Relevance by liaoqinmei

VIEWS: 6 PAGES: 27

									I.   Introduction
     a. Taking Evidence
            i. Preconditions to Testimony
                   1. Personal Knowledge
                           a. FRE 602 – Witness must have personal knowledge;
                              evidence sufficient to support personal knowledge may
                              include the witness’ own testimony
                                   i. Perceived by the senses
                                  ii. Need not be precise
                           b. CEC 702 – Same
                           c. Exceptions – admissions, and expert witnesses
                   2. Lay Opinion Rule
                           a. FRE 701 – Non-expert witness opinions and inferences are
                              limited to those
                                   i. Rationally based on perception
                                  ii. Helpful to a clear understanding of testimony
                           b. CEC 800 – Same
                   3. Opinion on Ultimate Issue
                           a. FRE 704 – Opinion on ultimate issue fine unless goes to
                              criminal defendant’s mental state as element of crime
                           b. CEC 805 – Same
                   4. Oath
                           a. FRE 603 – Witness to declare truthful testimony; awaken
                              conscience to duty
                           b. CEC 710 – oath or affirmation or promise to tell truth
                   5. Competence
                           a. FRE 601 – Every person is competent (subject to state law)
                           b. CEC 700 – Every person is competent
                                   i. CEC 701 – communication requirement
           ii. Interrogation
                   1. Direct Exam
                           a. FRE 611(c) – Leading questions not allowed except to
                              develop testimony or if a party calls a hostile witness
                           b. CEC 767 – Leading questions not allowed on direct
                   2. Cross Exam
                           a. Leading Questions
                                   i. FRE 611(c) – Leading questions are permitted on
                                      cross
                                  ii. CEC 767 – Same
                           b. Scope
                                   i. FRE 611(b) – Limited to:
                                          1. Subject matter of direct exam, and
                                                 a. Wide open v. restrictive rule
                                          2. Credibility
                                          3. Or court’s discretion
                                  ii. CEC 761/773 – Same



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              3. Impeaching on Leading or Direct
                      a. FRE 607 – Any party may attack the credibility of a
                          witness
                      b. CEC 785 - Same
      iii. Objections
              1. Object to content (irrelevant, hs), foundation (authentication,
                  expert qualifications), form of the question (leading), or
                  timing/sequence (beyond scope)
b. Preliminary Questions
        i. Generally
              1. FRE 104(a) – Determined by the court, not bound by rules of
                  evidence
                      a. Qualification of person to be a witness
                      b. Existence of a privilege
                      c. Admissibility of evidence
                      d. Standard – Preponderance (per Bourjaily)
              2. CEC 405 – Court to determine preliminary facts (and burden
                  allocation); court bound by rules of evidence
       ii. Relevance Conditioned on Fact
              1. FRE 104(b) – Court to admit the evidence subject to the admission
                  of evidence sufficient to support a finding of the fulfillment of the
                  condition; judge screens/filters the evidence to see if reasonable
                  minds could differ
                      a. Court to consider only admissible evidence
                      b. Standard – sufficiency
                               i. Burden on the party proffering the evidence
                      c. Specific contents of writing evidence
                      d. Policy – not to undermine the function of the jury
              2. CEC 403 – Judge to screen and then admit when the preliminary
                  fact is
                      a. conditionally relevant, personal knowledge, authenticity of
                          writing
              3. Ball Analysis – to determine if relevance is conditional
                      a. Does the conditioning fact greatly increase probative
                          value?; Is good evidence of conditioning fact likely to be
                          available?
      iii. Hearing of jury
              1. FRE 104(c) – confessions to be outside the hearing of the jury
      iv. Testimony by accused
              1. FRE 104(d) – not subject to cross exam regarding other issues in
                  the case
c. Cautionary Instructions/Limited Admissibility
        i. FRE 105 – instruction to jury
              1. Evidence which is admissible for one purpose will not be excluded
                  simply because it is inadmissible for other purposes
       ii. CEC 355 - Same



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II.    Relevance
       a. Definition of Relevant Evidence
              i. FRE 401 – has any tendency to make the existence of a fact more or less
                  probable (teensy-weensy)
                       1. Standard – more probable than not
             ii. CEC 210 - Same
       b. Admissibility
              i. FRE 402 – Almost all relevant evidence is admissible; irrelevant evidence
                  is inadmissible
             ii. CEC 351 – Same
       c. Reality Hypothesis – minimally plausible generalization
       d. Baye’s Theorem – relevant because of affect on estimated probability of guilt
              i. Likelihood ratio is the effect of the evidence on the jury’s final judgment
                  (if ration differs from 1, then evidence is logically relevant)
             ii. Juror regret matrix
       e. Credibility evidence always relevant

III.   Relevant But Inadmissible
       a. Exclusion
               i. Balancing
                     1. FRE 403 – court’s balancing discretion to exclude if probative
                         value is substantially outweighed by the danger of
                             a. prejudice, confusion of issues, misleading the jury, undue
                                 delay, waste of time, needless presentation of cumulative
                                 evidence
                             b. Old Chief – evaluate evidence alongside alternatives; if
                                 additional information is irrelevant and prejudicial, it is
                                 abuse of discretion to receive such evidence in the face of
                                 an offer to stipulate
                                     i. Importance of narrative relevance
                             c. Prejudicial when evidence inappropriately influences
                                 because of bias or emotion; or misestimation
                     2. CEC 352 – Same
              ii. Subsequent Remedial Conduct
                     1. FRE 407 – Cannot be used to prove negligence, culpable conduct,
                         a product defect, a design defect or a need for warning/instruction
                             a. Exclusion not required if offered for another purpose such
                                 as control/feasibility, or impeachment
                                     i. Same as common law
                     2. CEC 1151 – Inadmissible to prove negligence or culpable conduct
             iii. Compromise and Offers to Compromise
                     1. FRE 408 – Evidence that a compromise was offered and certain
                         statements made during the course of the settlement negotiations
                         may not be offered to show the party’s liability or guilt




