1. Evidence Overview a.

The hurdle race as long as one side is offering evidence, the other side can throw up a hurdle. If no one objects, then the evidence is entered. b. Some hurdles are Required one of which is relevance. If something is not logically relevant, then it must be excluded. c. There can be many different hurdles to be cleared. Just because you pass one hurdle, does not mean there wont be another one. d. Scope of the FRE i. FRE 101 - Governs proceedings in federal court ii. FRE 1101 Preliminary questions of fact are to be determined by the judge. FRE doesnt apply to grand jury, bail hearings, administrative proceedings, etc. iii. Generally, FRE applies when you are in trial, not when applying for things. iv. FRE 102 the purpose of the rules is to ensure fairness, to secure and obtain the truth in the proceedings. The underlying function of the FRE is to make a decision that is based on truth, that is fair. 2. Logical Relevancy Do First a. FRE 402 Unless otherwise provided by the rules or by any other specific enactment, all relevant evidence is admissible. Evidence which is not relevant is not admissible. b. FRE 401 Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence. There are 2 prongs to this rule: the evidence must have probative value and must be material. i. Probative value: the evidence has probative value if the evidence tends to prove or disprove something. That is, the evidence must make the factual proposition more (or less) likely that it would be without the evidence. 1. A way to show probative value is that the evidence affects the probability of the existence of a fact consequential to the action. ii. Materiality: The evidence must be material. There must be a link between the factual proposition, which the evidence tends to establish, and the substantive law. 1. This is indicated by the requirement that the fact be of consequence to the determination of the action. That is, the evidence will matter to the outcome of the case. 2. The items/facts offered into evidence must be linked with the substantive law a party is trying to establish. Tanner v. U.S. iii. Whether a fact can make a material issue more or less probable is largely indeterminate, since it depends on the individual perception of the world of the person making the judgment. c. Conditional Relevance FRE 104(b) i. Evidence is relevant only if other facts are also established. ii. If there is a dispute of the preliminary fact, then the FRE allows the evidence to come in and would instruct the jury to find the evidence to exist if they believe that preliminary facts exist. So, the piece of evidence would be conditional to the existence of other facts. 1. Some states give this instruction to the judge and have him decide. iii. Laying a foundation placing the groundwork to put on evidence, to show that the item of evidence is somehow connected. 1

iv. Motion in limine A motion outside the presence of the jury. The motion would exclude the items of evidence for the judge to rule on the items outside the presence of the jury. v. Romano v. Ann & Hope Factory action for products liability of a bike going downhill loosing brake power was thrown out because the plaintiff did not establish the preliminary facts that testing by an expert was conducted under the same conditions that the brakes failed. The expert testimony was not allowed because the conditions were not set. vi. The amount of proof that must be made with the foundational facts is only enough evidence to support the finding that the other fact exists. d. Legal Relevance Exclusion of Unduly Prejudicial Evidence FRE 403 Do Last i. Even if evidence is relevant, the trial judge may exclude it on the basis of several largely discretionary countervailing considerations. FRE 403 allows a judge to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, repetition, confusion, or waste of time. The three major categories are prejudice, confusion, and waste of time. ii. Prejudice - Relevant evidence may be excluded because its probative value is outweighed by the likelihood that it will cause unfair prejudice. The word unfair is an important aspect: any highly material evidence is likely to be prejudicial (in the sense of damaging) to the party not introducing it. Unfair prejudice means and undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one. Adv. Com. Note 403. 1. Comparison: When a court is weighing an items probative value against its prejudicial effect, the court should normally compare the proffered item against other possible evidence on the same point. If the alternative evidence has the same or nearly the same probative effect, and much less prejudicial value, the court should normally insist that the less-prejudicial item be used. 2. Evidence of other crimes: D does not want the jury to know what his previous felony is for because it will how his violent tendencies and bias the jury. Unduly prejudice exists and is not outweighed by the probative value. Ct concludes that the inclusion of his specific conviction will be unduly prejudicial, and the probative value of the fact could be demonstrated in alternative ways. Old Chief v. U.S. a. Evidence that can be prejudicial should be excluded when there may be al alternative way of proving the particular fact. In Old Chief, the court should have stipulated the felony existed. 3. Gruesome photos: Photo enlargements of murder victims show the facts themselves are not unduly prejudicial; they have a probative value because they corroborate witnesses detailed testimony and help the jury observe what actually happened. Here, the photos were necessary to convey to the jury the details of how the D brought about the victims death. U.S. v. Yahweh bin Yahweh. a. In order to be unduly prejudicial, need to show that the evidence is more damaging than what the facts actually are. If what is damaging are the facts themselves, then it is not unduly prejudicial. 2

iii. Confusion: Relevant evidence may be excluded by the trial judge if its probative value is outweighed but its tendency to confuse or mislead the jury, or unduly distract it from the main issues. iv. Waste of Time: Relevant evidence may be excluded by the trial judge if it would be a waste of time. The is especially likely where the evidence is cumulative or repetitious. Ex., 5 witnesses testifying to the same effect. v. **Exam tip: Instances of evidence that is really irrelevant are relatively rare. On MC tests, an answer like The testimony is relevant, and this admissible is more likely to be correct than an answer like The testimony is inadmissible because its irrelevant. e. Circumstantial Proof i. Circumstantial evidence is just as admissible as direct evidence. However, since you are drawing inferences, the probative value might be weakened and the amount of prejudice might be higher. 1. Ex: Admissions by conduct flight and silence. Many people are suspicious, but the USSC said that flight can be used in court to make inferences of guilt. However, it is also possible for flight to be caused by fear of something else. 2. A person turned himself in, but then took 2 weeks to claim selfdefense for a killing. Here, the conduct of not coming forward with his story was used against the D. Jenkins v. Anderson. 3. Destruction of evidence: when evidence is destroyed there is an inference that the evidence contained something that would incriminate the person who destroyed the evidence. Smith v. Superior Court (Abbot Ford). ii. Circumstantial evidence, even if offered to prove a material fact, will nonetheless be found to be irrelevant if the evidence has no probative value, i.e., it does not affect the probability of the proposition to which it was directed. 1. Such evidence of other crimes or bad acts is not admissible when offered for the purpose of suggesting that because the D is a person of criminal character, it is more probable that he committed the crime for which he is charged. 2. Rule: Evidence of a persons character (or a trait of character) is not admissible to prove that the person acted in conformity with that character on a given occasion. f. Probability and statistical proof i. A part cannot offer possibilities or probabilities as evidence. There must be some additional evidence to corroborate the numerical evidence. ii. All courts agree that if probability evidence is to be introduced at all, a proper foundation for it must be laid. In particular, solid evidence used to compute probability must be resented to the jury. iii. The probability of a fact is not evidence especially if it is the only item of evidence being offered. 1. In People v. Collins, probability evidence was rejected because of the prosecutions failure to lay requirements. iv. Need actual evidence to convict somebody or to find them liable. 1. Although the statistical evidence shows a likelihood, it is not conclusive to convict or find liability. Smith v. Rapid Transit. However, if you can eliminate the alternatives and show that there is not 3

merely statistical, then the evidence would have to be admissible. v. Modern Trend: The modern trend is probably towards increased acceptance of probability evidence, when a careful scientific or mathematical basis is laid. 1. EG, paternity testing or DNA evidence. DNA evidence is admissible, even though it is based on probability. The amount of error is too minuscule to exclude. 3. Categorical Rules of Exclusion Exclusion of Evidence for Extrinsic Policy reasons a. Subsequent Remedial Measures i. When, after an injury/harm allegedly caused by an event, measures are taken that, if taken previously would have made the injury/harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in the product/products design/warning. FRE 407 ii. Evidence of subsequent remedial measures CANNOT be used to show negligence, strict liability, or culpable conduct in connection to an event. iii. Policy: To encourage safety and encourage people to make their premises as safe as possible; if their remedial measure would be used against them, they would be less inclined to take steps to ensure future safety if something were to occur. iv. The rule has been extended beyond repairs to exclude evidence of instillation of a new safety devise, lowering of a speed limit or heightening a safety precaution, and firing (or reprimanding, or disciplining) the employee responsible for the accident. v. Pre-accident redesigns allowed: The exclusion of subsequent remedial measures applies only to those measures taken after the injury or harm. vi. A remedial action carried out by a third person rather than the D is admissible. vii. Such evidence CAN be admitted for other purposes. The evidence of a remedial subsequent measure can be used: 1. For purposes other than negligence or culpability, e.g., Impeachment; To show ownership or control over the instrumentality or feasibility; To rebut a claim that precaution was not feasible; To prove destruction of evidence, etc. viii. CA Rule is similar, except it does not speak to product defects cases. b. Settlement Offers i. Evidence of a party offering to settle/compromise a claim which is disputed as to the liability for/invalidity of/amount, is NOT admissible to prove liability for/invalidity of/amount. Also, any statement or conduct made in the course of settlement negotiations or compromises is NOT admissible. FRE 408 ii. Evidence of offers to compromise or compromises, statements that are made and conduct that occurs during settlement negotiations are not admissible. iii. Policy: to encourage settlements. iv. For 408 to apply, there must be a dispute as to the validity or the amount of the claim, or for impeachment or inconsistent statements. 1. IF there is no dispute as to liability or amount, then a settlement to give less or more would be admissible. IF you negotiate something less than the claim, but acknowledge the amount is correct, then the 4

