FRE 404 – character of alleged victim. Significant difference from
i. Even if D hasn’t opened the door by bringing in bad character
evidence of the victim, the prosecution can come in with good
character evidence on the victim to the rebut any evidence that the
victim was the first aggressor. (Not limited to trait of violence –
open for any trait.)
ii. Exception under CEC is for sexual conduct and under FRE is
for sexual behavior. Behavior includes activities of the mind,
such as fantasies or dreams. Under FRE, door is opened wider to
include imagined conduct – this can come in to show consent as
long as it’s with the D on trial in this case.
3. Evidence of Habit – we’re saying this person isn’t making choices – this is
an automatic response.
a. FRE 406 – refers to both habit of a person or routine practice of an
b. CEC 1105 – refers to “habit or custom” but not routine practice of an
organization. But “custom” means everything referred to under the
FRE, so there should be no different result under FRE and CEC.
c. What about stopping for a beer on the way home from work everyday
– is this a habit or a conscious decision? Comment to FRE 406
suggests that evidence of intemperate habits is generally excluded. (But
drinking is treated differently than something like heroin addiction – a
heroin addict will shoot up 4 times a day without thinking about it, and
this would be relevant to show habit.)
4. Character for Truthfulness
a. Impeachment of Witnesses – you can’t impeach the credibility of a D
by showing their prior convictions. But if D gets on the witness stand,
this stuff will be allowed in to show you shouldn’t believe D’s
testimony. Safer course for D might be to just stay off the witness
b. CEC 780 – nice list of all the ways to impeach a witness
c. Use of convictions as impeachment
i. FRE 609 – the rule sets up a hierarchy in terms of what kind of
crime a person was convicted of:
Dishonesty/false statement (misdemeanor or felony) – this
is the only provision where we see 403 eliminated. Judge
does not have discretion to weight probativeness. You have
the absolute right to get up and impeach a witness with a
crime of dishonesty or false statement. (Crimes involving
some sort of misrepresentation or lie, like perjury.)
For any other felony – the judge applies the 403 standard –
he can exclude the evidence if there is substantial prejudice
outweighing the probative value.
Any other felony and the witness is the D in a criminal case
– we eliminate the “substantial” requirement from 403. IF
there is a risk that the probative value will be outweighed
(not substantially outweighed). This gives greater protection
to the D.
Prior offense 10 years old – this will not be let in unless
probative value substantially outweighs the prejudicial
Juvenile – court may allow evidence of a juvenile
adjudication (other than the accused) if it would be
admissible to attack the credibility of an adult and the court
is satisfied that admission in evidence is necessary for a fail
determination of the issue of guilt or innocence.
ii. You can opt to take the sting out by bringing up the conviction
yourself – but if you do this, you’re waiving your right to
challenge the judge’s ruling on letting it in on appeal because you
brought it in yourself.
iii. CEC 787 – subject to CEC 788, evidence of specific instances
of conduct relevant only as tending to prove a trait of his character
is admissible to attack or support the credibility of a witness.
Prop 8 problem – if showing the witness lied on a job
application, this is relevant – so 787 is abrogated by Prop 8
in criminal cases. Prop 8 opens the door to attacking the
credibility of a witness not only with prior convictions, but
also with prior bad acts. (And if witness denies these bad
acts, we can bring in extrinsic evidence to show that he lied.)
Only limitation on this is under 352.
5. Competency and Personal Knowledge
a. Competency – competence of witness to testify. This is a 405 question
for the judge (not an issue of conditional relevance.)
i. People v. White – witness could not speak, could only raise her
right knee to indicate yes and not raise it to indicate no. This
witness was not competent to testify because counsel could only
ask yes or no questions for the testimony.
ii. Children often a problem as witnesses – sometimes don’t know
the difference between truth and lie, often want to give answers
that please, etc.
iii. Voir dire examination of witness – exam of witness before the
person is allowed to testify.
iv. FRE 601 – every person is competent to be a witness except as
otherwise provided in these rules. (No actual test of witness
v. CEC 780 –
b. Personal Knowledge
People v. Shirley – Cal Supreme Ct ruled that a witness
who’d been hypnotized could no longer testify because of
the problem of establishing what in the witness’s testimony
was based on personal knowledge and what was based on
hypnotic suggestion. Opinion did not survive Prop 8,
CEC 795 – enacted by legislature so it comes within the
Prop 8 exception for those enacted by 2/3 vote.
