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l Measures or Repairs 2. a. In admissible to prove culpable conduct b. Inadmissible to prove defective product design in product liability c. Admissible to prove anything else (i.e. responsibility of maintenance) d. Admissible to rebut defense of no feasible precaution (D argues there was nothing he could have done to avoid accident) Settlements/Offers to Settle/Pleas 3. a. CIVIL case, evidence of settlements, offers to settle, and related statements Inadmissible to prove liability or fault b. CRIMINAL case, evidence of pleas, offers to plea, and related statements are inadmissible to prove guilt (also includes plea of nolo contendere and statements made during negotiations) c. NOTE: this protection only available if CLAIM already filed (attempt to settle right after accident, for example, would not be protected because claim not filed yet) d. Exception to settlement rule is available where no dispute as to liability or damages (ex: D: “I admit I owe you $1000 you are claiming, but I’ll only pay you $50. Take it or leave it!” Nothing to settle so not a settlement.) Payment or offers to pay medical expenses 4. a. Inadmissible when offered to prove liability for injuries in question b. NOTE: statements made during payment offer are admissible (ex: I will pay for your hospital stay since it was totally my fault” Italics admissible c. Difference between payment rule and settlement rule: settlement will be negotiating (“if you will sign this…”) Similar occurrences (8 types of cases) 5. a. Similar occurrences sometimes admissible to prove causation (in order to make the cut, it usually needs to be same place and same time (ex of food poisoning at McDonalds) b. Prior accidents or claims USUALLY irrelevant (especially if no similarity in place and time) i. EXCEPTION for pattern of fraudulent claims (quite unusual) ii. EXCEPTION for preexisting condition (same bone broken in previous accident) c. Previous similar acts relevant to prove intent (in action for employment discrimination, show that in 100 other instances, D always hired man over qualified female) d. Evidence relevant to rebut a defense of impossibility e. Comparable sales relevant to establish value (in prop dispute, evidence of sales price of similar prop in same area and sold at same time is relevant) f. Habit evidence admissible
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Distinguish from Character evidence (which is often inadmissible): Character evidence says something general about a person and conveys a moral judgment; whereas habit describes specific conduct and makes no moral judgment ii. Habit has to be frequent (always does it, not just twice) g. Routine practice evidence (business habit) h. Industrial custom evidence relevant to prove standard of care in negligence case (ex: no bus company has tracking device…) CHARACTER EVIDENCE A. Four question approach: 1. What is the purpose for which the character evidence is offered? a. Offered to prove character because character is an issue in the case i. Cases: defamation of character; negligent entrustment (suit against parents claiming they were negligent to give the car to their teenage son, who they knew to be reckless); child custody disputes ii. Methods: can use all methods when character is in issue (specific instances of conduct, opinion, and reputation) b. Offered to prove character as circumstantial evidence of a person’s conduct on the occasion in question c. Offered to impeach or support the credibility of a witness What method or technique is used to prove character? 2. a. Specific acts of conduct b. Opinion c. Reputation Is it a civil or criminal case? 3. Civil case a. i. Character evidence Inadmissible to prove conduct ii. EXCEPT where civil claim is based on sexual assault or child molestation (in such case, D’s prior acts of sexual assault or child molestation ARE admissible to prove conduct) Criminal case b. i. 2 doors to admissibility of character evidence to prove conduct Both closed at beginning of case Usually, ONLY defendant can open these doors Usually, they are opened separately DEFENDANT’S DOOR ii. Prosecution cannot be first to open EXCEPTION: in case of sexual assault or child molestation, prosecution can be the first the open the door by offering evidence that defendant committed other acts of sexual assault or child molestation EXCEPTION: where court has admitted evidence of victim’s character offered by defendant, prosecution can be first to offer evidence that defendant has same character trait Evidence must ALWAYS concern a PERTINENT character trait (not evidence of dishonesty if this is a child rape case) DIRECT EXAMINATION: No specific instances evidence allowed (only reputation and opinion evidence) CROSS EXAMINATION: Everything allowed on cross as long as within same subject matter as direct examination VICTIM’S DOOR iii.