compromise would be admissible. v. The rule covers any situation where a claim has already been asserted or is likely to be asserted; the fact that a claim as not yet been asserted does not matter it will still be excluded. vi. Proof of settlement with 3rd parties for the same matter is not admissible. vii. CA rule is similar: CA extends the rule to statements made in the course of mediation, treating mediation the same as settlement discussions. c. Offers to pay medical expenses i. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses for an injury is NOT admissible to prove liability for the injury. FRE 409. ii. Evidence of furnishing or offering to pay medical or hospital expenses or other similar expenses is not admissible to show liability or fault. This rule does not exclude statements made in conjunction to the offer of payment. 1. Only the odder to may medical expenses is excluded; any additional statements are not excluded. iii. Purpose: paying for medical expenses is a humanitarian act, and we do not want to discourage them; however, if a person makes an admission at the same time, then that is admissible. iv. Compare/Contrast with FRE 408: 1. FRE 408: want to encourage settlement and discussion; dont want to penalize people for making admissions or to hold back during the process. 2. FRE 409: want to encourage humanitarian acts, but admissions are not excluded by the rule (they are admissible). v. Pain and suffering is more like an offer to settle, so it would likely be covered under 408, not 409. vi. CA Rule is a broader rule: not limited to offers to pay for medical expenses (i.e., statements made in conjunction with the offer to pay medical expenses would also be excluded) because it includes humanitarian offers to compromise. d. Pleas and Related Statements i. Under FRE 410, evidence of the following statements made during plea discussions are not admissible against the criminal D: 1. A plea of guilty which is later withdrawn 2. Plea of no contest (nolo contendre) 3. Any statement made in the course of any proceedings regarding such plea 4. Any statement made in the course of pleas discussions w/ an attorney ii. This rule applies only when in plea discussions with a prosecutor. Discussing a plea with a police officer or other agent would be admissible. iii. This rule applies to statements against the D; so, evidence from plea discussions that are not against the D are admissible. This means that the D can use evidence of the plea discussion against the prosecutor. iv. Rights under FRE 410 can be waived, so long as they are done so knowingly and voluntarily. Mezzanatto. v. Policy: to provide an option whereby all the effects of a criminal conviction may be obtained but the pleading party may avoid an admission of guilt that can be used against him in a subsequent case. 5

vi. What is the difference between a confession and an admission (Under 801)? 1. Under the current rule, one must decide when statements or conduct by the D or the government official suffice to justify characterizing discussions as plea discussions. Also, there is a pervasive relevancy question. In looking at evidence of statements arguably covered by the rule, one must be careful to understand the purposes for which plea-bargaining statements are offered, keeping in mind the realities of the plea-bargaining process. vii. CA rule is approximately the same; rules do not explicitly cover statements made during plea discussions, but case law indicates that statements made during such times are inadmissible. e. Proof of Insurance i. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. FRE 411 ii. Evidence that a person is or is not insured is not admissible on the issue of fault, however, it may be admissible for other purposes, such as to show that the insured exercised control over the premises, or was in an agency relationship with the person maintaining the insurance. iii. The rule extends to evidence of ability to pay. 1. The fact that you had insurance (or wealth) would make it such that you would be more culpable, and thus less likely to be careful. It could also give the impression that a party has the means to pay without being injured. iv. Evidence for the following reasons is admissible: 1. Proof of agency, ownership or control 2. Bias or prejudice of a witness 3. Mental State a. For a car accident, when the D offers evidence of insurance, he is offering it to give evidence of his mental state and that a person that has insurance would not have left the scene of an accident. b. **Exam tip: you need to look at the reason that the piece of evidence is offered. Not all evidence of insurance should be excluded. v. Policy: want to encourage people to have insurance, and it should not be held against a person. vi. CA rule is essentially the same 4. Examination of witnesses Competency a. Historical v. Modern Approach i. Historically, there were many reasons why a witness would be foind incompetend to testify. ii. Modernly, everyone is competent as a witness, unless otherwise determined by law. 1. The test for competency is extremely liberal; it is very hard to have something excluded from testifying based on competency. b. How do we endure truthefulness? i. Cross-examination, AND ii. Requiring witnesses to make an oath or affirmation (FRE 603) 6

c.

d.

e.

f.

g.

1. Oath: allows one to swear in Gods name 2. Addirmation: allows one to swear under penalty of perjury. iii. Impeachment. Requirements for witnesses to testify: i. Ability to communicate 1. Does not have to be oral communication. If the W can testify through an interpreter, if they can move a finger as a response, they are communicating sufficiently. ii. Ability to observe or perceive the event to which they are testifying 1. Have to have sensory perceptions (i.e., see, hear, smell) the event that W is testifying to. a. E.g, if you are testifying to seeing something then you need the ability to seeetc. 2. Have personal knowledge of the event W is testifying for. (FRE 602). iii. Ability to recollect what happened 1. W has to be able to remember what happened. 2. Ws memory can be refreshed iv. Honesty 1. W has to understand their obligation to testify truthfully 2. This may become an issue for young children (do they really understand the difference b/w a lie and the truth?) People that are incompetent to testify i. The judges that are overseeing the case that they are presiding over. ii. Jurors cannot be called as witnesses in the case where they are serving as a juror. Rules of Questioning Credibility i. Any party can ask questions that cast doubt on a Ws credibility. ii. It is impermissible to comment of a persons religious belief, or lack thereof, to question their credibility. Dead Mans Statute/Dead Mans Act i. Rule: If the person against whom the action attacks has dies, then the person that is bringing the claim is not competent to offer testimony. The action may still be brought. This is done to equal the playing field. 1. P can have someone other than himself, who is not a party of the transaction, to testify to the transaction. E.g., Ps accountant. ii. This only applies in civil cases where P is bringing suit against decedents executor. iii. A majority of states have abolished the statute; Dead Mans Act does not exist in the FRE. In federal court, the only way the Dead Mans Act can come up is in diversity cases where the state law applies. iv. Bar Exam: The answer is almost never Dead Mans Statute Hypnosis i. Federal courts are split regarding hypnosis-induced testimony. This is true whether the statement is offered as substantive evidence or for its bearing on the credibility of the witness live testimony. ii. People v. Hughes 1. Rape victims testimony based on hypnosis. 2. Court only allowed evidence of things she remembered prior to hypnosis iii. Reasons why hypnosis is disfavored. After hypnosis, these effects can 7

