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University of San Francisco USF

VIEWS: 114 PAGES: 43

									                                           Evidence Outline
                                          Fall 2005 - Mounts

1) ROLE OF THE JUDGE IN EVIDENCE LAW
  a) Trial Judge’s Authority
    i)  Federal Rules of Evidence 104(a): Preliminary questions about qualification of witnesses,
        existence of privilege, and admissibility of evidence determined by court. The court is not bound
        by the rules of evidence (except privilege).
        (1) If relevance depends on condition, court should admit it subject to introduction of
            evidence sufficient to fulfill condition. Judge determines if condition is satisfied.
        (2) Evidence offered & objected to may be considered in deciding admissibility.
    ii) California Evidence Code § 310: Questions of law (including preliminary facts about evidence)
        decided by the court.
        (1) California Evidence Code § 400: Preliminary Fact
            (a) Existence/non-existence of fact must be established to determine admissibility.
            (b) Includes qualification/disqualification of person to be witness and existence/non-
                existence of privilege.
            (c) NOT the facts the evidence is offered to prove.
        (2) California Evidence Code § 405: Foundational/Preliminary Facts
            (a) Court determines existence/non-existence of fact and admits/excludes.
            (b) If Preliminary Fact is at issue in the action and it is admitted:
                (i) Jury NOT informed of judge’s determination.
                (ii) Jury NOT instructed to disregard evidence if its determination of the preliminary fact
                     differs from courts’ determination.
  b) Trial Judge’s Discretion
    i) The Rules
        (1) Federal Rules of Evidence 103: Will only find reversible error based on evidentiary ruling IF
            Substantial Rights of party is affected AND
            (a) Timely objection or motion to strike appears on the record OR
            (b) Substance of the evidence was made known to court by Offer of Proof.
        (2) California Evidence Code § 353: Verdict not set aside based on erroneous admission of
            evidence unless
            (a) Timely objection on the record.
            (b) Evidence should have been excluded and miscarriage of justice resulted.
        (3) California Evidence Code § 354: Verdict not set aside based on erroneous exclusion of
            evidence unless miscarriage of justice AND
            (a) Substance, purpose and relevance made known to court or
            (b) Rulings of lower court futile or
            (c) Evidence sought by questions in cross-examination.
    ii) Considerable discretion, low chance evidentiary decisions reversed on appeal.
        (1) Non-Prejudicial Error: Not reversed (uh, duh).
        (2) Reversible/Prejudicial Error: Errors affecting the Substantial Rights of the Parties
            (a) 9th Circuit: Reversed unless more probably harmless than not.
            (b) 3rd Circuit: Reversal unless highly probable that verdict same w/o error.
            (c) 5th Circuit: Reversal unless court is sure didn’t influence jury.
        (3) Constitutional Errors: Π burden proving error harmless beyond reasonable doubt.

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         (4) ‚Plain Error‛: No objection made at trial, reverse on showing of plain error. Substantial
             judicial interpretation.
    iii) United States v. Walton: Deference to trial court determination of admissibility.
         (1) Judge’s exposure to witnesses and evidence.
         (2) Overall familiarity w/ the case and proceedings.
2) RELEVANCE
  a) Analysis:
    i) Is it relevant?
       (1) Logical Probativeness
       (2) Materiality
    ii) Does it create Problems?
  b) Relevance and Irrelevance
    i) The Rules:
         (1) Federal Rules of Evidence 401: Definition
             (a) Relevant evidence = Any evidence having any tendency to make the existence of any fact
                 that is of consequence to the determination of the action more probable or less probable
                 than it would be w/o the evidence.
             (b) Standard of Probability: More Probable than without the Evidence.
         (2) Federal Rules of Evidence 402: Relevant = Admissible. Irrelevant = Inadmissible
             (a) Structure: Positive rule has exceptions. Negative rule is absolute.
             (b) Relevant evidence that may be Excluded:
                 (i) Privilege
                 (ii) Hearsay not w/in an exception
         (3) California Evidence Code: Same as Federal Rules of Evidence.
    ii) Relevance is Relational:
         (1) No abstract definition beyond context of evidence & facts.
         (2) Does this particular evidence actually help you prove some fact?
    iii) Two Parts of Relevance:
         (1) Logical Probativeness
             (a) Evidence must make existence of any fact more or less probable.
             (b) Very low standard.
         (2) Materiality: Must impact a fact of consequence to determination of the action.
  c) Probative Value and Prejudice
    i) The Rules: Discretionary (may be excluded . . .) – The Balancing Test
       (1) Federal Rules of Evidence 105: Jury Instructions
           (a) When evidence admissible for one purpose & inadmissible for another, court may give jury
               instructions restricting evidence to proper scope.
           (b) Limited Admissibility: When evidence admissible for one purpose but not another.
       (2) Federal Rules of Evidence 403: Exclusion of Relevant Evidence
           (a) Relevant evidence may be excluded if probative value is substantially
               outweighed by danger of unfair prejudice, confusion of issues, misleading the
               jury or if the evidence may cause undue delay, waste of time, or needless
               presentation of cumulative evidence.
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            (b) United States v. Flitcraft: In reviewing 403 decisions, lower court ruling will not be
                disturbed except for abuse of discretion.
        (3) California Evidence Code § 352: Same as Federal Rules of Evidence.
    ii) General Rule: PV must substantially outweigh problems & prejudice for evidence be admitted.
        (1) Impact on Jury Deliberations (Unfair prejudice, confusion, misleading)
        (2) Management Issues: (Undue delay, Waste time, Large amounts needless evidence)
        (3) United States v. Noriega: Government contracts to show where $ came from.
            (a) Not irrelevant but probative value outweighed by prejudice.
            (b) Probative value outweighed by fact that evidence would confuse issues.
        (4) United States v. McRae: Relevant evidence is inherently prejudicial. Only unfair prejudice
            substantially outweighing probative value permits exclusion.
  d) Conditional Relevance
    i) Situation: The Relevance of one fact depends on whether another fact is true.
    ii) The Rules:
         (1) Federal Rules of Evidence Rule 104(a): Preliminary Questions Concerning Admissibility
             (a) If relevance depends on condition, court should admit it subject to introduction of
                 evidence sufficient to fulfill condition.
             (b) Judge determines if condition is satisfied.
         (2) Federal Rules of Evidence 104(b): Conditional Relevance
             (a) Sufficiency Standard: Court will admit evidence that depends on the fulfillment of an
                 underlying condition subject to the introduction of evidence sufficient for the
                 reasonable juror to find that the underlying condition was fulfilled.
             (b) Court decides if the reasonable juror would be satisfied.
         (3) California Evidence Code § 403: Sufficiency Standard. Essentially the same.
    iii) Role of the Proponent of Evidence/Judge/Jury
         (1) Proponent: Set forth as much evidence as necessary to prove that the underlying fact is true.
         (2) Judge: Determine if proponent has set forth enough evidence for reasonable jury member to
             find the underlying fact is true.
         (3) Jury: Consider the arguments made and determine if there is enough evidence to find the
             underlying fact and the credibility of the fact sought to be proved in light of the evidence
             supporting the underlying fact.
3) HEARSAY

  a) Analysis:
    i) What is the out of court statement?
    ii) Look for Forbidden Logical Inferences
       (1) What is the train of thought for it to be hearsay?
       (2) Is there an alternative train of thought it could be offered to prove?
           (a) Will jury instructions be sufficient to guard against prejudice?
    iii) Does the evidence fall within an exception to the hearsay rule?
       (1) Does declarant have personal knowledge (unless party admission)?
       (2) Is the witness available?
       (3) Is the witness unavailable?
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b) The Basic Rule
  i) The Rules:
     (1) Federal Rules of Evidence 801: Definitions
         (a) Statement: Oral/written assertion or non-verbal conduct intended as assertion.
         (b) Declarant: Person making the statement
         (c) Hearsay: Statement made out of court and offered to prove truth asserted.
     (2) Federal Rules of Evidence 802: Hearsay is not admissible except when it is.
     (3) California Evidence Code § 225, § 1200: Same as Federal Rules of Evidence.
  ii) General Rule: Hearsay is an out-of court statement introduced to prove
      the truth of the matter asserted.
     (1) The Confusing Components of a Hearsay Statement
         (a) Out of Court: Something offered made out of this court in front of this trier of fact and
             subject to cross-examination.
         (b) The Matter Asserted: What, if anything, does actual hearsay statement assert?
             (i) Assertion = Proclaim that something is true.
         (c) Doesn’t matter how the statement is proved.
             (i) Only worried about truth of what is asserted in the hearsay statement.
             (ii) Can’t bring in tape-recording or journal to get around hearsay.
         (d) Relationship between Witness and Declarant.
             (i) Witness: In court, repeating what declarant said.
             (ii) Declarant: Not in court, made the statement sought to be introduced.
     (2) Dangers of Hearsay: Hearsay involves two witnesses, one subject to all conditions guarding
         the reliability of testimony, the other subject to none of them.
         (a) Factors determining Value of Testimony
             (i) Perception
             (ii) Memory
             (iii) Narration
             (iv) Sincerity
         (b) Missing Safeguards
             (i) Oath
             (ii) Demeanor
             (iii) Cross-Examination: Main justification for exclusion of hearsay.
  iii) Non-Hearsay Uses of Out of Court Statements
       (1) Logical Inferences Prohibited by Hearsay Rule
        (a) Declarant’s Statement → Declarant believed it → Statement is True
             (i) Another train of inference evidence could be offered to prove ≠ Hearsay.
             (ii) Federal Rules of Evidence 105 limiting instructions.
         (b) Lyons v. Morris: Barney/Duffy Confusion.
             (i) Kids statements NOT hearsay b/c not offered to prove the truth of the matter asserted
                  (that the dragon was Barney).
             (ii) Offered to prove confusion (that the dragon was NOT Barney).
     (2) Performative Utterances
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        (a) No truth claims so not w/in scope of the Hearsay Rule.
        (b) United States v. Montana: $100,000 for the testimony.
  iv) Implied Assertions
     (1) Federal Rules of Evidence 801(a)(2):
         (a) Removes implied assertions from definition of statement → Not hearsay.
         (b) Non-Verbal conduct ≠ Hearsay unless intended as assertion.
             (i) Conduct more reliable than statement, not concerned missing safeguards.
             (ii) Assertive Conduct:
                   1. Nodding to indicate Yes.
                   2. Raising hand to indicate Yes.
                   3. Keeping hand down to indicate No.
                   4. Pointing at Picture to identify assailant.
             (iii) Non-Assertive Conduct:
                   1. Taking off sweater b/c warm.
                   2. Staying silent b/c temperature comfortable.
                   3. Fleeing country to escape prosecution.
     (2) Two Types of Implied Asserstions
         (a) Signaling something w/o words
             (i) Opening umbrella implies believes raining
             (ii) The Ship Captain: Fact that captain inspected ship then set sail w/ family to prove
                   thought sea worthy
         (b) Signaling one thing by saying another
             (i) Federal Rules of Evidence 801: Conduct that is assertive but offered to infer
                   something other than the matter asserted ≠ Hearsay.
             (ii) United States v. Zenni: Placing bets to prove callers believed location used for betting
                   is nonassertive verbal conduct, not subject to hearsay rule.

c) Exceptions to the Hearsay Rule
  i) Overview
     (1) Personal Knowledge: Declarant must have personal knowledge.
         (a) May appear from statement or be inferable from circumstances.
         (b) Party admissions = Only exception to personal knowledge requirement
         (c) Double Hearsay: Each declarant must have personal knowledge.
     (2) Availability of Witness determines which exceptions are available.

                   STATEMENTS THAT ARE ‚NOT HEARSAY‛
                         [Federal Rules of Evidence Rule 801]