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First way to open door: Defendant can open the door: if defendant offers evidence of victim’s character, prosecution may rebut Second way to open door: in a homicide case, if defendant offers evidence victim attacked first, prosecution may offer evidence of victim’s character for peacefulness Doors usually open separately EXCEPT after court admits defense evidence of victim’s violent character, prosecution offers evidence of defendant’s violent character Character rules only apply when evidence being used to prove character (i.e., not state of mind, etc.) Rape Shield Statute iv. Special rules in civil and criminal cases limiting defense evidence of alleged victim’s character when offered to prove CONSENT Criminal rules: reputation and opinion evidence inadmissible. Specific instances of alleged victim’s conduct ADMISSIBLE ONLY to prove either third party is source of semen or injury OR prior acts of consensual intercourse between defendant and alleged victim Civil rules: reputation, opinion, and specific instances evidence IS admissible IF probative value substantially outweighs unfair prejudice AND, in the case of reputation evidence, plaintiff put her reputation at issue Does the evidence prove a pertinent character trait? 4. 5. NOTE: specific instances of defendant’s bad conduct may be admitted to prove ANYTHING OTHER THAN CHARACTER that is relevant a. MIMIC: motive, intent, mistake, identity, common plan or scheme b. Identity requires similarity and uniqueness c. Because there is a threat that the jury will still use this evidence to prove character, the court has the discretion to exclude it for unfair prejudice TESTIMONIAL EVIDENCE A. Competency: Who can testify? (4 requirements) 1. Personal Knowledge a. Distinguish bet. Personal knowledge and hearsay objections i. Does the fact perceived= the fact testified to? If not, Personal knowledge objection. ii. Does the witness quote someone or explicitly refer to someone’s out of court statement? If so, hearsay is the objection. iii. Perceptions may be limited (can admit what you saw but that there was poor lighting/ no problem) TEST: “sufficient to support a finding” 2. Present recollection a. Witness must testify from present recollection, not from some record regarding matters the witness once knew but has now forgotten 3. Communication a. Witness must be able to relate perception either directly or through interpreter 4. Sincerity a. Witness must take oath or make affirmation to tell truth 5. Only the judge and jurors are absolutely disqualified from testifying Objections to form of testimony and questions. B. Need TIMELY and SPECIFIC objection or else objection is waived
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Calls for narrative (no rambling/ question needs to be specific) Unresponsive (not answering question posed/ motion to strike answer) Usually no leading on direct Leading OK on cross (but must stay within scope of direct/ no new subjects/ if want, judge can allow new subject but will be subject to direct exam rules) 5. Leading OK on direct if adverse witness, hostile witness, witness needing help (NOT SURE WHAT AN ADVERSE WITNESS IS/ PLEASE FIND OUT!) 6. Assumes facts not in evidence (or question is misleading) 7. Argumentative (not a real question/ rhetorical) 8. Compound question (multiple questions in one) Refreshing Recollection of a witness (WATCH FOR HEARSAY ISSUES!) 1. Requires silent review of record (if read out loud, have hearsay objection) 2. Anything can be used to refresh recollection 3. Opponent may inspect and offer into evidence anything used to refresh 4. Recorded recollection exception to hearsay rule (doctor silently reads report but still does not remember your client’s case)/ need the record admitted into evidence…Requirements to get around hearsay: a. Witness once had PERSONAL KNOWLEDGE of the facts, AND b. Document was MADE by witness or under witness’s direction or was ADOPTED by witness. Adoption=another person made the record and witness did or said something to indicate she agree with contents, AND c. Document was written or adopted at a time when the facts were FRESH IN THE WITNESS’S MEMORY, AND d. Document was ACCURATE when made; AND e. Witness now has INSUFFICIENT RECOLLECTION to testify as to the matters contained in the document Opinion testimony 1. Lay opinion a. Admissible if i. Based on witness’s perception ii. Rationally based iii. Helpful to the jury (Gives them MORE info than would testimony limited to describing witness’s perceptions) b. Lay opinion permitted as to: speed of auto, sanity, intoxication, emotions, value of witness’s property c. NO LEGAL CONCLUSIONS (LESS helpful, ex: in my opinion, she was driving negligently) Expert opinion 2. a. 5 requirements for admissibility: i. Helpful to jury (expert uses specialized knowledge to reach conclusion the average juror could not figure out for herself) ii. Witness must be qualified (do not have to have degree) iii. Witness must believe in opinion to reasonable degree of certainty iv. Opinion must be supported by a proper factual basis Must be based on ONE of the following: Admitted evidence Personal knowledge Inadmissible evidence reasonably relied upon v. Opinion must be based on reliable principles that were reliably applied; Must satisfy the 4 prongs of Daubert/Kumho standard: Peer reviewed and published Tested and is subject to retesting Low error rate Reasonable level of acceptance (CA law requires general acceptance which is a higher standard)