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                     a. Entire utterance protected as long as proposed settlement
                          relates to a claim disputed as to validity or amount
                     b. Otherwise discoverable evidence is not excluded
                     c. Such evidence is not excluded when offered to prove a
                          different matter – such as bias
            2. CEC 1151 – Same
            3. CEC 1160 – Expressions of sympathy is inadmissible to prove
                 liability in a civil action
                     a. A statement of fault accompanying the sympathy, however,
                          is admissible
     iv. Inadmissibility of Pleas, Plea Discussions and Related Statements
            1. FRE 410 – Not admissible in civil or criminal action
                     a. Guilty plea later withdrawn
                     b. Nolo contendere plea
                     c. Any statement in course of plea discussions with D.A. if no
                          guilty plea
                               i. But admissible if another statement made in the
                                   course of plea negotiations is admitted (defendant
                                   opens door); or in a criminal proceeding for perjury
            2. CEC 1153 – Inadmissible if offer to plead guilty or withdrawn plea
                 of guilty
      v. Payment of Medical and Similar Expenses
            1. FRE 409 – Evidence of paying or offering to pay is not admissible
                 to prove liability for the injury
            2. No CEC Equivalent
     vi. Liability Insurance
            1. FRE 411 – Evidence of insurance, or lack thereof, is inadmissible
                 to show wrongful or negligent action
                     a. Proof of insurance may be offered for other purposes
            2. CEC 1155 – Same
b. Character Evidence
      i. Substantive
            1. Generally
                     a. FRE 404
                               i. (a) Criminal Cases Only
                                       1. Propensity evidence not admissible unless
                                              a. Evidence of character offered by the
                                                  accused (or by D.A. to rebut the
                                                  same)
                                                       i. Or if accused offers character
                                                           evidence against the victim,
                                                           D.A. can offer evidence of
                                                           same trait against accused
                                              b. Character evidence of victim offered
                                                  by the accused (or by D.A. to rebut
                                                  the same)



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                                       i. Or peacefulness character
                                           evidence against victim
                                           offered by D.A. in homicide
                                           case to rebut evidence that
                                           victim was the first aggressor
                             c. Character evidence to impeach
             ii. (b) Criminal and Civil
                     1. Admissibility for non-propensity uses of
                         other crimes, wrongs or acts (motive,
                         opportunity, intent, preparation, plan,
                         knowledge, identity or absence of
                         mistake/accident when character is in issue)
                             a. D.A. must have a good faith belief
                                 that accused actually did such bad
                                 acts
                                       i. Acquittals included as acts
                             b. Admissibility based on the doctrine
                                 of chances (numerosity) based on a
                                 judge’s finding by a preponderance
                                 (104(a))
      b. California
              i. CEC 1101 – Character evidence is inadmissible to
                 prove propensity
                     1. Admissible to prove credibility
                     2. Admissible for non-propensity purposes
             ii. CEC 1102 – Character evidence of defendant okay
                 for propensity purposes if offered by the defendant
                 (or by the D.A. to rebut the same)
            iii. CEC 1103 – Evidence (reputation, opinion or
                 specific instance) of defendant’s violent character is
                 admissible of offered after evidence of victim’s
                 violent character (need not be homicide charge)
                     1. Defendant may offer character evidence of
                         the victim (or by D.A. to rebut same)
            iv. Pre-Prop 8 effect because court does a 352
                 balancing on a case-by-case basis, thus character
                 evidence for propensity uses is forbidden
      c. Common Law – Reputation for violence admissible to
         prove that the victim was the first aggressor
2. Form of Character Evidence
      a. FRE 405 – Manner
              i. (a) Reputation or opinion
                     1. Specific instance okay on cross exam
             ii. (b) If character trait is an essential element of the
                 charge, then specific instances okay
      b. CEC 1100 – Reputation, opinion or specific instance



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       3. Habit
               a. FRE 406 – evidence of habit is relevant to prove
                  conforming behavior on a particular occasion
               b. CEC 1105 – Evidence of habit is admissible to prove
                  conforming conduct on a particular occasion
               c. Common Law – habit evidence only admissible if no
                  eyewitnesses present
       4. Similar Happenings
               a. Evidence of a similar event to show that another event
                  occurred in a certain way requires substantial similarity
                       i. Engage in 403/352 balancing to ensure that
                          probative value is not substantially outweighed by
                          prejudice
                      ii. Substantial similarity not necessary to issues such
                          as notice or feasibility
ii. Credibility
       1. Who May Impeach
               a. FRE 607 – Any party
               b. CEC - 785 – Any party
               c. Common Law – only adverse party may impeach
       2. General Rule
               a. CEC 780 – jury may hear any matter that has a tendency to
                  prove or disprove truthfulness of testimony at the hearing
                       i. Including demeanor, character of test., capacity to
                          perceive/recollect/communicate, opportunity to
                          perceive, character for honesty or veracity,
                          bias/interest/motive, inconsistent statements,
                          attitude, admission of untruthfulness
       3. Evidence of Character and Conduct of Witness
               a. FRE 608 – attack credibility with reputation or opinion
                  evidence only regarding Truth and Veracity after such
                  character has been attacked
                       i. No extrinsic evidence of specific instances
                          regarding character for truth and veracity
                               1. Except on cross-exam at discretion of court
                                  if probative of truthfulness
                      ii. Giving of evidence regarding T&V is not a waiver
                          of right against self-incrimination
               b. CEC 790 (CIVIL) – introduce good character evidence to
                  show credibility only after credibility has been attacked by
                  bad character evidence
                       i. CRIMINAL – Evidence of good character
                          admissible even if character not attacked
               c. CEC 787 (CIVIL) – Specific instances inadmissible to
                  attack or prove credibility
                       i. CRIMINAL – Specific instances admissible



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                          1. Though misdemeanor not admissible unless
                              underlying acts can be proved under CEC
                              786 traits of Truth and Veracity
4.   Impeachment by Evidence of Conviction of a Crime
        a. FRE 609
                  i. Admit prior felony convictions
                          1. Against one other than accused (or
                              defendant in civil case) – subject to 403
                              balancing
                                  a. 403 factor – similarity to crime
                                      charged
                          2. Against Accused – if probative value
                              outweighs prejudice
                 ii. Admit any prior conviction if crime involved
                      dishonesty or false statement
                          1. (also a hearsay exception)
                iii. Time limit of 10 years (conviction or prison release)
                          1. If older court may admit if probative value
                              substantially outweighs prejudice
                iv. Not admissible if pardoned or if juvenile conviction
                      of the accused
                 v. Davis v. Alaska – the right of confrontation is
                      paramount to the State’s policy of protecting a
                      juvenile offender
        b. CEC 788 (CIVIL) – Admit prior felony conviction unless
            pardoned or rehabilitated
                  i. CRIMINAL – Admit evidence of prior felony if it
                      involved moral turpitude
                          1. Also a hearsay exception
        c. Common Law – allows impeachment of a witness with all
            felonies and prior convictions involving dishonesty
                  i. Luck factors include dishonesty and remoteness in
                      time
5.   Religious Beliefs or Opinions
        a. FRE 610 – Not admissible to show credibility as impaired
            or enhanced
        b. CEC 789 - Same
6.   Impeachment for Bias, Interest or Motive
        a. Statutory (FRE and CEC) – favored, extrinsic evidence
            permitted
        b. Common Law – foundational requirement
7.   Impeachment by Contradiction
        a. Collateral Matter Label – extrinsic evidence offered for the
            sole purpose of contradicting a prior witness is inadmissible
            if it is not independently relevant
        b. Subsumed in statutes with use 403/352 balancing