  ii) Prior Statements by Witnesses
     (1) Three Categories:
         (a) Prior Inconsistent Statements
         (b) Prior Consistent Statements
         (c) Identification of a person made after perceiving the person
     (2) Prior Inconsistent Statements: See Impeachment and Rehabilitation
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     (a) Federal Rules of Evidence 801(d)(1):
         (i) Statement ≠ Hearsay if declarant testifies at trial and is subject to cross-examination
               and the statement is inconsistent w/ declarant’s testimony and given under oath.
         (ii) If within 801(d)(1), prior inconsistent statements can be used for impeachment and
               admitted substantively to prove the truth of the matter asserted..
     (b) California Evidence Code § 1235: Inconsistent Statements
         (i) One of biggest differences b/t California and Federal Rules of Evidence.
         (ii) All prior statements admissible if cross-examination is possible.
         (iii) PIS can be introduced to contradict later testimony b/c dangers hearsay rule designed
               to protect against non-existent.
               1. Declarant is in court, can be cross-examined.
               2. Jury can decide which version more reliable.
         (iv) Comes up in DV cases.
  (3) Prior Consistent Statements: See Impeachment and Rehabilitation
  (4) Prior Statement of Identification
     (a) Federal Rules of Evidence 801(d)(1)(C): Prior statement of identification of a person made
         after perceiving that person ≠ Hearsay if the declarant testifies at trial concerning the statement.
     (b) California Evidence Code § 1238: Substantially the same as Federal Rules of Evidence.
iii) Admissions by Party Opponents
  (1) Overview
      (a) Only hearsay exception w/o personal knowledge requirement.
      (b) Five Categories:
          (i) Direct Admissions
          (ii) Adoptive Admissions
          (iii)Authorized Admissions
          (iv) Agent or Employee Admissions
          (v) Co-Conspirator Admissions
  (2) Direct Admissions
     (a) The Rules
         (i) Federal Rules of Evidence 801(d)(2)(A): Statements by Party Opponents
              1. Statement ≠ Hearsay if offered against a party and is the party’s own statement..
                 a. Based on litigations structure.
                 b. No guarantee of trustworthiness required for admissions.
              2. United States v. Phelps: Statement of party may be introduced as an admission
                 only if offered against that party, not in his favor.
              3. Salviti v. Throppe: Personal knowledge not required.
              4. United States v. McGee: Admission need not tend to incriminate.
         (ii) California Evidence Code §1220: Same as Federal Rules
     (b) Admissions and Multiple Hearsay
         (i) Federal Rules of Evidence 805: Double hearsay not excluded if each part falls w/in
              an exception to the hearsay rule.
         (ii) California Evidence Code §1201: Same as Federal.
     (c) Admissions and Completeness
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       (i) Federal Rules of Evidence 106: If all or part of a written or recorded statement is
             introduced, an adverse party may require introduction of another part or any other writing
             or recorded statement which should in fairness be considered along with it.
             1. Based on Common Law ‚Rule of Completeness‛
             2. If misunderstanding/distortion can only be avoided by introducing another part
                 of the document it is relevant.
       (ii) California Evidence Code §356: Rule applies more broadly.
             1. Adverse party may introduce whole of evidence on the same subject when
                 necessary to fully understand.
             2. Includes act, declaration, conversation, or writing.
       (iii) Beech Aircraft Corp. v. Rainey: Husband’s hypothesis in form of letter.
(3) Adoptive Admissions
   (a) The Rules:
       (i) Federal Rules of Evidence 801(d)(2)(B): Statement ≠ Hearsay if offered against party &
            party manifested an adoption or belief in its truth.
       (ii) California Evidence Code § 1221: Must know the contents of the statement
            adopted. (Very rare that this will make a difference.)
   (b) Silence as Agreement
       (i) When silence relied upon, theory that would have protested if untrue.
       (ii) No clear rule, depends on the circumstances
            1. United States v. Fortes: If someone makes a statement that incriminates you in
                your presence, you should protest if it is untrue.
            2. Southern Stone Co. v. Singer: Failure to respond to letter ≠ Adoptive admission
                unless reasonable under the circumstances for sender to expect recipient to
                respond and correct assertions.
(4) Authorized Admissions
   (a) Federal Rules of Evidence 801(d)(2)(C): Statement ≠ Hearsay if by someone ∆ has authorized
       to make statements for them.
   (b) Who decides if the person was authorized to make statements?
       (i) Federal Rules of Evidence: Judge decides
       (ii) California Evidence Code: If contested but reasonable jury could find person was
            authorized, the statement comes in. Up to ∆ to refute.
   (c) Hanson v. Waller: Attorney authorized to make statements directly related to
       management of the case.
(5) Agent and Employee Admissions
   (a) The Rules:
       (i) Federal Rules of Evidence 801(d)(2)(D): Authorized Admissions
            1. Statement ≠ Hearsay if by party’s agent or servant concerning a matter w/in scope of
               agency or employment AND Made during existence of the relationship.
       (ii) California Evidence Code § 1222: Authorized Admissions
            1. Not made inadmissible as Hearsay if
               a. Made by a person authorized by the party to make a statement concerning the subject
                   matter of the statement AND
               b. Offered after the admission of evidence that could sustain a finding of such authority
                   to make statements. (Reasonable Jury Member – 104(b)ish standard)
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                 2. Different Standard for Requisite Proof in CA.
         (b) Mahlandt v. Wild Canid: Sophie the Wolf
         (c) Sea-Land Service, Inc. v. Lozen: Email is dangerous
      (6) Co-Conspirator Admissions
         (a) The Rules:
             (i) Federal Rules of Evidence 801(d)(2)(E): Statement ≠ Hearsay if by a co-conspirator in the
                   course of and in furtherance of the conspiracy.
             (ii) California Evidence Code § 1223: Substantially the same as Federal Rules.
         (b) Foundation: Both CA and Federal, To Use the Statement Must . . .
             (i) Be made by Co-Conspirator (Conspiracy + Both parties are members)
             (ii) During the Course of the Conspiracy,
             (iii) In furtherance of the Conspiracy.
         (c) Establishing the Foundation: Quantum of Proof on Three Elements
             (i) Federal: Preponderance of the Evidence
                   1. Bourjaily v. United States: ‚Bootstrapping Rule‛
                       a. Federal Rules of Evidence: Court can consider the offered evidence in
                           determining if there was a conspiracy.
                       b. Congress: Offered evidence alone is not enough
             (ii) California: Sufficiency of Evidence (Reasonable jury could find)

              AVAILABILITY OF WITNESSES DOESN’T MATTER
                    [Federal Rules of Evidence Rule 803]
The following are not excluded by the hearsay rule, even though the declarant is
                            available as a witness:

   iv)   Contemporaneous & Spontaneous Statements
      (1) The Rules:
          (a) Contemporaneous Statements
              (i) Federal Rules of Evidence Rule 803(1): Present Sense Impression
                   1. Statement describing or explaining event or condition made while declarant
                      perceiving the event or condition or immediately thereafter.
                   2. Temporal proximity negate likelihood declarant is lying.
              (ii) California Evidence Code §1241: Contemporaneous Statements
                   1. Statements that explain, qualify, or make understandable conduct of declarant
                      and made while the declarant was engaged in the conduct.
                   2. Narrower than Federal Rules of Evidence Rule 803(1) b/c must explain conduct
                      rather than simply event or condition.
          (b) Spontaneous Statements
              (i) Federal Rules of Evidence Rule 803(2): Excited Utterance
                   1. A statement relating to a startling event or condition made while declarant under
                      the stress or excitement caused by the condition.
                   2. Excitement inhibits declarant’s capacity to lie.
              (ii) California Evidence Code §1240: Spontaneous Statement

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               1. Statement must narrate, describe, or explain an act, condition or event and be
                   made spontaneously while declarant under stress of the event.
               2. Narrower than Federal Rules of Evidence, only must relate.
  (2) United States v. Obayagbona: ‚The girl in the black and white . . .‛
      (a) Present Sense Impression: Where precisely contemporaneous statements are unavailable,
          nearly contemporaneous is good enough.
      (b) Excited Utterance: Court must find Two Conditions
          (i) Event sufficiently startling to render inoperative normal thought process.
          (ii) Statement of declarant must be a spontaneous reaction to the event.
  (3) State v. Lee: 911 calls are admissible as excited utterances.
v) State of Mind
  (1) The Rules:
      (a) Federal Rules of Evidence Rule 803(3): Hearsay Exceptions for State of Mind
          (i) Exception for statement of declarant’s then existing state of mind, emotion, sensation,
               physical condition but not including a statement of memory or belief to prove the fact
               remembered or believed.
          (ii) Difference b/t State of Mind Exception and Non-Hearsay State of Mind evidence:
               1. Not Hearsay if used as circumstantial evidence of state of mind.
               2. It IS Hearsay (and w/in exception) if want to use evidence to prove state of mind.
      (b) California Evidence Code § 1250: Same as Federal Rules of Evidence.
      (c) California Evidence Code § 1251: Previously existing Mental or Physical State
          (i) Creates an exception for previously existing mental states.
          (ii) Must show declarant is unavailable and statement must not be offered to prove
               anything other than existence of previously existing state of mind.
  (2) The Hillmon Doctrine
      (a) Supreme Court extended state of mind exception to statements of intent offered to
          prove declarant did what they said they would.
          (i) Must be forward pointing (prove future conduct, not past)
          (ii) Advisory Committee: Intends Rule 803(3) to limit Hillmon Doctrine to make
               statements by declarant admissible only to prove his future conduct, not the future conduct
               of another person.
               1. 9th Circuit: Statements admissible under 803(3) may be used to prove future
                   conduct of another person w/o corroborating evidence.
               2. 2nd Circuit: Admissible w/ corroborating evidence.
      (b) Mutual Life Insurance v. Hillmon: Letters by Walters saying he intended to go to Crooked
          Creek admissible as evidence he want to Crooked Creek.
          (i) Shepard v. United States: Poison in the whiskey.
               1. State of mind of memory pointing backwards not an exception.
               2. Evidence used to prove another’s conduct before statement was made.
          (ii) The Houlihan Problem: ‚I’m going to meet Billy Herd‛
               1. Looks like offered to prove declarant’s conduct BUT also offered to prove the
                   future conduct of Billy Herd.
               2. Unresolved Problem: Know the arguments.
vi)   Injury Reports
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  (1) The Rules:
      (a) Federal Rules of Evidence Rule 803(4): Statements for Medical Diagnosis or Treatment
          (i) Statements made for above purpose and describing medical history, or past or present
                symptoms, pain or sensations, or the inception or general character of the cause or external
                source thereof if it is reasonably pertinent to diagnosis or treatment.
          (ii) Advisory Committee Note: Statements as to fault typically do not qualify.
                1. United States v. Joe: Estranged husband raped/threatened wife.
                    a. Identity of the attacker is not essential to medical diagnosis or treatment
                        therefore not admissible under Injury Report exception.
                    b. If identity not relevant to treatment, rationale for exception is no longer
                        present.
                2. Statement of identity of child abusers has been found relevant to treatment when
                    abuser is a member of the family or household.
                3. Identity of assailant in sexual assault case could qualify if will affect treatment.
      (b) California Evidence Code § 1251: Previous Existing Mental or Physical State
          (i) Closest equivalent to the Injury Report Exception, See Above Discussion
          (ii) Subject to restrictions of § 1252: Evidence of a statement is inadmissible if made under
                circumstances such as to indicate lack of trustworthiness.
      (c) California Evidence Code § 1253: Minor victim of Child Abuse
          (i) Same language as Federal Rules of Evidence Rule 803(4) but limited to victims of
                child abuse who was under the age of 12 and describing an act, attempted act of child
          (ii) Subject to § 1252 Trustworthiness restrictions.
      (d) California Evidence Code § 1370: Describing Infliction or Threat/Physical Abuse
          (i) Evidence of statement by declarant NOT made inadmissible by hearsay rule if all
                following conditions are met:
                1. Narrates, describes or explains infliction threat of physical injury on declarant.
                2. Declarant is Unavailable
                3. Made at or near the infliction of the threat of physical injury
                4. Made under circumstances indicating trustworthiness
                5. Made in writing or electronically recorded OR to a physician, nurse, paramedic,
                    or law enforcement official.
          (ii) Circumstances affecting Trustworthiness:
                1. Made in contemplation of litigation in which declarant is interested?
                2. Bias or Motive to fabricate?
                3. Corroborated by non-hearsay evidence?
          (iii) § 1370 requires notice to opponent.
          (iv) Passed in response to Simpson trial.
  (2) Rationale: Effectiveness of treatment depends on accuracy of info given Dr.
  (3) Broader than State of Mind Exception
      (a) Can tell the doctor the whole story behind the state of mind and it is admissible.
      (b) Exception has been extended to the person who is not receiving medical treatment
          (i) Goes w/ rationale behind the rule.
          (ii) Someone helping an injured person is likely to tell the truth if speaking w/ doctor.
vii) Recorded Recollection
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  (1) The Rules:
      (a) Federal Rules of Evidence 612: Production of writing used to refresh memory ≠ Hearsay.
      (b) Federal Rules of Evidence 803(5): Recorded Recollection
          (i) Memorandum or record concerning a matter about which declarant once had knowledge but
               now has insufficient recollection to testify fully and accurately, shown to have been made or
               adopted by the witness when the matter was fresh in mind and to reflect knowledge correctly.
          (ii) Memorandum or record may be read into evidence but may not be received as an
               exhibit unless offered by an adverse party.
      (c) California Evidence Code § 1237: Same as Federal Rules of Evidence for our purposes.
  (2) Rationale: Reliability inherent in a record made while events still fresh in mind.
  (3) Two Categories of Recorded Recollection
      (a) Past Recollection Recorded [Federal Rules of Evidence 803(5)]
          (i) Defined: Witness has no present memory of the matter contained in writing, the record
               serves as a substitute for the witness’ memory and is offered for the truth of its contents.
               1. Form of Evidence
               2. If introduced, the note or letter itself becomes evidence.
          (ii) Fisher v. Swartz: Used itemized statement in testimony. The record itself represents
               the witness’ past knowledge.
      (b) Present Recollection Refreshed [Federal Rules of Evidence 612]
          (i) Defined: Witness relates present recollection under oath and subject to cross-examination
               after consulting a record.
               1. Not a form of evidence. Way to remind witness what happened, get evidence.
               2. Not really a hearsay issue, Rule 612 sets the guidelines.
          (ii) United States v. Riccardi: Numerous items of property, unreasonable to expect witness
               to remember details of all property. Permitted to consult list and testify to what
               remembered.
viii) Business Records
  (1) The Rules:
      (a) Federal Rules of Evidence 803(6): Records of Regularly Conducted Activity
          (i) Six Main Requirements:
               1. Record of a Business
               2. Regularly Maintained
               3. Made Promptly
               4. Based on Knowledge
               5. Supported by Testimony
               6. Appears Trustworthy
          (ii) Other Federal Rules of Evidence 803(6) Considerations
               1. Business: No requirement that the ‘business’ be conducted for profit. Includes
                  schools, churches, hospitals.
               2. Foundation Requirement: In theory, could be satisfied w/o foundation witness
                  but w/ current system courts typically require testimony of foundation witness.
               3. Opinions & diagnosis (in add. to acts, events and conditions) = w/in Exception.
      (b) California Evidence Code § 1270: ‚Business‛ defined same as Federal Rules of Evidence.
      (c) California Evidence Code § 1271: Exception substantially the same as Federal Rules.