Strict rules for hypnosis under 795 – must be videotaped,
must be the same recollection given before hypnosis, etc.
ii. Repressed memories
Franklin case – case of woman who claimed she
remembered seeing her father murder a girl 20 years earlier.
Defense said her memories could have come from elsewhere,
like news clippings at the time – and they wanted to let these
news clippings in. Father was convicted. But later court
held it was error to exclude these new clippings – it was not
a prerequisite to show that the witness had actually read
A. Hearsay Rule – FRE 801(c) – hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted. [(a) – a “statement” is 1) an oral or written assertion
or 2) nonverbal conduct of a person, if it is intended by the person as an
assertion. (b) – a “declarant” is a person who makes a statement.]
1. The Hearsay Triangle (good approach to figuring out hearsay) – traces the
route from the making of the statement to the finding of the fact. 2 routes to
get from statement to the fact:
a. Truth route – we depend on determining the truth of the person making
the statement. We only go through this when the truth of what was said
is trying to be determined. (Sometimes we don’t care about the truth –
we just care about whether the statement was actually made.)
b. __ route?
2. Example – Police officer conducting search at a crack house and there’s a
knock at the door, officer asks who is there and the guy says “I need a fix.”
If offered to prove that the guy knew he was knocking on the door of a drug
house, this is hearsay. If offered to prove that the premises were in fact a
drug house, then this is not hearsay.
3. Implied assertions – at common law these were considered hearsay.
Today this is not the case. In order to be hearsay, the statement must be an
a. Ship captain case – ship captain inspected a ship and then brought his
wife and kids onboard to set sail. Impliedly, his conduct asserted that
this ship is seaworthy. Captain did not intend to make a statement that
the ship was safe – so under our definition today, this would NOT be
hearsay. So the evidence would be admissible.
b. Conduct sometimes DOES intend to make an assertion. Anchita
holiday example – issue was whether govt took proper precautions at
the bombing site. Head guy said he was taking his wife and daughters
with him to the site of the nuclear blast. Offered is the conduct of him
taking his family there. This is different from the ship captain example
because the guy intended to show that the site is safe. So this IS
hearsay because it’s intended to be an assertion.
4. Statement State of mind of declarant and Effect on listener Prove the
B. Hearsay Exceptions – CEC uses the term “exception” and FRE uses the term
“not hearsay.” Doesn’t really make a difference what you call it though.
1. Admissions – admissions statements does NOT mean there has been an
admission of anything. The admission need not admit anything – it applies
to any relevant statement by a party that is offered against him.
a. Party admissions (FRE 801d2A/CEC 1220) – “the party’s own
i. OJ example – In OJ’s statement after he was arrested he said he
had nothing to do with the murders and he gives an alibi. This is a
completely exculpatory statement. The prosecutors want to offer
this statement to show that he is lying (false exculpatory
statement.) OJ can’t offer the statement himself because the
hearsay rule keeps out even the party’s prior statements unless
they’re offered against him.
b. Adoptive admissions (FRE 801d2B/CEC 1221) – “a statement of
which the party has manifested an adoption or belief in its truth”
i. Franklin case – daughter went to jail and confronted her dad
and said the truth will set you free – he responded by pointing to a
sign that said this station may be monitored.
Is pointing to the sign an indication that the statement is
true, or an indication that he simply wished to exercise his
right to remain silent? Courts say this is inherently
ambiguous, so a statement made by a mirandized D will not
be allowed in against him.
Court in Franklin said one error in the trial was allowing in
the statement of the alleged jailhouse conversation – his
silence was ambiguous and not necessarily a concession of
truth of the statement that had been made.
c. Authorized admissions (FRE 801d2C/CEC 1222) – “a statement by a
person authorized by the party to make a statement concerning the
i. This is when someone else is speaking on our behalf, and we
have given them the authority to do so. The statement he/she
makes can be offered against us.
ii. Here the question is authority – did you authorize this person to
speak on your behalf?
iii. Under 104(a) we allow bootstrapping, but not under 104(b).
Under CEC we do not allow bootstrapping, but we do under FRE.