occur: 1. Ws increased susceptibility to suggestion 2. Testimony is subject to confabulation; W may have false remembrances to fill in gaps. 3. Increased confidence in Ws own statements, even if they are false remembrances. iv. Regardless of what the state rules are, the rules must give way to the constitutional protections of a Ds right to testify on her own behalf. 1. Rock v. AK D was the only one who could have testified to her defense. D may use hypnosis-induced testimony if it is for own defense, because restricting the admissibility of her testimony would restrict her from having a fair trial and impair her constitutional rights. v. CA Rule allows a witness who has been hypnotized to testify, but the testimony is limited to matters that the witness remembers prior to hypnosos. Thus, it is important to keep adequate records of what the witness remembered before and after the hypnosis. h. Form + Scope of Witness Examination i. Calling a witness and Direct Examination 1. Parties have control as to what witness to call and what order to call them 2. FRE 611 the court have the power regulate a witnesss embarrassment that is deemed unnecessary and irrelevant, that causes an undue burden on time, or is harassing. ii. Cross-Examination 1. Cross-examination is to be limited to matters raised during direct examination. Exception: cross-examiners can ask questions that relate to credibility (lack of trustworthiness). a. Can show that a witness lacks credibility (impeaching her) by: i. Showing bias ii. Showing interest / financial stake in the outcome iii. Showing that the witness has an inability to perceive or to know the facts that she is testifying to. iv. Showing that W is unworthy of belief, e.g., asking about prior convictions. iii. Limitations on the form of questions. Do not ask the following forms of Qs: 1. Compound questions [Objection: Compound question] a. Usually the word and will be in the question b. You cant ask about multiple parties i. i.e., asking someone about what the whole family said. c. To get around this, the questioner should ask the questions sequentially, or ask about people separately. 2. Repetitive/Duplicate questions [Objection: asked and answered] a. Question has already been asked to the W and answered. The questioner cannot continue asking the same question. b. Probing questions are allowed, but there is a fine line there. c. This is to protect the W from undue harassment. 3. Argumentative/Badgering/Harassing Questions a. Qs that belittle or embarrass the witness b. Arguing with the W is not allowed 8

c. This doesnt mean that you have to be nice to the witness. 4. Questions assuming facts that are not in evidence [Objection: assumes facts not in evidence; Attorney is testifying] a. Qs that presuppose certain facts that are not in evidence. i. E.g., when did you stop beating your wife? b. Hypothetical are generally not allowed, except for expert witnesses. 5. Questions that call for speculation [Objection: Speculative] a. Cannot ask witnesses to testify to something that they have no knowledge of. You cannot ask a witness to speculate. b. Can ask certain witnesses for their opinion, but for lay persons, the opinion has to be based on personal observation and experience. c. You are allowed to ask for approximations, i.e., of distances 6. Questions that are overly broad, confusing, ambiguous, or vague [Objection: calls for a narrative] a. Need to ask specific questions. b. Overly broad questions invite narratives. E.g., What happened? c. Asking long and convoluted questions 7. Leading questions on Direct Examination. [Objection: Leading] a. Questions that suggest the answer that the questioner wants. b. General rule: leading questions are not allowed on direct examination, but are allowed for cross-examinations. c. Exceptions: leading Qs are allowed for direct examination when: i. The witness is frail, a which, or can only communicate by body movement ii. The witness is hostile (i.e., from adverse party, party that is forced to testify) Must get permission to treat witness as hostile from the judge. iii. The info sought is for background purposes, and has no bearing on the substance of the case. iv. Permitted on preliminary hearings. iv. Non-responsive Witness 1. If the witness does not answer the question being asked (i.e., answering other questions), then he is being non-responsive, and that conduct is grounds for striking that part of the testimony. 2. Sometimes courts give a little leeway to the witness answers. 5. Hearsay Rules a. Definition of hearsay i. Hearsay is an out of court statement offered to prove the truth of the matter asserted. FRE 801. 1. Declarant the person making the out of court statement 2. A statement can be an oral or written assertion, or non-verbal conduct that is intended to be an assertion (i.e., conduct designed to communicate an idea). 3. Truth of the matter asserted means the statement made by the declarant is being used to prove that what the declarant said was true. a. You cant tell a statement is hearsay by looking only at the 9

statement; you need to look at the context as well. ii. The general rule is the hearsay is inadmissible, except as provided by FRE iii. The purpose of the hearsay rule is to present the truth and to keep put unreliable testimony because there is no way to assess out of court declarations. 1. If there are disputes as to the reason a statement is being offered, the judge would rule on that matter. iv. Hearsay rules are only applicable to statements by people (e.g., animals, sounds from equipment are not included as hearsay). v. Declarant and witness can be the same person, and the court of court statement can still be hearsay. vi. Statements that are not hearsay: statements not offered for their truth, statements that are offered in court, any other statements that are excluded under the categorical exemption to hearsay. b. Sequential Statements / Multiple Hearsay i. Sequential Statements refer to a serried of statements that are made right after each other (i.e., a conversation) 1. W testifies as to a conversation between multiple people. E.g., X said X, then Y said Y, the Z said, Z ii. Multiple hearsay refers to layers of statements 1. I.e., W testifies that X ran in the room and said D just said he is going to kill us all! Here W is testifying that X said something that D said. (This can be admissible; see below). iii. For both of these, each statement needs to be analyzed individually to determine if each statement made is hearsay. 1. To be admissible, each statement/layer must fit within an exception or be non-hearsay. 2. Need to keep the statements separate and compartmentalized. 3. Example above (W testifies that X ran in the room and said D just said he is going to kill us all!) is admissible. a. Xs statement may qualify as an excited utterance b. Ds statement may qualify as an admission. 6. Hearsay Exclusions a. Categorical Exceptions to Hearsay out of court statements that are NOT offered for their truth. These are out of court statements that are not statements because they are not offered for their truth, i.e., for the truth of the assertion. i. Statements offered as circumstantial evidence of declarants state of mind 1. Declarants state of mind can include mental illness, incompetence, or good faith (when dealing with fraud). a. I.e., W testified that declarant said Im the King of England. This statement can be admissible to show the declarants incompetence. b. I.e, W testifies that D told me 2 days before the accident my brakes arent working well. This can get in as non-hearsay if it is used to show that D was on notice or aware. Also, it is circumstantial evidence of Ds mental state: careless. ii. Statements offered to show the effect upon the listener 1. These kinds of statements are not offered for their truth, but possibly to establish motive. 2. Eg: D is on trial for the murder of his wife. W testifies that T told D 10

your wife is cheating on you. D rushes home and wife is found dead. This statement is not made to show that the wife was cheating. This statement is an out of court statement, not to show the truth, but to show the effect on D. 3. Also, the silence of a person can be admissible to show a reaction. Eg: W testifies that T told D I saw you rob the liquor store. W then testifies that D remained silent. This evidence is being shows that an accusation was made and the effect on the listener. If someone does not reach to an accusation, that person is likely to be admitting guilt. iii. Verbal acts/Legally operative statements 1. Words that have legal significance simply because they were uttered. It does not matter if the statements were true or not. 2. Words that have legal significance are not hearsay, and thus, are allowed into evidence. 3. This includes: words of offer and acceptance, assignment, delegation, donation, gift. Words of threats, extortion obscene phone calls, defamatory statements. a. I.e., in a defamatory case, W testifies that D said Heilman is a pimp. This is a defamatory statement and the statement would be accepted into evidence to show that the words were uttered, and thus published, regardless of the truth (of the statement). iv. Also not considered hearsay: the absence of an entry normally made in the regular course of business is admissible to prove the non-occurrence or non-existence of the matter. Cameron v. Walton-March. 1. FRE treats the absence of a record as non-hearsay. b. Non-Hearsay statements which are categorically excluded from the hearsay rule i. Admissions by a party-opponent (FRE 801(d)(2)) 1. Statement that is offered against a party AND is a. The partys own statement, in either an individual or representative capacity; or i. However, a party is not allowed to offer his own out of court statement for his own benefit. b. The party has adopted/believes the statement as the truth, or i. Also called an adoptive admission ii. Silence can be an adoptive admission when: 1. The person heard the accusation 2. The person was capable of response 3. A reasonable person would have responded iii. Silence will generally be inadmissible when it is in response to police questioning (Miranda Rights). However, if the Miranda Rights were never given, then the pre-arrest silence can be used against the D. Fletcher v. Weir c. Made by a 3rd party that is authorized by the party, or i. i.e., statements by the spokesperson for the individual are admissible against the person who hired the spokesperson to make statements on their behalf. d. Vicarious admission made by persons employee within the 11

