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Breeden's California Bar Exam Prep

Super Quick: Cal. Evidence Guide

Table of Contents
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i. inTRoducTion

Two competing substantive principles run through the law of evidence:

 The principle of personal knowledge (Evidence Code ' 702) which postulates that all
evidence outside the personal knowledge of a witness (including hearsay) is
presumptively inadmissible.

 The principle of relevance (Evidence Code ' 351) which mandates that only relevant
evidence may be admitted.

The two most common exceptions to the personal knowledge requirement are:

 Opinion evidence and;

 Hearsay exceptions.

Generally speaking, there are four exceptions to the relevance requirement. Each must be raised
in a timely and proper manner. The four exceptions are:

 Privilege (Evidence Code '' 930-1060);

 Improper character evidence (Evidence Code ' 1101(a));

 The evidence=s Aprobative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.@ (Evidence
Code ' 352.)

II. Objections to the Form of a Question

Objections to the form of a question are designed to screen out questions that invite or permit
inadmissible material to come in. They insure that each question is framed:
 In a neutral way that does not suggest the answer or assume or misstate the evidence;
and,

 With sufficient specificity, narrowness of scope and clarity of meaning that:


(a) A proper substantive objection can be framed, and where no substantive objection
lies, that
(b) Only admissible matter will be revealed by the answer. Thus, in theory at least,
when a question has been stated in proper form, an answer that contains
inadmissible matter will be non-responsive and can be stricken on that ground.
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There are 23 different objections to the form of a question. They are included in the
comprehensive checklist of objections that follows. Generally speaking, these objections can be
grouped into three categories:

 The question is not clear, neutral, and specific;

 The question goes impermissibly beyond the personal knowledge of the witness; and,

 The question calls for an answer whose relevance, if any, is outweighed by statutory
and constitutional provisions.

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iii. objecTions cheaT sheeT

Generally
Objection Supporting Authority
Relevance Evidence Code §§ 210, 350

Unduly prejudicial: The “probative value” of Evidence Code § 352


the evidence is “substantially outweighed by
the probability that its admission will (a)
necessitate undue consumption of time or (b)
create substantial danger of undue prejudice,
of confusing the issues, or of misleading the
jury.”

Jury Selection
Asking the Juror to Prejudge the Evidence People v. Fowler (1918) 178 Cal. 657, 661

Indoctrinating on the Law or Facts C.C.P. § 222.5; Rousseau v. West Coast House Movers (1967) 256
Cal.App.2d 878, 882

Testing the Juror’s Knowledge of the Law C.C.P. 222.5.; People v. Love (1960) 53 Cal.2d 843, 852;

Misstating the Law Kelly v. Trans Globe Travel Bureau, Inc. (1976) 60 Cal.App.3d 195, 203-204

Question not related to any challenge for cause C.C.P. § 222.5; People v. Williams (1981) 29 Cal.3d 392, 407.

Opening Statement
Admissibility of Evidence
Asserted Facts are Unsupported by Evidence Smith v. Covell (1980) 100 Cal.App.3d 947, 958; Upham Co. v. United States
Fid. & Guar. (1922) 59 Cal.App. 606, 610

Fact Stated Will Not Be Proven Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 121; California Practice
Guide: Civil Trials & Evidence, Chap. 6-C 6:44 (2006)

Injecting Inadmissible Material Hawk v. Superior Court (1974) 42 Cal.App. 3d 108, 118.
California Practice Guide: Civil Trials & Evidence, Chap. 6-C 6:43 (2006)

Violation of Motions in Limine Hawk v. Superior Court (1974) 42 Cal.App. 3d 108, 118

Mentioning Settlement Discussions Evidence Code § 1152

Referring to the Liability of Others Evidence Code § 350; Neumann v. Bishop (1976) 59 Cal.App.3d 451, 476.

Mentioning Wealth or Poverty of Party Evidence Code § 350; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841,
860.

Misconduct - Generally Rules of Prof. Conduct, Rule 5-200; People v. Bolton (1979) 23 Cal.3d 208,
214.

Improper Form
Addressing Juror by Name People v. Freeman (1994) 8 Cal. 4th 450, 517-518; Neumann v. Bishop (1976)
59 Cal.App.3d 451, 474-475; 75A American Jurisprudence 2d Trial § 565

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Arguing the Case Williams v. Goodman (1963) 214 Cal.App.2d 856, 869; California Practice
Guide: Civil Trials & Evidence, Chap. 6-A 6:20, 6-C 6:60-61; Love v. Wolf
(1964) 226 Cal.App.2d 378, 392

Instructing Jurors on the Law Williams v. Goodman (1963) 214 Cal.App.2d 856, 869; California Practice
Guide: Civil Trials & Evidence, Chap. 6-C 6:63 (2006)

Misstatement of Evidence California Practice Guide: Civil Trials & Evidence, Chap. 6-C 6:58-59
(2006)

Stating Personal Belief or Opinion Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 119; California Practice
Guide: Civil Trials & Evidence, Chap. 6-C 6:68 (2006).

Protracted Opening Statement Bates v. Newman (1953) 121 Cal.App.2d 800, 809-810

Direct & Cross Examination

Competency of Witnesses
Expert Witness
Expert Unqualified Evidence Code § 720

Lay Witness
Incompetent Evidence Code § 701.

Inability to Express Self Evidence Code § 701(a)(1).

Inability to Understand Duty to Tell the Truth Evidence Code § 701(a)(2).

Personal Knowledge Lacking Evidence Code § 702.

Other Witnesses
Mediator Called as Witness Evidence Code § 703.5.

Judge Called as Witness Evidence Code § 703.

Juror Called as Witness Evidence Code § 704.

Form of the Question


Ambiguous/Misleading Evidence Code § 352; Evidence Code § 765.

Argumentative Evidence Code § 765.

Asked and Answered Evidence Code § 765.

Assumes Facts Not in Evidence People v. Heldenburg (1990) 219 Cal.App.3d 468, 472; 3 Witkin Evidence,
Chap., XI, § 172.

Beyond Scope of Direct Examination Evidence Code §§ 761, 773.

Beyond Scope of Cross-Examination Evidence Code § 763.

Beyond Scope of Redirect Examination Evidence Code § 763.

Beyond Scope of Discovery C.C.P. § 2017 et seq.; Penal Code § 1054 et. seq.

Burdensome/Harassing/Insulting Evidence Code § 765.

Calls for Expert Opinion Evidence Code § 800.

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Calls for Legal Conclusion Evidence Code § 310; Downer v. Bramet (1984) 152 Cal.App.3d 837;
McHugh v. United Service Auto Ass’n (9th Cir. 1999) 164 F.3d 451, 454.

Calls for Narrative Schuur v. Rodenback (1901) 133 Cal. 85, 89.

Calls for Speculation Evidence Code § 702.

Compound or Complex question Evidence Code § 765; Wiese v. Rainville (1959) 173 Cal.App.2d 496, 506.

Cumulative/Repetitive Evidence Code § 352.

Misusing Hypothetical Question Evidence Code § 801; People v. Gardeley (1996) 14 Cal. 4th 605; 31A Cal.
Jur. 3d Evidence §§ 599-600. [Conflict with other evidence in case] State
to Use of Solomon v. Fishel (Md. 1962) 228 Md. 189.

Hypothetical question does not contain all the Am. Towing & Lightering Co. of Balt. v. Baker-Whiteley Coal Co. (Md. 1912)
necessary facts 117 Md. 660.

Testimony & Exhibits


Credibility of Witnesses
Prior Consistent Testimony Evidence Code § 791.

Improper use of Witness’ Good Character Evidence Code § 790.

Improper reference to Religious Belief Evidence Code § 789.

Improper Rehabilitation Evidence Code § 790.

Specific instances of misconduct to prove Evidence Code §§ 787, 1101.


character

Admissibility of Evidence
Improper Judicial Notice Evidence Code § 450

Rule of Completeness Evidence Code § 356

Limited Admissibility Evidence Code § 355

Insurance Inadmissible Evidence Code § 1155.

Privileged or Protected Information - Evidence Code § 952; Specific privileges are listed below
Generally

Settlement Discussions Disclosed Evidence Code § 1152

Inadmissible Mediation Communication Evidence Code §§ 1119 [Motion for New Hearing], 1128.

Inadmissible Offer to Compromise Evidence Code § 1152.

Subsequent Repairs/Remedial Conduct Evidence Code § 1151.


Inadmissible

Exhibits
Lack of Authentication Evidence Code § 1400.

Best Evidence Rule; Oral testimony regarding Evidence Code § 412; repeated in criminal cases, see Evidence Code §
the content of a writing 1523.

Lack of Foundation Evidence Code § 403.

Rule of Completeness Evidence Code § 356.

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Witness Testimony
Collateral Matter Evidence Code § 352.

Conclusion Improperly Elicited Evinger v. MacDougall (1938) 28 Cal.App.2d 175.

Cumulative/Repetitive Evidence Code § 352.

Foundation Defective Evidence Code § 403.

Hearsay Evidence Code § 1200 et. seq.

Irrelevant. Evidence Code § 350

Narrative Answer Schuur v. Rodenback (1901) 133 Cal. 85, 89.

Non-Responsive Answer Evidence Code § 766.

Opinion Based on Improper Matter Evidence Code § 803.

Prejudicial or Inflammatory Evidence Code § 352.

Beyond the Scope of Direct [or Cross] Evidence Code §§ 761, 773.

Speculation Evidence Code § 702.

Wealth or Poverty of Party Injected Evidence Code § 350; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841,
860

Improper Impeachment Foreming v. Stockton Elec. R. Co. (1915) 171 Cal. 401, 408; 3 Witkin Evidence
4th Chap. XI § 328.

Privileges
Attorney-Client Evidence Code § 954.

Clergy-Penitent Evidence Code § 1033, 1034.

Defendant in Criminal Case Evidence Code § 930.

Identity of Informer Evidence Code § 1041.

Journalist’s Immunity Evidence Code § 1070.

Marital Communications Evidence Code § 980.

Privilege Not to Testify Against Spouse Evidence Code § 970.

Official Information Evidence Code § 1040.

Physician-Patient Evidence Code § 994.

Psychotherapist-Patient Evidence Code § 1014.

Self-Incrimination Evidence Code § 940.

Trade Secrets Evidence Code § 1060.

Voter Information Evidence Code § 1050.

Work Product C.C.P. § 2018 et seq.

Closing Argument
Admissibility of Evidence

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Excluded Matter Mentioned Hawk v. Superior Court (1974) 42 Cal.App. 3d 108, 118; California Practice
Guide: Civil Trial & Evidence, Chap. 6-C 6:43 (2006)

Improperly mentioning Insurance Evidence Code § 1155.