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                            c. Common Law – extrinsic collateral contradiction allowed
                               when substantive probative value had
                    8. Impeachment by Prior Inconsistent Statements
                            a. FRE 613 – No need to show witness prior statement
                                    i. No extrinsic evidence of prior inconsistent
                                       statement unless
                                           1. Witness had opportunity to deny or explain
                                               at some point, and the opposite party had the
                                               opportunity to interrogate the witness
                            b. CEC 769, 770 - Same
                            c. Common Law – Extrinsic evidence could only be used if
                               proper foundation
                                    i. Subject to the Collateral Matter rule
                    9. Extrinsic Evidence
                            a. Admit on cross exam for
                                    i. Bias, convictions, prior inconsistent statements (if
                                       conditions met) and contradiction
                                   ii. Assertion that witness lacked the ability to perceive,
                                       remember, or describe
                            b. Exclude for specific acts (608(b))
                    10. Rehabilitation
                            a. If impeached via character – rehab via character
                            b. If impeached via bias – rehab via bias
            iii. Character and Credibility in Sexual Assault and Child Molestation Cases
                    1. Sex Offense, Victim’s Past Sexual Behavior

IV.   Truth of the Matter Asserted
      a. Definitions
             i. Hearsay
                     1. Definitions
                           a. FRE 801(c) – Out of court statement offered to prove the
                                truth of the matter asserted
                                     i. FRE 801(a) – statement oral or written, or
                                        nonverbal conduct if intended to be an assertion
                                    ii. Silence as a statement (but also an admission)
                                   iii. Non-assertive conduct and Assertions implied from
                                        other assertions (104(a) determination if intent had)
                                            1. FRE – non-assertive conduct not considered
                                                hs
                                                    a. Assertion-oriented approach (must
                                                        match)
                                                             i. Out of court
                                                            ii. Statement
                                                           iii. Offered to prove the truth of
                                                                the matter




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                                      b. Policy – favors admissibility; if no
                                         intent then no danger of insincerity;
                                         burden on party claiming there was
                                         an intent to assert
                             2. Common Law Declarant-oriented approach
                                 (triangle)
                                      a. Unstated belief – not offered to
                                         prove the literal truth of the matter
                                         asserted but dangers still present
                                              i. Reynolds (USA) and Tatham
                                                 (UK)
              b. CEC 1200 – Same
       2. Multiple Hearsay
              a. FRE 805 – Each triangle requires an exception
              b. CEC 1201 - Same
ii. Not Hearsay
       1. Mere utterance; verbal parts of acts; statements manifesting
          awareness; state of mind; machine and animal statements
       2. FRE 801(d)(1) – Prior Statement by Witness currently subject to
          cross examination
              a. Inconsistent and given under oath at an event
                      i. Grand Jury testimony fine
                     ii. CEC 1235 – no need for oath
              b. Consistent and offered to rebut charge re influence/motive
                      i. CEC 1236 – admissible if made prior to alleged
                         motive
                     ii. Limited to statements made before a motive to
                         fabricate arose
              c. Identification made after perceiving the person
                      i. CEC 1238 – foundation requirement
              d. Common Law – prior statements admissible only to
                  impeach
       3. Party Opponent Admission
              a. FRE 801(d)(2) – offered against a party and is
                      i. Party’s own statement
                             1. CEC 1220 – Same but treated as exception
                             2. 5th Amendment concerns in criminal cases
                     ii. Adopted by party
                             1. Silence as adoption if reasonable person
                                 would protest if untrue
                             2. CEC 1221 – with knowledge of contents
                    iii. Authorized by party
                             1. Need more than just the statement to
                                 establish authority (104(a) preponderance)




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                                                a. CEC 1222 – Sufficiency standard to
                                                    establish authority (Judge screens
                                                    and jury decides per CEC 403)
                                                         i. Cannot look to the statement
                                                             itself
                                       2. Common law distinction between internal
                                           reports (inadmissible) and statements made
                                           to third parties
                               iv. Made by party’s agent/servant within scope of
                                   agency during existence of relationship
                                       1. Need more than just the statement to
                                           establish agency
                                v. Co-conspirator’s statement during the course of and
                                   in furtherance of the conspiracy
                                       1. Need more than just the statement to
                                           establish the conspiracy (104(a) decision)
                                       2. Conspiracy over when goal reached/broken
                                                a. Conspiracy charge unnecessary
                                       3. CEC 1223 – statement made during or prior
                                           to conspiracy; sufficiency standard for
                                           evidence of conspiracy (screened by judge,
                                           decided by jury per 403)
                                                a. Cannot look at statement itself
                               vi. California
                                       1. CEC 1224 – statement of declarant whose
                                           liability or breach of duty is in issue (split re
                                           respondeat superior)
                                       2. CEC 1225 – statement of declarant whose
                                           right or title is in issue
                        b. Policy – adversary system
                        c. Personal knowledge and lay opinion rule N/A
                        d. Privity of interest statements like admissions
                  4. Criminal Defendants and silence as a Party Admission

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b. Hearsay Exceptions – Based on Necessity and Reliability
      i. Availability Immaterial
            1. Present Sense Impression
                    a. FRE 803(1) – description or explanation of event made
                        while it was perceived or immediately thereafter
                    b. No Direct Equivalent
                            i. CEC 1241 – explains conduct of declarant and was
                                made during such conduct
            2. Exited Utterance