scope of employment, or i. These statements are not admissible is made after termination of employment ii. Need to prove the existence of the relationship; cannot rely on the statement itself to establish that there was a relationship. iii. The application of this rule may vary in the attorneyclient relationship. In US v. Harris, a statement made by the attorney on behalf of his client was admitted; there is a concern that allowing such testimony would chill representation. The attorney made the statements during the course of his employment for D. iv. Vicarious admission is a one-way street. The agents (employee) statements are admissible against the principle (employer), but the principles statements cannot be admissible against the agent. e. A statement made by a co-conspirator made during and in furtherance of the conspiracy. i. The party introducing the statement must establish a conspiracy in a preliminary question of fact be a preponderance of the evidence. ii. This cannot be a statement made after the coconspirator has been arrested. iii. If the evidence was admitted, as an admission by one party is a joint trial, then there must be a redaction of all inference to the other D. iv. Boot-strapping: using the out of court admission statement to prove that there was a conspiracy, as long as the court is satisfied that there is sufficient evidence independent of the statement to meet the threshold that: (1) there was a conspiracy and (2) the statement was made in the furtherance of the conspiracy. (Bourjaily v. US). So, statement alone cannot prove a conspiracy. Need to establish by the preponderance of evidence that there is a conspiracy. 1. CA does not allow bootstrapping; CA does not allow the co-conspirators statements to be considered in determining whether a conspiracy exists. You must first establish a conspiracy, and then you can bring in the statements. 2. The statement does not have to be against a partys own interest at the time it was made. 3. Only admissible against the person that made the statement (one partys admission cannot be used against another party) 4. Do not need personal knowledge at the time the statement is made. 5. Silence can be used as an admission (see (1)(b)(ii) above). 6. CA Rule, out of court statement is offered for its truth, so its hearsay. But these are considered as exceptions to the hearsay rule. ii. Prior Statements of a Witness (FRE 801(d)(1) 1. Prior statements of a witness are not hearsay when the witness is on 12

the stand and is subject to cross-examination. a. Cross-examination is not necessary, but the opposing party must have the opportunity to cross-examine. 2. Prior inconsistent statements can be introduced into evidence to impeach D a. If a prior inconsistent statement is being offered to impeach a witness, then the statement is not being offered for its truth, and is therefore not hearsay. b. A statements not made under oath can only be offered for impeachment purposes. c. A statement made under oath can be offered both for impeachment and for substantive purposes (to proof something). d. Hypo: Witness testifies Red car ran Red light; previously the W said out of ct it was a blue car that ran red light this out of ct statement allowed to impeach W this cannot be intro for substantive proof; cannot come in to prove that it was a blue car; but if under oath then can intro e. Rational: W gave inconsistent statements under oath, so let the jury decide which out of ct statement is truthful 3. Prior consistent statements offered to rebut a change of recent fabrication or improper motive a. Cannot offer the prior consistent statement until the witness has been attacked by the other side for fabrication, improper motive, or another inconsistent statement. Hypo: can offer after this scenario occurs: W says red car passed the light; Att says didnt your friend pay you a grand to lie cause previously said blue car; now can offer to rebut what attack by Att b. This rule embodies a temporal requirement. Prior consistent statements will be admitted only if they were made before an improper motive to fabricate arose. (Motive to fabricate would include a charge/case being filed). c. Allows the admission of a prior consistent statement to rebut a charge that the witness has recently fabricated his story, has been improperly influenced or motivated. 4. A statement of identification made after perceiving the person. a. A witness prior statement identifying a person after perceiving him is not hearsay. b. This includes identifications that have been made out of court. c. This identification can be used as substantive evidence. 5. CA Rule, out of court statement is offered for its truth, so its hearsay. But these are considered as exceptions to the hearsay rule. 7. Hearsay Exceptions a. Declarant must be unavailable i. A declarant is unavailable if: 1. Dead 2. Physical/mental incapacity 3. Inability to remember (i.e., head injury, lost memory, Alzheimers) 4. Exempt to testify because of an existing privilege a. Spousal privilege, 5th amendment 13

5. Absence from jurisdiction, and unable to locate/notify. a. Exception: the person using the testimony cannot send the declarant out of the jx. 6. If the court requires an answer, and the W refuses, then he is deemed unavailable. Though he may be subject to contempt charges. 7. Note: If ones unavailability has been arranges, then the party using the testimony cannot claim unavailability. ii. Former Testimony (FRE 804(b)(1)) 1. Requirements a. Declarant must be unavailable b. Testimony of prior proceeding was under oath. Testimony can come from earlier in the case, a prior case, an arbitration proceeding, in a deposition. c. Declarant was subject to cross-examination at the time the prior testimony was made, either by the party who we are offering the testimony against or their predecessor in interest. i. Not required to actually have been cross-examined, as long as there was the opportunity and motive to do so. ii. The prior party must have had the same opportunity and motive for the cross-examination. 2. Might come up at a retrial. 3. Usually, the transcript of the former testimony is read into evidence. 4. Do not confuse this with Prior Statements of a Witness. iii. Declarations against interest [FRE 804(b)(3)] 1. Requirements a. Declarant must be unavailable b. Statement has to be against the declarants interest at the time the statement was made (a statement that will expose the Declarant to some kind of liability) c. The Declarant must have personal knowledge 2. Rationale: most people do not make statements against ones own penal or financial interest, unless the statement is true. 3. The statement must be so contrary to the Declarants interest that a reasonable person would not have the statement unless it was true. 4. A statement that exposes a person to criminal liability, while at the same time exonerating a D, is not admissible unless there is corroboration. (Corroboration other evidence that tends to support the truthfulness of the declaration). 5. Statements that would shift the blame from the person on trial to another person needs corroborating evidence to be admitted. 6. CA Rule is the same, but broader to cover statements that expose the Declarant to hatred, ridicule, or social disgrace to also be admitted. iv. Dying Declarations [FRE 804(b)(2)] 1. Requirements a. Declarant must be unavailable, does not have to be dead. b. Declarant must believe he is about to die (It is irrelevant if he later recovers). c. Statement needs to concern the cause or circumstances of his 14

death. d. Only applies to civil actions and homicide proceedings. 2. Rationale: If dying declarations were inadmissible, it would give more reasons for perpetrators to kill their victims. 3. Declarant does not actually have to die, as long as he actually believed he was going to die and is now unavailable. a. Shepard v. US A statement was not a dying declaration because the declarant was given hope of recovery at the time the declaration was made, and therefore did not speak under impending death. b. Some states require that the declarant actually dies, but not the FRE or CA. 4. BEWARE: dying declarations are not available for attempted murder. b. Declarants Unavailability is Irrelevant i. Present Sense Impression [FRE 803(1)] 1. Statement describing something that is currently occurring. 2. EG., like a play-by-play 3. Rationale: if someone is observing and explaining at the same time, then there is no time for fabrication. Also, if there are any discrepancies, then the person listening is likely to confront. 4. This is not available in the CA code, but there is a rule for contemporaneous statements. ii. Excited Utterances [FRE 803(2)] 1. A statement relating to a startling event or condition made while the Declarant was under the stress of excitement cause by the event or condition. 2. The declarant blurted something out as a response to an event. a. Look for the key word: blurt; also Oh my God. 3. A statement made after just being informed of something that is startling or exciding could be enough to qualify as an excited utterance. 4. CA Rule is the same. iii. Present State of mind or present physical condition [FRE 803(3)] 1. A statement of the declarants then existing state of mind, emotion, sensation, or physical condition. 2. Such things that qualify under this rule are Declarants intent, motive, design, mental feeling, pain, and bodily health. 3. This also covers a statement of the Declarants current intent to do something in the future. However, the current state of mind does not include things that look backwards, i.e., I wanted to do X yesterday. 4. A current state of mind can be communicated orally, or be written in a letter. Mutual Life Ins. v. Hillmon 5. CA Rule is the same. a. Allows past state of mind if delcarant is unavailable iv. Statement of Past of Present Physical Condition for Purposes of Diagnosis [FRE 803(4)] 1. Statements made for purposes of medical diagnosis or treatment and describing medical history, past or present symptoms, pain or sensations, or the general cause as reasonably pertinent to diagnosis or treatment. 15