Disclosing Settlement Discussions

Disclosing Inadmissible Mediation Evidence Code § 1119


Communications

Disclosing Inadmissible Offer to Compromise Evidence Code § 1152.

Discussing Wealth or Poverty of a Party Evidence Code § 350; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841,
860

Restricting the scope of closing argument People v. Beivelman (1968) 70 Cal.3d 73, 76-77; People v. Polite (1965) 236
Cal.App.2d 85, 93 [both sides have broad discretion to argue the merits of the
case]; People v. Travis (1954) 129 Cal.App.2d 29 ["The right of discussing the
merits of the cause, both as to the law and facts, is unabridged"]

Barring reference to outside sources People v. Guzman (1975) 47 Cal.App.3d 380, 392 [newspaper and magazine
articles]; People v. Travis (1954) 129 Cal.App.2d 29, 37 [Time magazine and a
court opinion]; People v. Woodson (1964) 231 Cal.App.2d 10, 15 [newspaper
article]; but see People v. Williamson (1977) 71 Cal.App.3d 206, 216-217
[counsel not permitted to read Scientific American article on eyewitness
identification]

Improper Form
Addressing Jurors by Name People v. Freeman (1994) 8 Cal. 4th 450, 517-518; 75A American
Jurisprudence 2d Trial § 565;Neumann v. Bishop (1976) 63 Cal.2d 141, 144.

Attacking Counsel, Party, or a Witness People v. Chong (2000) 76 Cal.App.4th 232, 244; Tingley v. Times Mirror Co.
(1907) 151 Cal. 1, 20.

Misstating the Evidence California Practice Guide to Personal Injury, Chap. 9-F, 9:325; Rules of
Prof. Conduct, Rules 5-200, 5-220.

Instructing Jurors on the Law People v. Calpito (1970) 9 Cal.App.3d 212, 222; Regus v. Gladstone Holmes,
Inc. (1962) 207 Cal.App.2d 872, 858; California Civil Courtroom
Handbook & Desktop Reference, § 37:9 (2006).

Stressing Irrelevant Facts or Issues Evidence Code § 352; 88 Corpus Juris Secundum: Trial § 263;Loya v. Fong
(Arizona 1965) 1 Ariz.App. 482.

Misstating the Law Rules of Prof. Conduct, Rule 5-200(A); Gotcher v. Metcalf (1970) 6
Cal.App.3d 96, 100; People v. Sudduth (1966) 65 Cal.2d 543; California
Civil Courtroom Handbook & Desktop Reference, § 37:9 (2006)

Asserting Personal Belief re the evidence or Rules of Prof. Conduct, Rule 5-200(E); see below
credibility of witnesses [Vouching]

Prejudicial or Inflammatory Statements Taylor v. Aetna Life Ins. Co. (1933) 132 Cal.App. 434, 439; Stone v. Foster
(1980) 106 Cal.App.3d 334, 355; Las Palmas Associates v. Las Palmas Center
Associates (1991) 235 Cal.App.3d 1220, 1247.

Conduct of the Parties


Conduct of Witness
Argumentative Answers 31A Cal. Jur. 3d Evidence § 703

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Communicating with a Juror California Civil Courtroom Handbook & Desktop Reference, § 32:36
(2006); California Judges Benchbook: Civ. Proceedings Before Trial.
(CJER 1995), §§ 8.47-8.48.

Fee Contingent on Answers Pelkey v. Hodge (1931) 112 Cal.App. 424.

Narrative Answers Schuur v. Rodenback (1901) 133 Cal. 85, 89.

Prejudicial or Inflammatory Statements. 66 Corpus Juris Secundum, New Trial § 29

Refusal to Answer Precise Question C.C.P. § 2064.

Un-responsive Answer C.C.P. § 2064.

Motion to Strike - Generally Seidenberg v. George (1946) 76 Cal.App.2d 306.

Conduct of Counsel – In General


Lapse of Candor or Fairness Rules of Prof. Conduct, Rule 5-200(A).

Communication with a Juror Rules of Prof. Conduct, Rule 5-320; Hasson v. Ford Motor Co. (1982) 32 Cal.
3d 388, 416.

Currying Jury Favor Augustus v. Shaffer (1959) 171 Cal.App.2d 160, 167

Cutting Off Witness’s Answers Estate of Dupont (1943) 60 Cal.App.2d 276, 289.

Displaying inadmissible Evidence to Jury Cote v. Rogers (1962) 201 Cal.App.2d 138, 142-145; People v. Hernandez
(1977) 70 Cal.App.3d 271, 281.

Disparaging of Counsel, Party, or Witness People v. Chong (2000) 76 Cal.App.4th 232, 244; Tingley v. Times Mirror Co.
(1907) 151 Cal. 1, 20.

Harassing or Insulting Questions Evidence Code § 765.

Asserting facts that were not provable or Shaff v. Baldwin (1951) 107 Cal.App.2d 81, 86; Love v. Wolf (1964) 226
proven Cal.App.2d 378, 390

Failure to follow court instructions People v. Chojnacky (1973) 8 Cal.3d 759, 766; Hernandez v. Paicius (2003) 109
Cal.App.4th 452, 463-468

Habitual or Intentional Violation of Court’s People v. Chojnacky (1973) 8 Cal.3d 759, 766; C.C.P. § 1209
Rules

Inadmissible Matter Sought or Stated Shaff v. Baldwin (1951) 107 Cal.App.2d 81, 86; Love v. Wolf (1964) 226
Cal.App.2d 378, 390.

Mentioning Insurance Hatfield v. Levy Bros. (1941) 18 Cal.2d 798.

Misquoting Testimony or Evidence Rules of Prof. Conduct, Rules 5-200, 5-220; Cal. Practice Guide on
Personal Injury, Chap. 9-F, 9:325;

Objecting for Improper Purposes Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.

Stating a personal belief in the merits of the Rules of Prof. Conduct, Rule 5-200(E)
case or the credibility of a witness

Raising Prejudicial or Inflammatory Matters Taylor v. Aetna Life Ins. Co. (1933) 132 Cal.App. 434, 439; Stone v. Foster
(1980) 106 Cal.App.3d 334, 355; Las Palmas Associates v. Las Palmas center
Associates (1991) 235 Cal.App.3d 1220, 1247.

Publicity Violations Rules of Prof. Conduct, Rule 5-120.

Self-Serving Speaking Objections Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.

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Subornation of Perjury Rules of Prof. Conduct, Rule 5-200(A).

Suppression of Evidence Rules of Prof. Conduct, Rule 5-220.

Testimony by Counsel Rules of Prof. Conduct, Rule 5-200(E).

Prosecutorial Error
Lapse in Candor or Fairness Rules of Prof. Conduct, Rule 5-200(A).

Failure/refusal to follow court instructions People v. Chojnacky (1973) 8 Cal.3d 759, 766; Hernandez v. Paicius (2003) 109
Cal.App.4th 452, 463-468

Misstatements of the Law [note that while the People v. Sudduth (1966) 65 Cal.2d 543, 547-548; Beard v. Bryan (1966) 244
court must correct all misstatements, it’s Cal.App.2d 836, 842; People v. Pineiro (1982) 129 Cal.App.3d 915; People v.
misconduct only if in bad faith] Meneley (1972) 29 Cal.App.3d 41; People v. Calpito (1970) 9 Cal.App.3d 212,
222 [and cases cited therein]

Misquoting Testimony or Evidence Rules of Prof. Conduct, Rules 5-200, 5-220; Cal. Practice Guide on
Personal Injury, Chap. 9-F, 9:325;

Vouching for a Witness People v. Talle (1952) 111 Cal.App.2d 650, 673; People v. Prysock (1982) 127
Cal.App.3d 972; People v. Adcox (1988) 47 Cal.3d 207; People v. Hidalgo
(1947) 78 Cal.App.2d 926, 936; People v. Anderson (1990) 52 Cal.3d 453,
478- 479; Rules of Prof. Conduct, Rule 5-200(E)

Referring to matters not in evidence People v. Kirkes (1952) 32 Cal.2d 719, 724; People v. Hill (1998) 17 Cal.4th
800, 828; People v. Perry (1972) 7 Cal.3d 756, 790; People v. Perez (1962) 58
Cal.2d 229, 241; People v. Johnson (1968) 260 Cal. App.2d 343, 344; People v.
LoCigno (1961) 193 Cal. App.2d 360, 388; People v. Johnson (1981) 121
Cal.App.3d 94; People v. Hall (2000) 82 Cal.App.4th 813, 816 817; People v.
Dagget (1990) 225 Cal.App.3d 751; People v. Warren (1988) 45 Cal.3d 471,
481 482

Urging jurors to step into the victim’s shoes People v. Fields (1983) 35 Cal.3d 329, 362; People v. Pensinger (1991) 52
Cal.3d 1210, 1250; People v. Zurinaga (2007 148 Cal.App.4th 1248; People v.
Leonard (2007) 40 Cal.4th 1370, 1406; People v. Mendoza (2007) 42 Cal.4th
686

“Were they lying questions” United States v. Sanchez (9th Cir. 1999) 176 F.3d 1214; United States v. Richter
(2nd Cir. 1987) 826 F.2d 206, 208; Greenberg v. United States (1st Cir. 1960)
280 F.2d 472; United States v. Boyd (D.C. Cir. 1995) 54 F.3d 868, 871;
Compare People v. Chatman (2006) 38 Cal. 4th 344 [such questions are not
necessarily improper]

Objecting for Improper Purposes Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.

Cutting Off Witness’s Answers Estate of Dupont (1943) 60 Cal.App.2d 276, 289.

Harassing or Insulting Questions Evidence Code § 765.

Displaying inadmissible or Un-admitted Cote v. Rogers (1962) 201 Cal.App.2d 138, 142-145; People v. Hernandez
Evidence to Jury (1977) 70 Cal.App.3d 271, 281.

Self-Serving Speaking Objections Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.

Inadmissible Matter Sought or Stated Shaff v. Baldwin (1951) 107 Cal.App.2d 81, 86; Love v. Wolf (1964) 226
Cal.App.2d 378, 390.