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        (i) No requirement that the record be based on knowledge.
        (ii) Presumption of Admissibility Flips: Inadmissible UNLESS appears trustworthy.
    (d) California Evidence Code § 1272:
(2) Rationale: Unusual reliability based on systematic checking, regularity & continuity,
    reliance by business, duty to make accurate record as part of job/employment.
(3) Qualifying ‚Businesses‛
   (a) Keogh v. Commission of Internal Revenue: Diary of co-worker as evidence of tips received.
       (i) Kept in the course of personal business activities = Part of Exception.
       (ii) Broad interpretation of word ‘business.’
   (b) United States v. Gibson: Obsessive heroin dealer.
       (i) Records kept for the purpose of heroin trafficking = Part of Exception.
       (ii) Rationale still applies. Reliance on records, motive for accuracy.
(4) Qualifying Records – Accident Reports [Is it made for railroading or litigating?]
   (a) Palmer v. Hoffman: Statement by person involved in railroad accident.
       (i) Prepared for litigating (not railroading) ≠ Part of Exception.
       (ii) The fact that a company has a business practice of recording an employee’s version of
             an accident ≠ Automatically a business record.
   (b) Lewis v. Baker: Another railroad injury.
       (i) Look at the indicators of trustworthiness in deciding to admit reports.
       (ii) These inspections made by 3rd Parties w/ no interest in the litigation = Part of
             Exception
   (c) Advisory Committee Notes: Rule makes no specific provision for accident reports.
       (i) Problem dealt w/ under trustworthiness requirement.
       (ii) Deviance from regular business activities important b/c opens possibility for motive
             to lie.
       (iii) Motivation of informer source of difficulty and disagreement.
(5) Sources of Information
   (a) The Business Duty Rule: W/in exception, everyone must have a business duty to report.
   (b) Double Hearsay in Business Records
       (i) Wilson v. Zapata Off-Shore Company:
       (ii) Grogg v. Missouri Pacific RR Co.: Both the source and recorder of the record were
            acting in the scope of business = Part of the exception.
(6) Absence of Record
   (a) Federal Rules of Evidence Rule 803(7): Absence of Entry in Regularly kept Records
       (i) Evidence that a matter not included in the records kept in accordance w/ 803(6) may be
             admitted to prove the nonoccurrence or non-existence of the matter unless not trustworthy.
       (ii) Presumption of Admissibility: Admissible unless appears untrustworthy.
       (iii) Absence of Records ≠ Hearsay.
             1. Silence is not asserting anything.
             2. Confusing so made explicit by the rules.
   (b) California Evidence Code § 1272: Same as federal rules.
       (i) Again, Flips the Presumption of Admissibility: Must appear trustworthy.
       (ii) Nature of records must be such that the absence of a record is a trustworthy
             indication that the event did not occur.

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      (c) United States v. Gentry: The fact that there were no other reports of pins in M&Ms could
          be introduced to show that there were no other pins in M&Ms.
ix)   Public Records
  (1) The Rules:
      (a) Federal Rules:
          (i) Federal Rules of Evidence 803(8): Public Records and Reports
                1. Records, reports, statements, etc. of public offices or agencies setting forth:
                   a. Activities of the office or agency itself.
                   b. Matters observed pursuant to a duty imposed by law for which there is a duty
                       to report (excludes matters observed by police officers/law enforcement personnel in
                       criminal cases).
                   c. Factual findings from agency investigations pursuant to authority granted by
                       law (Criminal Cases: Only if offered against the government).
                2. Must be made w/o circumstances that indicate lack of trustworthiness.
          (ii) Federal Rules of Evidence 803(9): Vital Statistics
                1. Records or data compilations of births, fetal deaths, deaths, marriages admissible
                   if made to a public office pursuant to requirements of law.
          (iii) Federal Rules of Evidence 803(10): Absence of Public Record
      (b) California Evidence Code: Direct parallel to business exception. Same rules apply to
          public agencies as business records. Very Different from Federal Rules.
          (i) California Evidence Code § 1280: Record by Public Employee
                1. Record not made inadmissible by Hearsay Rule when offered in any civil or
                   criminal proceeding to prove the act, condition, or event if . . .
                   a. Made by Public Employee
                   b. Within the Scope of the Employee’s duties
                   c. At or near the time or the condition or event recorded
                   d. The source of information and method of recording indicate trustworthiness.
                2. Maintains California’s presumption of inadmissibility.
          (ii) California Evidence Code § 1281: Record of Vital Statistic same as Federal.
          (iii) California Evidence Code § 1282: Finding of Presumed Death
  (2) Rationale: Assumption that a public official will perform his duty properly and the
      unlikelihood that he will remember details independently of the record.
  (3) The Federal Rules
      (a) Three Separate Exceptions for Public Records:
          (i) Activities of the office or agency itself
          (ii) Materials related to what service agency serves public, excluding police officers.
                1. United States v. Oates: Chemist’s report on substance being cocaine.
                   a. Chemist is ‚law enforcement personnel‛ so can’t use 2nd Exception.
                   b. Offered against the ∆, not the government, so can’t use 3rd Exception.
                   c. Can’t use other exceptions b/c person who made report not available to testify
                2. United States v. Smith: ∆ can introduce against the government in a criminal case
                   even though doesn’t literally apply b/c satisfies underlying rationale.
                3. United States v. Orozco: Routine, non-adversarial law enforcement recordings can
                   come in under second exception.

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            (iii) Factual findings from agency investigations made pursuant to legal authority.
                  1. Beech Aircraft Corp. v. Rainey: Wife died in the plane crash.
                     a. Portions of investigatory reports admissible under 3rd Exception are not made
                         inadmissible just b/c they state a conclusion or opinion as long as the
                         conclusion or opinion is based on factual finding and satisfies trustworthiness
                         requirement.
                     b. Balance factors representing trustworthiness but assume admissibility
                         i. Timeliness of investigation.
                         ii. Special skill or experience of official.
                         iii. If a hearing was held, level at which hearing conducted.
                         iv. Was record prepared for litigation?
        (b) Rule 803(8) Materials that are not admitted under Rule 803(8):
            (i) If Can’t use Public Records exception, try other exceptions!
            (ii) Use 803(5) (Recorded Recollection) OR 803(6) (Business Records) if declarant testifies.

               WITNESS MUST BE UNAVAILABLE TO TESTIFY
                    [Federal Rules of Evidence Rule 804]
The following are not excluded by hearsay rule if declarant is unavailable as a
                                  witness:

  x) ‚Unavailability‛ Defined
     (1) Federal Rules of Evidence 804(1): Definition of Unavailable for Hearsay Exceptions
         (a) Unavailability as a witness includes when declarant –
             (i) Is exempted by privilege
             (ii) Refuses to testify despite court order
             (iii) Testifies to a lack of memory on the subject matter of the statement
             (iv) Unable to testify b/c of death or then existing physical/mental illness
             (v) Unable to procure declarant’s presence through reasonable means.
         (b) Cannot be unavailable if due to wrongdoing of the proponent of the hearsay evidence.
     (2) California Evidence Code § 240: ‚Unavailable as a Witness‛
         (a) Similar to Federal Rules of Evidence.
         (b) Additional category of Unavailable: Disqualified Witnesses.
         (c) Expert Testimony of physical or mental trauma may result in witness being found
             ‘unavailable’
     (3) Purpose of Rule 804 Evidence:
         (a) Hearsay which is admittedly not equal in quality to testimony of the declarant on the
             stand may nevertheless be admitted if declarant is unavailable and statement meets a
             specified standard.
         (b) Expresses Preferences b/t types of hearsay
             (i) Testimony on the stand is preferred over hearsay
             (ii) Hearsay, if of specified nature, preferred over loss of the evidence entirely.
  xi)   Former Testimony
     (1) The Rules:
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      (a) Federal Rules of Evidence 804(b)(1): Former Tesimony
          (i) Testimony given as a witness at another hearing of the same or different proceeding, or in a
               deposition taken in compliance with law in the course of the same or different proceeding, or,
               in a civil action or proceeding, a predecessor in interest had opportunity and similar motive to
               develop the testimony by direct, cross, or redirect examination.
          (ii) Predecessor in Interest w/ Similar Motive
               1. Only applies if second trial is a civil trial.
               2. Split in the Law as to who is a ‚Predecessor in Interest‛
                   a. Lilly: Heavily reliant on concept of Privity. Predecessor from whom present
                        party received right, title, interest or obligation that is at issue in the current
                        litigation.
                   b. Clay v. Johns-Manville: A party w/ like motive to cross-examine about the
                        same matter the present party would have to cross-examine.
               3. What is a Similar Motive?
                   a. United States v. Salerno: Mob case, witness changed story at trial.
                        i. Must have a finding of ‘similar motive’ to introduce prior testimony.
                        ii. Concurrence: Prosecutor will neither always nor never have a similar
                             motive at grand jury and trial. Must look at facts to determine.
      (b) California Evidence Code § 1290: Former Testimony
          (i) Testimony Given under oath in . . .
               1. Another action or in a former hearing or trial of the same action
               2. A proceeding to determine a controversy conducted by or under the supervision of an
                   agency that has the power to determine such a controversy
               3. A deposition in compliance w/ law in another action
               4. Arbitration Proceeding if the evidence is a verbatim transcript.
          (ii) Essentially the same as Federal Rules of Evidence. Somewhat more explicit.
      (c) California Evidence Code § 1291: Offered against a Party to Former Proceeding
          (i) Admissible if offered against party who offered it into evidence at former proceeding.
          (ii) Or, admissible if party against whom now offered had the chance to cross-examine
               w/ interest and motive similar to that which he has at this hearing.
      (d) California Evidence Code § 1292: Offered against Person not Party to Former Proceeding
          (i) Same as Federal Rules of Evidence 804(b)(1) BUT gets rid of ‚predecessor in interest‛
          (ii) Party to the former proceeding must have had the right and opportunity to cross-
               examine AND a similar interest and motive as the party against whom evidence is
               offered in the current proceeding.
  (2) Kirk v. Raymark Industries, Inc.: Proponent of former testimony bears burden of proving
      unavailability of declarant. Absence alone ≠ Unavailability.
  (3) United States v. Bolin: ∆ can’t make himself unavailable and introduce own prior testimony.
xii) Dying Declarations
  (1) The Rules:
      (a) Federal Rules of Evidence 804(b)(2): Statement under Belief of Impending Death
          (i) In a prosecution for homicide or a civil action, a statement made by a declarant while
              believing that the declarant’s death was imminent, concerning the cause or
              circumstances of what the declarant believed to be impending death.

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               1. ONLY applies in homicide cases (where need is great) and in civil actions.
               2. Declarant must have believed they were facing imminent death BUT could have
                   survived and been made unavailable by other circumstances.
          (ii) Implicit personal knowledge requirement (b/c always required).
      (b) California Evidence Code § 1242: Dying Declarations
          (i) Statement made by a dying person respecting the cause and circumstances of his death
               is not made inadmissible by the hearsay rule if the statement was made w/ personal
               knowledge and under sense of immediately pending death.
          (ii) Requires that the declarant is actually dead.
  (2) Rationale: Admit b/c high degree of reliability and necessity.
      (a) Shepard v. United States: Dr. Shepard poisoned his wife’s whiskey
          (i) Not a dying declaration b/c she did not believe death was imminent.
          (ii) Not a dying declaration b/c she lacked personal knowledge of the contents of
               statement.
      (b) United States v. Sacasas: ‚The Greek had nothing to do with it.‛
          (i) To be considered a dying declaration, a statement must BOTH be made while a
               person is dying AND relate to the causes and circumstances of the death.
          (ii) Rationale behind rule doesn’t extend if not related to the cause of death.
xiii) Declarations Against Interest
  (1) The Rules:
      (a) Federal Rules of Evidence 804(b)(3): Statements against Interest
          (i) Statement which, at the time made, was so far contrary to declarant’s interest or tended to
                subject the declarant to civil or criminal liability, or to render invalid a claim of the declarant
                against another, the reasonable person wouldn’t make statement unless true.
          (ii) If a statement is in fact against the interest of the declarant is determined from the
                circumstances of each individual case.
          (iii) A statement tending to expose declarant to criminal liability offered to exculpate the
                accused ≠ Admissible absent corroborating circumstances indicating trustworthiness.
      (b) California Evidence Code § 1230: Very similar to wording of Federal Rules of Evidence.
          (i) Risk of hatred, ridicule, or social disgrace = Against Interest
  (2) Rationale: People don’t make statements that are damaging to themselves unless true.
  (3) Different from Admissions:
      (a) Applies to statements by anyone that are against the interest of the declarant, not just
          statements made by or attributable to the party against whom they are introduced.
      (b) Applies only to statements that are obviously contrary to interest of declarant (must be so
          contrary that a reasonable person would only make the statement if it was true).
  (4) Williamson v. United States: Statement by co-conspirator offered under Rule 804(b)(3)
      (a) Rule 804(b)(3) does not allow admission of non-self-inculpatory statements, even if
          made w/in broader narrative that is generally self-inculpatory.
          (i) Don’t allow admission of statements that are not against interest. Can’t be attempts
                to shift blame or curry favor b/c not as reliable.
          (ii) Look at facts to determine if the facts that inculpate the declarant also inculpate the
                person who they are used against.
      (b) Tricky: Basically, just allow things that actually are opposed to declarant’s interest in.