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       a. FRE 803(2) – statement relating to a startling event made
          while under stress of that event
                i. Need separate evidence that the event occurred;
                   judge to decide per 104(a)
       b. CEC 1240 – Same; judge decides per 405 (bound by rules
          of evidence)
3. Then Existing Mental, Emotional or Physical Conditions
       a. FRE 803(3) – statement re state of mind, emotion,
          sensation or physical condition
                i. Such as intent, plan, motive, design, mental feeling,
                   pain and bodily health
               ii. No statements of memory or belief except re: will
             iii. This statement may not be used to prove the cause
                   of the then existing condition
              iv. ACN - wants to leave Hillmon undisturbed
       b. CEC 1250 – Same; admissible to prove state of mind at that
          or any other time if state of mind at issue; admissible to
          prove or explain acts or conuct; subject to CEC 1252 re
          trustworthiness
                i. Limits Hillmon unless corroborating evidence
       c. CEC 1251 – Previously Existing Mental or Physical State
                i. If Declarant Unavailable; may not be used to prove
                   cause of the state
       d. Common Law
                i. Hillmon – statement if intent introduced to show
                   action in accord with that intent
               ii. Shepard – forward looking statements admissible to
                   show actions in accordance with intent; backward
                   looking statements of memory or belief are not
                   admissible to show actions consistent therewith
4. Statements for Medical Diagnosis or Treatment
       a. FRE 803(4) – describing medical history, past or present
          symptoms
                i. or the general character of the cause thereof if it is
                   reasonably pertinent to diagnosis or treatment
               ii. Applies to statements made to those in the medical
                   profession
       b. CEC 1253 – Applies only to statements by minor (under
          12) victims of child abuse or neglect
       c. Common Law distinction between a treating physician
          (fine) and a physician only employed to testify (not fine)
5. Recorded Recollection
       a. FRE 803(5) – record re a matter the witness had knowledge
          but now does not sufficiently recollect
                i. Record made/adopted when record was fresh and
                   knowledge reflected correctly



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              ii. Record may be read into evidence but not itself
                  received (unless offered by adverse party)
      b. CEC 1237 – Same
      c. Contrast to Recollection Refreshed
               i. FRE 612 – witness may use a writing to refresh
                  either while testifying or before testifying
                      1. court discretion to decide if adverse party to
                          have use of document as well and intro into
                          evidence
                      2. In camera examination by court if necessary
                      3. More flexible approach
              ii. CEC 771 – Same; non-production of writing
                  excused if not in party’s possession or not readily
                  producable
6. Business Records
      a. FRE 803(6) – record in any form,
               i. Made by a person with knowledge
                      1. Johnson v. Lutz – only admissible when
                          those providing the information incorporated
                          into the record has a business duty to
                          transmit the information
                      2. Opinion in business record okay if not too
                          speculative
              ii. Kept in the course of a regularly conducted business
                  activity, and
                      1. It was the regular practice of that activity to
                          make a record
                      2. Palmer v. Hoffman – RR accident report not
                          admissible because not in course of regular
                          RR business (trustworthy)
             iii. Supported by testimony of custodian or self-
                  authenticated
                      1. type of info that someone with knowledge
                          would enter
             iv. Unless source of info, method or circumstances
                  indicate untrustworthiness
              v. Business includes institutions, associations,
                  professions, occupations and callings every kind
                  regardless of profit
      b. CEC 1271 – record made
               i. In regular course of a business
                      1. CEC 1270 – business includes same as
                          above plus government
              ii. At or near time of event
             iii. Custodian testifies to identity and mode of prep




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              iv. Trustworthiness indicated from method and time of
                   prep
       c. Common Law shopbook rule (parties unable to testify)
7. Absence of Entry in Business Records
       a. FRE 803(7) – Absence to prove nonexistence if a record
          would have regularly been made of such a matter
                i. Unless sources or circumstances indicate
                   untrustworthiness
       b. CEC 1272 - Same
8. Public Records and Reports
       a. FRE 803(8) – Records of public offices re:
                i. Internal activities
               ii. Matters observed under duty of law to report
                       1. Excluding criminal matters observed by
                           police and law enforcement
                               a. Law enforcement personnel as
                                    participants in the prosecutorial
                                    effort
                               b. Potential admission if merely
                                    ministerial rather than adversarial or
                                    prosecutorial
                               c. Policy to avoid conviction based on
                                    police report
             iii. Investigation factual findings made by legal
                   authority
                       1. In civil actions and proceedings where the
                           evidence is against the government
                       2. Unless untrustworthy
       b. CEC 1280 – Records of public offices in criminal and civil
          matters when record was
                i. Within scope of public employee’s duty
               ii. Made at or near time of event
             iii. Trustworthy indications
9. Records of Vital Statistics
       a. FRE 803(9) – birth, death, marriage made to public office
          pursuant to legal duty
       b. CEC 1281 - Same
10. Absence of Public Record or Entry
       a. FRE 803(10) – To prove absence of a record or
          nonoccurrence of the event, if event would have been
          regularly recorded and preserved
                i. Evidence of diligent search
       b. CEC 1284 – when offered to prove absence of record
                i. Evidence of diligent search (writing by custodian)
11. Records of Religious Organizations




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       a. FRE 803(11) – marriage, birth death, family history, etc. if
           in a regularly kept record
       b. CEC 1315 – Same as long as in writing like a business
           record, and event the kind to be customarily recorded
12. Marriage/Baptismal/Similar Certificates
       a. FRE 803(12) – Certificate of act and issuance time made by
           clergy or public official authorized by religion or the law
       b. CEC 1316 – Same; includes matters of family history if
           recorder authorized by religion or law
13. Family Records
       a. FRE 803(13) – statements of fact re history contained in
           books or objects (rings, tombstones, etc.)
       b. CEC 1312 - Same
14. Records Affecting an Interest in Property
       a. FRE 803(14) – offered to prove content, execution and
           delivery of original recorded document if in public office
           with authority
       b. FRE 803(15) – statement in document affecting interest in
           property if matter stated relevant to purpose of writing and
           interest in property dealings since have been consistent
           with the truth of the statement
                i. CEC 1330 – Same
15. Ancient Documents
       a. FRE 803(16) – twenty years or older (authenticated)
       b. CEC 1331 – thirty years or older and statement has been
           acted upon as true by those with an interest in the matter
16. Market Reports & Commercial Publications
       a. FRE 803(17) – Published compilations generally used and
           relied upon by the public or professionals
       b. CEC 1340 – Same as long as not an opinion
17. Learned Treatises
       a. FRE 803(18) – As used by or to challenge expert witnesses
                i. Treatise established as a reliable authority
                   (testimony or judicial notice)
               ii. May only be read into evidence
       b. CEC 1341 – Same if made by persons indifferent between
           the parties
18. Reputation Re: Personal and Family History
       a. FRE 803(19) – Reputation among family, associates or in
           the community regarding personal and family history
       b. CEC 1313 – reputation within the family regarding family
           history
                i. CEC 1314 – reputation within the community
                   regarding family history
19. Reputation Re: Boundaries or General History