This is the case for authorized admissions, agent admissions, and
iv. Difference btw FRE and CEC – under CEC, we require
independent evidence to support authority, membership in a
conspiracy, etc. – no bootstrapping allowed. Not so under FRE.
d. Agent admissions (FRE 801d2D/cf CEC 1224) – “a statement by the
party’s agent or servant concerning a matter within the scope of the
agency or employment, made during the existence of the relationship”
i. Sophie the wolf case – case where the wolf allegedly bit a
child. Even though jury ultimately determined that the fence and
not Sophie injured the child, unfortunately for the defense (the
wildlife center), their agent – Ken Poos – wrote a note to his boss
mentioning that Sophie bit a child. Prosec said your agent made a
statement that can be offered as your own. D said no, he didn’t
know what he was talking about because he wasn’t a witness – he
had no personal knowledge. Trial court kept it out based on this
personal knowledge argument. Court of appeals said it IS an
agent statement, and is admissible not only against him but also
against his boss. NO requirement under 801 of personal
e. Co-conspirator statements (FRE 801d2E/CEC 1223) – “a statement by
a coconspirator of a party during the course and in furtherance of the
i. Statement must be in furtherance of the conspiracy.
2. Prior Statements
a. Prior inconsistent statement (FRE 801d1A/CEC 770&1235)
i. Most often when we offer a prior inconsistent statement, we’re
not offering it to prove the truth of what was asserted. Statement
is being offered to show that the witness has said something
different in the past than what she’s saying now.
ii. Barrett case – typical impeachment situation where you have a
snitch testifying. Buzzy Adams is on the stand because he got a
deal – he testifies that right after D was arrested, D told him he
was involved in the stamp theft in question. Defense wants to
attack and impeach the testimony of Buzzy. They call a witness
who says that a year and a half after the burglary, Buzzy was in a
restaurant and said to a friend that it’s too bad the D got indicted
because he knows that D wasn’t involved. (Trial court rejected
this, and court of appeals says it was to attack the credibility of the
witness, so it was error to reject the evidence.)
b. Prior consistent statement (FRE 801d1B/CEC 791&1236)
i. If a witness is interviewed several times and always gives the
same story, this can be used to bolster their credibility. But under
CEC 791, it will only be allowed in if offered after the witness is
attacked for having cooked up the story – otherwise it is a time-
waster if no one is claiming the person’s not telling the truth in the
ii. CEC 791 keeps out relevant evidence so it doesn’t apply to
iii. CEC 791 requires that the consistent statements have been
made before the inconsistent statement.
iv. FRE – you will be permitted under the fed rule to offer prior
consistency in order to rebut prior inconsistency.
v. Unlike CEC, FRE does not explicitly say that the prior
consistency precede the alleged inconsistency. But the Supreme
Court has said that this requirement is implied in the federal rule –
this is the way they did it at common law and there’s no evidence
that the drafters wanted to leave it out.
c. Prior identification (FRE 801d1C/CEC 1238) – we will allow a prior
identification in as long as the witness is now on the stand.
i. Owens case – a prerequisite to this hearsay exception is that the
witness is subject to cross-examination. Here D said he didn’t get
to cross-examine the guy because he didn’t remember. Court says
too bad, you still had the opportunity.
ii. CEC has a vouching requirement built in. The witness must
say yes, that is an accurate reflection of my opinion at that time.
d. Past recollection recorded (FRE 803(5)/CEC 1237) – witness has a
lapse of memory. For example, you ask the officer what the license
number was and he says he can’t remember, can he refer to his report?
So he looks and now he remembers and says the number. This is
hearsay, but there’s an exception for this!
i. You need to lay a foundation and show the statement the
witness is now relying on was accurately prepared.
FRE 803(5) – if the threshold is met, the record can be read
but can’t be admitted as an exhibit. If a witness can’t
honestly say his memory is refreshed by looking at the
record, we must elicit that he prepared the record or that
when it was prepared by someone else, he adopted it.
CEC 1237 – broader than fed. Does not require that the
witness adopted a statement by someone else at the time it
was made. Only requires that the statement was made when
the event occurred, made by the witness himself, or made by
someone else at the time of the statement for the purpose of
ii. You have a right to see everything that a witness used to
refresh his recollection. You can insist on that right and then use
the document to cross-examine.
CEC 771 – the right even extends to something the witness
used before they got on the witness stand. When examining
a witness, you want to first establish what witness might
have used to refresh their memory.