2. As long as the statement is relevant to diagnosis, it is admissible. 3. Even statements to medical practitioners solely for the purposes of litigation are covered by this exception. c. Documentary Exceptions i. Recollections Records 1. Past/Present Recollection Revived [FRE 612] a. When a W is unable to remember an event, an attempt can be made to revive her memory. b. Can ask leading Qs, show the W an object, or have the W smell something, or something in writing (a document). c. When the recollection is revived by something, the other side is allowed to look at the thing that revived Ws memory. If the other side then wished, they can introduce the object used to revive the memory into evidence. i. The other side can introduce a document into evidence to show any discrepancies. However, nothing from the document can be introduced into the record. 2. Past Recollection Recorded [FRE 803(5)] a. A statement that was made by the witness while the matter was still fresh in the witness mind and was accurate at the time it was made can be read into evidence if the witness memory cannot be revived/triggered despite an attempt. b. W has to testify that the statement was truthful and accurate at the time that it was made. c. Cannot introduce the statement as a written exhibit; the evidence needs to be entered like oral testimony. i. The document needs to be presented to the other side, and they will have the opportunity to introduce it into evidence (to point out any discrepancies, etc.). ii. Business Records [FRE 803(6)] 1. Records (1) made in the ordinary course of the business AND are part of a routine practice of the business to maintain that information (2) made by a person authorized to record accurately, (3) made at or near the time the events occurred, (4) are authenticated and (5) trustworthy, are admissible. 2. Rationale: Businesses have an incentive to keep accurate records because they need it for their own business, and are thus likely to be true. Also, it would be too disruptive to bring witnesses to testify to information available in the records. 3. The following records do not qualify as business records: a. Police reports (because they are often based on reports from surrounding witnesses; this would be admitting hearsay). b. Accident reports a restaurant, RR, or companys business is not about accidents) i. Palmer v. Hoffman a RRs report about an accident was not admitted because the record was not made for the systematic conduct of the business. c. Records that are kept simply for convenience or for the purposes of the person keeping the record, and not for something that the business relies on. E.g., Spruniuk v. Petriw, 16

a farmers (personal) checkbook is not admissible. 4. A printout of computer records is admissible as business records. iii. Public Records [FRE 803(8)] 1. Public records are admissible, including: a. Reports of activities of the office. i. Official records record the activities of the agency. b. Matters observed under duty, to which there is a duty to record by law, except for police reports in criminal cases. i. This would cover people inspecting sites, etc. ii. Except matters observed by the police. Here, the officer must testify in person. c. In civil actions or against the government in criminal cases, reports setting forth factual findings from an authorized investigation. i. In Beech Aircraft v. Rainey, the term factual findings is to be broadly interpreted. Here a court allowed a report that included factual findings, opinions, conclusions, and recommendations. ii. Philosophically, you cant really separate out facts from conclusions because everything we see are conclusions. d. The absence of a public record is admissible if a public record should have been found. This can be used as evidence that an event did not occur. e. CA Rules are similar, except they do not allow investigative reports. 2. Vital Statistics - (i.e., birth, death, marriage certificates) are admissible [FRE 803(9)] 3. Ancient documents: statements in a documents in existence for a long time (20+ years) and are authenticated. These are old docs that you can sufficiently rely on. If no one else is alive, all that might be available are ancient documents. 4. Learned treatise: authoritative documents. Documents such as academic references on subjects such as medicine, art, science, etc. iv. Catch-All exception / Residual Exception [FRE 807] 1. Out of court statements are admissible is they have circumstantial guarantees of trustworthiness AND: a. Are offered for evidence of a material fact, AND b. Are more probative than any other evidence that will prove this fact, AND c. The interest of justice is best served by allowing the statement into evidence, AND d. Opposing counsel is given advance notice of the evidence to be introduced. i. For hearsay, there is no need for advance notice of the use of the evidence. However, advance notice is needed for this one exception. 2. In actual practice, if the declarant is available as a witness, then the catch all would not apply because the use of the statement would not be more probative than to have the available witness take the stand. 3. To determine trustworthiness, you need to take into consideration all 17

of the factors of the declarant and the statement made. a. In US v. Bailey, the declarant has an incentive to lie because he would get a lower sentence in his plea bargain. This was enough to show that the statement did not have circumstantial guarantees of trustworthiness. b. Even if the Declarant was a known felon, his testimony can be given a guarantee of trustworthiness if it is accompanied by corroboration testimony by several other officers as well ad picture documentation and tape recordings. 4. Confrontation Clause: D has the right to confront and test the credibility of his accuser in order to prevent out of court hearsay; guarantees the right to confront hostile witnesses. 5. CA does not have a Catch-all exception. 8. Opinion Testimony Ask, is it a lay opinion or an expert opinion? a. Lay Opinion Testimony i. Fed and CA Rule: A lay witness is allowed to give opinion testimony when: 1. The opinion will be helpful to the trier of fact 2. The opinion is based on the perception of the witness, and 3. The opinion is not based on scientific technical or other specialized knowledge. ii. A lay witness is generally allowed to given an opinion on an area which is in the ordinary understanding of a lay person 1. Ex: whether, speed, intoxication, sanity, handwriting, and distance; identity of another (by voice), identity of anothers handwriting (required sufficient familiarity). iii. Statements of facts cannot be based on speculation E.g., W testifies that X was about 1 mile away. This distance is too far to not be speculative. iv. Lay witness cannot testify as to legal conclusions. E.g., What a lethal weapon is; whether X was negligent v. A person can be a lay witness and an expert witness. Look to see where lay ends and expert begins. 1. Ex: a cop is lay when it comes to determining the type of injury suffered by a victim of a car accident, but might be an expert in determining what happened at the scene of that car accident. b. Expert Opinion Testimony i. Rule: An expert is allowed to testify in the form of an opinion when: 1. The opinion will be helpful to the trier of fact, 2. The opinion is based on material upon which an expert might reasonably rely, 3. Opinion must be based on reliable principles and methods, and 4. The expert is properly qualified based on education, training, or experience. a. Experience alone can qualify a person as an expert. Johnson ii. Proper Subject Matter: The expert can testify only to matters embraced by his or her field of expertise. Analyze the facts to determine if the expert is testifying in his specialized field. 1. Expert can testify even to matters that fall within the competence of the jury as long as the experts knowledge will assist the jury to understand the evidence or to determine a fact in issue. 2. Experts allowed to give expert opinion on the ultimate issue 18

iii.

iv.

v.

vi.

a. However, experts testifying on mental state or condition of criminal D may not state an opinion where the Ds mental state or condition is an element of crime or defense of the charged offense. b. CA says a W may state his opinion as to the sanity of a person when: i. The W is an intimate acquaintance of the person whose sanity is in question, OR ii. The W is qualified as a lay or expert in order to testify in the form of an opinion. If the expert is testifying regarding some novel theory, the experts opinion must be based on the methods or processes of scientific thought. 1. In federal court, the theory need not have been generally accepted within the scientific community. 2. In CA, however, the expert must be relying upon something that is generally accepted within the scientific community. An expert can rely upon the following in forming an opinion: 1. Own conclusions or data that is personally observed by the expert 2. Expert may base an opinion on data transmitted to him by means of hypothetical questions, which are drawn from the evidence admitted at trial 3. Material that is not necessarily admissible at trial a. i.e., hearsay (a medical book itself is not admissible, but a doctor testifying from the book would be admissible as long as others in the field would reasonably rely on it). Applying the Rule 1. Frye Test: In order for an expert to testify on scientific matter, the method has to be generally accepted within the relevant community a. Any scientific evidence based on new technology must stand the test of time. Issue is how to prevent all kinds of scientific testimony from coming in (opening up ctroom to things that seem scientific, but are really not). b. Still followed in CA 2. Daubert Test: General acceptance is not required, but still must prove: i. Relevant ii. W is properly qualifies iii. Method is based on scientific method and procedures iv. Can look at other factors, but they are not prerequisites b. Kumho Tire extends Dauberts applicability to technical expertise, not only scientific expertise. 3. Glaser factors (Skipped this case) used to determine if the expert is complying w/ scientific method a. Theory and technique can be tested, b. Theory and technique are subject to peer review, c. Known rate of error d. Generally accepted in the scientific field An expert can: 1. Be asked hypothetical questions 2. Testify at trial and give opinions 19