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              a. FRE 803(20) – Reputation in community prior to
                  controversy
              b. CEC 1320- reputation in community regarding community
                  history
                       i. CEC 1321 – reputation in community re public
                          interest in property (rep prior to controversy)
                      ii. CEC 1322 – reputation in community re boundaries
                          and customs affecting land (rep prior to controvrsy)
                     iii. CEC 1323 – Statement concerning boundary if
                          witness unavailable and had sufficient knowledge
                          (subject to trustworthiness requirement)
       20. Reputation as to Character
              a. FRE 803(21) – among associates or in community
              b. CEC 1324 - Same
       21. Judgment of Previous Conviction
              a. FRE 803(22) – final judgments of felonies offered to prove
                  a fact essential to the judgment
                       i. Judgments against one other than the accused not to
                          be used by government in criminal prosecution
                      ii. May show pendency of an appeal
                     iii. Not permitted if nolo contrendre plea
              b. CEC 1300 – Felony conviction admissible in civil cases
                  even if nolo contrendre plea
                       i. Admissible in criminal trials, too, per CEC 788
              c. CEC 1301 – final judgment admissible when party seeking
                  indemnity, warranty enforcement
              d. CEC 1302 – judgment determining liability of third person
       22. Judgment as to Personal, Family or General History or Boundaries
              a. FRE 803(24) – admissible as to matters essential to the
                  judgment if the same would be provable by reputation
                  evidence
ii. Declarant Unavailable
       1. Definition of “Unavailable”
              a. FRE 804(a) – unavailability as a witness when
                       i. Exempted because of privilege
                      ii. Refusal to testify despite court order
                     iii. Testifies to lack of memory
                     iv. Death or then-existing physical or mental illness
                      v. Absent from hearing and proponent unable to
                          procure via process
                              1. NOT unavailable if due to wrongdoing of
                                  proponent
                              2. Must do more than subpoena, i.e. failed
                                  attempts to depose
                              3. Constitutional right to confront concern,
                                  thus state must establish unavailability by



                                                                            15
                             a. Good faith effort to secure witness
                                presence, or
                             b. Speaker cannot be compelled to be
                                present, and prior testimony was
                                thoroughly tested by cross-exam
      b. CEC 240 – Same
              i. Death or then existing physical or mental illness
                 encompasses bad memory; also includes trauma
                 caused by the alleged crime if established by expert
                 testimony
2. Former Testimony
      a. FRE 804(b)(1) – testimony given at another hearing or
         deposition, if
              i. Offered against same party as offered against before
                     1. Or against predecessor in interest (civil)
             ii. Similar opportunity and motive to develop
                 testimony on direct, cross or redirect
                     1. Opportunity focus rather than actual
      b. CEC 1290 – testimony given at hearing, agency
         proceeding, deposition, or arbitration
      c. CEC 1291 – testimony must be
              i. Offered against the person who first offered it (on
                 his own or successor’s behalf), or
             ii. Offered against a person who was party in former
                 action and who had similar opportunity and motive
                 to cross examine the declarant
            iii. Former testimony not subject to objections
                 regarding form of question or previously non-
                 existing competency or privilege issues
      d. CEC 1292 – Former Testimony Offered Against Person
         NOT a Party to Former Proceeding, okay if
              i. Declarant unavailable;
             ii. civil action; and
            iii. Opportunity and interest/motive to cross-examine
                 declarant at former event is similar to that of the
                 party against whom testimony is being offered in
                 this event
      e. California focus on similarity of what is at stake
3. Dying Declaration
      a. FRE 804(b)(2) – In criminal action for homicide or in a
         civil action, if
              i. Statement made while believing that death was
                 imminent
             ii. Statement concerned the cause or circumstances of
                 the believed impending death
            iii. Actual death not necessary



                                                                      16
       b. CEC 1242 – In any action if
               i. Statement about cause and circumstances of death
              ii. Statement made with personal knowledge and under
                  a sense of immediately impending death
             iii. Actual death is necessary
4. Statement Against Interest
       a. FRE 804(b)(3) – statement at the time of its making was
               i. Against speaker’s pecuniary or proprietary interest
                      1. Subjected speaker to civil or criminal
                          liability or render a claim invalid
                      2. That a reasonable person in speaker’s
                          position would not have made the statement
                          unless believing it to be true
              ii. Statement exculpating the accused requires
                  corroboration of trustworthiness
                      1. Williamson – if statement contains both self-
                          serving and disserving aspects, admit only
                          the disserving parts (criminal)
                      2. Concern with 6 A right to present your case
             iii. Civil case – options to let it all in or balance to
                  determine which aspect predominates; or utilize the
                  Williamson approach
       b. CEC 1230 – if statement
               i. Against speaker’s pecuniary or proprietary interest
                      1. Subjected speaker to civil or criminal
                          liability or render a claim invalid
                      2. Subjected speaker to community disgrace
                      3. That a reasonable person in speaker’s
                          position would not have made the statement
                          unless believing it to be true
              ii. California uses the Williamson approach
5. Statement of Personal or Family History
       a. FRE 804(b)(4) – statement regarding declarant’s own
          family history or pedigree even with no personal
          knowledge, or
               i. Statement about the family history of another
                  person if declarant related or intimately associated
                  with other person so as to have accurate info
       b. CEC 1310 – Statement about declarant’s own family
          history
               i. Same; unless made under circumstances of
                  untrustworthiness
       c. CEC 1311 – Statement about family history of another
               i. Same and statement must be made upon
                  information received by another person’s family or
                  upon repute in the other’s family