FRE 612 – if the document was used by the witness to
refresh before testifying, you don’t have an absolute right to
view it. (Under CEC you have this absolute right.)
3. Unavailability Exceptions – FRE 804(a) and CEC 240 define
unavailability. Significant difference between FRE and CEC is that under
FRE, if a guy is held in contempt because he refuses to testify he’s
considered unavailable. No parallel rule for when witness refuses to testify
under CEC – this is a problem; there’s a hole in CEC here. Showing of
unavailability is a 104(a) question for the judge to decide – same under CEC
– not a question of conditional relevance.
a. Former Testimony (FRE 804b1/CEC 1290-92)
Criminal case – must be same party. However, testimony
does not have to be offered against the same party in the
Civil case – federal rule opens the door wider, allows the
testimony to be offered either against the same party OR a
party against whom the testimony was offered in the prior
proceeding was a predecessor in interest. This expanded
availability only available in civil cases.
1291 – applies to both civil and criminal cases, same as the
fed rule. Uses the term “successor in interest” – one who
stands in the shoes of the party in the prior proceeding
perhaps by inheritance, but has somehow succeeded to the
interest that was being asserted in the prior proceeding.
1292 – addresses the broader availability of this exception
in civil actions. Opens the door more broadly than the fed
rule. No requirement of legal relationship here like
predecessor in interest.
“Former testimony” does not include depos under CEC.
iii. Significant difference btw FRE and CEC with respect to
“predecessor in interest” in civil case.
Court in Lloyd case says showing a predecessor in interest
connection simply means that you had the same motive and
opportunity to cross-examine that you have in this
proceeding. This would not be a problem under CEC
because 1292 doesn’t require predecessor in interest.
U.S. v. DiNapoli
b. Dying Declaration (FRE 804b2/CEC 1242)
i. FRE – we can still use the exception if the declarant didn’t die
but became unavailable for some other reason. (Only available in
civil cases and criminal cases that involve homicide.) The
statement must concern the cause or circumstances of the
ii. CEC – requires that the declarant is now unavailable due to
death. (Available in civil or criminal cases and not limited to
iii. Problem with dying declaration – whether the declarant
actually had personal knowledge of what they were declaring. So
you must show some circumstances to suggest that they had
personal knowledge of what they were describing in their dying
c. Declaration Against Interest (FRE 804b3/CEC 1230) – theory is that
people don’t normally implicate themselves in things that make them
look bad unless they are true. So if we show the statement, when made,
was against the declarant’s interest, we can offer it in the case.
i. Difference between FRE and CEC
FRE defines the interests that we’re talking about – at the
time it was made, the declarant had a pecuniary, proprietary,
or liability interest.
But CEC goes a step further – also allows the risk of
making the declarant an object of ridicule or social grace in
ii. Hypo – P is a female employee of a corp who is suing the corp
for sexual harassment by her manager. Manager admits he had an
affair with the employee but says it was voluntary – he then
commits suicide. The statement is offered against the corp D.
He’s unavailable because he’s dead. In CA, we can offer it as
statement against interest. But under FRE we’d get a different
result because it was not against his pecuniary or proprietary
interest – it was only against his rep in the community – so we
wouldn’t be able to get it in.
iii. What if the statement implicates the declarant but also
implicates someone else even more?
U.S. v. Williamson – guy was arrested with car of drugs, he
admits that there were drugs in the car but implicates another
guy Williamson. The statement incriminates Williamson
more than it does him. Supreme court says the exception
only extends to the portion of the statement that implicates
the declarant. (No built-in guarantee of reliability when
you’re laying the blame on someone else more than you.)
SODDI defense – some other dude did it
d. Family History (FRE 804b4/CEC 1310, 1311)
e. Forfeiture (FRE 804b6/CEC 1350)
i. FRE – where the unavailability of the declarant is because the
opposing party has made him unavailable, we are not going to
exclude evidence when you created the situation.
ii. CEC – much more restrictive – limited to serious felonies,
requires a higher threshold showing clear and convincing
evidence, and statement has to be memorialized – can’t just be an
4. Prior Testimony
5. Spontaneous and Contemporaneous Statements – availability of the
declarant is immaterial; because there’s enough of a common-sense basis to
give these statement reliability, we recognize an exception to the hearsay
a. FRE 803
i. 803(1) – present sense impression – describing something as
you see it or immediately thereafter. No problem of sincerity
because no time to reflect on what you’re saying.