Griffin Error [commenting upon defendant’s Griffin v. California (1965) 380 U.S. 609; People v. Vargas (1973) 9 Cal.3d 470,
decision not to testify] 474; In Re Rodriquez (1981) 119 Cal.App.3d 457, 460; In re Dalton (2002)
98 Cal.App.4th 958; People v. Medina (1995) 11 Cal.4th 694, 755-756; People

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v. Morris (1988) 46 Cal.3d 1; People v. Frausto (1982) 135 Cal.App.3d 129;


U.S. v. Robinson (1988) 488 U.S. 25

Doyle Error [commenting upon defendant’s Doyle v. Ohio (1976) 426 U.S. 610, 619; People v. Galloway (1979) 100
invocation of the right to remain silent] Cal.App.3d 551, 556; People v. Earp (1999) 20 Cal.4th 826, 864

Commenting upon the defendant's failure to People v. Conover (1966) 243 Cal.App.3d 38, 49; People v. Whitehead (1957)
produce evidence 148 Cal.App.2d 701; People v. Earp (1999) 20 Cal.4th 826, 864
People v. Gaulden (1974) 36 Cal.App.3d 942, 955

Commenting upon the defendant’s exercise of People v. Keener (1983) 148 Cal. App.3d 73; People v. Wood (2002) 103
Fourth Amendment rights Cal.App.4th 803; People v. Redmond (1981) 29 Cal.3d 904, 911

Biblical References People v. Sandoval (1992) 4 Cal.4th 155, 192-194; People v. Wrest (1992) 3
Cal.4th 1088, 1107; People v. Wash (1993) 6 Cal.4th 215, 258-260; People v.
Pitts (1990) 223 Cal.App.3d 606, 699-700

Raising Prejudicial or Inflammatory Matters Taylor v. Aetna Life Ins. Co. (1933) 132 Cal.App. 434, 439; Stone v. Foster
(1980) 106 Cal.App.3d 334, 355; Las Palmas Associates v. Las Palmas Center
Associates (1991) 235 Cal.App.3d 1220, 1247.

Denigrating defense counsel People v. O'Farrell (1958) 161 Cal.App.2d 13, 19; People v. Podwys (1935) 6
Cal.App.2d 71, 73; People v. Herring (1993) 20 Cal.App.4th 1066, 1077;
Bruno v. Rushen (9th Cir. 1983) 721 F.2d 1193; People v. Jones (1997) 15
Cal.4th 119, 167 168; People v. Chatman (2006) 38 Cal. 4th 344; People v.
Seaton (2001) 26 Cal.4th 598; People v. Bell (1989) 49 Cal.3d 502; People v.
Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47; People v. Davis (1995) 10
Cal.4th 463, 539-540; People v. Hawthorne (1992) 4 Cal.4th 43; People v.
Chong (2000) 76 Cal.App.4th 232, 244; Tingley v. Times Mirror Co. (1907)
151 Cal. 1, 20.

Denigrating the defendant People v. Prysock (1982) 127 Cal.App.3d 972; People v. Boyette (2002) 29
Cal.4th 381; People v. Herring (1993) 20 Cal.App.4th 1066, 1074; People v.
Singh (1936) 20 Cal.App.2d 244, 255; People v. Patterson (1953) 118
Cal.App.2d 45, 48; People v. Patino (1979) 95 Cal.App.3d 11, 29 31

Communication with a Juror Rules of Prof. Conduct, Rule 5-320; Hasson v. Ford Motor Co. (1982) 32 Cal.
3d 388, 416.

Currying Jury Favor. Augustus v. Shaffer (1959) 171 Cal.App.2d 160, 167

Publicity Violations Rules of Prof. Conduct, Rule 5-120.

Subornation of Perjury Rules of Prof. Conduct, Rule 5-200(A).

Suppression of Evidence Rules of Prof. Conduct, Rule 5-220.

Testimony by Counsel Rules of Prof. Conduct, Rule 5-200(E).

Conduct of Judge
Mistakes or Misconduct - Generally Cal. Code of Judicial Ethics, Canon 3B(4); Lewis v. Bill Robertson & Sons,
Inc. (1984) 162 Cal.App.3d 650, 654.

Judicial Coercion - Generally Shippy v. Peninsula Rapid Transit Co. (1925) 197 Cal. 290, 295; Pratt v. Pratt
(1903) 141 Cal. 247, 250

Independent Investigation People v. Handcock (1983) 145 Cal.App.3d Supp 25; Brown v. Lynaugh (5th
Cir. 1988) 843 F.2d 849, 851 [judge as witness]

Intimidation to induce Plea Bargain Ryan v. Commission on Judicial Performance (1988) 45 Cal. 3d 518, 543;
In re Lewallen (1979) 23 Cal. 3d 274, 278 281

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Overzealous questioning of witnesses People v. Perkins (2003) 109 Cal.App.4th 1562; People v. Santana (2000) 80
Cal.App.4th 1194, 1206; People v. Rigney (1961) 55 Cal.2d 236; McCartney v.
Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 533

Witness Coercion Webb v. Texas (1972) 409 U.S. 95

Gestures or Facial Expressions Cal. Code of Judicial Ethics, Canon 3B(4); Spruance v. Commission on
Judicial Performance (1975) 13 Cal.3d 778, 797; Allen v. State, 644 A.2d 982,
983, fn.1 (Del. 1994); Veteto v. State, 8 S.W.3d 805, 816 817 (Tex. App.
2000); People v. Franklin (1976) 56 Cal.App.3d 18

Interference with Presentation of Case Cal Judges Benchbook: Civ. Proceedings-Tr. § 5.98; People v. Perkins
(2003) 109 Cal.App.4th 1562, 1566-1567; See Geiler v. Commission on Judicial
Qualifications (1973) 10 Cal.3d 270, 286

Disparaging Counsel or a Party California Code of Judicial Ethics, Canon 3B(4); People v. Cole (1952)
113 Cal.App.2d 253, 261; .Meeks v. U.S. (9th Cir. 1947) 163 F.2d 598, 601;
Bursten v. U.S. (5th Cir. 1968) 395 F.2d 976, 983 ["Juries are highly
sensitive to every utterance by the trial judge, the trial arbiter, and ...
some comments may be so highly prejudicial that even a strong
admonition by the judge to the jury ... will not cure the error"]; People v.
Fatone (1985) 165 Cal.App.3d 1164, 1180 -1181; People v. Chong (1999) 76
Cal.App.4th 232; Fletcher v. Comm’n on Judicial Performance (1998) 19
Cal.4th 865, 905; Offutt v. United States (1954) 348 U.S. 11, 17; California
Practice Guide: Civil Trial. & Evidence, Chap. 12-A, 12:56. See Geiler v.
Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 286

Disparaging a Witness or Testimony California Code of Judicial Ethics, Canon 3B(4); People v. Terry (1970) 2
Cal. 3d 362, 298; People v. Harris (2003) 37 Cal.4th 310, 347; People v.
Mahoney (1927) 201 Cal. 618, 627; Fletcher v. Comm’n on Judicial Performance
(1998) 19 Cal.4th 865, 905; California Practice Guide: Civil Trial. &
Evidence, Chap. 12-A, 12:56.

Permitting Counsel To Disparage Opposing People v. Herring (1993) 20 Cal.App.4th 1066


Counsel, Parties or Witnesses

Limiting or Preventing Objections Gallagher v. Municipal Court (1948) 31 Cal.2d 784; Cooper v. Superior Court
(1961) 55 Cal.2d 291

Negative reaction to aggressive advocacy Lambert v. U.S. (5th Cir. 1939) 101 F.2d 960, 963; Bennett v. Superior Court
(1950) 99 Cal. App. 2d 585, 595

Restricting the scope of closing argument People v. Beivelman (1968) 70 Cal.3d 73, 76-77; People v. Polite (1965) 236
Cal.App.2d 85, 93 [both sides have broad discretion to argue the merits of the
case]; People v. Travis (1954) 129 Cal.App.2d 29 ["The right of discussing the
merits of the cause, both as to the law and facts, is unabridged"]

Commenting upon the Evidence or the People v. Mahoney (1927) 201 Cal. 618, 627; People v. Proctor (1992) 4 Cal.4th
Credibility of Witnesses [which is permissible so 499, 543; People v. Cook (1983) 33 Cal.3d 400; People v. Rodriguez (1986) 42
long as it’s not partisan] Cal.3d 730, 766; People v. Cummings (1993) 4 Cal. 4th 1233, 1305; Cal. Code
of Civ. Procedure § 608

Prejudicial Statements Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 460-463

Improper Ex Parte Communication with Ryan v. Commission on Judicial Performance (1988) 45 Cal.3d 518, 543;
Parties or Witnesses Rushen v. Spain (1983) 464 U.S. 114, 117 118; Guadaulpe A. v. Superior Court
(1991) 234 Cal.App.3d 100

Inappropriate Communication with Jurors U.S. v. Coke (2nd Cir. 1964) 339 F.2d 183, 186; People v. Alfaro (1976) 61
Cal.App.3d 414, 426; People v. Lazarus (1929) 207 Cal. 507; United States v.

12
P a g e | 13

Miroyan (1978) 577 F.2d 489, 494; People v. Knighten (19890) 105 Cal.3 128
(1980).

Commenting to press re pending case Ryan v. Commission on Judicial Performance (1988) 45 Cal.3d 518, 543

Encouraging or permitting Spectator Arizona v. Gevrez (1944) 148 P.2d 829; Commonwealth v. Hoover (1910) 75 A.
Misconduct 1023; People v. Slocum (1975) 52 Cal.App.3d 867, 883

Telling counsel in front of the jury to take his People v. Alfaro (1976) 61 Cal.App.3d 414, 426
objection up with the appellate court

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iv. chaRT oF objecTions To The FoRm oF a QuesTion

QUESTION NOT CLEAR, NEUTRAL OR SPECIFIC ENOUGH


Objection Evidence Code

Vague, ambiguous or overbroad see generally ' 765

Compound see generally ' 765

Leading §§ 764, 767

Argumentative see generally ' 765

Assumes facts not in evidence §§ 764, 767, 765

Misstates the testimony see generally ' 765

Calls for a narrative answer see generally ' 765

Question Goes Beyond Personal Knowledge Of Witness


Objection Evidence Code

Hearsay § 1200 et. seq.

Inadmissible opinion §§ 800-801

Calls for speculation § 702

Insufficient foundation §§ 400-406

Question Calls For An Answer That Is Not Relevant,


Not Relevant Enough, Or Excludable On
Statutory Or Constitutional Grounds
Objection Evidence Code

Irrelevant §§ 350-351

Substantially more prejudicial/time consuming than § 352

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probative

Asked and answered § 774

Incompetent witness §§ 700-701

Improper impeachment §§ 770, 771, 780-790

Improper rehabilitation §§ 350, 351, 352, 356,780

Exceeds the scope of direct examination [or cross] § 773

Cumulative see generally ' 765, 352

Privilege §§ 930-1060

Evidence sought by the question was unlawfully 4th, 5th & 6th Amend.
obtained

Prosecutorial Misconduct 5th Amend.