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  xiv) Forfeiture by Wrongdoing
     (1) The Rules:
         (a) Federal Rules of Evidence 804(b)(6): Forfeiture by Wrongdoing
             (i) A statement offered against a party that has engaged or acquiesced in wrongdoing that was
                  intended to, and did, procure the unavailability of the declarant as a witness.
             (ii) Party intended to and did cause the witness to become unavailable.
         (b) California Evidence Code § 1231: Gang-related Crimes and the Hearsay rule.
             (i) Evidence of prior statement admissible if declarant deceased and the party offering
                  the statement satisfies many requirements including prosecution relates to CA Street
                  Terrorism Enforcement Protection Act.
         (c) California Evidence Code § 1350:
             (i) Admissibility of statement in serious felony prosecutions where declarant’s
                  unavailability is the result of action by party against whom statement is offered.
             (ii) Again, requires satisfying several conditions
         (d) Differences:
             (i) No direct equivalent b/t California Evidence Code and Federal Rules of Evidence.
             (ii) California Evidence Code much more limited than Federal Rules of Evidence.
     (2) Rationale: Prophylactic rule to deal w/ abhorrent behavior aimed at the system of justice.
     (3) United States v. Peoples: ∆ allegedly ‚got rid of‛ the witness
         (a)
  xv) Residual Exception
     (1) Federal Rules of Evidence 807: The Residual Exception
         (a) A statement not specifically covered but w/ equivalent guarantees of trustworthiness can come in
             even though not w/in one of the exceptions.
         (b) Most common: Can Π use testimony of Grand Jury witness not available at trial?
     (2) United States v. Laster: What is ‚specifically covered‛?
         (a) Records that a component of meth was purchased. First tried business records exception
             but couldn’t produce custodian & couldn’t meet requirements.
         (b) Got records in under the residual exception despite similarity to business records.
d) Constitutional Implications of Hearsay
  i) Hearsay and the Confrontation Clause
     (1) Significance: Makes what would be a violation of evidence rules into violation of
         Constitution.
         (a) Violation of Evidence Rule: Violation is harmless error as long as more probably harmless than
             not (9th Circuit Standard).
         (b) Violation of Constitution: Violation is not harmless unless government can show beyond a
             reasonable doubt that it did not affect the verdict.
     (2) Found in 6th Amendment
         (a) Only applies in Criminal Cases
         (b) Only applies to evidence offered AGAINST the ∆
         (c) Satisfied by confrontation (physical presence and opportunity to cross-examine)
     (3) Hearsay NOT implicated by Confrontation Clause
         (a) Hearsay in Civil Cases
         (b) Hearsay evidence offered against the Π in criminal cases
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        (c) Hearsay from a declarant who testifies (allows for confrontation)
        (d) Competing cases before Crawford:
            (i) Idaho v. Wright
            (ii) White v. Illinois:
            (iii) Ohio v. Roberts: Confrontation clause allows hearsay w/ ‚Indicia of Reliability‛
                  1. Particularized guarantees of trustworthiness OR
                  2. Firmly rooted in hearsay exception.
        (e) Crawford v. Washington: Non-Testimonial evidence NOT implicated by Confrontation
            Clause.
            (i) Issue: Could wife’s comments made during interrogation be admitted when she
                  refused to testify based on marital privilege?
            (ii) Hearsay developed from abuse of ex parte evidence in civil law system.
            (iii) Rule: Testimonial hearsay is admissible only if the witness is unavailable AND ∆
                  had a prior opportunity to cross-examine the witness.
                  1. Huge change. Previously no discussion of ‘testimonial,’ focus was on reliability.
                      a. Scalia doesn’t want to focus on reliability b/c 6th amendment makes no
                          mention. Goes against framer’s intent in enacting.
                      b. Doesn’t provide meaningful protection.
                  2. PROBLEM: What is testimonial?
                      a. Statements made under circumstances which would leave the objective
                          witness to reasonably believe that the statement would be readily available
                          for use at trial.
                      b. Statements made during police interrogation = Testimonial (Clearly).
                      c. Other examples: affidavits, depositions, custodial examinations, prior
                          testimony ∆ wasn’t able to cross-examine, or similar pre-trial statements.
            (iv) ‚Non-Testimonial‛ Evidence is not affected by Crawford.
    (4) Maryland v. Craig: Child abuse case w/ closed circuit testimony
        (a) No absolute right to face to face confrontation
            (i) MUST have an INDIVIDUALIZED finding of need.
            (ii) Important public policy decision.
        (b) Different after Crawford?
ii) The Bruton Rule
    (1) Triggered by 6th Amendment Confrontation Clause
    (2) Bruton v. United States: Co-∆’s Confession admitted at trial, co-∆ didn’t testify.
        (a) Rule: Admission of co-∆’s confession that facially incriminates the ∆, when co-∆ does
            not testify, violates the ∆’s right to cross-examine and therefore violates Confrontation
            Clause. Limiting instructions are not sufficient to cure this violation.
            (i) If used against one who made confession → Direct Admission, no Constitutional
                  problem.
            (ii) If co-∆ testifies → Opportunity to cross-examine, no Constitutional problem.
        (b) After Bruton:
            (i) May need separate trials for two ∆s.
            (ii) Try to get confessions in by redacting them, no longer facially incriminating.
    (3) Redacted Confessions

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           (a) Richardson v. Marsh: If confession doesn’t directly point to the co-∆ it is not the ‘facially
               incriminating’ evidence barred by the Bruton Rule.
               (i) Confession redacted to take out all reference to ∆.
               (ii) Jury had to infer from other evidence that ∆ was other party referenced in confession.
           (b) Gray v. Maryland: If the inference required for jury to connect the ∆ to the confession is
               ‘barely an inference’ b/c ∆ is so directly implicated by confession, the Bruton Rule
               applies.
               (i) Confession redacted to ‚Me, *Deleted+, *Deleted+, and a few others.‛
               (ii) Not facially incriminating b/c deleted BUT implication is so powerful that it is likely
                    jury will depart from its instructions and use the confession against the co-∆.
       (4) Confessions admitted as a Hearsay Exception (Declarations Against Interest)?
           (a) Analysis after Crawford:
               (i) Is there testimonial hearsay?
                    1. If yes: Crawford bans admission unless:
                        a. Witness is unavailable AND
                        b. ∆ had prior opportunity to cross-examine.
                    2. If no: Non-Testimonial hearsay is not affected by Crawford
               (ii) Remaining Question: Dutton (Bruton???)
    iii) Due Process Clause
       (1) Rule: Where constitutional rights directly affecting the ascertainment of guilt are implicated,
           the hearsay rule may not be applied mechanically so as to defeat the ends of justice . . . evidentiary
           rulings in opposition to this principle can, in combination, rise to the level of a due process
           violation. (Chambers v. Mississippi)
           (a) Very Fact Specific Rule!
           (b) Chambers = Extremely egregious case.
       (2) Chambers v. Mississippi: Officer Sonny Liberty shot at a riot.
           (a) Another person confessed to the shooting, later repudiated confession.
               (i) Testimony rejected by court had MANY indicators of reliability
                    1. Spontaneous statements
                    2. Corroborated by each other and other evidence
                    3. Statements were against interest
                    4. Declarant was available for cross-examination.
               (ii) Rejected testimony was CRITICAL to defense (someone else did it).
           (b) Rights to confront and cross-examine are fundamental and essential to due process.
       (3) Fortini v. Murphy: Not every ad hoc mistake in applying state evidence rules rises to the level
           of a violation of due process.
           (a) Chambers is a limited holding, only applies in the most ‘egregious’ cases and does not
               apply to INDIRECT evidence.
           (b) Exclusion of evidence must rise to a level of ‘fundamental unfairness’ to be a violation
               of due process under Chambers.
4) CHARACTER EVIDENCE
                   Hearsay                                        Character Evidence
    You can’t prove an out of court statement         You can’t prove character to prove conduct in

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           to prove the truth of the matter                        conformity with that character.
                      asserted.
         Depends on what it is offered to prove.              Depends on what its offered to prove
         Billions of exceptions.                              Just 3 Exceptions
         Mode of proof is irrelevant.                         Mode of proof matters.

Is it Character Evidence?
What is the character Evidence offered to Prove?
Is it w/in an Exception?
Is the mode of proof acceptable? [What trying to prove? Jurisdiction? What did ∆ offer?]

   a) The Basic Rule and Exceptions
       i) The Rules:
           (1) The Forbidden Inference: Character → Acted in Accordance → Did what accused of.
           (2) Federal Rules of Evidence 404(a): Character Evidence Not Admissible to Prove Conduct
               (a) Evidence of a person’s character is not admissible for the purpose of proving action in
                   conformance w/ that character except:
                   (i) Rule 404(a)(1) - Character of the Accused: Evidence of a pertinent trait of character is
                         admissible if offered by the accused or by the Π to rebut the ∆’s assertion of character.
                         1. In practice, generally involves showing ∆’s character for violence.
                   (ii) Rule 404(a)(2) – Character of the Victim: Evidence of a pertinent trait of character of the
                         alleged victim of the crime offered by the accused or Π in rebuttal OR evidence of victim’s
                         peaceful nature in response to claim of self-defense in homicide case.
                   (iii) Rule 404(a)(3): Character of Witness.
                         1. Discussed later: See Impeachment and Rehabilitations
                         2. Character as pertains to credibility
               (b) Accused/Witness: ∆ can open either door after which Π can ‘respond in kind.’
                   (i) ∆: Good Character of ∆ → Π: Bad Character of ∆
                   (ii) ∆: Bad Character of Victim → Π: Bad Character of ∆
                   (iii) ∆: Claim of Self-Defense in homicide case → Π: Good Character of Victim.
           (3) California Evidence Code § 1101(a): Same basic prohibitions as federal rules.
           (4) California Evidence Code § 1102: Character of Criminal ∆ to Prove Conduct
               (a) In a criminal action, opinion or reputation evidence is not inadmissible if offered by the ∆
                   to prove his conduct in conformity w/ that character.
               (b) Once ∆ opens the door, Π can rebut.
               (c) No real equivalent to Federal Rules of Evidence Rule 404(a)(2)
           (5) California Evidence Code § 1103: Character of Crime Victim to Prove Conduct
               (a) In a criminal action, opinion, reputation or evidence of specific instances of conduct of
                   victim is not inadmissible if offered by ∆ to prove conduct of victim in conformity w/
                   character.
               (b) Once ∆ opens the door, Π can rebut with opinion, reputation or evidence of specific instances
                   of conduct to show character for VIOLENCE.
       ii) Basic Rule: Evidence law prohibits proving person’s character to support inference that person
           acted in conformance w/ that character on a particular occasion b/c it is unduly prejudicial.

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       (1) Rationale for Excluding: Not because it is irrelevant, because it is not that relevant.
       (2) People v. Zackowitz: ∆ had large collection of guns, people thought he was a criminal.
           (a) Character evidence may NOT be used to prove conduct in conformity w/ that character BUT may
               be admissible for other purposes.
           (b) Circumstantial use of Character Evidence:
               (i) If you can show another purpose for introducing the evidence,
                     1. Subject to Rule 104(b) balancing test: Probative Value v. Prejudice.
                     2. It will likely come in with Rule 105 limiting instructions (over ∆’s objections).
               (ii) Character can be used to Prove:
                     1. Notice (Cleghorn)
                     2. Fitness (Berryhill)
                     3. Truth of Statement (Walkon Carpet v. Klapprodt)
                     4. Damages (Walkon Carpet v. Klapprodt)
                     5. Predisposition
                     6. Reason to Fear
               (iii) Cleghorn v. Central & Hudson River RR Co.: Switchman’s carelessness caused accident.
                     1. Evidence admitted: He was an intemperate bastard.
                     2. Offered to prove: Employers should have known that he was likely to be drunk
                         and therefore likely to make a mistake.
                         a. NOT offered to prove that he was drunk on this occasion.
                         b. To guard against improper use → Limiting Instructions.
       (3) Berryhill v. Berryhill: Child custody hearing → Character is at issue in the hearing.
           (a) Rule: If character or reputation is a matter in issue in a civil suit, evidence w/ reference
               to reputation or character is admissible as direct evidence.
               (i) Not limited to circumstantial use of character evidence.
               (ii) Character is NEVER at issue in a criminal proceeding unless ∆ makes it an issue.
           (b) Klapprodt: If the case is one for slander, character is at issue.
  iii) Again – The Three Exceptions:
       (1) Character of a Criminal Defendant
       (2) Character of the Victim or Alleged Victim of a Criminal Offense
       (3) Character of a Witness (dealt w/ under Impeachment and Rehabilitation)
b) Methods of Proving Character
  i) General Rule: Circumstantial proof of character, when it is allowed, generally can only
     proceed through reputation or opinion testimony (not specific instances of conduct).
     (1) Exception: Specific conduct admissible when character is an Essential Element of the charge, claim,
         or defense. Why?
         (a) Specific conduct is the most convincing form of character evidence. w/ greatest capacity
             to unduly prejudice the jury.
         (b) Confine the use of specific conduct to when character is most at issue.
     (2) United States v. Setien: Evidence of good conduct NOT admissible to negate criminal intent.
  ii) The Rules:
     (1) Federal Rules of Evidence 405: Methods of Proving Character
         (a) Reputation or Opinion Evidence: Admissible in any case where evidence of character or a trait
             is admissible. On cross-examination, can inquire about specific instances.