ii. 803(2) – excited utterance – even if the statement was not
made immediately after perception of the event, if you’re still
under the excitement of the event, you are still covered by the
exception. This exception can last longer than in (1). If weak
showing of excitement, must argue under (1). (1 and 2 are often
argued together because of overlap.)
iii. 803(3) – then-existing state of mind, emotion, sensation or
physical condition, but not including a statement of memory or
If person says very calmly, “I’m very angry” – this is a
hearsay problem because we’re not using tone of voice –
we’re using it to offer the proof of what’s asserted. But
803(3) is the exception for this!!
Mutual Life Insurance v. Hillmon – this case is the origin
for this hearsay exception. SC said if somebody is
expressing their own mental state of mind, the ordinary
hearsay dangers do not apply. They are describing their
present, existing state of mind.
803(3) is the codification of the exception carved out in
Hillmon, but it’s limited. Does NOT include statement of
memory or belief.
Hypo – guy says his friend told him he was leaving the
restaurant to go get some pot from Angelo. Now Angelo is
on trial for the guy’s murder. The jury will use it for the
wrong purpose – to infer what Angelo did, not what the guy
did. So this is a 352 issue. Not admissible to show Angelo’s
iv. 803(4) – applies to a then-existing state of mind, but broad
exception for statements of medical diagnosis.
Example – statement is “when I was struck by D’s vehicle,
I felt a sharp pain in my back which ran all the way down my
legs.” Not admissible under 803(3) because describing pain
on a prior occasion. But if made in context of consultation
of physician, 803(4) would let it in.
Doesn’t require that diagnosis be simply to treat your pain
– could be for the purpose of testifying as an expert witness
or any consultation for medical diagnosis or treatment.
i. 1240 – spontaneous statement – statement narrating or
describing what you saw. Different from FRE because allows the
statement to relate to something that was just perceived. FRE
803(2) doesn’t say you must have perceived a startling event, but
1240 says it must be perceived by the declarant – so could
produce a different result.
ii. 1241 – statement explains conduct of declarant and made while
declarant is engaged in such conduct. Narrower than FRE
because you actually have to be engaged in some sort of conduct
that’s being explained. (FRE 803(1) says you just have to be
perceiving, not engaged in conduct.)
iii. 1250/1260 – parallel Hillmon/FRE 803(3) exception.
Distinction made here as to purpose for what the statement was
offered – not spelled out in the fed rule.
iv. 1251 – separate exception for state of mind at a time prior to
the statement if the declarant is unavailable and the evidence is
offered to prove the prior state of mind when it is itself an issue in
v. No general medical diagnosis exception under CEC. We
usually end up using 1251 to say we’re admitting the statement of
a prior sensation or state of mind and that prior state of mind is
itself an issue in the action. (But this requires unavailability of
declarant, so it’s much narrower exception than under the fed
vi. 1253 – medical diagnosis exception for cases of child abuse.
6. Business & Official Records
a. Business Records (FRE 803(6)/CEC 1270, 1271) – absence of a record
is not hearsay, however if there’s any doubt they put in an exception
just in case (like a guy who says he was on a boat but the boat records
show he was not on it.)
i. To have business records admitted, you must show:
1. The record was made at the time the transaction was
2. It’s in the ordinary course of business to prepare this
3. The record was made in the ordinary course of business.
[When showing this stuff, we can use FRE 901(11) – the
company can certify it so we don’t have to waste time and
testimony – but the certification itself is hearsay, so the
opposing party can insist on cross-examining the person who
certified the records.]
ii. Business records can come from businesses not considered
standard businesses – like a prostitute’s trick book or a
bookmaker’s bet sheet.
iii. FRE 803(6) – Business includes occupation and calling of
EVERY kind, whether for profit or not.
iv. CEC 1270 – def of business is even more expansive than fed
rule because includes “governmental activity” as well. Under fed,
we usually treat govt records under official records.
v. Problems with applying these exceptions:
Police reports – police and accident reports are based on
narrations of persons who have no business duty to report to
the police. So when the content is based on a statement by
someone who has no duty to report to the person taking the
report, this portion will not be admissible – but might get in
under another rule. (At accident scene officer 1 measures
skid marks and reports to main officer. We can offer the
report to prove the length of the skid marks. Officer 2
reports back about what witnesses said. We can’t offer this
part of the report because the witnesses had no business duty
Glitch under fed rule because doesn’t mention
governmental activity, but there is a portion of 803(8) that
explicitly excludes police reports in criminal cases – this is
unlike the CEC which opens the door for police narratives.