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P a g e | 16

v. useFul evidence code secTions

 EVIDENCE CODE ' 350-351: RELEVANCE


ANo evidence is admissible except relevant evidence.@ (Evidence Code ' 350.)
AExcept as otherwise provided by statute, all relevant evidence is admissible.@ (Evidence
Code ' 351.)

 EVIDENCE CODE ' 352: BALANCING TEST


AThe court in its discretion may exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue consumption of
time or (b) create substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.@

 EVIDENCE CODE ' 356: RULE OF COMPLETENESS


AWhere part of an act, declaration, conversation, or writing is given in evidence by one
party, the whole on the same subject may be inquired into by an adverse party; when a
letter is read, the answer may be given; and when a detached act, declaration, conversation,
or writing is given in evidence, any other act, declaration, conversation, or writing which is
necessary to make it understood may also be given in evidence.@

 EVIDENCE CODE ' 402: PRELIMINARY FACT DETERMINATIONS


A(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall
be determined as provided in this article.
(b) The court may hear and determine the question of the admissibility of evidence out of
the presence or hearing of the jury; but in a criminal action, the court shall hear and determine
the question of the admissibility of a confession or admission of the defendant out of the presence
and hearing of the jury if any party so requests.
(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite
thereto; a separate or formal finding is unnecessary unless required by statute.@

 EVIDENCE CODE ' 403: PRELIMINARY FACT DETERMINATIONS


A(a) The proponent of the proffered evidence has the burden of producing evidence as to
the existence of the preliminary fact, and the proffered evidence is inadmissible unless the
court finds that there is evidence sufficient to sustain a finding of the existence of the
preliminary fact, when:
 The relevance of the proffered evidence depends on the existence of the
preliminary fact;
 The preliminary fact is the personal knowledge of a witness concerning the subject
matter of his testimony;
 The preliminary fact is the authenticity of a writing; or
 The proffered evidence is of a statement or other conduct of a particular person
and the preliminary fact is whether that person made the statement or so conducted
himself.

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(b) Subject to Section 702, the court may admit conditionally the proffered evidence under
this section, subject to evidence of the preliminary fact being supplied later in the course of
the trial.
(c) If the court admits the proffered evidence under this section, the court:
 May, and on request shall, instruct the jury to determine whether the preliminary
fact exists and to disregard the proffered evidence unless the jury finds that the preliminary
fact does exist.
 Shall instruct the jury to disregard the proffered evidence if the court subsequently
determines that a jury could not reasonably find that the preliminary fact exists.@

 EVIDENCE CODE ' 700-701: COMPETENCY


AExcept as otherwise provided by statute, every person, irrespective of age, is qualified to
be a witness and no person is disqualified to testify to any matter.@ (Evidence Code ' 700.)
A(a) A person is disqualified to be a witness if he or she is:
 Incapable of expressing himself or herself concerning the matter so as to be
understood, either directly or through interpretation by one who can understand him; or
 Incapable of understanding the duty of a witness to tell the truth.
(b) In any proceeding held outside the presence of a jury, the court may reserve challenges
to the competency of a witness until the conclusion of the direct examination of that
witness.@ (Evidence Code ' 701.)

 EVIDENCE CODE ' 702: PERSONAL KNOWLEDGE


A(a) Subject to Section 801, the testimony of a witness concerning a particular matter is
inadmissible unless he has personal knowledge of the matter. Against the objection of a
party, such personal knowledge must be shown before the witness may testify
concerning the matter.
(b) A witness' personal knowledge of a matter may be shown by any otherwise admissible
evidence, including his own testimony.

 EVIDENCE CODE ' 764: LEADING QUESTION


AA >leading question= is a question that suggests to the witness the answer that the
examining party desires.@

 EVIDENCE CODE ' 765(A): COURT=S CONTROL OVER EXAMINATION OF WITNESSES


AThe court shall exercise reasonable control over the mode of interrogation of a witness so
as (a) to make such interrogation as rapid, as distinct, and as effective for the ascertainment of the
truth, as may be, and (b) to protect the witness from undue harassment or embarrassment.@

 EVIDENCE CODE ' 780: CREDIBILITY OF WITNESSSES


AExcept as otherwise provided by statute, the court or jury may consider in determining the
credibility of a witness any matter that has any tendency in reason to prove or disprove the
truthfulness of his testimony at the hearing, including but not limited to any of the
following:

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(a) His demeanor while testifying and the manner in which he testifies.
(b) The character of his testimony.
(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about
which he testifies.
(d) The extent of his opportunity to perceive any matter about which he testifies.
(e) His character for honesty or veracity or their opposites.
(f) The existence or nonexistence of a bias, interest, or other motive.
(g) A statement previously made by him that is consistent with his testimony at the hearing.
(h) A statement made by him that is inconsistent with any part of his testimony at the
hearing.
(i) [Contradiction] The existence or nonexistence of any fact testified to by him.
(j) His attitude toward the action in which he testifies or toward the giving of testimony.
(k) His admission of untruthfulness.

 EVIDENCE CODE ' 770: PRIOR INCONSISTENT STATEMENTS


AUnless the interests of justice otherwise require, extrinsic evidence of a statement made by
a witness that is inconsistent with any part of his testimony. . . shall be excluded unless:
(a) The witness was so examined while testifying as to give him an opportunity to
explain or to deny the statement; or
(b) The witness has not been excused from giving further testimony in the action.@ (See also
Evidence Code ' 1235.)

 EVIDENCE CODE ' 771: REFRESHING RECOLLECTION


A(a) Subject to subdivision (c), if a witness, either while testifying or prior thereto, uses a
writing to refresh his memory with respect to any matter about which he testifies, such
writing must be produced at the hearing at the request of an adverse party. . .
(b) If the writing is produced at the hearing, the adverse party may, if he chooses, inspect
the writing, cross-examine the witness concerning it, and introduce in evidence such
portion of it as may be pertinent to the testimony of the witness.
(c) Production of the writing is excused, and the testimony of the witness shall not be
stricken, if the writing:
 Is not in the possession or control of the witness or the party who produced his
testimony concerning the matter; and
 Was not reasonably procurable by such party through the use of the court's process or
other available means.@

 EVIDENCE CODE ' 791: PRIOR CONSISTENT STATEMENT


AEvidence of a statement previously made by a witness that is consistent with his testimony
at the hearing is inadmissible to support his credibility unless it is offered after:
(a) Evidence of a[n inconsistent] statement. . . has been admitted for the purpose of
attacking his credibility, and the [consistent] statement was made before the alleged
inconsistent statement; or
(b) An express or implied charge has been made that his testimony at the hearing is

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recently fabricated or is influenced by bias or other improper motive, and the


statement was made before the bias, motive for fabrication, or other improper motive
is alleged to have arisen.@ (See also Evidence Code ' 1236.)

 EVIDENCE CODE ' 788: PRIOR FELONY CONVICTION


AFor 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) A pardon based on his innocence has been granted. . .
(b) A certificate of rehabilitation and pardon has been granted. . .
(c) The accusatory pleading against the witness has been dismissed under the provisions of
Penal Code Section 1203.4, but this exception does not apply to any criminal trial where the
witness is being prosecuted for a subsequent offense.
(d) The conviction was under the laws of another jurisdiction and the witness has been
relieved of the penalties and disabilities arising from the conviction. . . .@

Note: Proposition 8 effected a pro tanto repeal of Evidence Code §§ 786, 787, & 790. (People v.
Harris (1989) 47 Cal.3d 1047, 1080-1085.)

 EVIDENCE CODE ' 800: LAY OPINIONS


AIf a witness is not testifying as an expert, his testimony in the for of an opinion is limited to
such an opinion as is. . .
(a) Rationally based on the perception of the witness; and
(b) Helpful to a clear understanding of his testimony.@

 EVIDENCE CODE ' 801: EXPERT OPINIONS


AIf a witness is testifying as an expert, his testimony in the form of an opinion is limited to
such an opinion as is:
(a) Related to a subject that is sufficiently beyond common experience that the opinion of
an expert would assist the trier of fact; and,
(b) Based on matter (including his special knowledge, skill, experience, training, and
education) perceived by or personally known to the witness or made known to him at or
before the hearing, whether or not admissible, that is of a type that reasonably may be
relied upon by an expert in forming an opinion upon the subject to which his testimony
relates, unless an expert is precluded by law from using such matter as a basis for his
opinion.@
 EVIDENCE CODE ' 805: EXPERT MAY OPINE UPON ULTIMATE FACT
ATestimony in the form of an opinion that is otherwise admissible is not objectionable
because it embraces the ultimate issue to be decided by the trier of fact.@

 EVIDENCE CODE ' 1101: SPECIFIC ACTS TO PROVE CHARACTER


A(a) Except as provided in this section and in Sections 1102 and 1103, evidence of a person's
character or a trait of his character (whether in the form of an opinion, evidence of

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P a g e | 20

reputation, or evidence of specific instances of his conduct) is inadmissible when offered


to prove his conduct on a specified occasion.
(b) Nothing in this section prohibits the admission of evidence that a person committed a
crime, civil wrong, or other act when relevant to prove some fact (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident)
other than his disposition to, commit such acts.@
(c) Nothing in this section affects the admissibility of evidence offered to support or attack
the credibility of a witness.@

 EVIDENCE CODE ' 1102: OPINION & REPUTATION TO PROVE DEFENDANT=S CHARACTER
AIn a criminal action, evidence of the defendant's character or a trait of his character in the
form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if
such evidence is:
(a) Offered by the defendant to prove his conduct in conformity with such character or trait
of character.
(b) Offered by the prosecution to rebut evidence adduced by the defendant under
subdivision (a).@

 EVIDENCE CODE ' 1103: VICTIM=S CHARACTER TRAITS


“(a) In a criminal action, evidence of the character or a trait of character (in the form of an
opinion, evidence of reputation, or evidence of specific instances of conduct) of the
victim of the crime for which the defendant is being prosecuted is not made
inadmissible by Section 1101 if the evidence is:
 Offered by the defendant to prove conduct of the victim in conformity with the
character or trait of character.
 Offered by the prosecution to rebut evidence adduced by the defendant under
paragraph (1).
(b) In a criminal action, evidence of the defendant's character for violence or trait of
character for violence (in the form of an opinion, evidence of reputation, or evidence of
specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is
offered by the prosecution to prove conduct of the defendant in conformity with the
character or trait of character and is offered after evidence that the victim had a
character for violence or a trait of character tending to show violence has been adduced
by the defendant under paragraph (1) of subdivision (a). . . .
(c) Nothing in this subdivision shall be construed to make inadmissible any evidence
offered to attack the credibility of the complaining witness as provided in Section 782.”