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           (b) Specific Instances of Conduct: Admissible where character is an essential element of a charge,
               claim, or defense.
       (2) California Evidence Code: Each rule states which modes of proof can be used.
           (a) Character of Criminal ∆: Opinion or Reputation Evidence.
           (b) Character of Crime Victim to Prove Conduct: Opinion, Reputation, or Specific Conduct.
  iii) Michelson v. United States: Once a ∆ calls witnesses to offer reputation or opinion evidence as
       to the ∆’s good character, to door has been opened for Π to ask about specific instances of
       conduct on cross.
       (1) Limiting Instructions: Jury instructed NOT to assume that the incidents mentioned on cross
           actually took place, only use to evaluate reliability of witness’ opinion about ∆’s character.
       (2) Limiting instructions are not perfect but they are as sufficient in this case as any other.
c) Other Uses of Specific Conduct
  i) General Rule: Evidence of specific conduct may be used to prove something other than character
  ii) The Rules:
       (1) Federal Rules of Evidence 404(b): Other Crimes, Wrongs, or Acts
           (a) Evidence of crimes wrongs, or acts is not admissible to prove the character of a person
               and show conformity w/ that character BUT may be admissible for other purposes
               including:
               (i) Proof of Motive
               (ii) Opportunity
               (iii) Intent
               (iv) Preparation
               (v) Plan
               (vi) Knowledge
               (vii)        Identity
               (viii)       Absence of Mistake of Accident
           (b) In a criminal trial, Π must provide reasonable notice of intent to use such character
               evidence.
       (2) California Evidence Code § 1101(b): Same as Federal Rules of Evidence.
       (3) Purpose of 404(b) & 1101(b): Make explicit what is implicit in 404(a). Examples of when not
           violating the rule b/c not being admitted to prove character.
  iii) Permissible Purposes
       (1) United States v. Boyd: ∆’s admission he does drugs used to show motive.
           (a) Prohibited: Drug User → Willing to violate drug law → Likely to sell drugs
           (b) Permissible: Drug User → Needs $ to support habit → Motive to sell drugs
       (2) United States v. DeJohn: Stealing checks from YMCA to show Opportunity
           (a) Prohibited: Behind desk before → Stole checks before → Stole checks this time.
           (b) Permissible: Behind desk before → Can get behind desk → Access to where checks
               located.
       (3) United States v. Wright: Telephone conversation brags about being drug dealer.
           (a) Proving Identity through Propensity ≠ Permissible Purpose.
  iv) Requisite Proof
       (1) General: Evidence is admissible under Rule 404(b) only if it is relevant.
           (a) ‚Similar Act‛ evidence is relevant ONLY IF the jury can reasonably conclude that the act
               occurred and that the ∆ was the actor.
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              (i) Relevance conditioned on fact are dealt w/ under Rule 104(b) Standard.
              (ii) Court admits the evidence if reasonable jury member could find the conditional fact.
      (2) Huddleston v. United States: Court must find decide that the jury could reasonably find that
          the previous act occurred to satisfy the requisite proof and let in the similar act evidence.
d) Character and Habit
  i) The Rules:
       (1) Federal Rules of Evidence 406: Habit; Routine Practice
           (a) Evidence of the habit of a person or routine practice of an organization is relevant to prove the
               conduct of that person/organization on a particular occasion was in conformance w/ habit.
       (2) California Evidence Code § 1104: Character trait for care or skill
           (a) Evidence of a trait of a person’s character w/ respect to care or skill is inadmissible to prove the
               quality of his conduct on a specified occasion.
           (b) Can’t use character evidence to show careless/careful, skilled/unskilled except to the
               extent permitted by California Evidence Code §§ 1102 – 1103.
       (3) California Evidence Code § 1105: Habit or Custom
           (a) Any otherwise admissible evidence of habit or custom is admissible to prove conduct on
               a given occasion in conformance w/ that habit or custom (Same as Federal Rules).
  ii) Rationale: Evidence of habit is more probative, less prejudicial than evidence of character.
  iii) Where is the line between Habit and Character?
       (1) Definitions:
           (a) Character: Generalized description of disposition (peacefulness, honesty, temperance).
           (b) Habit: Regular response to a repeated situation.
       (2) Two Different Understandings of ‘Habit’: Rule 406 allows both
           (a) Non-Volitional Habit: Non-willful. Like turning off the lights when you leave a room.
           (b) Regular response to a repeated situation.
               (i) Fuzzy standard.
               (ii) Loghan v. Firestone: Pattern of drinking over a period of time.
                    1. No precise threshold for when general disposition → habit.
                    2. Close Call: Defer to trial judge’s finding that rose to level of habit.
e) Sexual Assault and Child Molestation
  i) Character of the Victim
     (1) The Rules:
         (a) Federal Rules of Evidence 412: Very Broad exclusions, subject to narrow exceptions
             (i) Generally, evidence offered to prove that any alleged victim engaged in other sexual
                  behavior or evidence offered to prove victim’s sexual predisposition not admissible.
             (ii) Exceptions:
                  1. In a Criminal Case can admit:
                     a. Evidence of specific instances of sexual behavior by victim offered to prove that a
                          person other than accused was source of semen, injury, or other physical evidence.
                     b. Evidence of specific instances of sexual behavior by the alleged victim w/ respect to the
                          person accused of sexual misconduct offered by the accused to prove consent or by the
                          prosecution.
                     c. Evidence the exclusion of which would violate ∆’s constitutional rights.


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                  2. In a Civil Case, can admit evidence to prove sexual behavior or sexual predisposition of
                     any alleged victim if its probative value substantially outweighs the danger of harm to a
                     victim and unfair prejudice to any party. Evidence of alleged victim’s reputation
                     admissible ONLY IF placed in controversy by the alleged victim.
                     a. Strongly reverses the Rule 403 Presumption regarding prejudice.
                     b. Must be SO RELEVANT that it outweighs the problems.
            (iii) Requirements for admitting such evidence include notice and in camera hearing.
        (b) California Evidence Code § 1103: Narrow Prohibition
            (i) Evidence of character of the victim (in the form of reputation, opinion, or specific
                  conduct) cannot be admitted to prove consent by the alleged victim BUT, if it is
                  otherwise relevant, can be admitted as long as it proves anything other than consent.
            (ii) Response to most problematic use of character evidence, not concerned w/ other uses.
    (2) Rape Shield Statutes
        (a) Adopted at federal level and in most states in the 1970s.
            (i) Generally prohibit character evidence to prove victim’s consent.
            (ii) Generally allow evidence of prior sexual conduct w/ ∆.
        (b) Purposes:
            (i) Reduce harassment of victims.
            (ii) Encourage reporting by victims
            (iii) Avoid undue prejudice to prosecution.
    (3) United States v. Saunders: The ‚Skeezer‛
        (a) Under Federal Rules of Evidence 412: Only YOUR prior sexual conduct w/ alleged
            victim is relevant to reasonable belief that she consented.
        (b) Evidence still must be relevant.
ii) Character of the Accused
    (1) The Rules:
        (a) Federal Rules of Evidence 413(a): Evidence of similar crimes in Sexual Assault cases
            (i) In a criminal case in which ∆ is accused of sexual assault, evidence of previous offenses is
                  admissible for any purpose for which it is relevant.
            (ii) NOT limited to prior convictions, includes all prior offenses.
            (iii) Complete turnaround from Rule 404(a) (Prohibition on character evidence).
        (b) Federal Rules of Evidence 414(a): Child molestation cases, same as Rule 413.
        (c) Federal Rules of Evidence 415(a): Civil cases, same as Federal Rules of Evidence 413.
        (d) California Evidence Code § 1108(a): Evidence of ∆’s commission of other sex offenses
            (i) In a criminal action in which ∆ is accused of a sexual offense, evidence of other sexual offenses
                  is not made inadmissible by § 1101 (prohibition on character evidence) if evidence meets § 352
                  standard.
            (ii) No re-writing of balancing test. Subject to normal § 352 (Probative v. Prejudicial).
            (iii) California Evidence Code § 1109(a): Extends to domestic violence.
            (iv) California Evidence Code § 1109(b): Extends to elder abuse.
            (v) California Evidence Code § 1109(c): 10 year limit.
    (2) United States v. Lecompte: Charged w/ sexual abuse of wife’s niece.
        (a) Initially introduced under 404(b) but unduly prejudicial. Retrial, admitted under 414.
        (b) Rule 414 analysis of Rule 403:
            (i) Must show that the prejudice substantially outweighs public good.
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                (ii) Re-written balancing standard.
5) CALIFORNIA TRUTH IN EVIDENCE RULE
6) OTHER FORBIDDEN INFERENCES
  a) Subsequent Remedial Measures
    i) The Rules:
         (1) Federal Rules of Evidence 407: Subsequent Remedial Measures
             (a) When, after an injury, measures are taken that, if taken previously, would have made the injury or
                  harm less likely to occur, evidence of the subsequent measure is not admissible to prove negligence,
                  culpable conduct, or product defect.
             (b) Doesn’t exclude evidence of subsequent measures when offered for another purpose
                  (ownership, control, feasibility of precautionary measures) if in controversy OR
                  impeachment.
         (2) California Evidence Code 1151: Subsequent Remedial Conduct
             (a) When, after occurrence of an event, remedial or precautionary measures are taken, which, if taken
                  previously, would have tended to make the event less likely to occur, evidence of such subsequent
                  measures is inadmissible to prove negligence or culpable conduct in connection w/ the event.
             (b) Strict Products Liability cases, subsequent conduct admissible to prove negligence or
                  culpability.
    ii) Clausen v. Storage Tank Development: Slip and fall on a ramp later replaced w/ stairs.
         (1) Admission of evidence of repair admissible b/c control is at issue in the case.
         (2) Change Situation: Two homeowners, one makes repairs to fends or sidewalk.
             (a) May be helpful in establishing which homeowner has control over the fence/sidewalk.
             (b) Still can’t be admitted to show negligence. (Use Limiting Instructions).
    iii) In re Asbestos Litigation: Sometime after husband died, company put warning label on product.
         (1) If feasibility of warning was at issue, evidence could have been admitted for that purpose.
         (2) If ∆ admits they could have put warning on product, no longer contested → Not admissible.
         (3) Evidence of other purpose MUST be at issue, otherwise first clause of rule wouldn’t matter.
  b) Settlement Efforts
    i) Civil Cases:
        (1) The Rules:
            (a) Federal Rules of Evidence 408: Compromise and Offers to Compromise
                (i) Can’t introduce offers to settle a claim to prove that claim.
                (ii) Can’t introduce evidence of conduct or statements made during settlement neg’s.
            (b) California Evidence Code § 1152: Offer to Compromise same as Rule 408.
        (2) Theory for Exclusion: Not very probative, policy of encouraging settlements.
        (3) Ramada Development Co. v. Rauch: Architect’s Report produced during negotiations
            (a) Exception to Rule 408: Rule does not require the exclusion of evidence otherwise discoverable
                merely b/c it is presented in the course of compromise negotiations.
            (b) Question: Was the evidence prepared specifically for the negotiations?
    ii) Criminal Cases:
        (1) The Rules:
            (a) Federal Rules of Evidence 410: Inadmissibility of Pleas, Plea Discussions, etc.
                (i) Following not admissible against ∆ making plea or participating in plea discussion:
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               1.    Plea of guilty that is later withdrawn
               2.    Plea of nolo contendere
               3.    And statement made in course of proceeding regarding either of foregoing procedures.
               4.    Any statements made in the course of plea discussions w/ Π which do not result in plea or
                     which result in a plea of guilty which is later withdrawn.
           (ii) Above ARE admissible if:
                 1. Another statement made in the course of the discussions has been introduced and the
                     statements should, in fairness, be considered with it.
                 2. In a criminal perjury proceeding, if the statement was made by ∆ under oath on the record
                     and in presence of counsel.
           (iii) Prohibition includes admissions and factual statements made in course of the plea.
       (b) California Evidence Code § 1153: Offer to plead guilty for a Criminal ∆
           (i) Evidence of a plea of guilty, later withdrawn, or an offer to plead guilty to crime charged or to
                 any other crime, made by the ∆ in a criminal action is inadmissible in any action or in any
                 proceeding of any nature (includes agencies, commissions, boards, and tribunals).
           (ii) No specific reference to discussions but interpreted to cover.
           (iii) In effect, identical to Federal Rules of Evidence 410.
   (2) United States v. Mezzanatto: Π asked ∆ to waive Rule 410 protections for limited purposes of
       impeachment before entering plea negotiations.
       (a) Waiver agreement for impeachment purposes = Valid and Enforceable.
       (b) Open Question: How broad can a plea waiver be?
           (i) Majority: ∆s make hard choices all the time. Everything is waivable.
           (ii) Concurrence: Waivers are only enforceable for impeachment, the evidence cannot be
                 used to prove the case in chief.
       (c) Implications:
           (i) If client undertakes any plea negotiations, will not be able to testify.
           (ii) Choice b/t no plea bargaining and ∆ testifying or plea bargain and no ∆ testimony.
iii) Medical Payments and Liability Insurance:
   (1) Federal Rules of Evidence 409: Payment of Medical and Similar Expenses
       (a) Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses is not
           admissible to prove liability for the injury.
       (b) Doesn’t cover statements, just covers the fact of the payment.
           (i) ‚Here’s $10K, I’m sorry I hurt you.‛
           (ii) Evidence of payment wouldn’t come in, statements could come in.
   (2) Federal Rules of Evidence 411: Liability Insurance
       (a) Evidence of liability insurance is not admissible on the issue of whether the person acted
           negligently or otherwise wrongfully.
       (b) Does not exclude proof of liability insurance for another purpose (agency, ownership, control, or
           bias or prejudice of witness).
       (c) Absence of liability insurance cannot be introduced to show lack of fault.
   (3) California Evidence Code § 1152: Humanitarian Offers
       (a) Like Federal Rule 409 BUT covers offer AND related statements and conduct.
   (4) California Evidence Code § 1155: Liability Insurance
       (a) Evidence that a person was, at the time harm was suffered by another, insured wholly or
           partially against loss arising from liability for harm is inadmissible to prove negligence.
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          (b) No prohibition on producing evidence that the ∆ was not insured.