Palmer v. Hoffman – case against railroad when guy’s car
was hit by train. RR conducted their own investigation and
one guy was a conductor on train and he said there was a
light and a bell. This guy died before trial so they want to
offer a report of his interview as a business record. Court
said inadmissible because not a normal business record –
you’re in the business of conducting a railroad, not in the
business of litigating.
Reports containing opinions – can we actually prove a
conclusion or opinion from the fact that it appears in a
IV.B.6.a.v..1. FRE – language explicitly states that opinions and
even medical diagnoses are admissible.
IV.B.6.a.v..2. CEC – not as clear because 1271 says “act,
condition, or event” – we don’t have the broad language
of the fed rule to include opinions or diagnoses. CA
courts have said if the opinion is based on a readily
observable fact, it can be included within the exception.
However, if the opinion/diagnosis involves a more
complex judgment it will not be permitted. This carries
over to official records as well.
IV.B.6.a.v..3. Beech Aircraft v. Rainey – record the defense offers
in a civil case is an official accident report prepared by
a JAG. It’s an official govt report. (So it’s a law
enforcement report but those are only excluded in
criminal cases and this is civil.) Govt conclusion is that
the cause of the accident was pilot error and not defect
in aircraft. USSC looks at 803(8) and notes that unlike
(6), (8) does not have the broad language allowing
opinions and diagnoses. Question to the court is does
this language allowing official govt reports to be
admitted to show factual findings encompass opinions
in the report based on the facts observed? Split opinion
from the court. Legislative history points in 2 different
directions. Senate version won out here and they said
the conclusions of the report were allowed in. In CA –
readily observable facts v. more complex – so unlikely
that it would be admitted under CEC.
b. Public Records (FRE 803(8)/CEC 1280)
7. New Exceptions and Confrontation Clause
a. Sixth Amendment Confrontation Clause – “In all criminal
prosecutions…the accused shall enjoy the right…to be confronted with
the witnesses against him.”
i. Hearsay exceptions – no intent to disturb these exceptions with
the confrontation clause. But what about the new hearsay
exceptions? In CEC and FRE, there’s an open invitation to the
courts to fashion new exceptions when necessary – also the
legislature. So there are statutory creations that did not exist when
the 6th amendment was written.
ii. When a new hearsay exception is created by decision or
legislation, we’re creating a situation where if it applies to a
criminal case, someone accused will not enjoy the right to be
confronted with the witnesses against him. SC has said this
doesn’t bring making new exceptions to a halt, but we have to
insure that the new exceptions have as much guarantee of
reliability and trustworthiness of the old exceptions.
b. FRE 803(24) and 804(5) – these used to have separate residual
exceptions – gives rise to inference that purpose of residual exceptions
was that if you didn’t meet stuff outlined in rules, there was possibility
of admitting the evidence anyway. Now these are consolidated in ONE
exception rule – FRE 807.
i. No residual exception clause in CEC for courts to carve out
new hearsay exceptions. But the courts have done so anyway by
looking at CEC 1200 – “except as provided by law, hearsay
evidence is inadmissible” – and the definition of law includes
statutory, constitutional, and decisional – so they go about it this
c. “Traditional, well-rooted” hearsay exception – Lilly v. Virginia says
that when we make the inquiry of whether it’s a well-rooted exception,
we have to look at how it’s being used.
d. CEC 1370 – “the OJ exception” – enacted after OJ trial because a
number of statements were excluded as hearsay. Legislature enacted
1370 – any statement that describes how you were injured or threatened
comes within this exception. Declarant must be unavailable, statement
must be in writing or recorded, etc.
V. Opinions and Experts
A. Lay Witnesses – FRE 701
1. Lay witnesses may not express opinions. The rule permits “opinions or
inferences rationally based on the perception of the witness” – like if a guy
was drunk or angry – but not how fast a car was going.