 EVIDENCE CODE ' 1200(A): DEFINITION OF HEARSAY


“Hearsay evidence" is evidence of a statement that was made other than by a witness while
testifying at the hearing and that is offered to prove the truth of the matter stated.”

 EVIDENCE CODE '1237: PAST RECOLLECTION RECORDED


“(a) Evidence of a statement previously made by a witness is not made inadmissible by the

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hearsay rule if [1] the statement would have been admissible if made by him while testifying, the
statement [2] concerns a matter as to which the witness has insufficient present recollection to
enable him to testify fully and accurately, and the statement is [3] contained in a writing
which:
 Was made at a time when the fact recorded in the writing actually occurred or was
fresh in the witness' memory;
 Was made (i) by the witness himself or under his direction or (ii) by some other
person for the purpose of recording the witness' statement at the time it was
made;
 Is offered after the witness testifies that the statement he made was a true
statement of such fact; and
 Is offered after the writing is authenticated as an accurate record of the statement.
(b) The writing may be read into evidence, but the writing itself may not be received in
evidence unless offered by an adverse party.”

 EVIDENCE CODE ' 1238: PRIOR IDENTIFICATION


AEvidence of a statement previously made by a witness is not made inadmissible by the
hearsay rule if the statement would have been admissible if made by him while
testifying and:
(a) The statement is an identification of a party or another as a person who participated
in a crime or other occurrence;
(b) The statement was made at a time when the crime or other occurrence was fresh in
the witness' memory; and
(c) The evidence of the statement is offered after the witness testifies that he made the
identification and that it was a true reflection of his opinion at that time.@

 EVIDENCE CODE ' 1240: SPONTANEOUS UTTERANCE


AEvidence of a statement is not made inadmissible by the hearsay rule if the statement:
(a) Purports try narrate, describe, or explain an act, condition, or event perceived by the
declarant; and
(b) Was made spontaneously while the declarant was under the stress of excitement caused
by such perception.@

 EVIDENCE CODE ' 1241: CONTEMPORANEOUS STATEMENT


AEvidence of a statement is not made inadmissible by the hearsay rule if the statement:
(a) Is offered to explain, qualify, or make understandable conduct of the declarant; and
(b) Was made while the declarant was engaged in such conduct.@

 EVIDENCE CODE ' 1242: DYING DECLARATION


AEvidence of a 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 upon his [1]
personal knowledge and [2] under a sense of immediately impending death.

21
 EVIDENCE CODE ' 1250: EXISTING STATE OF MIND P a g e | 22

A(a) . . . evidence of a statement of the declarant's then existing state of mind, emotion, or
physical sensation (including a statement of. intent, plan, motive, design, mental feeling,
pain, or bodily health) is not made inadmissible by the hearsay rule when:
 The evidence is offered to prove the declarant's state of mind, emotion, or physical
sensation at that time or at any other time when it is itself an issue in the action; or
 The evidence is offered to prove or explain acts or conduct of the declarant.
(b) This section does not make admissible evidence of a statement of memory or belief to prove the
fact remembered or believed.@

 EVIDENCE CODE ' 1251: PRIOR STATE OF MIND


A. . . evidence of a statement of the declarant's state of mind, emotion, or physical sensation
(including a statement o, intent, plan, motive, design, mental feeling, pain, or bodily
health) at a time prior to the statement is not made inadmissible by the hearsay rule if:
(a) The declarant is unavailable as a witness; and
(b) The evidence is offered to prove such prior state of mind, emotion, or physical
sensation when it is itself an issue in the action and the evidence is not offered to
prove any fact other than such state of mind, emotion, or physical sensation.@ 1

 EVIDENCE CODE ' 1271: BUSINESS RECORDS


AEvidence of a writing made as a record of an act, condition, or event is not made
inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
(a) The writing was made in the regular course of a business;
(b) The writing was made at or near the time of the act, condition, or event;
(c) The custodian or other qualified witness testifies to its identity and mode of its
preparation; and
(d) The sources of information and method and time of preparation were such as to
indicate its trustworthiness.@

 EVIDENCE CODE ' 1280: OFFICIAL RECORDS


AEvidence of a writing made as a record of an act, condition, or event is not made
inadmissible by the hearsay rule when offered in any civil or criminal proceeding to
prove the act, condition, or event if all of the following applies:
(a) The writing was made by and within the scope of duty of a public employee.
(b) The writing was made at or near the time of the act, condition, or event.
(c) The sources of information and method and time of preparation were such as to
indicate its trustworthiness