                  RULES OF EXCLUSION: THE FORBIDDEN INFERENCES

               Out of Court Statement → To Prove Truth of Matter Asserted
               Character → To prove action in conformity with that Character
                     Subsequent Remedial Action → To Prove Fault
                      Settlement Offers → To Prove right to recovery
                        Humanitarian Payments → To Prove Fault
                              Insurance → To prove liability




7) IMPEACHMENT AND REHABILITATION
  a) Introduction & The Basics
    i) Background on Impeachment and Cross-Examination
       (1) Five Main Modes of Impeachment:
           (a) Dishonesty: Type of character evidence, show a general lack of trustworthiness.
           (b) Inconsistency: Alternative use of prior testimony.
               (i) If used to show Inconsistency ≠ Hearsay.
               (ii) Can say inconsistent things about a prior event w/o general dishonesty.
           (c) Bias: Motive for slanting testimony.
               (i) Might be biased in a particular case but very truthful generally
               (ii) Mom providing an alibi = Possibility of bias.
           (d) Incapacity: Impeach a hearsay declarant who didn’t see what they said they did.
               (i) Introduction of evidence that shows person not in position to see what said they saw.
               (ii) Evidence that would limit a person’s recollection.
           (e) Specific Contradiction: Impeach Witness A by calling Witness B
       (2) Scope: Cross on issues other than credibility limited by subject matter explored on direct.
           (a) Must be able to articulate why either w/in the scope or goes to credibility.
           (b) If witness only testifies about certain things, cannot ask about others.
       (3) Intrinsic v. Extrinsic
           (a) Intrinsic: Impeachment happening through witness that is being impeached.
           (b) Extrinsic: Outside evidence that shows witness is not to be believed.
    ii) The Rules:
       (1) Federal Rules of Evidence 607: The credibility of a witness may be called into question by
           any party, including the party who called the witness.
       (2) Federal Rules of Evidence 806: Attacking & Supporting Credibility of Hearsay Declarant
           (a) Credibility of a hearsay declarant may be attacked, and if attacked may be supported, by
               any evidence that would have been admissible for those purposes if declarant testified.
           (b) Don’t need to give declarant opportunity to deny or explain inconsistencies.
           (c) If the party against whom the hearsay statement is admitted calls the declarant, he may
               examine the declarant as if cross-examination.
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        (3) California Evidence Code § 780: There are many factors that can be looked at in
            determining the credibility of a witness.
        (4) California Evidence Code § 785: The credibility of a witness may be attacked or supported
            by any party, including the party calling him.
        (5) California Evidence Code § 1202: Credibility of Hearsay Declarant. Same as Federal Rules.
b) Third Exception for Character Evidence: Character of Witnesses
   i) Generally:
        (1) Federal Rules of Evidence 404(a)(3): Character Evidence
            (a) Evidence of a person’s character or a trait of character is not admissible for the purpose of
                proving action in conformity therewith on a particular occasion, except evidence of the
                character of the witness as provided in Rules 607 – 609.
        (2) Specifics governed by Federal Rules of Evidence Rule 607 – 609.
  ii)   Character for Untruthfulness
        (1) In General
           (a) The Rules
               (i) Federal Rules of Evidence 608: Evidence of Character and Conduct of Witnesses
                   1. Third Exception for Character Evidence: Character of Witnesses
                   2. The credibility of a witness may be attacked or supported by opinion or
                         reputation evidence subject to limitations:
                         3. Evidence may refer only to character for truthfulness or untruthfulness AND
                         4. Evidence of truthful character is admissible only after the character of the witness for
                             truthfulness has been attacked by opinion or reputation evidence or otherwise.
                   (ii) Specific instances of conduct of a witness for the purpose of attacking the
                         witness’ credibility may not be introduced by extrinsic evidence. However,
                         specific instances of conduct (if probative of truth/untruthfulness of witness) may
                         be inquired on cross-examination of the witness if they:
                         1. Concern the witness’ character for truthfulness/untruthfulness OR
                         2. Concern the character for truthfulness/untruthfulness of another witness that the
                             witness being cross-examined has testified to.
                   (iii) California has no equivalent to Federal Rule 608(b) (Specific Instances).
               (b) Federal Rules of Evidence 610: Religious Beliefs or Opinions
                   (i) Evidence of beliefs or opinions of a witness on matters of religion is not
                         admissible for the purpose of showing that the witness’ credibility is impaired or
                         enhanced b/c of the beliefs.
                   (ii) Does not prohibit inquiry for the purposes of showing bias.
               (c) California Evidence Code § 786: Character Evidence Generally
                   (i) Evidence of traits of character other than honesty or veracity, or their opposites, is
                         inadmissible to attack or support the credibility of a witness.
               (d) California Evidence Code § 787: Specific Instances of Conduct
                   (i) Specific instances of conduct inadmissible to attack/support credibility of
                         witness.
               (e) California Evidence Code § 789: Religious Beliefs – Same as Federal Rules.
               (f) California Truth in Evidence Rule
           (2) Evidence of character of a witness is limited to character for veracity.
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       (a) United States v. Lollar: Stolen goods case, ∆ decided to testify.
           (i) Once the ∆ testifies, he becomes a witness like any other.
           (ii) ∆’s decision to testify does not open the door to attacks on general character BUT
                does allow the Π to introduce evidence on the issue of ∆’s veracity.
                1. Cannot use character evidence to show ∆ did the act accused of, ONLY use to
                    attack truthfulness.
                2. If ∆ doesn’t testify, can’t introduce character evidence on veracity.
       (b) United States v. Rosa: Extensive Conspiracy, ∆ testified & is cross-examined.
           (i) Only permit cross-examination on conduct that is probative of veracity.
                1. Questioning on previously bribing public officials = NOT Allowed
                2. Loyalty to Crime Family = Allowed for Truthfulness
                3. Fraudulent Insurance Claim = Allowed for Truthfulness.
   (3) Prior Specific Conduct
       (a) United States v. Ling: Manufacturing and Distributing Drugs
           (i) The ‚No Extrinsic Evidence‛ Rule: Cannot call rebuttal witness to contradict
                witness’ answer when cross-examined regarding prior specific acts.
           (ii) When ∆ is cross-examined regarding prior specific acts for the purposes of
                impeachment, the examiner must be content w/ the witness’ answers.
       (b) United States v. White: Witness previously offered to lie on the stand.
           (i) Couldn’t offer extrinsic evidence of previous offer to lie on the stand to attack
                character of witness, only through cross-examination.
       (c) United States v. Aponte: Character of a witness for untruthfulness cannot be shown by
           extrinsic evidence of specific instances of conduct.
iii) Prior Criminal Convictions
   (1) Admissible and Inadmissible Convictions
       (a) The Rules:
          (i) Federal Rules of Evidence 609: Impeachment by Evidence of Conviction of Crime
              1. Rule 609(a)(1): For the purposes of attacking the credibility of a witness, evidence of a
                 witness other than an accused has been convicted of a crime shall be admitted if the
                 crime was punishable by death or imprisonment of more than one year if its
                 probative value outweighs its prejudicial effect to the accused.
                 a. Applies to all felony convictions, even those w/ no bearing on truth telling.
                 b. Two built in Balancing Tests:
                     i. Witness who is not the ∆ in a criminal case:
                     ii. Problems must substantially outweigh the probative value.
                     iii. Balance under Rule 403, balance in favor of admission.
                     iv. The ∆ as a Witness:
                     v. State must show that the probative value outweighs its effect.
                     vi. Presumption reverses in favor of exclusion.
              2. Rule 609(a)(2): Evidence that any witness has been convicted of a crime involving
                 dishonesty or false statements shall be admitted regardless of the punishment.
      (b) ‚Crimen Falsi‛ under Rule 609(a)(2)
          1. Wong v. United States: Trial court doesn’t have discretion to exclude evidence that
              a witness has been convicted of a crime involving dishonesty or false statements.
          2. What is a Crime of Dishonesty (‚Crimen Falsi‛)?
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             a. US v. Amaechi: Drug trafficking, witness previously convicted of shoplifting.
                  i. Crimes of dishonesty indicate witness more likely to commit perjury.
                  ii. Theft ≠ ‚Crimen Falsi‛
             b. United States v. Hernandez: Kidnapping for ransom to pay back drug dealer.
                  i. Evidence of prior convictions involving same conduct = Extremely
                      Prejudicial.
                  ii. General Rule: Evidence of similar offenses for impeachment purposes
                      under Rule 609 should rarely be admitted.
   (c) California: Different!
       (i) Look at Problems on Page 360!!!
       (ii) California Evidence Code § 787:Evidence of specific instances of conduct relevant only
             as tending to prove trait of character = Inadmissible to attack/support witness credibility.
       (iii) California Evidence Code § 788: Prior FELONY Conviction
             1. For the purpose of attacking the credibility of a witness, it may be shown by the
                  examination of the witness or by the record of the judgment that he has been
                  convicted of a felony unless:
                  a. Witness has been pardoned
                  b. Charges have been dismissed.
             2. Follows Common Law Rule
                  a. No equivalent to Federal Rules of Evidence Rule 608(b) b/c no provision
                      for specific acts not resulting in a conviction (even for use in cross-
                      examination).
                  b. If witness denies conviction, use certified copy of record/judgment to
                      prove.
                  c. ONLY applies to FELONY Convictions, not misdemeanors.
       (iv)    California Constitution Art. I, § 28: Truth in Evidence Rule
             1. Any prior felony conviction may subsequently be used w/o limitation for
                  impeachment.
             2. TRICKY! Sounds like felony convictions cannot be excluded under § 352
                  balancing test BUT Supreme Court found that § 352 still applies.
                  a. Rule: As a matter of due process, can’t impeach a criminal defendant w/
                      felony conviction unless the conviction is for a crime of moral turpitude.
                      i. Moral Turpitude = Drug possession, Voluntary Manslaughter
                      ii. NOT MT = Felony child endangerment, Involuntary Manslaughter
             3. CA Truth in Evidence Rule: Arguably gets rid of distinction b/t felonies and
                  misdemeanors BUT Supreme Court has held that misdemeanors are barred by hearsay
                  rule. Felonies would be too BUT FOR § 788.
(2) Preserving Claims of Error
    (a) Federal:
        (i) General Rules:
             1. ∆ has to testify
             2. Can’t ‚remove the sting‛ by introducing first
        (ii) US v. Luce: In limine motion granted for Π to introduce prior criminal conviction
             if ∆ took the stand. NOT a crimen falsi so Rule 609(a)(1) motion.

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                       1. ∆ must testify to preserve a Rule 609(a) claim that evidence of prior criminal
                          conviction was improperly admitted for impeachment.
                       2. Can’t appeal in limine motion if don’t testify.
                 (iii) United States v. Ohler: ∆ pre-emptively introduced evidence of prior criminal
                       conviction. Party introducing cannot later appeal that it was introduced.
c) Prior Inconsistent Statements
  i) The Federal Rules
       (1) Federal Rules of Evidence Rule 613: Prior Statements of Witnesses
           (a) In examining a witness concerning a prior statement made by the witness, whether
               written or not, the statement need not be shown nor its contents disclosed to the witness
               at that time, but on request the same shall be shown or disclosed to opposing counsel.
           (b) Can use extrinsic evidence of prior inconsistent statement but have to give witness
               opportunity to respond UNLESS the extrinsic evidence is a party-opponent admission
               under Rule 801(d)(2).
       (2) Federal Rules of Evidence Rule 613 abolished the ‚Rule in Queen’s Case‛
  ii) The California Evidence Code
       (1) California Evidence Code § 769: More explicit than Federal Rules of Evidence but same.
       (2) California Evidence Code § 770:
  iii) Using Prior Inconsistent Statements NOT just for Impeachment but also TRUTH:
       (1) Federal System:
           (a) Federal Rules of Evidence Rule 801(d): Statements are NOT HEARSAY if they are –
               (i) A prior statement
               (ii) Inconsistent with declarant’s testimony
               (iii) Given under oath in formal proceeding (Not necessarily subject to cross)
           (b) In federal system, limited category of statements admissible for truth of matter asserted.
               (i) If not in this category, only be used for impeachment.
               (ii) If IN this category, admissible for impeachment and truth.
          (c) The ‚Morlang‛ Rule: Can’t ‚impeach‛ your own witness just to sneak in a prior
              statement for the truth of what it asserted. (‚A mere subterfuge‛)
              (i) Applies to government’s ability to impeach own witness in a criminal trial. (Rule 607)
              (ii) Doesn’t apply in CA b/c all prior inconsistent statements admissible for truth and
                   impeachment.
      (2) California Evidence Code § 1235: All prior inconsistent statements are admissible both for
          their truth and for impeachment.
          (a) BIG DIFFERENCE IN CALIFORNIA.
  iv) Attacking a hearsay declarant:
      (1) Federal Rules of Evidence Rule 806: Attacking & Supporting Declarant Credibility
          (a) When hearsay statement admitted, credibility of declarant may be attacked and, if
              attacked, supported, by any evidence which would be admissible for those purposes if
              the declarant testified as a witness.
          (b) Evidence of statement or conduct at any time inconsistent w/ the hearsay statement is not
              subject to a requirement that the declarant have an opportunity to deny or explain.
      (2) Same in California.
d) Bias
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  i) Bias: Motive to lie or slant testimony
      (1) Payment for Testimony, Romantic Involvement w/ a party, Membership in prison gang.
      (2) No special rules, no limitations on extrinsic proof.
  ii) United States v. Abel: Prison gang membership.
      (1) Bias: Loyalty due to prison club ties.
      (2) Extrinsic Evdence: Testimony from someone else used against ∆.
      (3) Two Levels of Impeachment:
          (a) Witness impeaching Cohort: If hearsay → State of Mind exception
          (b) Cohort recalled to impeach ∆ and Witness → Extrinsic but still permitted to show bias.
e) Incapacity
  i)   Incapacity: Party is incapable of knowing what they testified to.
       (1) Classic Example: Bad eyesight.
       (2) Incapacity can also be MENTAL:
           (a) Delusions = Admissible.
           (b) Depression and Use of Prozac = Inadmissible
           (c) Use of Narcotics = Inadmissible
f) Specific Contradiction
  i) Theory: False once, false always.
  ii) Common Law Rule: No extrinsic impeachment by contradiction on a collateral matter.
      (1) No special rules codified. Most courts use Common Law Rule (Federal & California).
      (2) Impeachment by Contradiction: A separate witness who comes in and testifies to something
          contradictory to ∆’s testimony.
          (a) ∆ says: ‚I took the lie detector test‛
          (b) Impeachment by Contradiction: Someone else says ‚No, he didn’t.‛
      (3) The Collateral Evidence Rule: Is what the evidence is offered to prove at issue in the case?
          (a) Collateral: That which could not be proved for any purpose other than impeachment.
          (b) Red Car/Yellow Car Example: The color of the car is not independently provable so can’t
              introduce another witness to testify that the car was red.
              (i) Witness testifies car was red but car was in fact yellow.
              (ii) Can ask witness about the color on cross, but if witness sticks to story can’t prove
                   color of car by extrinsic evidence UNLESS the color of the car is at issue.
g) Rehabilitation
  i) General Rule w/ Rehabilitation: Must be responsive to the attack
      (1) Evidence shows not truthful → Evidence that shows witness is truthful
      (2) Inconsistency → Consistency
      (3) Evidence of Incapacity → Evidence witness capable of knowing what testified to.
      (4) Evidence of Bias → Evidence of Disinterest.
      (5) Specific Contradiction → Specific Corroboration
  ii) Rule Against Bolstering: Can’t offer evidence solely for the purpose of enhancing a witness’
      credibility before it is attacked. (Embodied in Rule 608(a)(2) & § 790.)
      (1) Applies in the case of character for Truthfulness.
      (2) Other forms of rehabilitation ONLY subject to Balancing Rule.
  iii) Character for Truthfulness