3. Be cross-examined to determine the basis and questioned about his credibility 4. Give an opinion on an ultimate issue (an issue that the jury has to decide) vii. An expert cannot: 1. Give an opinion on what the law is. a. Marx v. Diners Club expert testimony about what he believes best efforts to mean in a K is not admissible. 2. Give an opinion as to Ds mental state for criminal cases a. This is an exceptions to the ultimate issue ability. b. i.e., mens rea, intent, negligence, reasonable belief. viii. Impeachment of an expert: 1. Lack of expert qualification 2. Prior inconsistent statement in present case 3. Financial Compensation 4. Conflicting opinion with other experts 5. Use of journals and treatises a. Federal rules permit as long as recognized in the field. b. Talk about hearsay here. Learned Treatise exception. 9. Character and Impeachment Evidence Is the evidence being offered as substantive proof or is it being offered for impeachment to show that some witness is unworthy of belief? 10. Impeachment a. Federal and CA restrict cross-x to matters within the scope of matters reasonably inferred from the direct examination. b. Impeachment the testimony of a W (i.e., to attach the credibility of a W) refers to the introduction of evidence for the purpose of discrediting i. Intrinsic Evidence impeaching facts on cross-x, i.e., out of the Ws own mouth ii. Extrinsic Evidence impeaching facts other than through cross-x, i.e., during the opponents rebuttal case, document, other W. iii. Federal Rules allow the impeaching of a partys own witness c. It is possible for evidence to be admitted for impeachment purposes, but not for substantive character purposes. d. Common Impeachment Techniques i. Prior Inconsistent Statements 1. To show that a W waffles (tells different stories) by proof that W has made prior statement(s) inconsistent with testimony at trial. 2. If statements were made under oath, they are admissible not only for impeachment purposes, but as substantive proof. 3. If statements were not made under oath, they are only admissible for impeachment purposes. **Make sure to see use a limitation instructions. 4. CA allows prior inconsistent statements to be admissible for impeachment and substantive purposes regardless of whether the prior inconsistent statement was made under oath. 5. FRE 613(a): in order to cross-x a W about prior inconsistent statements, the cross-xer must, upon request, show the statement to opposing counsel or describe the contents to him. 6. FRE 613(b): for extrinsic statements, the W must be given a chance 20

to explain or deny the prior inconsistent statement. However, extrinsic proof of prior inconsistent statement not allowed as to collateral matters (i.e., matters unrelated to the merits of the suit nor to any other impeachment ground where extrinsic evidence is allowed. CA: No collateral matter rule. 7. Hearsay crossover: Non-hearsay when PIS is used solely to impeach. However, when used for its truth, PIS is hearsay unless within an exemption. CA: In CA, it is an exception. ii. Prior bad acts involving dishonesty 1. Allowed only on cross-x 2. Prior bad acts refer to misconduct that involves dishonesty that falls short of a criminal conviction 3. Use of evidence of prior bad acts to attack the Ws creditability is limited to the following: a. It is within the courts discretion to allow/not allow prior bad acts for impeachment purposes. b. Extrinsic evidence is not allowed. Only what the W says can be used to prove prior bad acts. No extrinsic evidence allowed. i. If a W denied the bad act in response to the question, no further evidence is admissible. c. Limited to character trait of truthfulness or untruthfulness, not just bad moral character. d. CA Rule i. Civil cases: evidence of specific bad acts to prove a trait of his character is inadmissible to attack or support the credibility of a W. ii. Criminal cases: prior bad acts are allowed both through extrinsic and cross-x, but it is subject to legal relevance balancing. e. Note: watch for limited admissibility/legal relevance issues. iii. Bias and Prejudice 1. Bias if there are improper motives for testimony. 2. Abel Bias is defined as the relationship between a party and a W that may lead the W to slant his testimony to favor that party, whether consciously or not. 3. Evidence that a W is biased or prejudiced against one of the parties is always admissible for impeachment purposes. 4. Extrinsic evidence is admissible to show that a W suffers from bias or prejudice. iv. Conviction of a Crime (Prior Conviction) can be proven by record of conviction or examination of W. 1. Felonies: A W can be impeached with evidence that the W has been convicted of a felony. a. Convictions cannot be too remote. b. Generally, of more than 10 years have passed from the date of the conviction or release from confinement (whichever is later), the conviction is not admissible for impeachment purposes. c. Subject to FRE 403 balancing. Factors to be considered: i. Impeachment value, ii. the point in time 21

iii. Similarity of past crime and this charged crime. Since only being brought in for purposes of impeachment, the more similar it is to the previous crime, the more likely to be admitted to impeach. iv. Importance of Ds testimony. v. Centrality of Ds credibility . d. However, when 10 years have passed and the trial court determines that the probative value substantially outweighs the prejudicial effect and the adverse party is given notice, then the conviction can be used. 2. Non-felony crimes involving false statement or dishonesty, are admissible when: a. They occurred within a 10 year period b. No balancing test applies (No FRE 403 application). 3. A court has the discretion to exclude evidence of a felony conviction if the court finds it unduly prejudicial, but a court as no discretion to exclude a conviction for perjury or false statement. 4. A conviction is proved by direct/cross-x, or by introducing record of conviction. Both intrinsic and extrinsic evidence can be used. 5. Juvenile record is never Admissible. 6. Convictions on appeal can be brought because it is still a conviction; however, once reversed, it is not admissible. 7. In criminal cases, the rules are the same as above with one exception: a. When criminal D is a W, a special balancing test applies: The prosecution must prove that the prior felony is more probative than prejudicial. 8. CA Rule: a. Civil cases: convictions of felonies are allowed, but the felony must be honesty-related and is subject to legal relevance test. b. Criminal cases: felony and misdemeanor convictions involving moral turpitude are admissible for impeachment, but are subject to legal relevance balancing. People v. Castro. v. Bad reputation for truth or veracity/lack of trustworthiness 1. A W can be impeached by the introduction of other Ws who can testify to the reputation of the W for untruthfulness. Similarly, another W who is familiar with the W can express an opinion about whether the W is generally truthful. 2. FRE permits both opinion and reputation evidence of character to attack or support the credibility of a W but the evidence must relate only to truthfulness or untruthfulness, and evidence of truthful character is admissible only after the principle Ws character for truthfulness has been attacked. 3. CA Rule: a. Civil cases: same as FRE. b. Criminal cases: a criminal D who takes the stand can offer good character evidence of his honesty and veracity even if his character has not been attacked. This differs from FRE. People v. Taylor vi. No Bolstering 22

1. The FRE does not allow a party to put on evidence of the truthfulness of a W until that W has been attacked as untruthful. 2. CA allows either party to bolster a W in criminal cases. vii. Contradiction 1. Intrinsic: You can establish the facts are different from what the W has testified. On cross-x, W may be contradicted as to any fact to which he testified on direct. 2. Extrinsic evidence may not be offered to contradict W on collateral matters, i.e., where the sole probative matter is to contradict W. Extrinsic evidence to contradict must be relevant to the merits or to some other impeachment ground where extrinsic evidence is allowed, e.g., faulty perception. 3. CA Rule: Collateral matter prohibition does not apply. Admissibility of extrinsic evidence to contradict on a collateral matter is a legal relevance question. viii. Attack on sensory perception 1. Using either cross-x or extrinsic evidence, you can show the impairment of a Ws capacity/ability to perceive certain facts, which he testifies he observed. 2. Defects of the senses (hearing, eyesight, smell) 3. Defects in mental qualities of intelligence and memory, e.g., under influence of drugs. ix. Religious Beliefs 1. Under the FRE, evidence of a Ws religious beliefs is inadmissible to attack or support the Ws credibility. 2. CA Rule: In civil cases, but not criminal cases, evidence of a Ws religious beliefs or lack thereof is inadmissible to attack or support the Ws credibility. x. Statements illegally obtained in violation of 4th and 5th amendment (Miranda warnings), if voluntarily made, are admissible for impeachment. Substantive Character Evidence a. Analysis of Character Evidence i. Is it Logically Relevant? ii. Does it fall under an exception to the character evidence rule? iii. Is it excluded under FRE 403 for being unduly prejudicial? b. CRIMINAL CASES character evidence is not admissible to prove propensity. i. Propensity criminal conduct or bad behavior of the past introduced to show the likelihood of engaging in a future crime. ii. So, you cannot show that D had bad character in order to show that D acted bad on this particular occasion as well. 1. Zackowitz Evidence of weaponry cannot be used to show propensity (i.e., tendency of violence or violent in general) iii. Habit is NOT admissible for substantive purposes in criminal cases. iv. Exceptions where it is admissible: 1. IF the D opens the door by putting on evidence of his good character, then the prosecution can put on evidence of bad character. a. D can open the door by putting on evidence through i. Reputation 23