1 Note that both sections 1250 and 1251 are subject to Evidence Code section 1252 which states: AEvidence of a

statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of
trustworthiness.@
BREEDEN
1:hi:te:tiilOti EVIDENCE
(California Distinctions are Italicized in Red )
PROPS CRIMINAL CE OF D: D must open door first, unless acts of prior
Prop 8 is part of the California Constitution. Under Prop 8, all sex assault or child molest. CA - prior acts of domestic violence
relevant evid is admissible in CA crim cases unless the evid admis. IfD offered CE ofV, P can offer evid ofD's same trait.
falls within an exemption. CA·· Narrower- {fD offered CE of V\ violent char, P may
EXEMPTION: CHOP SUR: Confrontation clause; Hearsay; rebut with D :5 violent chm: P can rebut pertinent CE ifD
Open the door; Privilege, Secondary evidence, Unfair prejudice,
opened the door. Direct Exam: only reputation and opinion.
Rape shield.
FORM Cross Exam: reputation, opinion, specific acts, but no extrinsic
evid CA · only reputation and opinion on direct or cross.
OBJECTIONS: Calls for narrative, Unresponsive, Leading Prop 8. every.111111• subject to balancing.
Questions, Assumes facts not in evid, Argumentative, CRIMINAL CE OF v: FRE _ Prosecutor can't first offer CE,
Compound. Objections must be timely and specific or objection unless homicide case where D alleges self defense, but p can
is waived. offer V's peacefulness. D can open door with CE ofV, and P
PURPOSE can rebut only with D's same character trait. Direct Exam:
LOGICAL RELEVANCE: if it has any tendency to make a material only reputation and opinion. Cross Exam: reputation, opinion,
fact of consequence more or less probable than it would be and specific acts, but no extrinsic evid. CA Prop 8: relevant CE
without the evidence. CA Evid Code ·· also requires thejc1ct of (�{ V admissible, subject to balance. Reputation/opinion, specific
consequence in dispute to be relevant. acts on direct or c1vss.
RAPE SHIELD: Crim - reputation and opinion not allowed for V
Similar Hapnenin2:s: typically irrelevant unless: used to show
Specific acts ok to show 3rd party source of physical evid or
causation; to show a pattern in fraudulent claims or a
prior consent btwn D and V Civil - reputation, opinion, and
preexisting condition; to prove intent; rebut defense of
specific acts only if probative value substantially outweighs
impossibility; to show comparable sales relevant to establish
unfair prejudice. If reputation, only ifV put rep at issue. CA
value; evid of habit; routine practice; industrial custom.
Prop 8 does not apply to rape shield.
LEGAL RELEVANCE: If the probative value of the evidence is
SPECIFIC ACTS: admissible to demonstrate MIMIC, subject to
outweighed by its prejudicial effect. - emotionally disturbing,
balancing. (Motive, Intent, Mistake (not), Identification,
e.g. gory photograph or evidence that is admissible for one
Common Scheme-'Plan)
purpose but inadmissible for another�
POLICY CONSIDERATIONS: PRES ENTATION
Liabilitv insurance: inadmissible to prove culpable conduct, e.g.
WITNESS COMPETENCY: Witness must have (1) P ersonal
negligence, or D's ability to pay.
knowledge: first hand sensory perception; (2) �
Subseauent remedial measures: safety measures or repairs after
Recollection; (3) Abilitv to communicate; and (4) Sincerity:
accident inadmissible to prove culpable conduct or, if products
make oath or affirmation to tell truth. CA: W mus/ understand
liability, defective product design . CA · ((strict prod liability
legal duty to tell truth. Ws who have been hypnotized to re.fiBsh
case, evid of remedial measures is admis to pmve defective
ft!colleclion att! incompetent, except Ws in crim case who have
design. Limitation only applies to 11,�/1, ,,,, ... theories.
been hy1111011=ed by police using pmcedures protecting against
Settlement offers: not admissible to prove liability or guilt if a
suggestion.
claim is asserted. Not severable from other statements. CA
also includes mediauon proceedings. DISQUALIFICATION: Only judges and jurors automatically
Offers to Pav Medical Exnenses: inadmissible to prove liability DQ'd. No DQ for insanity, religious belief or age, but may
or guilt, but may be severed from other statements. CA affect credibility.
admissions o.fjZ1ct also inadmis and stmts are not severable. IMPEACHMENT
Exnressions of Svmnathv (CA): civil action: expression of
CONTRADICTION;
c1ympathy to victim is inadmis, but severablejiwn other stmts.
Criminal Pleas: offers to plea, and related statements are PRIOR INCONSISTENT STMT: cross or extrinsic evid if not a
inadmissible to prove guilt. collateral matter and W is given opportunity to explain or deny.
Must be under oath. CA: doesn t need tu be under oath;
CHARACTER EVIDENCE
CIVIL: Inadmissible to prove conduct unless character is at BIAS/INTEREST/MOTIVE: Cross exam or extrinsic evid if not a
issue, e.g. defamation, negligent entrustrnent, child custody. collateral matter;
Opinion, reputation, and specific acts can be used. Fed Only - PRIOR CONVICTION: Fed - felonies and misdem involving false
Prior sexual assaults or child molestation are admissible to statements always ok unless over 10 yrs old. Felonies not
prove conduct. involving false statements ok subject to balancing;
BREEDEN
1:hi:te:tiilOti EVIDENCE
(California Distinctions are Italicized in Red)
misdemeanors not involving false statements NOT admissible. accept. CA - ct must take judicial notice of matters generally
f
If admissible, extrinsic evid can be used; CA ··· all.felonies re: known w/injx, regardless c whether requested
moral tu,y1iwde (lying, violence, the.fi, extreme reek, or sex
BURDENS OF PROOF: Crim - beyond a reasonable doubt. Civ -
misconduct, ok subj to balanc111g. Felomes not involving moral preponderance of evidence. Presumptions. Shifts burden to
tl/lJJ are inadmis, subj to P1vp 8 . Misdem inadmis, but under party against whom presumption is asserted.
Prop 8 misdem involving moral tw7;tt11de ok subj to balancing. HEARSAY
NON-CONVICTION ACTS: ok if involves lying, but no extrinsic Out of court statement offered to prove the truth of the matter
evid. CA: inadmis, but under Prop 8 misconduct re: moral turp asserted in the statement. Usually inadmissible.
ok subj to /, rlonn:;
EXEMPTIONS: admissible b/c not hearsay.
REPUTATION/OPINION RE: TRUTHFULNESS: extrinsic evid ok
or opinion ofW; FACTS OF INDEPENDENT LEGAL SIGNIFICANCE.
SENSORY DEFICIENCIES. EFFECT ON HEARER: knowledge or notice.
SPEAKER'S KNOWLEDGE OF FACTS.
DOCUMENT RELIABILITY
CIRCUMSTANTIAL EVID OF STATE OF MIND.
AUTHENTICATION: Signatures - admission, eyewitness ADMISSION BY PARTY OPPONENT: not subject to personal
testimony, expert opinion, lay opinion by someone familiar with knowledge req or the opinion rule.
sig, circumstantial evid, genuine exemplar (known sig VICARIOUS PARTY ADMISSION: Employee - if authorized
compared to sig admitted). spokesperson or w/in scope of employment and during
employment relationship. Auth can be express or implied. CA
SelfAuthenticating:: certified public docs, acknowledged docs, limited: only (fnt!Khgence t!.l"fJIJ.R'S employer to respomJ,,af
official pubs, newspapers, periodicals, FED only - business supen·or.
records, trade inscriptions.
ADOPTIVE ADMISSION: silence admission if: party heard and
Photos: must fairly and accurately depict what it is purporting to understood, was physically and mentally able to deny,
show at time of event. Non-unique items - chain of custody. reasonable person would have denied.
PRIOR INCONSISTENT STMT UNDER OATH. Used for
Best Evidence Rule (CA: SenindcJ') f,'vid Rule): Evidence is impeachment and substantive proof CA does not require •\,;i.
being offered to prove contents of a writing. Originals and PRIOR CONSISTENT STMT TO REBUT CHARGE OF LYING: if
duplicates ok. Testimony ok only if original was lost or made before bribe or inconsistent strnt as substantive proof or to
destroyed, unless bad faith by proponent of testimony. CA bolster credibility.
duplicate mcludes machine duplfl:ate and other written evid of PRIOR STMT OF ID: ID made after perceiving him.
contents.
EXCEPTIONS: hearsay but still admissible
OPINION TESTIMONY
EXCEPTIONS REQUIRING UNAVAILABILITY:
LAY OPINION: admissible if based on W's perceptions and
Requires privilege, death/illness, proponent cannot procure by
helpful to trier of fact. OK to show speed of auto, sanity, process or other reasonable means. Refusal to testify despite ct
intoxication, emotions, value of W's property. No legal or order, failure ofmemory. CA: re.fi1sal to testtfy out ojjea,; total
scientific opinions requiring specialized knowledge. memory loss.
EXPERT OPINION: Hot Ouiznos for Cold Pen1rnins. Req'ts: Former Testimonv: party against whom offered had opportunity
and motive to conduct exam. In civil case, party must have
Helpful to the jury; Qualified; supported by proper Factual
close privity-like relationship with earlier party, e.g. predecessor
basis; reasonable degree of Certainty; based on reliable in interest. CA - also appl,es (l W lives at least 150 miles.fi-om
Principles that were reliably applied - Fed/Daubert standard: ct. In civil case, no privily req r so long as opportunity and
Peer reviewed and published scientific journals; tested and motive are similat: OK tfojfered against person who originally
subject to retesting; low error rate; reasonable level of offered it into evid in the prior proceeding.
acceptance. C4 - Ki:/11:y-l• 1)"1: Standard: Based on principles Dvimz Declaration: only in civil and homicide cases by one
generally accep,t!d by experts in thefield. believing he is about to die and describing cause or
circumstance leading to injury. CA···· all cases ifdec/arant is
JUDICIAL NOTICE: Generally known in jx OR capable of actually dead.
accurate and ready determination by resort to sources whose Stmt a1Zainst interest: At time made, against pecuniary, penal or
accuracy cannot reasonably be questioned. Civil - judicial proprietary interest. If used to exculpate, must have
notice is conclusive. Crim - jury may but doesn't need to corroborating evid. CA· also tfug,linst social interest. No
corroborating evid req 'd.
BREEDEN
1:hi:te:tiilOti EVIDENCE
(California Distinctions are Italicized in Red )
Personal/Familv Historv: declarant must be family member or FEDERAL CATCH-ALL: Guarantees of trustworthiness; strictly
close associate. Requires personal knowledge. necessary; and notice given to adversary as to nature ofstrnt.
Stmt Offered Ai:minst Person Procurin2: Declarant Unavail: only CONSTITUTIONAL ISSUES: Even ifnot inadmissible b/c of
ifperson offered against engaged or acquiesced in intentional hearsay, Confrontation clause can make statement inadmissible
wrongdoing. against D in a crim case. Testimonial strnts are inadmissible
CA- Infliction or Threat of Phvsical Abuse: made ah1ear injury unless the declarant is unavailable AND the D had an
explaining it?fliction or threat. /11d11dt!.\ written or reconled opportunity to cross the declarant when the stmt was made.
stmts and stmts made to police/medical pn�l Only in crim cases and only when the prosecution is offering
the evid.
.CA: Past Phvsical/Mental Condition: only if at issue in case, PRIVILEGES
but does not need to be made for treatment purpo.11.:\.
ATTORNEY/CLIENT: Communication btw attorney and client, or
EXCEPTIONS - UNAVAILABILITY IMMATERIAL: (PAPERS PBJ) rep, intended by client to be confid and made to facilitate legal
services, is privileged, unless waived by client. Purpose must
Present Sense Imoression: While perceiving event or be to procure prof legal service. Cannot be made in presence of
immediately thereafter. CA stmt made to explain conduct 3rd party, unless unknown eavesdropper. Applies to comms
while enKaKed in it. from employee/agent ifcorp authorizes them to comm.
Ancient Docs: 20 years Privilege extends beyond client's death. Not applicable to
Past Phvsical Condition for Med Diaimosis: Ifmade to medical malpractice action. CA: comm. btwn c11111 n.r's mp/r,y 'I! and
professional to assist in diagnosis or treatment. Only statements atty only applies
f
[/'employee is natural pen·on to speak to atty
re: cause or source. CA only in child abuse or neglect cases on beha(f c co on that mafter OR (fempl,� I!<! did something for
when vicrim is under 12. which co may be liable. Atty can disclose (f'necessat)' ro
pre, I c,ime likely to result in death or serious bodily harm.
Excited Utterance: During or soon after startling event while
under stress ofexcitement ofevent. CA: aka !>pontaneous stmt. PSYCHO THERAPIST-SOCIAL WORKER /CLIENT: Comm btwn
Recorded R ecollection: W once had personal knowledge; doc patient and psych, intended by client to be confid, and made to
made by W under W's direction or adopted; Written or adopted facilitate rendition ofprofpsych services, is privileged, unless
when memory was fresh; accurate when made; W now doesn't waived by patient. CA: no privilege (f11e,:l.!ssary to prevent
remember crime that is likely to result in death or sr bodily harm.
State ofMind: Present mental, emotional, sensation or physical DR/PATIENT: doesn't apply ifpatient puts physical condition in
condition. Only ifstate ofmind is directly at issue and material issue, physician's services sought to aid in crime, or case alleges
or to establish intent (circumstantial evid that intent was carried breach ofduty arising out ofrelationship. CA - doesn r apply in
out) crim case or to i11fb doctor is required to report to public office.
Public R ecord: record describing activity ofoffice, describing SPOUSAL PRIVILEGE: Testimonial - in crim cases, W may
matter observed pursuant by duty imposed by law. Record refuse to testify against spouse. Can be waived by testifying
contains factual findings from investigation made pursuant to spouse. Doesn't apply in crim case where spouse is charged w/
authority granted by law. (Prosecution can't use). CA: crime against spouse or kids. Requires legal marriage at time of
prosecution may use if made by public employee, w/in scope of trial. CA: applies in both civ and crim and spouse doesn r have
employee.� duties, made near time of matter described, under to go on stand. Confidential Communication: protects all
ci1t:umstances md1 ·a1111g tmstwort/11111:.1,s. communications during marriage. Requires legal marriage at
Business Record: record ofevent, condition, opinion or time of communication. Both spouses hold and can prevent
diagnoses kept in regular course ofbusiness, made at or near testimony ofthe other.
time ofmatter described. C4: no opinions or diagnoses unless
simple.
Jud2:ment ofPrevious Conviction: Judgment offelony
conviction (e.g., copy ofjudgment ofconviction) admissible in
both civil and crim case to prove any fact essential to judgment,
but when offered by prosecution for purposes other than
impeachment, judgments against person other than the accused
are inadmissible. CA: civil only but includes pleas <�f'nolo
contendre. Prop 8 may apply in crim if moral t11rpit•1de
Learned treatises:std scientific treatise or authoritative work if
relied on by expert in direct or called to attn ofexpert on cross.
f
CA: narr<'II to point of uselessness -- only.facts <! general
notoriety.
Misc: vital stats, prop interest docs, , family records, market
reports. CA --judgment in prior civil case in tndl'lllnity.
BREEDEN
1:hi:te:tiilOti Evidence Charts

Facts oflndependent Statement has words forming legal significance No distinction.


Legal Significance based in substantive law, e.g. forming a contract or
stating that transfer of title is a gift.

Effect on Hearer ln negligence case, words that show knowledge or No distinction


notice on the part of the listener or is relevant to
the issue of motive

Speaker's Knowledge Statement proves the writer had knowledge of the No distinction.
of Facts facts and shows connection to the claim at issue

Circumstantial Statements used to demonstrate that the declarant No distinction.


Evidence of State of believed them to be true, to demonstrate insanity
Mind or knowledge.