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On BAR: in real world, get expert to give opinion by posing factual similar hypothetical question. These facts have to be in evidence. Based on these, he will give his opinion. Learned treatise hearsay exception c. i. Learned treatise admissible to prove anything stated therein if it is an accepted authority in field Evidence of Witness Credibility 1. WATCH FOR HIDDEN HEARSAY ISSUES when a prior statement of a witness is offered to attack or support credibility 2. Evidence to support credibility a. Inadmissible unless credibility attacked first b. Prior consistent statement is admissible for all purposes if made BEFORE bribe or inconsistent statement; otherwise, it is inadmissible 3. Impeachment a. 3 step approach i. What is the source of impeachment? extrinsic evidence or testimony at this proceeding of witness being impeached? ii. If extrinsic, is it admissible given impeachment technique? iii. Any other foundation requirements? b. Define extrinsic evidence: Any evidence (other than testimony given at this proceeding by the witness being impeached, such as testimony of other witnesses, writings, prior statements of witness who is now testifying) Impeachment by Contradiction c. i. If offering extrinsic evidence to simply impeach on a collateral (not material issue in case) matter and says nothing about witness credibility other than to contradict the witness, it is NOT admissible d. Impeachment by Prior Inconsistent Statement (PIS) i. Admissible to impeach but not to prove the truth of the matter asserted ii. If try to admit for prove the statement, it is hearsay and not admissible iii. PIS under oath NOT hearsay under FRE (admissible to both truth of statement and to impeach) iv. The extrinsic evidence of the statement can be offered if witness given opportunity to explain or deny it (Foundation requirement) Impeachment with Evidence of Bias, Interest, Motive e. i. Admissible but also has a foundation requirement (see above) Impeachment with Conviction for Crime Involving False Statement f. i. All convictions (felonies and misdemeanors) for crimes of false statements (perjury, forgery, fraud) are admissible to impeach witness. ii. No balancing of prejudice vs. probative unless conviction more than 10 years old Impeachment with Conviction for a Crime Not Involving False g. Statement i. Felonies that do not involve false statement (murder, robberty, rape, etc.) MAY BE admissible to impeach but court may exclude for unfair prejudice. ii. Misdemeanors that do not involve false statement are Inadmissible to impeach iii. 10 year rule again (since date of conviction or release from prison, whichever is later) h. Impeachment with Non-conviction Misconduct Evidence Bearing on Truthfulness
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i. V. HEARSAY A. KEY:
Acts of misconduct that did not result in a conviction are admissible to impeach in both civil and criminal cases IF THE ACTS INVOLVE LYING. ii. Extrinsic evidence to prove acts inadmissible iii. Impeacher may only cross-examine witness about her misconduct. If she chooses to lie, no way of proving otherwise but subject to perjury later if she is found out Impeachment with Reputation and Opinion Regarding Truthfulness i. Extrinsic evidence admissible
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Easy to understand hearsay if you keep in mind that Hearsay is inadmissible because the speaker cannot be cross-examined when she speaks out of court. Without cross examination, we cannot tell if the speaker is lying or mistaken about the facts in her statement. Definition 1. Out of court a. Can be a court statement but just not THE CURRENT court 2. Statement a. Verbal or written expression of PERSON OR b. Conduct by person intended to communicate such as pointing 3. To prove truth of matter asserted (Three step approach) a. Find the statement b. Ask what it is offered to prove c. Will jury be misled if the out of court speaker was lying or mistaken? Exceptions and Exemptions to Hearsay Rule 1. On MBE a. “Hearsay but admissible” equals EXCEPTION b. “Admissible because not hearsay” equals EXEMPTION 2. Admissions (Exemption) a. Party (2 elements) i. Statement by party OR someone whose statement is attributable to a party ii. AND Offered by a party opponent b. Vicarious i. Statement by authorized spokesperson of party OR employee of party concerning matter within scope of employment and made during employment relationship (authorization can be express or implied) ii. AND Offered by a