                                                                   17
                             ii. Unless circumstances of untrustworthiness
             6. Forfeiture by Wrongdoing
                     a. FRE 804(b)(6) – Statement offered against a party that
                         procured the unavailability of the declarant as a witness
                              i. Wrongdoing a court 104(a) determination
                     b. CEC 1350 – Only in Criminal Felony Actions
                              i. Statement is admissible if clear and convincing
                                 evidence that party against whom statement offered
                                 caused/solicited death by homicide or kidnapping of
                                 declarant
                             ii. And there is no evidence that the offering party
                                 caused/solicited the unavailability
c. Residual Exception
       i. FRE 807 – If not covered by 803 or 804 but having circumstantial
          guarantees of trustworthiness, hearsay admissible if court determines
             1. Statement is offered as evidence of a material fact; and
             2. More probative than any other procurable evidence; and
             3. General purpose of rules and interest of justice will be served
                     a. Requires notice to adverse party
      ii. CEC
             1. CEC 1228 – statements of minors re sexually oriented crime
             2. CEC 1231 – prior statements of deceased declarant (criminal)
d. Authentication
       i. Authentication Required
             1. Generally and Illustrations
                     a. FRE 901(a) – authentication as a condition precedent is
                         satisfied by evidence sufficient to support that the matter in
                         question is what its proponent claims it to be
                     b. CEC 1400 – Same
                              i. CEC 1401 – authentication of a writing is required
                                 before it, or evidence of its content, may be
                                 received
             2. Testimony of Witness with Knowledge
                     a. FRE 901(b)(1) – testimony that a matter is what it is
                         claimed to be
                     b. CEC no equivalent
                              i. CEC 1413 - Witness to execution of a writing
                             ii. CEC 1414 – Authentication by admission
             3. Non-expert Opinion on Handwriting
                     a. FRE 901(b)(2) – based upon familiarity not gained for
                         purposes of litigation
                     b. CEC 1416 – personal knowledge of handwriting
             4. Comparison by Trier or Expert Witness
                     a. FRE 901(b)(3) – comparison with specimens which have
                         been authenticated
                     b. CEC 1417 – trier of fact comparison of handwriting



                                                                                    18
                        i. CEC 1418 – comparison of writing by expert
                           witness
        5. Distinctive Characteristics and the Like
               a. FRE 901(b)(4) – appearance, contents, substance patterns,
                   etc. Taken in conjunction with circumstances
               b. CEC 1421 – authentication by content
        6. Voice Identification
               a. FRE 901(b)(5) – whether heard firsthand or through
                   electric device, by opinion based upon hearing the voice at
                   any time
               b. No CEC Equivalent
        7. Telephone Conversations
               a. FRE 901(b)(6) – used by caller to prove call was received
                   by evidence of self-identification or place of
                   business/business related conversation
               b. No CEC equivalent
        8. Public Records or Reports
               a. FRE 901(b)(7) – evidence that a writing authorized to be
                   recorded, and in fact recorded, is from the public office
                   where items of this nature are kept
               b. CEC 1600 – Record of Document Affecting Property
                   Interest is prima facie evidence of existence and content if
                        i. Record of an office of public entity, and statutory
                           authority to record that document in that office
        9. Ancient Documents or Data Compilation
               a. FRE 901(b)(8) – evidence that a document
                        i. Condition does not create suspicion as to
                           authenticity
                       ii. Was in a place where it would likely be if authentic
                      iii. 20 or more years old when offered
               b. CEC 643 – deed or will presumed authentic if
                        i. 30 or more years old
                       ii. Condition does not create suspicion
                      iii. Was in a place where it would likely be if authentic
                      iv. Has been acted upon a s authentic by people with
                           interest
        10. Process or System
               a. FRE 901(b)(9) – evidence describing process or system and
                   showing that the process or system produces an accurate
                   result
               b. No CEC Equivalent
        11. Methods Provided by Statute or Rule – FRE 901(b)(10)
ii. Self-Authentication (Extrinsic evidence not required) – exclusive list
        1. Domestic Public Documents Under Seal
               a. FRE 902(1) – Seal assumed genuine if of USA, state,
                   department, officer or agency and a signature



                                                                            19
        b. CEC 1452 – Seal assumed genuine if same as above plus
             foreign nation or foreign public entity recognized by the
             USA, admiralty court, notary public of any US state
2.   Domestic Public Documents Not Under Seal
        a. FRE 902(2) – Fine if a public officer certifies under seal
             that the signature on the unsealed document is genuine
        b. CEC 1453 – Domestic official signatures presumptively
             genuine if by public employee or notary public
3.   Foreign Public Documents
        a. FRE 902(3) – document with final certification by foreign
             official
                  i. Final certification may be made by secretary of
                      embassy/consul of USA
                 ii. Court may order foreign official documents
                      presumptively authentic if parties have had
                      opportunity to inspect
        b. CEC 1454 – foreign official signatures presumed genuine if
             accompanied by final certification
                  i. Embassy/consul secretary may make final
                      certification
4.   Certified Copies of Public Records
        a. FRE 902(4) – document authorized and actually recorded
             and filed in public office
                  i. certified in compliance with 902(1,2 or 3) as correct
                      by custodian
        b. CEC1530 – Copy of writing in official custody prima facie
             evidence of existence and content if
                  i. Purportedly published by authority of nation/state
                 ii. Kept in public office and certified as correct by
                      public employee/custodian, or
                iii. Not kept in USA, but attested as correct by
                      authorized person
                          1. Attestation must be accompanied by a final
                              certification of signatory’s identity and
                              official position
5.   Official Publications
        a. FRE 902(5) – books or other publications purporting to be
             issued by public authority
        b. CEC 644 - Same
6.   Newspapers and Periodicals
        a. FRE 902(6) – printed materials purporting to be
             newspapers or periodicals
        b. CEC 645.1 – Same if regularly issued at average intervals
             of at least 3 months
7.   Trade Inscriptions and the Like




                                                                       20
                     a. FRE 902(7) – Labels etc. affixed in the course of business
                         and indicating ownership, control or origin
                     b. No CEC Equivalent
             8. Acknowledged Documents
                     a. FRE 902(8) – Documents accompanied by a certificate
                         acknowledged by a notary public of other authorized
                         officer
                     b. CEC 1451 – Same (linked to Civil Code)
             9. Commercial Paper and Related Documents
                     a. FRE 902(9) – commercial paper and signatures on it, and
                         documents relating to it to extent provided by general
                         commercial law
                     b. No CEC Equivalent
             10. Presumptions Under Acts of Congress
                     a. FRE 902(10) – Presumptively valid if declared by Congress
                     b. No CEC Equivalent
             11. Certified Domestic Records of Regularly Conducted Activity
                     a. FRE 902(11) – Domestic record of a regularly conducted
                         activity admissible as an 803(6) Business Record if
                         certified by custodian that the record was
                              i. Made at/near time of occurrence by person with
                                 knowledge,
                             ii. Was kept in the course of a regularly conducted
                                 activity, and
                            iii. Was a regular practice of the regularly conducted
                                 activity
                            iv. Must have written notice and opportunity to inspect
                                 to adverse parties
                     b. No CEC Equivalent
             12. Certified Foreign Records of Regularly Conducted Activity
                     a. FRE 902(12) – In civil case, foreign record of a regularly
                         conducted activity admissible as an 803(6) Business
                         Record if certified by custodian that the record was
                              i. Made at/near time of occurrence by person with
                                 knowledge,
                             ii. Was kept in the course of a regularly conducted
                                 activity, and
                            iii. Was a regular practice of the regularly conducted
                                 activity
                            iv. If falsely signed then subject to criminal penalty
                             v. Notice to adverse parties & opportunity to inspect
                     b. No CEC Equivalent
e. Contents of Writings, Recordings & Photographs
      i. Definitions
             1. Writings and Recordings