Admission by Party Statements of admission made by a party, or Considered hearsay, but falls under
Opponent someone attributable to a party, offered by a party exceptions.
opponent.
• Personal knowledge not required
• Opinion rule barring statements of legal
conclusions inadmissible
• Employees Considered hearsay, but falls under
• An authonzed spokesperson exceptions.
• Employee of a party concerning a matter
within the scope of his employment and Narrower w/r/t employees' statements
made during the employment relationship - only an admission where negligent
• Co-conspirators in furtherance of a conspiracy conduct of the speaker is the basis for
to commit a crime or civil wrong. an employer's liability in the case
• Partners made within the scope of partner�hip under respondeat superior
Adoptive Admission Silence may be an admission if: Considered hearsay, but falls under
• Party heard and understood exceptions.
• Party was physically and mentally capable of
denying
• Reasonable person would have denied the
accusation.
Prior Inconsistent Inconsistent statement must be made under oath at Considered hearsay, but falls under
Statement Given a prior proceeding or deposition and is admissible exceptions.
Under Oath for impeachment and as substantive proof
( distinguish between prior testimony requinng All prior inconsistent statements are
un_availabilitv) adnussible.
Prior Consistent A consistent statement is admissible if made Considered hearsay, but falls under
Statement Offered to before an alleged bribe or inconsistent statement exceptions.
Rebut Charge of W's and can be used as substantive proof or to bolster
Lying or E xaggeration credibility.
Prior Statement of Statements of identification made after perceiving Considered hearsay, but falls under
Identi fi cation him (does not require oath or formal proceeding). exceptions.
BREEDEN
1:hi:te:tiilOti Evidence Charts
Hearsay Exceptions
Requiring l nm ail,1hilit�
UNAVA.Il.ABillTY:
Privilege. Death or Illness, Proponent can't procure attendance by process or other reasonable means.

Federal California
• Refusal to testify despite court order (fed only) • Refusal to testify out of fear
• Failure of memory (fed only) • Total Memory Loss
Type Federal callfomla Distinction
Former Testimony • Party against whom testimony is now offered • Unavailability also extended to prior
had an opportunity to examine and similar deposition witness who lives 150 miles
motive to conduct the examination. from courthouse.
• In civil case, party against whom testimony is • In civil case, no predecessor in
now offered was not a party but has a close interest/privity requirement if opportunity
privity-like relationship with the earlier party and motive are similar
(predecessor in interest) • OK if offered against person who
originally offered it into evidence in the
prior proceeding
Dying Declaration • Admissible only in civil and homicide cases • Applies in all civil and criminal cases
• Made by one believing he is about to die • Requires declarant's dead
• Describing cause or circumstances leading to
impending death
Statement Against • At time made, against pecuniary, penal or • Includes statements against social interest
Interest proprietary interest • Does not require corroborating evidence
• If offered to exculpate accused, must have
corroborating evidence
Personal or Family • Concerning birth, marriage, chvorce, death, No distinction
History relationship, etc.
• Declarant must be family member or closely
associated
• Personal knowledge requ1red
Statement Offered Admissible if party against whom offered • Applies only inseriousjelonies.
Against Person engaged or acquiesced in intentional • Only if there is clear and convincing
Procuring Declarant's wrongdoing to procure unavailability. evidence that declarant was killed or
Unavailability kidnapped.
• Prior stmt must have been recorded by
law enforcement.
Infliction or Threat of Physical Abuse
• Made at or near time of injury or threat
• Describes or explains infliction or threat
• Written or recorded or made to police or
medical professional
• Trustworthy circumstances
Past Physical or Mental Condition
• Only if at issue in case
• Does not need to be made for medical
treatment (or even made to medical
professional)
BREEDEN
1:hi:te:tiilOti Evidence Charts

Type Federal California Distinction


Present Sense • Made while perceiving an event or • Called Contemporaneous statement
Impression immediately thereafter • Only statement made to explain conduct
ofdeclarant while engaged in it.

Ancient Documents Authenticated document over 20 years old • Authenticated document over 30
• Treated as accurate by someone who has a
reason to care.

Past Physical • Past bodily condition if made to medical V narrow - made by child abuse or neglect
Condition for personal to assist in diagnosing or treating victim under age 12
Medical Diagnosis/ • Cause or source ofcondition also admissible if
Treatment pertinent to diagnoses or treatment
Excited Utterance • During or soon after a startling event Called Spontaneous Statement
• Made under stress ofexcitement of event
• Concerning immediate facts of event

Recorded • W once had personal knowledge Same.


Recollection • Document made byW underW's direction or
adopted byW
• Written or adopted when memory is fresh
• Accurate when made
• W now has insufficient recollection
State of Mind • State of mind, emotion, sensation, or physical I Excludable if made under suspicious
(Present) condition circwnstances
• Admissible only when state of mind is directly
in issue and material OR to establish intent of
person and as circumstantial evidence that
intent was carried out
• PRESENT TENSE I
Public Records • Record describing activities of office No restriction for prosecution so long as
• Describes matters observed pursuant to duty record
imposed by law (prosecution cannot use this) • Made by public employee
• Record contains factual findings resulting • Within scope of employee's duties
from investigation made pursuant to authority • Made near time of matters described
granted by law, unless untrustworthy • Under circumstances indicating
(prosecution cannot use this) trustworthiness
Business Records • Records of events, conditions, opinions or • Does not include opinions or diagnoses,
diagnoses but will admit simple opinions or
• Kept in regular course of business ( not in diagnoses
preparation for litigation)
• Made at or near time of matter described
• By person with personal knowledge or w/in
personal knowledge of one w/ business duty to
transmit info to the entrant
• Regular practice to make such recording
• NOTE: police records may fall under this
category in civil cases but not criminal
BREEDEN
1:hi:te:tiilOti Evidence Charts

Type Federal California Distinction


Judgments of Prior • Felonies: admissible in criminal and civil to • CEC: only use in civil case but included
Convictions prove fact essential to judgment but not if plea nolo contendre.
of nolo contendre • Prop 8: Felony or misdemeanor
• No misdemeanors conviction admissible in criminal if crime
• Substantive evidence only re: the accused involves moral turpitude
• Impeachment for anyone
Vital Statistics Births, deaths, marriages made to public office as Same.
required by law

Property Interest Deed, will, or other document affecting property Same.


Documents interest admissible regardless of age

Learned Treatises • Standard scientific treatise or authoritative • Narrow to point of uselessness


work as substantive evidence • Applies only to facts of general notoriety
• Called to attn of expert W on cross or relied or interest
upon by expert W on direct
• Established as reliable authority
Family Records Personal or family history in family Bibles, Same
genealogy, urns, tombstones

Market Reports Published compilations like lists or directones Same

Judgment in Prior • Final judgment admissible when P is


Civil Case trying to get indemnification or enforce
warranty
• Final judgment against third party
admissible to show current D is not liable
Evidence Charts
� - ----- -
I- -- - -- C:h;,�acter Evidence (Offeredt� Prove i:onduct)
Civil Cases
• Character evidence inadmissible to prove conduct
1-

• EXCEPTION: where character is at issue in the case, all evidence (opinion, reputation, and specific acts) are admissible.
Cases to which this applies are:
o Defamation
o Negligent entrustment
o Child Custody
- --
Federal California �I
• EXCEPTION: prior acts ofsexual assault or child • No sexual assault or child molestation exception
molestation are admissible to prove conduct

Criminal Cases on Character Evidence of DEFENDANT
I
Federal California
• P cannot first offer CE. • P cannot first offer CE.
• EXCEPTION • EXCEPTION:
- Sexual assault or child molestation cases where - Sexual assault or child molestation cases where
prior acts of same are admissible. prior acts ofsame are admissible.
- Where D has offered character ofV, P can be - Where D has offered evidence ofV's violent
first character, P may only rebut with D's similar
to offer evidence ofD for the same trait. character ofviolence.
• D can offer CE to prove or disprove conduct - Domestic violence cases where prior acts ofsame
• P can rebut on pertinent character trait ofD. are admissible.
• On direct, only reputation and opinion. • CEC only allows reputation and opinion evidence on
• On cross, reputation, opinion or specific instances. But direct and cross.
no extrinsic evidence. • Prop 8: everything is admissible, subject to balance.
CriminAI Cases on Character Evidence.of VICTIM
Federal California
• P cannot first offer CE. • Prop 8: ifrelevant, V's character is admissible, subject to
• EXCEPTION: in homicide case, ifD alleges self­ balance.
defense, P may offer evidence ofV's character for • Reputation, opinion and specific instances are permitted
peacefulness. on direct and cross.
• D can offer CE ofV
• P can rebut, but only with D s same character trait.

• On direct, only reputation and opinion.


• On cross, reputation, opinion or specific instances. But I
no extrinsic evidence.
Rape Shield
Federal California
• Criminal • Same.
- Reputation and opinion not allowed for V • Rape shield is an exception to Prop. 8
- Specific instances admissible to show third
party
source of semen or injury or prior acts of
consent between D and V
1 • Civil
- Reputation, opinion and specific instances
admissible ifprobative value substantially
outweighs unfair prejudice and, with regard to
_ re�_ p_utation, ifV put reputation at issue.
BREEDEN
1:hi:te:tiilOti Evidence Charts
:\lethods of lmpt'achmt•nt
(Offered to Discredit Credibility)
Impeachment by Contradiction
Impeachment by Prior Inconsistent Statement
I• Prove by
I -
Cross Examination
- Extrinsic evidence (if not a collateral matter)
• If admitting extrinsic evidence, W must be given an opportunity to explain or deny inconsistency.