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       (1) Federal Rules of Evidence Rule 608(a)(2): Evidence of truthful character, in the form of
           opinion or reputation evidence, is admissible only after the character of the witness for
           truthfulness has been attacked by opinion or reputation evidence or otherwise.
           (a) ‚Otherwise‛ depends on the circumstances of the attack.
           (b) Advisory Committee: What is an Attack?
               (i) Opinion or reputation evidence the witness is not truthful = Attack.
               (ii) Evidence of misconduct, including conviction of a crime or corruption = Attack
               (iii) Evidence of bias or interest ≠ Attack on Truthfulness
                     1. Issue: Relevance.
                     2. If not an attack on propensity to tell the truth, evidence that witness is generally
                         truthful not relevant (Could be generally honest but w/ motive to lie in this case).
           (c) Beard v. Mitchell: Evidence of prior inconsistent statement was an implicit attack on
               truthful character of agent, proper to rehabilitate w/ evidence of truthful character BUT
               other courts have found inconsistently w/ this ruling (Danehy).
       (2) California Evidence Code § 790: Evidence of good character of a witness is inadmissible to
           support his credibility unless evidence of his bad character has been admitted for the
           purpose of attacking his credibility.
           (a) DIFFERENT in Criminal Cases: Truth in Evidence Rule overrules § 790.
           (b) Rules in CA: See Slides and ask questions. Very Confused.
               (i) Civil:
               (ii) Criminal: Whenever a witness’ honesty has been impeached on any basis, can
                     introduce evidence of character for truthfulness, subject to § 352.
       (3) How can Character for Truthfulness be Proved?
    iv) Prior Consistent Statements
       (1) Witness: ‚I said X in court and I said X before.‛ Generally not allowed b/c Inefficient.
           (a) Tome v. United States: Prior consistent statements CANNOT be admitted substantively?
                That doesn’t make sense if they are not hearsay.
           (b) United States v. Simonelli:
       (2) Federal Rules of Evidence Rule 801(d)(1)(B): A statement is not hearsay if the declarant
           testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the
           statement is consistent with the declarant’s testimony and is offered to rebut an express or implied
           charge against the declarant of recent fabrication.
       (3) California Evidence Code § 791: Evidence of a prior consistent statement is inadmissible
           until after there has been some kind of attack.
           (a) If in response to impeachment by Prior Inconsistent statement, Prior Consistent Statement must
                have been made before the prior inconsistent statement.
           (b) Attack by Recent fabrication, bias, etc., Prior Consistent must be made before the bias, etc. arose.
           (c) NOT about HEARSAY. ONLY about REHABILITATION.
           (d) No equivalent in the Federal Rules of Evidence.
8) OPINIONS, EXPERTS AND SCIENTIFIC EVIDENCE
  a) Lay Opinions
    i) The Rules
       (1) Federal Rules of Evidence Rule 701: Opinion Testimony of Lay Witnesses


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           (a) If the Witness is not testifying as an expert, the witness’ testimony in the form of an
               opinion or inference is limited to those opinions or inferences which are . . .
               (i) Rationally based on the perception of the witness (first-hand knowledge) AND
               (ii) Helpful to clear understanding of witness’ testimony or determination of a fact in
                     issue (helpful to jury) AND
               (iii) Not based on scientific, technical, or other specialized knowledge w/in Rule 702.
                     1. Added by Amendment in 2000.
                     2. Not intended to affect most of 701, only “an expert in sheep’s clothing.” (U.S. v. Peoples)
           (b) United States v. Meling: Lay opinion testimony is admissible if it is rationally based on the
               perception of the witness and helpful to the jury in acquiring a clear understanding of the
               witness’ testimony or the determination of a fact in issue.
     (2)   Federal Rules of Evidence Rule 704: Opinion on Ultimate Issue
           (a) Testimony in form of an opinion or inference otherwise admissible NOT objectionable
               b/c embraces an ultimate issue to be decided by trier of fact.
           (b) Exception: No expert witness testifying w/ respect to mental state or condition of a ∆ in a
               criminal case may state an opinion or inference as to whether the ∆ did or did not have the mental
               state or condition constituting an element of the crime.
     (3)   Advisory Committee Notes:
           (a) Opinions must be helpful to the trier of fact.
           (b) Rule 403 excludes evidence which wastes time.
     (4)   California Evidence Code § 800: Same as Federal Rules of Evidence Rule 701.
     (5)   California Evidence Code § 805: Same as Federal Rules of Evidence 704 but w/o exception.
  ii) What is acceptable Lay Opinion Testimony?
     (1) Mounts’ examples of lay opinions:
         (a) She was drunk
         (b) That’s my wife’s signature
         (c) He didn’t seem to know I was there
         (d) The car was going about 50 mph
         (e) He was feigning his grief
         (f) He didn’t seem to pull the trigger on purpose
         (g) He was in total control of the vehicle
     (2) Acceptable:
         (a) U.S. v. Meling: 911 operator and paramedic could testify that Meling was feigning grief
             over his wife b/c a lay person could have noted the behavior.
         (b) Virgin Islands v. Knight: Eyewitness could testify that firing a gun was accidental.
         (c) Robinson v. Bump: Battle could testify that Bump was in total control of his truck until
             another car struck them.
     (3) Not Acceptable:
         (a) Virgin Islands v. Knight: Investigating police officer opinion testimony not admissible b/c
             he didn’t have first-hand knowledge.
         (b) U.S. v. Peoples: Can’t admit expert testimony under the guise of lay testimony b/c can’t
             qualify the witness as an expert.
b) Expert Testimony
  i) The Rules

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   (1) Federal Rules of Evidence Rule 702: Testimony by Experts
       (a) If scientific, technical, or other specialized knowledge will help trier of fact understand
           the evidence or to determine a fact in issue, a witness qualified as an expert by . . .
           (i) Knowledge
           (ii) Skill
           (iii) Experience
           (iv) Training
       (b) That expert may testify thereto in the form of an opinion or otherwise if . . .
           (i) The testimony is based upon sufficient facts or data
           (ii) The testimony is the product of reliable principles and methods AND
           (iii) The witness has applied the principles and methods reliably to the facts of the case.
   (2) Federal Rules of Evidence Rule 703: Bases of Opinion Testimony by Experts
       (a) Facts or data in particular case upon which expert bases opinion may be those perceived
           or made known to the expert at or before the hearing.
       (b) If the facts are of a type reasonably relied on by experts in the field, the facts need not be
           admissible into evidence for the opinion to be admitted.
       (c) Facts or data otherwise inadmissible but used by the expert are not disclosed to the jury
           UNLESS the court determines that their probative value in assisting jury evaluate the
           expert’s opinion substantially outweighs the prejudicial effect.
           (i) Flips the balancing test?
   (3) Federal Rules of Evidence Rule 705: Disclosure of Facts/Data Underlying Expert Opinion
       (a) Expert may give opinion testimony w/o first testifying to the underlying facts or data
           unless the court requires otherwise.
       (b) Expert may be required to disclose underlying facts/data on cross-examination.
   (4) California Evidence Code § 801 – § 804: Substantially same as Federal Rules of Evidence.
ii) Reliability
   (1) Court Appointed Experts
       (a) Federal Rules of Evidence Rule 706: Courts have the power to appoint independent
           experts but rarely do (probably only if it seems like both parties are trying to avoid an issue).
       (b) Leblanc v. PNS Stores: Court-appointed experts are only appropriate in the rare instances
           when the ordinary adversary process isn’t enough.
   (2) Judicial Screeing of Party-Approved Experts
       (a) The Daubert Test (Federal):
           (i) ‚General Acceptance‛ ≠ Necessary to admissibility of Scientific Evidence
           (ii) Expert’s testimony must both rest on RELIABLE FOUNDATION AND be RELEVANT.
                 1. Possible Indicators of Reliability:
                    a. Testability
                    b. Peer-Reviewed Publication
                    c. Error Rate
                    d. Standards
                    e. General Acceptance
                 2. NOT an exclusive list (but how else would you prove it, really?)
           (iii) Standard of Review: Did the trial judge abuse his discretion in admitting scientific
                 evidence (G.E. v. Joiner)
           (iv) Trial Judge’s Role in Assessing the Reliability of Conclusions:
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                    1. Dauber: Focus on Principles and Methodology, not Conclusions.
                    2. Joiner: Court may conclude that there is too great a gap b/t data and opinion.
                (v) Kumho Tires v. Carmichael: Reliability test applies to all expert testimony (technical
                    and specialized as well as scientific).
            (b) The Frye Test (California): Expert testimony must be based on deduction from sufficiently
                well-recognized scientific principle or discover to have gained general acceptance in the
                particular field in which it belongs.
            (c) In Practice: Rejection of Expert Testimony is exception rather than the rule.
9) PRIVILEGES
  a) In General
    i)   Federal Rules of Evidence Rule 501: Codified Common Law
         (1) Limitations: In civil actions, if state law supplies privilege, state law controls.
         (2) Un-Enacted Rules of Evidence: Proposed by drafters but not adopted.
    ii) California Evidence Code § 911: Except as otherwise provided by Statute . . .
         (1) No person has a privilege to refuse to be a witness
         (2) No person has a privilege to refuse to disclose any matter or refuse to produce any writing,
             object, or thing.
         (3) No person has a privilege that another shall not be a witness or shall not disclose any matter
             or shall not produce any writing, object, or thing.
    iii) Privileges are Not Just Rules of Admissibility
         (1) Some privileges restrict compelled disclosure
         (2) Some privileges track duties of confidentiality
  b) Attorney-Client Privilege
    i)   Introduction
         (1) Why have the privilege:
             (a) Encourage people to talk to lawyers and to pursue justice
             (b) Consult w/ lawyer to make sure what you are doing is okay.
         (2) Should attorney/client privilege survive client’s death?
             (a) Swidler & Berlin v. United States: Yes b/c Encourage people to seek legal advice, free and
                 frank communication by ensuring confidentiality
             (b) California Evidence Code § 945(c): Cannot claim privilege if no holder of privilege exists.
                 Privilege dies w/ death of client (limited exception in that privilege extends to testor)
    ii) Elements of the Privilege
         (1) Four Elements of Attorney/Client Privilege:
             (a) Communication
             (b) In Confidence
             (c) Between Attorney and Client
             (d) To Facilitate Legal Services
         (2) Communication
            (a) United States v. Kendrick: Matters concerning competency ≠ Communication.
            (b) Tornay v. United States: When, where, and how client pays attorney ≠ Communication.
         (3) In Confidence:
            (a) United States v. Gann: Talking on the phone w/ cop in the room.
                (i) Talking to attorney → Communication BUT
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       (ii) If client should have known other people could hear him ≠ In Confidence.
   (b) United States v. Evans: Attorney/Police Officer (Client)/Friend
       (i) If you invite someone into an otherwise privileged relationship, the privilege
            becomes inapplicable b/c not in confidence.
       (ii) Exception: Can double privileges (Attorney & Spouse)
   (c) United States v. Lawless: When information is transmitted to an attorney with the intent
       that the information will be transmitted to a 3rd Party, the information ≠ Confidential.
       (Contradictory Case Law: Opposite result reached in Smithkline)
   (d) Eavesdroppers: Modern rule allows muzzling eavesdroppers as long as the
       communication was ‘truly confidential.’
(4) Between the Attorney and Client:
    (a) Overview:
        (i) Requires a reasonable belief that the person acting as a lawyer actually is a
            lawyer (even if they really aren’t).
         (ii) Who (besides the attorney) is covered?
               1. Agent of the attorney, if providing assistance to an attorney.
               2. Corporate Employees if meet criteria
   (b)   United States v. Kovel: Accountant employed by the tax firm is present.
         (i) Covered by attorney/client privilege b/c providing help to an attorney.
         (ii) Tension b/c attorneys not equipped to deal w/ all legal problems
         (iii) Vital: Communication is made for the purpose of obtaining legal advice.
   (c)   Pasteris v. Robillard: Statements to insurance company ≠ b/t attorney and client even
         though insurance company promised to defend.
   (d)   United States v. McPartlin: Conspiracy, one member is giving testimony.
         (i) Joint defense agreement.
   (e)   Upjohn v. United States: Client = Corp. Artificial entity so who is covered by privilege?
         (i) Corporate communication covered by attorney client privilege b/c . . .
               1. Made by employees to corporate counsel
               2. At the direction of the corporate supervisors
               3. For the purpose of obtaining legal advice
               4. Regarding matters within the employee’s duties
         (ii) Problems w/ the Factors
               1. Don’t clarify
               2. Unpredictable
               3. Corporation may have interests that directly conflict w/ individual interest.
(5) To Facilitate Legal Service
    (a) Hughes v. Meade: Returning Stolen Goods ≠ Facilitating Legal Services
    (b) United States v. Davis: Tax Preparation ≠ Facilitating Legal Services (sometimes,
        conflicting case law on this point).
    (c) United States v. Rowe: Internal investigation at a big law firm.
        (i) Court finds fact finding for senior partner = Facilitating Legal Services
        (ii) Another business would have hired attorneys, doesn’t matter that they didn’t here.
(6) California:
    (a) California Evidence Code § 954: Lawyer Client Privilege

