Evidence

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					                                          Evidence
                                           Outline

I. Introduction
    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
             fact.
    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
        or not.
    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
             evidence.
    E. Voir dire – a form of cross-examination permitted before the evidence is
        admitted.
II. Relevance
    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
                     (final determination)
                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,




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                   judge must make the determination based on admissible evidence
                   only.
       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
             room.
      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



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                      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
                           remedial measure.
             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
                      not.
        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
                           be admissible.
        5.        Plea Bargaining (FRE 410/CEC 1153) – these are different from other
               rules because the evidence is inadmissible in ALL cases, not just certain
               cases.
III. Character Evidence – “French rules” – everything is permitted except that which is
     specifically prohibited.
     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




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        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
        evidence.
   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 –




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    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
             opinion.
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
             CEC 1103.
        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
             organization.
   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




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           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
           stand.
   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
                       effect.
                        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


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                                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
                          competency here.)
               v.            CEC 780 –
           b.        Personal Knowledge
               i.            Hypnosis
                                 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,
                                BUT…
                                 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
                                them.
IV. Hearsay
    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.]



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   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
         INTENDED assertion.
       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
         truth
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
               statement”
            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”



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   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
        subject”
   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
             coconspirator statements.
   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
             knowledge!
e.       Co-conspirator statements (FRE 801d2E/CEC 1223) – “a statement by
        a coconspirator of a party during the course and in furtherance of the
        conspiracy”
   i.            Statement must be in furtherance of the conspiracy.


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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
                     first place.
          ii.            CEC 791 keeps out relevant evidence so it doesn’t apply to
                     criminal cases.
          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?




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            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
                       recording it.
        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)
         i.          FRE
                         Criminal case – must be same party. However, testimony
                        does not have to be offered against the same party in the
                        prior proceeding.
                         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.
         ii.         CEC
                         1291 – applies to both civil and criminal cases, same as the
                        fed rule. Uses the term “successor in interest” – one who


                                                                                    11
                   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
             impending death.
   ii.          CEC – requires that the declarant is now unavailable due to
             death. (Available in civil or criminal cases and not limited to
             homicide cases.)
   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
             declaration.
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
                   the community.
   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


                                                                             12
                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
                oral statement.
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
     rule.
   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
                belief.
                       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!!




                                                                                 13
                      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
                     intention.
     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.
b.          CEC
     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
               the action.
     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


                                                                                  14
                 itself an issue in the action. (But this requires unavailability of
                 declarant, so it’s much narrower exception than under the fed
                 rule.)
      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
                       made.
                        2. It’s in the ordinary course of business to prepare this
                       record.
                        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
                       here.)
                        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


                                                                                  15
                    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
                    report?
              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




                                                                                 16
                       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
                       way.
         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




                                                                                         17
       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
       actually happened.
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
                     polygraph evidence.
          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
               evidence.



                                                                                      18
               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
                          scientific evidence.
                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.
VII. Privileges
    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:
       1.       Psychotherapist/patient
       2.       Attorney/client
           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.




                                                                                            19
               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
                   the privilege.
               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
                         incompetent.
               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
                         around.
          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.)
      4.       Priest/penitent
   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
   A. Introduction
      1.       The starting point is FRE 103 – states the standard for an objection.
          a.        CEC 353 – erroneous admission of evidence



                                                                                          20
       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
              to this.
      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
        over again.
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
        on appeal.
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.




                                                                                  21

				
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