• Prove by
- -
Impeachment by Evidence of Bias, Interest or Motive

- Cross Examination
- Extrinsic evidence (if not a collateral matter)
• W must be asked on cross about facts showing bias or interest before admission of extrinsic evidence. If admitted on
cross, admission of extrinsic evidence is at court's discretion.
!Impeachment bv Prior Convictions (if allowed, extrinsic evidence is admissible}

Federal California

• Crimes involvingfalse statements: • All felonies involving moral turpitude are admissible
- Felonies and misdemeanors involving false statements subject to balancing. Moral turpitude = lying, violence,
are always admissible to impeach. theft, extreme recklessness and sexual misconduct. NOT
- EXCEPT: if conviction or release from prison negligence or unintentional acts.
is over 10 years old, then subject to balancing
• Felonies not involving moral turpitude are inadmissible
• Crimes not involving false statements and not subject to Prop 8.
- Felonies are admissible, subject to balancing
- Misdemeanors are NOT admissible. • Under CEC, misdemeanors are inadmissible to impeach.
But, under Prop 8, misdemeanors involving moral
• If admissible, extrinsic evidence can be used. turpitude are admissible in a criminal case, subject to
balancing.
lmpeac.hment bv Non-Conviction Bad Acts

Federal California
I • Admissible in civil and criminal ifact involves lying. • Non-convicting bad acts are inadmissible under CEC.
1 • No extrinsic evidence.
• Under Prop 8, non conviction misconduct involving
moral turpitude is admissible in criminal cases using
cross or extrinsic evidence, subject to balancing.
tlmpeachment with Reputation and Opinion Resiardine Truthfulness

• Extrinsic evidence is admissible (calling another witness)


• Opinion ofW is admissible

llmpeacbment with Sensory Deficiencies

• Cross examination or extrinsic evidence


• Shows faculties of perception or recollection are impaired or that W lacks personal knowledge
PROFESSIONAL RESPONSIBILITY
CLIENTS LOVE FIERCE COUNSEL; COURTS FEEL DIFFERENTLY.
DUTIES OWED TO:
CLIENTS: Confidentiality. Loyalty. Fiduciary responsibilities. Competence. CouRTs: Candor. Fairness. Dignity/Decorum.
"The attorney owed a duty of_ to client/court."
Limiting Liability: No limit re: client's rts to report you. No
Attorney may not reveal any info obtained during the course of limit on malpractice liability unless client independently
the attorney-client relationship. represented in agmt.
Publication Rts: Not W1til after rep. CA: discourages but ok (f
SCOPE: applies to all info, regardless of whether privileged,
judge determines client understands and ,:unsent:,.
without consideration of source. May attach before atty/client
relationship formed, regardless of whether one ever established. Loans: None except costs and lit expenses when representing
indigent and advances on litigation expenses in contingent fee
DISCLAIMERS must be in plain English terms.
cases. CA: p,vhibits pm111ise to pay pro.\pective clients debts,
EXCEPTIONS: but allows any loan ajier ally is hired (fwrilten.
Consent- may be implied to render effective legal services. Use of Info: can't use info to the disadvantage of client w/o
Crimes - if atty reasonably believes disclosure is necessary to consent.
prevent death or substantial bodily harm, atty may reveal. Gift: can't solicit from client, but may draft instrument for close
Fed does not require criminal act. CA: permissive disclosure relative/client that provides substantial gift.
but atty m11s1 i) make g,11>JJa1th effort to persuade client not to Oooosing Counsel: can't have close relationship with opp
f
commit act and ii) inform the client r! their decision to reveal counsel w/o informed consent.
cm?fidences.
Trial Counsel as W: Can't testify unless testimony is
Financial: permissive disclosure if client is using your services uncontested, or regarding nature of services rendered, or if
to commit a crime and disclosure necessary to prevent or withdrawal would create substantial hardship. CA: 110
mitigate substantial financial loss. CA: NA. testimony in jury trial unless written consent.
DefendinQ vourself - in disciplinary actions, malpractice suits, CONFLICTS BETWEEN CLIENTS:
suit for client's refusal to pay.
Firm: can't represent party if atty at firm represents the other
Compelled bv law
side in direct conflict.
DUTY OF LOYALTY Present Clients: CA: no rep (ladverse to current client, unless
An atty owes their client a duty of loyalty and must exercise polie,:l'llulder and insurance co. Can represent two sides of an
professional judgment solely for the benefit of her client, free of issue, so long as neither client would be disadvantaged.
compromising influences and loyalties. Multiple clients: Civil - if sides actually conflict, e.g.
TIMING: Atty may accept representation if you i) reasonably confidential info, then must withdraw and advise them to get
believe that you can provide effective rep; ii) you inform each sep counsel. Criminal - very narrow, because may compromise
affected client; and iii) clients give written consent. After loyalty and impede effective assistance of counsel.
representation begins and a conflict arises, you must disclose Former Client: no rep of new client materially adverse to former
the conflict and get further written consent. w/o former's consent. Can't use confidential info if relevant to
IMPUTED DISQUALIFICATION: all attys in firm share conflicts, new client's matter. Imputed Disqual: if atty leaves firm, former
unless conflict from gov't service or personal relationships (use firm can't work on case if matter is substantially related or the
of ethical wall may permit representation). C4: disqualification same and any remaining atty has confidential material info.
is 1111:niftd, but an imputed atty is not subject to di,, ·i11lt11-!. Gov't lawyers: Conflict if atty worked "personally and
REMEDIES: Refuse to take the case; advise multiple clients to substantially" on the matter, unless gov't provides written
get separate counsel; withdraw consent. No imputed disqual if atty is screened off, doesn't
share part of fee and gov't employer is informed. CA:
CONFLICTS BETWEEN ATIY AND CLIENT: f
prosecutors may not work on defense q same case. S'creening
Business Txs and Adverse Interests: ok if terms are fair, fully is allowed.
disclosed, client had opportunity to consult outside lawyer, &
THIRD PARTY INTERFERENCE: Compensation from 3rd party ok
client provides written consent.
with client's informed consent.
Stock Payments: ok if fair and reasonable.
Securities Laws: Fed law requires atty to disclose to CEO/legal
Board Service: no automatic bar, but strongly discouraged. counsel of Corp. If ignored, go up ladder to BOD or highest
Atty can't represent an individual employee case if on BOD. authority. If reasonably necessary to prevent fraud or
Pro Bono exception: may be officer of legal services org so substantial injury to org, or if services are being used directly to
long as you don't knowingly participate in decisions adverse to cause injury, must disclose to SEC w/o client consent. ABA­
clients. sirnilar reporting up and out. CA: report up BUT NOT out.
BREEDEN
1:hi:te:tiilOti
RELEVANCE,HEARSAY,CHARACT..ER
Relevance
In order to be admissible, evidence must be both logically and legally relevant. Evidence is logically relevant when it
tends to prove or disprove a material fact of the case. Evidence is legally relevant if its probative value substantially
outweighs the risk of: (1) 11ufair prejudice; (2) misle�dingordistracting the jury; (3) confusion of the issues; and
(4) undue delay.

l&gjcal Relevance

Insert facts here

Legal Relevance

Insert facts here

Hearsay is an out-of-comt statement offered for the truth ofthe matter asserted. It is generally inadmissible because
the veracity of the witness at the time the statement was made cannot be tested.

Insert facts here

HearsayExce1>tions
Although evidence may qualify as hearsay, there are certain exceptions to the hearsay rule for evidence that
bas its own indicia of reliability.

�tion goes here


Insert rule statement and facts here (tell me why the exception is reliable).

Example ofgood hearsay analysis:

Here,Abigail's statement that Laurie was speeding was made at the scene of the accident, and therefore qualifies as
an out-of cou rtstatement. It is being offered to show that Laurie was indeed speeding, and therefore is being�
for irs truth. Consequently, it is hearsay.

Character Evidence (in civil cases)


Character evidence is evidence that tends to suggest a party's conduct occurred in conformity with their character. It
can be offered by: (1) evidence of specific acts; (2) qpinion testimony of a witness who knows the person; or
(3) testimony as to the person's general re.putatiQU in the community.

It is generally NOT admissible in civil cases to show conduct in conformity therewith.

Example of good character analysis:

Here, the plaintiff is attempting to introduce evidence of (Paul's prior conviction of vehicular man-
slaughter), which is a (prior bad act). Since this is a civil case, unless an exception applies, to the extent
that the evidence of the (conviction record) is introduced to show character for ______
(reckless driving), it is not admissible.
BREEDEN
1:hi:te:tiilOti
TRANSCRIPT OBJECTIONS

Ambiguous
An ambiguous question is one that could have more than one meaning.
Example: Did you get it?
11 11

(Get what? We have no idea how the speaker is using the word "it.")

Argumentative
An fl.r_gum,entative question is asked for the purpose of persuading the jmy or judge rather than to elicit
information (it som1ds like the attorney is making a point). It calls for no new facts by the witness but appears
to ask for inferences to be conceded from the question. It can be argumentative in content or TONE.
Example: "And it didn't occur to you to slow down at that point?"

(The attorney is arguing that the witness should bave slowed down).

Asked and Answered


When the witness bas already answered the same or a similar question asked by the same attorney, an objection
for "asked and answered" is appropriate.
Example: You should be able to recognize this when you see it.

Assumes Facts not in Evidence


An attorney may not assume, as t.rue, any facts not already introduced into evidence.

Example: "When did you last use heroin?"

(It hasn't been established that the witness ever used heroin)

Compound
A compound question is one that requires two answers.
Example: "Weren't you carrying a knife and some pepper spray?"

(Which is it? How would the witness answer if he or she was only carrying one of these?)

Calls fora Legal Conclusion


A question that calls for a legal conclusion asks the witness to state an opinion about an issue that is one of the
legal matters to be decided in the case.
Example (negligence case): "So what do you think caused your
injuries?"

(Causation is an element of negligence and therefore it would be a legal conclusion in this case)

Calls for a Narrative


A question that calls for a narrative is so broad and general it pennits the witness to narrate. It is objectionable
because it may produce in-elevant or otherwise i11admissible testimony. Each question should limit the witness
to answering a specific question on a specific subject.
Example: "Tell me everything that happened to you that night."
Leading
A� question suggests the answer the examining party desires. Leading questions are improper on direct
examination except for the purpose of eliciting preliminary info1matiou. They are generally permitted on cross­
examination.
Example: "So would you say Lola was too intoxicated to drive when she
got behind the wheel of her Range Rover that night?"

(The attorney is suggesting that Lola was too intoxicated to drive and the witness is led iuto answering
yes or no. The attorney should have asked the witness to discuss Lola's mental or physical state at the
time she entered the car.)

Mi5Jeading
A mjs)eading question misstates evidence or misquotes witnesses.
Example: You should be able to recognize this when you see it.

Calls for Speculation


A question that calls forspeculation invites or causes the witness to speculate or answer on the basis of coujectu«.
Example #1 (question): "So do you think she went to the club that
night to get revenge?"

(How would the witness know for sme?)

Example #2 (answer): "Her shoes must have cost at least $500.00."

(The witness is basically admitting that he or she doesn't know the real price.)

Lacks Foundation
A question lacks foundation when, at the time it was asked, the foundation had not been laid that the witness had
the requisite knowledge to answer the question .
Example: "Where were you standing when you saw Alex shoot Elliot?"

(The foundation has not been laid that the witness saw Alex shoot Elliot, nor bas it been laid that Alex
shot Elliot at all.)

Non-Responsive
A non-responsive answer is one that goes outside the boundaries of the question or doesn't directly answer the
question (it� mean the witness just sits there like a bump on a log refusing to respond. In that situation, a
witness is hostile).
Example:

Question: "And what did you do with the money after you found it in
the drawer?"

Answer: "Well I spent some of it on clothes and video games. I


mean, I felt like I was entitled to do that. After all, it was our
community property money."

(The attorney should move to strike everything after video games. Why the witness did what he or she
did with money is not responsive to the question, which was limited to what he or she did with it).