                                                                                21
               a. FRE 1001(1) – words set down by any form of data
                    compilation
               b. CEC 250 – Same, includes electronic mail and fax, any
                    form of communication or representation
        2. Photographs
               a. FRE 1001(2) – stills, x-rays, video, motion pictures
               b. CEC 250 – encompasses photographs
        3. Original
               a. FRE 1001(3) – original writing/recording itself or
                    counterpart intended to have the same effect by the issuer;
                    computer printout is considered an original
               b. CEC 255 - Same
        4. Duplicate
               a. FRE 1001(4) – an accurate reproduction made from same
                    impression as original by photography, etc.
               b. CEC 260 - Same
 ii. Original Document Rule
        1. FRE 1002 – Must have the original in order to prove content,
           except as otherwise provided in these rules
        2. CEC 1520 – Content may be proved by otherwise admissible
           original
        3. Applies to documents only
        4. Rule of Preference for original writings
iii. Admissibility of Duplicates
        1. FRE 1003 – duplicate admissible to same extent as original unless
               a. Question as to authenticity of original, or
               b. Circumstances make it unfair to admit
        2. CEC 1521 – Secondary Evidence Rule – content of a writing may
           be proved by admissible secondary evidence unless
               a. Dispute about material terms of writing and justice requires
                    exclusion, or
               b. Admission would be unfair
               c. Thus all secondary evidence is admissible unless objection
        3. CEC 1522 – secondary evidence of content in a criminal action
               a. Exclude if original in proponent’s possession and he has
                    not made it reasonably available for inspection pre-trial
               b. This section N/A to duplicates, writings not closely related
                    to controlling issue, copy of writing in public custody
               c. Request to exclude is to be made out of jury presence
iv. Other Evidence of Contents
        1. FRE 1004 – Copies and other evidence admissible if
               a. Originals Lost or Destroyed – unless proponent lost or
                    destroyed them in bad faith
               b. Original Not Obtainable – by any judicial process
               c. Original In Possession of Opponent – and put on notice but
                    failed to produce the original



                                                                            22
                             d. Collateral Matters – if writing is not closely related to a
                                 controlling issue
                     2. CEC 1523 – Oral Testimony of Contents of a Writing
                             a. Oral testimony re content not admissible unless:
                                      i. Proponent does not have possession of copy and
                                         original lost or destroyed without bad faith,
                                     ii. No possession and writing/copy not procurable by
                                         judicial process, or writing not closely related to
                                         controlling issue (inexpedient to require)
                     3. CEC 1550 – Evidence of writing as admissible as writing itself
                             a. Made and preserved as part of business records
                             b. CEC 1550.1 – admissible if reproduction in official custody
                                 of criminal justice agency
                             c. CEC 1552 – Photographic copies where originals lost or
                                 destroyed, if certification by reproducer
                     4. CEC 1601 – Proof of content of lost official record affecting
                         property – abstracts of title
            v.    Public Records
                     1. FRE 1005 – Contents of official record that is actually recorded or
                         filed may be proved by
                             a. Certified copy (per 902), or
                             b. By testimony by witness who has compared it to original
                             c. If neither of these are obtainable with reasonable diligence,
                                 other evidence of contents may be given
           vi.    Summaries
                     1. FRE 1006 – Summaries, charts or calculations fine as long as
                         originals/duplicates made available for examination by other
                         parties
          vii.    Testimony or Written Admission of a Party
                     1. FRE 1007 – Contents may be proved by testimony or written
                         admission of party against whom offered
                             a. No need to account for nonproduction of original
          viii.   Functions of Court and Jury
                     1. FRE 1008 – Normally, question of admissibility of other evidence
                         of contents of writings is a 104(a) determination for the court
                             a. However it becomes a 104(b) jury determination when:
                                      i. Issue of whether writing ever existed,
                                     ii. Whether another writing produced is an original,
                                    iii. Or whether other evidence of contents correctly
                                         reflects the contents

V.   Confrontation and Compulsory Process
     a. Triggered if
            i. Criminal trial, and
           ii. Statement is hearsay, with corresponding exception
     b. Crawford v. Texas



                                                                                          23
              i. If a statement is “testimonial” then it is admissible unless
                      1. Declarant is a witness; or
                      2. Declarant is unavailable and the defendant had an adequate
                          opportunity at an earlier time to cross-examine the declarant; or
                      3. Forfeiture of defendant’s confrontation rights because of
                          wrongfully procuring unavailability
             ii. What is testimonial?
                      1. Clearly testimonial – testimony, statements made during police
                          interrogation, and affidavits
                      2. Likely testimonial – Law enforcement business records, statements
                          in response to police questions, civil lit. affidavits and testimony
                      3. Might be testimonial – elicitations by public officials, dying
                          declarations to law enforcement, excited utterances, records for
                          non-testimonial purpose
                      4. Not testimonial – Business and public records, casual statements,
                          conspirators’ statements made during conspiracy
            iii. Open Questions
                      1. What makes a statement testimonial?
                              a. Expectation that the statement will be used in a trial
                              b. Or because it was a police interrogation
                      2. Roberts test still alive for non-testimonial hearsay?
                              a. Confrontation clause not offended if there is a firmly rooted
                                  exception and indicia of reliability