2. U.S. v. Figueroa-Lopez – drug cops came in to describe what they saw on
an arrest, but they went a step further and started characterizing what they
saw, like code language that was used. They were giving opinions based on
their training and experience as drug cops. Problem here was that the
prosecution never set them up as expert witnesses, so their testimony was
being elicited as lay witnesses and therefore was not ok. (No magic
statement that makes you an expert – you just have to set it up properly by
asking them first about their training, experience, etc., then go ahead and ask
qs specific to the case.)
B. Expert Witnesses – FRE 702, CEC 801 & 720
1. Hines case – should we permit this guy to testify about misidentification
by eyewitnesses? Court ultimately decides to admit the testimony. But
other courts have said this takes the role of the jury out of their hands – they
are equally as capable of assessing eyewitness testimony as the expert is.
2. Syndrome evidence – syndromes like battered women’s syndrome and
rape trauma syndrome – studies attempt to educate juries on things like this
that they may not be aware of. Should this be allowed? Is it beyond the
common experience of jurors?
a. Jinro case – they wanted this guy to testify as a Korean cultural expert,
but he basically just did a lot of stereotyping about how Koreans handle
financial transactions. The problem was that he wasn’t really an expert.
3. High v. Jacobs – the expert said the use of force wasn’t justified. Whether
the use of force was justified was the legal conclusion that we want to ask
the jury about – it wasn’t for this guy to say.
4. FRE 704 – opinion on ultimate issue allowed. BUT expert testifying to
the mental state of a D in a criminal case as to whether the D had the
required mental state is not allowed – this is for the trier of fact to decide.
a. CEC 805 – opinion on ultimate issue not objectionable. No psych
expert clause here, but the psych exception is in the penal code so they
basically have the same effect.
5. Persuading the jury that your expert is more credible than the opposing
expert – the key is in effective cross-examination. 2 opportunities: on voir
dire and also after they express their opinion. You don’t want to stipulate
that your person is an expert if you have a really great expert – you want the
jury to be able to hear all about their qualifications.
6. Examination of experts on published studies – so and so’s study is a
hearsay problem, but we have an exception for this: FRE 803(18) – learned
treatises. You can whip out studies and have your expert read them to the
jury and you can also whip them out on cross. NO exception like this in CA,
but we do allow it on cross.
7. CEC 801(b) – expert’s opinion can be based on matter perceived by or
personally known to the witness that is not actually admissible. (For
example, psych expert might base his opinions on talking to the D’s mother,
wife, etc. They are not here to be cross-examined. We offer this to bolster
his conclusion, not to prove the truth of what was said.) But then this can be
a 352/403 problem because the jury might use the statements to infer what
8. Scientific Evidence
a. Frye – no general acceptance of polygraph tests. Our fear is that the
jury will give it more weight than it deserves.
i. CA still follows the Frye test – Cal Sup Ct held that it is not
abrogated by Prop 8.
ii. In CA we follow the Kelly-Fry standard, which keeps out
iii. First is it relevant? Then is it excludable under 352? Only if
we get past these 2 issues do we get to the Kelly-Frye question.
b. Daubert ruling – sets up a precise standard for admission of scientific
i. FRE 702 now codifies the requirement of Daubert by saying
the testimony has to be based on sufficient facts or data, is the
product of reliable principles and methods, and the witness has
applied the principles and methods reliably to the facts of the case.
ii. Holding in Daubert is that the FRE have abrogated/abolished th
Fry standard. But the fed rule still requires that the evidence be
iii. With the adoption of Daubert, we now have an argument that
the polygraph IS a testable standard, subject to peer review, etc.
VI. Authentication and Best Evidence
A. Authentication (FRE 901, 902/CEC 1400, 1402)
B. Best Evidence = “Where’s the original?” Rule (FRE 1001-04/CEC 1520-23)
1. Best evidence v. secondary evidence rule – question of burden. Under
FRE, proponent offering has to account for the original. Under CEC, you
can offer secondary evidence and it’s up to the opponent to question it.
2. Most common best evidence problem – witness is on the stand and we
start asking him about a document and he starts describing it – but where the
hell is it? We can’t accept an oral description of the document without
actually seeing it. If it’s not available, we have to jump through the hoop of
what happened to the document before we can accept the description.
A. FRE 501 – doesn’t spell out the specific privileges. They exist in the deleted
materials that were never enacted because they were too controversial. 501
leaves it up to common law, reason, and experience.