party opponent c. Adoptive (Tacit) i. Nonparty makes statement and party indicates belief in its truth ii. AND offered by a party opponent d. Co-conspirator statements i. Statement made during course and in furtherance of conspiracy ii. AND offered by a party opponent 3. Other Exemptions briefly mentioned (in situation where a declarant is now testifying at trial) a. Prior inconsistent statement given under oath b. Prior consistent statement offered to rebut charge of recent fabrication or improper influence or motive c. Statement of ID of a person made after perceiving person (police lineup) 4. Unavailability Exceptions a. Define “unavailable” declarant i. Covered under privilege ii. Dead or sick iii. Not responding to process or other reasonable means
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iv. Refuses to testify despite court order v. Memory fails b. Declarations against interest i. Statement admissible if, at time it was made, it was against the financial interest of declarant or would have subjected declarant to criminal liability ii. If offered to exculpate accused (by showing someone else confessed to the crime), there must be corroborating evidence to admit the statement iii. Different from party admissions (which are made by party), these declarations are made by anyone. Also, DAI must be against interest when made. c. Dying declarations i. Statement made by one believing he is about to die and describing cause or circumstances leading to impending death ii. ONLY admissible in civil action and homicide prosecution d. Former testimony i. Testimony given by person in earlier proceeding or deposition is admissible if the party AGAINST whom the testimony is now offered had, during the earlier proceeding, an OPPORTUNITY to examine that person AND the MOTIVE to conduct the exam was similar to the motive the party has now OR ii. In a CIVIL case, the party against whom the testimony is now offered was not present in the earlier proceeding but has a close privity-type relationship with someone who was a party to that earlier proceeding (“predecessor in interest”) and who had an opportunity and similar motive to examine the witness in that earlier proceeding Reliability Exceptions a. Excited utterances (TIMING not issue, just be excited) i. Statement relating to startling event or condition (AND) ii. Made while declarant was still under stress of excitement caused by event or condition b. Present sense impressions (TIMING is issue) i. Statement describing or explaining an event or condition (AND) ii. Made while declarant was perceiving the event or condition or immediately thereafter c. Bodily condition i. Statement by one person concerning the past or present mental or physical condition, or its cause, of that person or any other person, is admissible if made for and pertinent to medical diagnosis or treatment. ii. Does not have to be offered by party opponent like a party admission iii. Rule does not require speaking to Doctor, just someone like a mother who can diagnose d. Present state of mind i. Statement of declarant’s then existing state of mind is admissible to show the condition or state of mind ii. NOT admissible to prove the fact remembered or believed; look out for following statements: “I remember/believe the defendant shot the victim” Documentary exceptions a. Past recollection recorded (WHAT IS THIS? NOT IN NOTES) b. Business records
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Admissible if meets 5 part test: 1. Record of events, conditions, opinions, or diagnoses 2. Kept in course of regularly conducted business activity 3. Made at or near time of matters described 4. By person with knowledge of the facts in that record 5. It was regular practice of business to make such record ii. Watch out for multiple layers of hearsay (doctor/typer/quoting patient) c. Official records/Public records i. Record of a public office is admissible if within one of the following categories 1. Record describes activities of the office 2. Record describes matters observed pursuant to duty imposed by law 3. Record contains factual findings resulting from investigation made pursuant to authority granted by law, unless untrustworthy 4. NOTE: prosecution cannot use #2 or #3 above in CRIMINAL CASE 7. Other exceptions a. Ancient documents i. GET INFO SINCE NOT IN NOTES b. Learned treatises i. GET INFO SINCE NOT IN NOTES c. Judgment of previous conviction i. WHERE SHOULD THIS EXCEPTION GO SINCE IT IS IN NOTES BUT NOT ON WORKSHOP OUTLINE ii. d. Federal catch all i. GET INFO SINCE NOT IN NOTES Confrontation Clause 1. Even if evidence survives the Hearsay problems, the Confrontation clause of the US Constitution might make still make inadmissible an out of court statement offered by the prosecution against defendant in a criminal case 2. Under Crawford v. Washington, the CC excludes an out of court statement IF declarant does not testify at trial, is now unavailable, the statement is “testimonial” and defendant had no chance to cross examine declarant about the statement when it was made 3. Full meaning of “testimonial” is unclear, but it AT LEAST applies to statements made in court and statements made to further a police investigation aimed at producing evidence for a prosecution. 4. Statements to police to deal with an ongoing emergency are non-testimonial and their admission does not violate the CC