VI.   Experts and Science
      a. Testimony by Experts
             i. FRE 702 – If specialized knowledge will assist the jury to determine a fact
                     1. Specialized knowledge by way of knowledge, skill, experience,
                         training, or education
                     2. Conditions
                             a. Sufficient facts or data
                             b. Reliable principles and methods
                             c. Reliable application of principles/methods to facts of case
                     3. Policy – not to invade the province of the jury
                     4. Court decides per 104(a) standard “evidence sufficient to support a
                         finding” of expertise
            ii. CEC 720 – Qualifications the same
      b. Bases of Opinion Testimony by Experts
             i. FRE 703 – expert may base opinion on inferences learned before or at
                trial; facts or data need not be admissible
                     1. Expert must rely on the general body of specialized knowledge that
                         constitutes her field
                     2. Experts may rely on other people’s observations about the person,
                         subject or event at issue
            ii. CEC 801 – Base opinion on matter perceived, personally known or
                learned at or before trial



                                                                                           24
              1. CEC 804 – if Opinion based on opinion or statement of another,
                  than that other person may be called and examined
                      a. unless that other person is a party or a testifying witness
                      b. permissible if person is not available
     iii. Common Law – required experts to base opinions solely on own
          observations or from explicitly assumed facts drawn from evidence in the
          record
c. Disclosure of Facts or Underlying Data
       i. FRE 705 – Expert may testify in terms of opinions or inference and give
          reasons therefore, without first testifying to the underlying facts or data
              1. Expert may be cross examined about bases for opinion whether or
                  not they were discussed on direct
              2. Thus expert permitted to offer opinion evidence that is based on
                  hearsay or other inadmissible evidence; and allowed to explain
                  their opinions
                      a. In theory, any hearsay that comes out in this explanation
                          may only be used in evaluating the expert’s opinion and not
                          as substantive evidence of underlying facts (thus limiting
                          instruction per FRE 105)
              3. Only limitation to expert’s right to rely on inadmissible evidence is
                  the requirement that the expert’s reliance on these facts or data be
                  reasonable for an expert in her field
                      a. Traditionally satisfied by asking the expert herself
      ii. CEC 802 – Witness may state on direct the reasons for her opinion and the
          matter upon which it is based
              1. CEC 721 – Cross exam of witness
     iii. Common Law – witness not permitted to testify to an expert opinion
          without first specifying the information on which she relied
d. Special Issues Concerning Scientific Evidence
       i. Frye – the California Approach
              1. For novel scientific techniques and theories, if it has gained
                  general acceptance in its own field it may be admitted
      ii. Daubert – the FRE Approach
              1. Judge determines relevance and reliability
              2. Factors
                      a. Testable and tested
                      b. Peer review and publication
                      c. Known or potential rate of error
                      d. Existence of standards and controls
                      e. General acceptance
                      f. Research done independently of litigation
                      g. Expert as careful as she would have been outside paid litig.
                      h. Adequately accounted for alternatives
              3. Post-Daubert decisions
                      a. Kumho – extends Daubert test to non-scientific testimony




                                                                                   25
                            b. Proponent of expert evidence has the burden of establishing
                               reliability
                            c. Abuse of discretion standard on appeal
                                    i. A court may conclude that there is too great an
                                        analytical gap between the data and the opinion

VII.   Burdens and Presumptions
       a. Burden of Production (burden of going forward)
              i. Civil
                    1. Burden on the party challenging the status quo
                    2. Judicial decision
                    3. Standard depends on the jurisdiction
                            a. Any evidence
                            b. Evidence showing a general controversy
                            c. Sufficiency
                            d. Preponderance
             ii. Criminal
                    1. Standard for admissibility varies
                            a. Relevance, sufficiency, preponderance, clear & convincing,
                               beyond a reasonable doubt
                    2. Defendant’s right to proof beyond a reasonable doubt (triggered by
                        matters of criminal guilt and sentence enhancements)
                            a. If beyond a reasonable doubt, then jury must decide
                            b. Otherwise potentially a preponderance standard
       b. Presumptions
              i. Civil
                    1. Approaches (only apply to Y issues)
                            a. THAYER – speaks to JUDGE regarding the burden of
                               going forward
                                    i. Relates to this litigation only
                                   ii. Opponent need move the boulder only a tiny bit and
                                       the bubble bursts – the presumption is gone
                                           1. Since no presumption, no instruction
                            b. MORGAN – speaks to JURY regarding burden of proof
                                    i. Relates to public policy
                                   ii. Opponent need move the boulder all the way to a
                                       preponderance
                                           1. Thus jury instruction
                                                   a. If find X, Must find Y, Unless
                                                       persuaded that Y does not exist
                    2. FRE 301 – presumption shifts the burden of going forward, but not
                        the burden of proof (which remains on the same party throughout)
                            a. Thayer Approach
                            b. Judge decides if the bubble has burst via “any evidence”
                               standard
                    3. California – must argue for the proper approach



                                                                                       26
                                 a. CEC 603 – Presumption established for no public policy
                                    other than to facilitate this litigation (only shifts burden of
                                    going forward)
                                         i. Thayer approach
                                        ii. CEC 604 – Judge decides if the bubble has burst by
                                            a sufficiency standard (higher than in FRE)
                                 b. CEC 605 – Presumption established for public policy
                                    purposes (shifts the burden of proof)
                                         i. Morgan approach
                          4. Conclusive presumptions are a matter of substantive law and
                             policy-based
                                 a. If X, Must Y.

Presumption Chart:
Opponent’s Response               Thayer/FRE               Morgan
No evid. on X or Y                DV for Proponent         Same
Evid. supporting a finding that   Jury instruction to      Same
X does not exist                  find Y if jury finds X
Evid. that contradicts            No jury instruction      Jury instructed to find Y unless
Y’s existence                     requiring a finding      persuaded that Y does not exist

                  ii. Criminal
                         1. Test re Constitutionality
                               a. Link/quality of logical connection between X and Y
                                        i. Must look to logic and experience (thus fact-based
                                           not policy based)
                                       ii. Jury must use its own assessment to ensure the link
                                           to believe that Y has been proved beyond a
                                           reasonable doubt – First A right to a jury trial
                                      iii. Test the linkage by looking at this case specifically
                                           as applied
                                               1. dissent in Ulster would have looked at this
                                                   type of linkage generally on its face
                               b. Jury in control of its decision
                                        i. Therefore instruction should be “If X, May Y”
                                           rather than “Must”
                                       ii. Jury to use its own assessment rather than
                                           substituting assessment of legislature
                                      iii. Fifth A concerns regarding need for prosecution to
                                           prove every element beyond a reasonable doubt




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