B. CEC 900-920 – courts under our state system don’t have common law authority
to create and spell out privileges. So in CA, if we get a new privilege, it will
have to come from the legislature. So the CEC spells out the specific privileges
that we allow.
C. Specific Privileges:
a. CA – A.B. 1101 is a new bill to take effect in Jan to change the
business and professional code so that if a lawyer chooses to disclose
secret info of the client, he will not be disciplined.
i. “…to prevent a criminal act that the lawyer reasonably believes
is likely to result in death or substantial bodily harm…”
ii. It eliminates “by the client” in CEC 956.5 – just to prevent the
criminal act in general.
iii. BUT this evidence can then be used against your (former)
client if you disclose to prevent the harm.
b. Does the privilege remain after the holder of the privilege dies?
i. Federal – court in the Swidler case (where Ken Starr was trying
to get the lawyer of a dead guy to disclose what his client said)
that atty-client privilege survives the death of the client.
ii. California – this is NOT the law in CA. We look to the CEC to
see if the privilege outlives the client. CEC says the privilege can
only be asserted when a holder of the privilege is in existence.
c. CEC 955 – the lawyer shall assert the privilege when the client is not
around to do it. (The holder of the privilege is the client, but you have
a duty to assert it on behalf of your client – even at the cost of being
held in contempt.)
d. Corporate Counsel – you have to remember you are NOT the lawyer
of the people that work for the corporation, you are the lawyer of the
corporation itself, so if you are asked about conversations with the
CEO regarding transactions that are now in question – he does not have
i. Upjohn case – Supreme Court rejected the control group theory
(that the privilege only protects higher up people in the corp.) and
said that it protects any communications with anyone for the
purpose of rendering legal advice.
Probably NOT the same outcome in CA – employees
interviewed by corporate counsel will not be privileged.
e. Breach of Duty exception
i. If you client challenges his conviction on your legal
competency, you can disclose the actual communication to
explain why you did or didn’t do what the client claims was
ii. CEC 958 – you CAN disclose confidential communications
where you are accused of breaching a duty to your client and your
communications justify what you did. Also works the other way
f. Joint clients exception
i. CEC 962 – even if clients waive the conflict of interest and are
both represented by you, they need to understand that one client
can’t assert the privilege against the other at some later point if
there’s a dispute between them.
3. Husband/wife – this privilege is jointly held, unlike for other privileges.
(Exception where one spouse is accused of abusing the other.)
D. Where work product or informant’s privilege are asserted, the judge can look at
the actual info and then decide if it needs to be admitted. The privilege is
normally absolute – for the other privileges, we won’t be required to reveal the
info to a judge.
E. Waiver of Privilege – we identify the holder of the privilege and this holder of
the privilege is the only person who can assert the privilege. If the holder fails to
assert it, it is waived. This waiver concept is all based on Miranda.
VIII. Trial Objections
1. The starting point is FRE 103 – states the standard for an objection.
a. CEC 353 – erroneous admission of evidence
b. CEC 354 – erroneous exclusion of evidence
2. You need to say on what grounds you are making the objection so it will
be reserved on appeal.
3. If something comes out in narrative form that you weren’t expecting,
make a motion to strike and ask the jury to disregard the answer.
4. Nonresponsive answers
a. General rule is that only the examining party can object to an answer
that is nonresponsive. No legal ground for the opposing party to object
b. CEC 766 changes this general rule – says that nonresponsive answers
shall be stricken by any party.
5. Objection that a question is leading is only appropriate on direct
examination. (The purpose is to lead on cross!)
6. Stuff examined on defines what can be examined on cross. If you go
outside the scope of what was examined before it, they can object that you’re
not within the scope of the direct examination.
7. Asked and answered – can’t keep repeating the same question over and
B. Relevancy Objections
1. Relevance objections almost always go with a 352/403. You need to
make it at the same time you make a relevance objection so that on appeal
you can make it.
2. Both state and fed courts hold that if all you made was a relevance
objection and it meets the minimal test of relevance – and you didn’t
specifically make an additional objection under 352/403, you can’t raise it
C. Hearsay Objections
1. FRE 105/CEC 355 – if evidence is coming in for a limited purpose, you
have a right to have the jury instructed as to that limited purpose.