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WRITINGS AND OTHER PHYSICAL EVIDENCE A. Authentication 1. Every item of non-testimonial evidence must be authenticated. BURDEN OF PROOF IS LOW “reasonable person standard” 2. Signatures a. Can be authenticated by admission, eyewitness testimony, expert opinion, lay opinion, and circumstantial evidence, or a genuine exemplar (signed pleading, etc.) b. The “ancient documents rule” applies if document is 20 years old or more, does not on its face present any irregularities (i.e., erasures) and was found in a place of natural custody
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Self authenticating writings (certified copies of public documents, acknowledged documents, official publications, newspapers, periodicals, business records, and trade inscriptions 4. Photos (watch for personal knowledge problem: if witness testifying to what is in picture, it is fine; however, if witness asked about when photo taken, etc., they would need to be the photographer) 5. Authentication of non-unique items (bag of white powder): authenticate by laying the chain of custody B. Best Evidence Rule 1. Originals (writings, photos, xrays, videos, audio, or any tangible collection of date) required when offered to prove the contents of a writing. 2. EXCEPTIONS: a. Voluminous documents exception: can be summarized if originals available for inspection b. Duplicates (a copy of original produced by same impression that produced the original or by a machine/ not a handwritten copy) usually also admissible c. Duplicates NOT admissible where there is a genuine question as to authenticity of the original (want to be able to inspect for erasures, etc.) d. Testimony regarding the contents of a writing may be admissible where original lost or destroyed UNLESS by faith by proponent of testimony PRIVILEGES A. Attorney-Client Privilege 1. A communication between attorney and client or their representatives intended by client to be confidential and made to facilitate legal services is privileged in all civil and criminal proceedings UNLESS waived by the client 2. Privilege applies to communications from employees/agents if the corporation authorized the employee/agent to communicate to the lawyer 3. Anyone lawyer hires to help case is covered 4. Privilege survives death 5. EXCEPTION: Does not apply where: a. Professional services sought to further what client knew or should have known to be a crime or fraud (unless crime already committed), OR b. Communication relates to alleged breach of duty between lawyer and client, OR c. two or more parties consult an attorney on a matter of common interest and the communication is offered by one of these parties against another d. If claim involves breach of duty between lawyer and client, privilege waived B. Psychotherapist/Patient & Social Worker/Client Privileges 1. If intended to be confidential AND 2. If made to facilitate rendition of professional services 3. UNLESS waived by client C. Doctor/patient Privilege 1. NO doctor patient privilege under FRE, but CA has limited one (only CIVIL) 2. If privilege exists, it requires: a. Info must be intended by patient to be confidential b. Info conveyed to doctor must be pertinent to diagnosis or treatment 3. EXCEPTION: a. NOT where patient puts his physical condition in issue, as in a personal injury suit b. NOT where physician’s services sought to aid in crime or fraud or to escape capture after a crime or tort c. NOT in case alleging breach of duty arising out of physician-patient relationship, as in malpractice actions D. Spousal Privileges 1. Permits witness to refuse to testify against his/her spouse as to anything (ONLY CRIMINAL)/ Witness HOLDER of privilege
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Spousal confidential communication privilege protects confidential spousal communications during marriage (Both CIVIL and CRIMINAL) Both parties HOLDERS of privilege 3. Neither privilege applies in civil action between spouses OR in criminal prosecution where one spouse is charged with a crime against the other spouse or one of their kids JUDICIAL NOTICE A. Process for establishing facts without presenting evidence B. Two issues: 1. Facts appropriate for Judicial Notice a. General known within jurisdiction, OR b. capable of accurate and ready determination by resorting to sources whose accuracy cannot be reasonably questioned 2. Procedure for taking Judicial Notice a. Party must request judicial notice to compel it b. If not requested, court has discretion to take judicial notice c. In CIVIL, jury MUST accept judicial notice d. In CRIMINAL, jury MAY but is not required
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