11.

ii. Opinion iii. Cannot put on evidence of specific facts b. Prosecution can respond by bringing evidence of i. Reputation ii. Opinion iii. Can cross-examine Ds W regarding specific facts c. **In order to open the door, D must bring in character evidence that is ON POINT for the criminal case. i. I.e., Truthfulness or peacefulness is not important for a murder case ii. I.e., Violent nature is not important for an embezzlement case d. Michelson D can open the door through reputation or opinion testimony and once he does, the prosecution can respond by putting on rebuttal testimony by saying that D does not have that reputation. 2. If offered for some purpose other than to show propensity. Ex: the prosecution can offer evidence to show motive, intent, mistake or absence of mistake, ID, or common plan or scheme(MIMIC). a. Motive i. Rex v. Smith: D married 3 women; all 3 turned up dead in tub. Evidence of bigamy was allowed to show motive. b. Intent i. Huddleston: steals Memorex tapes, prosecution wants to introduce that D sold several TVs and appliances. Shows intent to sell stolen goods. c. Mistake/Absence of mistake i. Jewett: evidence is admissible to show mistaken identity. Not trying to impeach V, but to show mistaken identity. d. Identity i. Dowling: D (wearing a mask) was acquitted on previous home robbery where V removed the mask and identified him; here, evidence of identity for bank robbery w/ same mask is to precluded despite he was previously acquitted. There is a lower burden of proof (reasonable doubt standard). e. Common Plan or Scheme i. Do not have to actually be convicted of prior charges in order to admit evidence 1. i.e., robber commits the crime in the same way each time ii. Trenkler court allows evidence of similarity of bombs iii. Rex v. Smith all wives were killed in a tub iv. Tucker heavily drinking, wakes up, finds dead body; similar event 6 years ago but never charged. Not admissible because he was not even charged. v. Beechum postal worker stole silver dollar; testified that it was all a mistake and intended to return it; upon testifying, he opened the door to cross-x, where prosecution was able to prove common plan or scheme 24

because he also had credit cards from people on his mail route. f. Knowledge i.e., knowing safe locks combo. g. Opportunity h. Preparation i. Res gestae i. Where events and activities are transactionally related, in order to understand the crime committed, the entire story can be introduces in order to understand how the crime was committed. I.e, a forged prescription is part of the entire transaction. j. **Make sure there is a limitation instruction for the jury. 3. Evidence of the Ds prior sexual misconduct is admissible in prosecutions for sexual assault or molestation to show propensity. a. Reason: those engaged in sexual misconduct are prone to recidivism b. The following are admissible, as long as they are relevant and advance notice is given i. Evidence of similar crime in sexual assault case ii. Evidence of similar crime in child molestation iii. Evidence of similar acts in civil cases concerning sexual assault or child molestation. c. Williams v. FL: D stabs V w/ ice pick and sexually molests; court allows evidence of similar incident from a few months ago because it showed common plan/sch. d. Guardia: Evidence of gynecologists previous patients is not admissible because jury is likely to confuse patients. 4. Evidence of victims prior sexual history is not admissible except: a. Prior acts with the D to show consent on this occasion or that D had reason to believe there was consent i. Goveia: just because a woman will have sex w/ one man does not mean she will have sex w/ another man (raped in strangers van). ii. Stockhammer: Evidence of sexual activity b/w V and her boyfriend is admissible. V was trying to hide her sexual activity from her parents. Although the cts. want to protect Vs privacy (wrt counseling, reporting sexual assault), that needs to be balanced against Ds right to have a fair trial. b. Other acts close in time to the alleged assault to show someone other than the D may be responsible for physical evidence, or i. i.e., an explanation for a pregnancy. c. Where admission of the evidence is necessary to safeguard the Ds constitutional right to a fair trial. i. Policy: We want to safeguard D and make sure that D gets a fair trial. ii. Jaques: D is able to rebut the notion that children are sexually inexperienced/nave, by showing that the children learned of the sexual knowledge from another 25

source (other kids). d. CA also has Rape Shield Laws i. Excludes past evidence to show consent ii. Vs manner of dress is not admissible iii. Prior consensual contact is admissible if relevant. 5. Character of the victim is admissible when the D has asserted that he acted in self-defense or the V was the first aggressor. Evidence of the Vs character can be offered in the form of reputation or opinion testimony. CA allows specific act evidence to be offered in this instance. v. CA Laws are generally the same to FRE 1101-1103. c. CIVIL CASES i. Character evidence is generally inadmissible for substantive purposes unless character is directly at issue. Character might be at issue in cases involving defamation, negligent entrustment, or child custody. ii. Exception: Habit evidence is admissible in a civil case to show that a party acted in conformity with a particular habit. 1. A habit is something one does in response to a particular stimuli; something done routinely; something one does all the time; reflexive (putting on seatbelt). 2. In contrast, character is a general disposition or propensity to act in a certain way. 3. Meyer Habit is a persons or organizations practice of handling a particular kind of a situation w/a specific type of conduct. Habit is ones regular response to a repeated specific situation. iii. Exception: Notice: showing that D was on notice. 1. The Why concert problem (261) Ws testimony indicating that Ds were on notice of particular problems at previous concerts is admissible. 2. Exum v. GE fast food fryer explosion in face cause burns. Evidence of other prior incidents of explosions are admissible to show notice. iv. Exception: Sexual Assault 1. Ds prior sexual conduct/assaults admissible as evidence 2. Victims prior sexual conduct/assaults are NOT admissible as evidence. d. Rehabilitation of Character Refers to the introduction of evidence for the purpose of restoring the Ws credibility after it has been attacked. i. Inadmissible prior to an attack. ii. Type of rehabilitation evidence that is admissible 1. The defense must meet the attack, i.e., as a matter of logical relevance 2. The rehabilitating fact must fairly directly meet the particular method of impeachment use to attack the Ws credibility. iii. Prior Consistent Statement: 1. PCS are inadmissible to rehabilitate, except in 2 and 3 below. 2. In CA (but not federal), PCS may be used to rehabilitate a W who has been impeached on PIS grounds if the consistent statement is offered after the W has been impeached by a prior inconsistent statement and the consistent statement was made before the prior inconsistent statement. 26

12.

3. All courts, including federal and CA, permit prior consistent statements to rebut a charge of recent fabrication as long as the PCS was made before the time the alleged motive to fabricate arose. 4. **Hearsay crossover: If PCS is admissible for rehabilitation, it is also admissible for its truth because FRE 801(d)(2) classifies such PCS as non-hearsay. Authentication a. **Exam if there is a tangible item of evidence (not testimony), and the exam does not state whether it has been authenticated, then you must analyze it. b. Whenever a party is introducing tangible evidence or evidence of a telephone conversation, the party must authenticate the evidence. c. Requirements to authenticate: Introduction of sufficient evidence to demonstrate that the item being offered is what the proponent claims it to be i. Purpose is to guarantee that the evidence is genuine. d. Illustrations of authentication that satisfy the requirements: i. Testimony of a W w/knowledge Most common. Testimony that the matter is what it is claimed to be. i.e., the object is what you claim it is. 1. P can authenticate something himself even if it is self-serving. We just have to introduce evidence that is believable ii. Handwriting a lay W can testify if they are familiar with the handwriting. iii. Comparison by trier or expert W comparison w/ specimens, which have been authenticated. iv. Distinctive character when something is so distinctive that the object could only be that thing that it is claimed to be. v. Voice identification recognition of voice, whether heard firsthand or recording. vi. Telephone conversations showing that the person answering is the one that called (ie., they identified themselves when you called). vii. Public records or reports authenticated by showing that the documents were found in a place where they are ordinarily kept. viii. Ancient documents or data compilations showing that the document is 1. In a condition to create no suspicion of authenticity, 2. Was in a place that it would likely be, and 3. Has been in existence 20 years or more when being offered. e. Reply-letter doctrine: If you send someone a letter and get a response in return, it authenticates that document (i.e., the letter received) as coming from the person you wrote to. The W must testify as such. f. Self-authenticating evidence i. Extrinsic evidence is not necessary to admit the following: 1. Domestic public documents under seal. i.e., birth certs under seal. 2. Domestic public documents not under seal a. Can be self-authenticating if they have a certification from and official and it is legitimate. 3. Certified copies of public records, i.e., recorded deeds 4. Trade inscriptions and the like a. Affixed in the course of business, i.e., can of Coca-Cola. 5. Newspapers and Periodicals 6. Commercial Paper, i.e., checks transmitted to bank, paid or not, notes. 7. Acknowledged documents, i.e., notarized documents. 27