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      (b) California Evidence Code § 952: Defines Confidential Communication
iii) Waiver
   (1) Defined: Express or Implied. Can be accomplished through variety of actions
       inconsistent w/ maintaining the privilege.
   (2) If the privilege has been established, has it been waived?
       (a) First: Go through elements of privilege to establish.
       (b) Three Questions:
            (i) Who can waive the privilege?
            (ii) When is the privilege waived?
            (iii) How broad is the Waiver?
       (c) Who can waive the privilege
            (i) Theory: Belongs to the client so only the client can waive.
            (ii) Practice: Attorney’s actions can imply waiver b/c attorney acting as agent of client.
       (d) When is it waived?
            (i) United States v. Bernard: If you claim you didn’t talk about something with an
                  attorney, you waive the claim of privilege.
            (ii) Tasby v. United States: If attacking competency of counsel, waive privilege.
                  1. If client testifies as to parts of conversation with an attorney, waiver implied.
       (e) How Broad is the Waiver?
            (i) In re Von Bulow: Book published regarding case. Waiver doesn’t apply to the whole
                  conversation, only those parts excerpted in the book.
                  1. Client may imply waiver by not protecting privilege.
                  2. In this case, client facilitated the publication/promotion of the book.
   (3) California Evidence Code § 912: Statutory Waiver of Privilege
       (a) Right of any person to a claim of privilege is waived with respect to a communication
            protected by the privilege if any holder of the privilege, without coercion, has disclosed a
            significant part of the communication or has consented to such disclosure.
       (b) Consent to disclosure can be any statement or other conduct of the holder of the privilege
            indicating consent to the disclosure including a failure to claim the privilege.
iv) Crime-Fraud Exception
   (1) Defined: Attorney’s services are obtained for the purpose of furthering a future crime or
       fraud, regardless of whether the attorney is aware of the purpose.
       (a) Two Questions:
           (i) When does the exception apply?
           (ii) How do you know if it applies?
   (2) When does the Exception Apply?
       (a) Exception only applies to crimes that the client is planning to commit in the future.
       (b) Exception does not apply to crimes committed in the past.
   (3) How do you know if the Exception Applies?
       (a) Rule 104(a): Suggest that the crime fraud exception is a dead letter b/c couldn’t look at
           contents of the communication to determine if the exception applies.
       (b) California Evidence Code § 915: Might be able to look at contents if LOTS of evidence
           that the communication is outside the privilege but more likely that not allowed to pierce
           the veil of privilege.
   (4) Something about standard of review????
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           (5) Possibility of In-Camera Review
               (a) Lesser evidentiary showing needed to trigger in camera review.
               (b) Must show factual basis adequate to support a good faith belief by a reasonable person.
     c) Spousal Privileges
    Confidential Spousal Communications                            Adverse Spousal Testimony
    Testimony can be during or after marriage              Testimony must be during the marriage.
    Subject matter must be confidential                    Subject matter can be anything.
     communication made during marriage.                    Testifying Spouse can Object
    Either spouse can object
        i) Two Types:
           (1) Adverse Spousal Testimony
           (2) Confidential Spousal Communications are Privileged
        ii) Adverse Spousal Testimony
            (1) Defined: Testimony by one Spouse against the other.
           (2) Trammel v. United States: ∆ seeks to keep wife from testifying
               (a) Testifying spouse alone determines if the privilege is to be preserved.
               (b) Privilege belongs to both the husband and wife, either can waive.
           (3) Who Holds the Privilege:
               (a) California Evidence Code §970: The Testifying Spouse
               (b) Hawkins v. U.S.: The non-testifying Spouse
               (c) Proposed Federal Rules of Evidence 505: Non-Testifying Spouse
               (d) Trammel v. US: The Testifying Spouse
           (4) California: Tracks the federal rule. Don’t need to know all the details.
        iii) Confidential Communication
           (1) Four Elements:
               (a) Communication
               (b) In Confidence
               (c) Between Spouses
               (d) In the Course of Marriage
           (2) Who Holds the Privilege: Both spouses → Either Spouse can invoke.
           (3) Justification? Do we need privilege to encourage spousal communication?
           (4) California
               (a) California Evidence Code § 970 – § 987
               (b) California Evidence Code § 970: The testifying spouse holds the privilege.
               (c) California Evidence Code § 980: Privilege of confidential marital communications
                   (i) Subject to waiver, a spouse, whether or not a party, has a privilege during the marital
                        relationship and afterwards to refuse to disclose, and to prevent another from
                        disclosing, a communication made in confidence between spouses while they were
                        husband & wife.
                   (ii) Can be invoked by either spouse.
               (d) California Evidence Code § 972: Exceptions to Privilege
                   (i) A married person does not have a privilege under this article in a criminal
                        proceeding in which one spouse is charged with (see slides)
     d) Other Privileges
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      i) Examples of Other Privileges in California
          (1) Physician/Patient Privilege
          (2) Psychotherapist/Patient Privilege
              (a) Also recognized in Federal Rules.
              (b) Jaffee v. Redmond: Confidential communications b/t psychotherapist and patients in
                  course of diagnosis or treatment are privileged under Rule 501.
          (3) Clergyman/Penitent Privilege
          (4) Sexual Assault Victim/Counselor Privilege
          (5) Domestic Violence Victim/Counselor Privilege
          (6) Official Information and Identity of Informer
          (7) Political Vote
          (8) Trade Secret
          (9) Immunity of Newsman from Citation for Contempt
      ii) There is no recognized Parent/Child Privilege in the Federal Rules
          (1) Not recognized by the states.
          (2) No common law support for such a privilege
          (3) Only supported by ‚academics‛
          (4) Not Supported by the ‚Wigmore Factors‛
              (a) Communications originate in confidence that they won’t be disclosed.
              (b) Element of confidentiality is essential to the full and satisfactory maintenance of the
                  relationship b/t the parties.
              (c) Relationship must be one which, in the opinion of the community, should be fostered.
              (d) Injury to relationship caused by disclosure of the communications must be greater than
                  the benefit gained for the correct disposal of litigation.
10) PHYSICAL EVIDENCE
  a) Defined: Evidence apart from testimony. Tangible exhibits such as documents, photographs,
     contraband, weapons, etc. Subject to many of same rules as testimonial evidence (documents
     generally inadmissible if contain hearsay, guns inadmissible if only to show violent character).
     i) Two Kinds of Physical Evidence:
          (1) Real Evidence: It was this gun.
          (2) Demonstrative Evidence: It was a gun like this one.
     ii) Procedure:
          (1) Mark the Evidence: Each piece gets a number, witness lays the foundation for each piece.
          (2) Introduce the Evidence.
     iii) Special Rules for Real Evidence: Apply on top of any other concerns.
          (1) Authentication: Party offering the evidence must provide sufficient evidence to allow the fact-finder
              to conclude that the evidence is genuine.
          (2) Best Evidence Rule: The party seeking to admit the contents of a document should introduce the
              original (w/ several exceptions).
              (a) Narrow in Scope.
              (b) Does NOT require that the party introduce the best evidence available on a given point.
  b) Authentication
     i) Specific Application of Conditional Relevance
     ii) Federal Rules

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       (1) Federal Rules of Evidence Rule 901(a): Requirement of authentication or identification as a
           condition precedent to admissibility is satisfied by evidence sufficient to support a finding that
           the matter in question is what the proponent claims.
           (a) Lower standard of sufficiency.
           (b) Takes the Standard of Rule 104(b).
           (c) Example: Want to introduce a light bulb . . . (I don’t know why, you just do)
               (i) Must meet standard of sufficiency.
               (ii) ‚Could the jury find that this was the light-bulb involved?‛
                     1. If yes: Light bulb is admitted.
                     2. If no: Light bulb is not admitted.
       (2) Federal Rules of Evidence Rule 902: Self-Authentication
           (a) Extrinsic evidence of authenticity is not required in some cases. There is some evidence
               that can be authenticated without bringing in a witness.
           (b) Examples:
               (i) Certified copies of public records
               (ii) Official Publications
               (iii) Newspapers/Periodicals
       (3) Federal Rules of Evidence Rule 903: What the fuck is a subscribing witness?
  iii) California (Same as Federal????)
       (1) California Evidence Code § 1400 - 1454
c) The Best Evidence Rule
  i)  Scope and Purpose
      (1) Federal Rules of Evidence Rule 1001: Definitions
          (a) Artwork = Writing, recording or photograph.
      (2) Federal Rules of Evidence Rule 1002: Modern Best Evidence Rule
          (a) To prove the content of a writing, recording, or photograph, the original writing,
              recording or photograph is required, except as otherwise provided.
          (b) Rule 1003: Duplicate is admissible to the same extent as an original unless . . .
              (i) Genuine question is raised as to the authenticity of the original OR
              (ii) In the circumstances it would be unfair to admit the duplicate in lieu of the original.
      (3) Approach:
          (a) Is the Evidence regulated by the Best Evidence Rule?
              (i) Is there an event that occurred?
              (ii) With a memorializing record that the party wants to use to prove the event occurred.
                   (NOT that the party wants to use to prove the content of the record but this doesn’t make any
                   sense because you ARE trying to prove the contents of the record.)
          (b) If it is regulated by BER, is the rule satisfied?
  ii) Exceptions in the Federal Rules
      (1) Originals are lost or destroyed UNLESS lost/destroyed in bad faith.
      (2) Originals are not obtainable (they exist but we can’t get to them)
      (3) Originals are in the possession of the opponent
      (4) Collateral Writings (Not central to the litigation)
      (5) Duplicates (Federal Rules of Evidence Rule 1003)
          (a) Duplicate: Counterpart produced by same impression as the original, or by means of
              photography, including enlargements and miniatures, or by mechanical or electronic re-recording,
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             or by chemical reproduction, or by other equivalent techniques which accurately reproduce the
             original (Federal Rules of Evidence 1001).
         (b) Many cases, duplicate is equally as admissible as original.
         (c) A typewritten copy of a statement ≠ ‚Duplicate‛ w/in meaning of 1001.
     (6) Summaries (Federal Rules of Evidence 1006)
         (a) Contents of voluminous writings, recordings, or photographs which cannot be
             conveniently examined in court may be presented in the form of a chart, summary, or
             calculation.
         (b) The originals, or duplicates, shall be made available to both parties and the court may
             order they be produced.
iii) California is VERY DIFFERENT!
     (1) Really need to figure out what is going on in California
     (2) The Rules
         (a) California Evidence Code § 1520: The content of a writing may be proved by an
             otherwise admissible original.
         (b) California Evidence Code § 1521: Secondary Evidence Rule
             (i) The content of a writing may be proved by otherwise admissible secondary evidence.
                   The court shall exclude secondary evidence of the content of a writing if the court
                   determines that EITHER:
                   1. A genuine dispute exists concerning material terms of the writing and justice requires
                       exclusion OR
                   2. Admission of the secondary evidence would be unfair.
             (ii) Secondary Evidence Rule does not make oral testimony to prove the contents of a
                   writing admissible if it is inadmissible under California Evidence Code § 1523.
             (iii) Literally flips presumption of the Best Evidence Rule, but in practice how different?
         (c) California Evidence Code § 1523: Oral Testimony of Content of Writing
             (i) Except as otherwise provided by statute, oral testimony is not admissible to prove
                   the content of a writing.
             (ii) Oral testimony to prove the content of a writing is not made inadmissible if . . .
                   1. The proponent does not have possession or control of a copy of the writing AND
                       a. The original is lost or has been destroyed without fraudulent intent on the part of the
                            proponent of the evidence OR
                       b. Either of the following conditions is satisfied:
                            i. Neither the writing nor a copy of the writing was reasonably procurable
                                by the proponent.
                            ii. The writing is not closely related to the controlling issues and it would be
                                inefficient to require its production.
                   2. Oral testimony of the content of a writing is not made inadmissible if the writing
                       consists of numerous accounts or other writings that cannot be examined in court
                       without great loss of time and the evidence sought from them is only the general
                       result of the whole.
     (3) California creates a hierarchy of Secondary Evidence:
         (a) Duplicate
         (b) Copy
         (c) Oral Testimony
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                                              Evidence Outline
                                             Fall 2005 - Mounts
  d) Demonstrative Evidence
     i)     Not a lot of guidance. Nothing trial judge can do that seems to be an abuse of discretion.
     ii)    United States v. Weeks: Can use a gun that wasn’t the actual gun as a prop.
     iii)   United States v. Humphrey: Can introduce 107 bags of (fake) coins if you want.
     iv)    Roland v. Langlois: Can introduce the model of a fence that injured party climbed under.
11) BURDENS, PRESUMPTIONS, AND JUDICIAL NOTICE
  a) Overview: Burdens and Presumptions
     i) Two Types of Burdens:
         (1) Burden of Production
         (2) Burden of Persuasion (Burden of Proof)
             (a) Three Sizes:
                 (i) Beyond a Reasonable Doubt
                 (ii) Clear and Convincing Evidence
                 (iii) Preponderance of the Evidence
     ii) What is a Presumption?
         (1) Presumption: Basic Fact → Presumed Fact [Mailing (basic) → Receipt of Letter (presumed)]
         (2) The Views of Presumptions:
             (a) Thayer’s View: The ‚Bursting Bubble‛
                 (i) Presumption shifts the Burden of Production but not the Burden of Persuasion
                 (ii) Federal Rules of Evidence Rule 301 adopts this view.
             (b) Morgan’s View:
                 (i) Presumption shifts both the Burden of Production AND the Burden of Persuasion.
                 (ii) MUCH stronger presumption (Presumption carries the day unless disproved).
         (3) Confusing Terminology:
             (a) ‚Conclusive Presumptions‛ ≠ Presumptions. They are substantive rules of law.
             (b) ‚Rebuttable Presumptions‛ = BOTH Thayer and Morgan Presumptions are Rebuttable.
                 (i) Only difference is how much evidence is required to rebut.
                 (ii) Contrast w/ ‚conclusive presumptions‛ which are not rebuttable.
             (c) ‚Mandatory Presumptions‛ = Any presumption w/ legal effect. Trier of fact MUST find
                 the elemental fact upon proof of the basic fact.
             (d) ‚Permissive Inferences‛ = Do not require any legal effect. Fact finder is permitted to
                 conclude something based on a basic fact.
  b) Burdens and Presumptions in Civil Cases
  c) Burdens and Presumptions in Criminal Cases
     i)
  d) Judicial Notice
     i) Federal Rules of Evidence Rule 201: Adjudicative Facts
     ii) Rule only applies to Adjudicative Facts, not Legi




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