13.

ii. The use of these self-authenticating items dispenses with the need for live witnesses or extrinsic evidence because there are guarantees of trustworthiness and speed. g. An accomplice can not authenticate items into evidence i. Bowley the witness-accomplice is using a film to corroborate her story, but the film is based on her story to begin with, and as a result of the film she became an accomplice to a crime. So the W cannot use the film to authenticate her story because she is an accomplice. h. Authentication of Photos since tangible, it must be authenticated. i. Testimony of someone that the photo is an accurate depiction ii. Authentication of photo is allowed even if the person authenticating is not the person that took the picture. iii. Some W, not necessarily the photographer, can give info as to when, where, and under what circumstances the photo was taken, and that the photo is an accurate depiction of what would be seen w/ naked eye. 1. Tatum employee initialed check before entering it into verifier. Best Evidence Rule a. **Tip: if discussing the content of a writing or photo or film, without actually introducing the originals, make sure to bring up the Best Evidence Rule. b. Rule: when trying to prove the contents of a writing or contends of a photo or film, the BER expresses a preference for the original. i. The rule is triggered when the evidence (testimony) is based on the contents. ii. Radcliffe BER is not triggered b/c trying to determine the value of bonds based on what W though the value was, not the content of some list which said what the bonds were worth. c. Writings and Recordings consist of letters, words, numbers, or their equivalent, set down by handwriting, typewriting, printing, photograph, electronic recording, etc. d. The FRE allows duplicates to be introduced on the same terms ad the original. i. i.e., if we sign a K, then photocopy immediately, those copes are admissible absent any authentication problems. ii. i.e., carbon copy of a document of which the original cannot be found. iii. Carroll microfiche cope of checks are admissible b/c prosecution was not at fault for the missing checks. e. If the original is not available, the FRE permits the introduction of secondary evidence. Secondary evidence is other evidence of what the writing, recording, or photograph contained, i.e., evidence that can prove the content of the original. i. Rule: if the original is unavailable b/c it cannot be found, is destroyed, stolen, in he possession of the opponent or not obtainable for whatever reason, then secondary evidence is admissible. 1. There are no degrees to secondary evidence. 2. Testimony can be enough 3. Taylor faxed letter is admissible as secondary evidence as long as reasonable efforts have been made to find the original. ii. Exception: not admissible if the original was intentionally lost or destroyed by the person offering it into evidence. f. Voluminous Evidence i. Contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a 28

summary, chart, or calculation ii. I.e., summary of contents on several hours worth of recorded tapes is admissible. 14. Judicial Notice a. Judicial notice allows facts to be established without the need for the admission of evidence. b. A court can Judicially notice: i. Facts of common knowledge in the community, or ii. Facts capable of verification by reference to a source of unquestioned accuracy. c. In federal courts, judicially-noticed facts are conclusively established in civil cases. However, in criminal cases, the jurors are instructed that they may accept the judicially-noticed fact as true but they are not required to accept the fact. i. CA Rule: A judicially-noticed fact is conclusively established in both civil and criminal cases. 15. Privileges a. Purpose i. Protesting info that is confidential communication and relationships (especially those that have some counseling aspect). ii. Policy Reasons 1. Marital / spousal (do not want to disrupt the marital union and force spouses to testify against each other). 2. 5th amendment privilege (cannot force D to self-incriminate) iii. Privileges run contrary to judicial process b. Applying the Rules i. In diversity actions in federal court, state rules of privileges will apply (Erie) ii. In other cases in fed court, FRE will apply. c. Attorney-Client Privilege i. Confidential communications between a client and an attorney are privileged from disclosure. The privilege belongs to the client, but must be asserted by the attorney in the clients absence. 1. The fact that the attorney names the person they are representing is generally not a breach of the duty of confidentiality. 2. Communication in the presence of others is not included in the duty of confidentiality, unless the 3rd party is there to assist. 3. Duty applies when there are reasonable steps taken to ensure the communication is and remains private. ii. Exceptions: 1. Crime-Fraud exception: No communication is privilege if made to secure the services of a lawyer for the purpose of enabling or aiding anyone to commit or plan to commit a crime or fraud, UNLESS made after the perpetration of the crime or fraud. a. CA requires disclosure of confidences that lawyers reasonably believe are necessary to prevent their client from committing a future physically dangerous crime. 2. Joint Clients now in dispute: Communications to an attorney representing joint clients are not privileged in a later civil litigation between those clients concerning a matter of common interest. 3. Breach of Duty Exception: an attorney may testify as to what was disclosed to him if it is relevant to matters of malpractice or 29

d.

e.

f.

g.

nonpayment of fees. 4. Pre-existing documents: privilege does not apply to pre-existing documents. Only extends to confidential documents that were made between the atty and client for each other. Ex: Cannot protect preexisting fact by telling the atty the same fact. What is protected is the communication, not the subject matter. 5. Tangible Items of Evidence a. The attorney should not take possession of it, but advise the client to turn it in to the authorities. b. If the atty does take the tangible item, he is under an obligation to turn it over to the proper authority in the jx and NOT give it back to the client. However, the atty can keep it for enough to create a defense and the atty does not have to say who gave it to him. c. In re Rider atty put evidence from clients robbery in clients safety deposit box. He should have turned it in. Ct considers whether they should disbar the atty. Doctor-Patient Privilege i. There must be a information given to the doctor that is necessary AND the communication must have been made for the purposes of diagnosis and treatment. ii. In CA, the privilege only applies when the patient is consulting with a licensed physician. It does not extend to other types of medical providers. iii. In CA, this privilege does not apply in criminal cases. iv. Exception: Privilege is used principally in domestic relations cases. In most other civil actions, it does not apply. Majority: No privilege in criminal cases. 1. It does not apply when the patient put his condition at issue, i.e., malpractice cases. Here the doctor must be able to reveal condition. Psychotherapist-Patient Privilege i. Confidential communications made between a patient and psychotherapists are privileged. ii. Note: Psychiatrist would be protected as a doctor. iii. CAs psychotherapist privilege covers statements made to a wide array of mental health professionals including licensed clinical social workers, marriage counselors, social workers, and school psychologists, etc. iv. In CA, the privilege foes not apply in criminal cases. v. Exceptions: 1. Crime-Fraud exception applies. Accountant Client Privilege i. There is no such privilege. ii. Exception: If an accountant is hired by an atty, then the clients communication w/ the accountant would be privileged because the accountant would be deemed an agent of the atty. Clergy-Penitent Privilege i. Confidential communications made between a penitent and clergy are privileged. In maj courts, and CA, both penitent and priest hold privilege. ii. In CA, the privilege only applies if the member of the clergy routinely received such communications and the religion requires them to be kept confidential. 30

h. Spousal Incapacity: prevents someone from forcibly being called as a W against their spouse in a criminal proceeding. i. In a criminal case, a spouse does not have to testify against her spouse. This privilege not to take the stand belongs to the witness spouse. In order words, she can testify is she chooses to do so. Trammel. ii. The spousal incapacity privilege only applies when the parties are married at the time of trial. 1. The statements could have been made at any time, as long as W and D are married at time of trial, they do not have to testify against each other, if they so choose. iii. In CA, the privilege applies in both criminal and civil cases. i. Marital Communications Privilege: protects confidential communication b/w spouses while married, not before/after. i. Confidential communications that occur between the spouses while married are inadmissible. Neither spouse can reveal the contends of such communications, and either spouse can prevent the other from testifying regarding a confidential marital communication. ii. The privilege requires the parties to be married at the time of communication. iii. Communication is not allowed, but observations not being used for communication purposes are allowed. iv. The fact that the parties subsequently divorced does not remove the privilege for communications that occurred during marriage. v. In CA, includes communications b/w domestic partners. vi. Assertion of privilege will make the spouse unavailable for Hearsay purposes. j. Children and the spousal privileges i. Though there have been efforts to extend these doctrines to other family members, i.e., children, most jx have not recognized such a privilege.

31