Jackie's Evidence Outline - Santa Clara Law
Evidence Outline
Introduction
• Relevance-test for admissibility of evidence is if it makes the fact we are trying to prove more likely than without the evidence, often evidence gives rise to multiple inferences, ultimately, the test is if the evidence makes more likely not does it prove
• preliminary facts are what must be proven before evidence admitted, important, because you need to know burden to show, who determines what is a preliminary fact, and who hears preliminary facts
• foundation in is collected reference to preliminary facts proven to admit evidence
• motion to strike, is an objection and requests to have jury told to disregard that evidence applies to section 6 as well
• Motion in limine is a motion to exclude evidence before jury knows it exists, can't happen before trial starts. If discovery proper for example, motions to suppress
• offer of proof, where the record shows, what was excluded evidence and what it would have shown
• erroneous ruling shows a judge is wrong and it made a difference
• limiting instruction -we give instruction to only use the evidence for a limited purpose
FRE 101-
FRE 102 -
FRE 1101-
CEC 140 - evidence includes testimony, writings, material objects. Testimony is presentation in a court of the statement of a witness, who is sworn and testimony is elicited in the form of questions etc., defines writings as a term of art with a precise meaning
CEC 190 - proof definition, after all admitted. We test to see if burden of proof is met
CEC 210 - says any relevant evidence is admissible and irrelevant not admissible
CEC 250 - writings include videotaping etc. but must show of original or authenticate all before evidence can be admitted
CEC 300 -
CEC 410 -
Relevance
• two concepts in asking if it is relevant
o Is it probative? Does it make the fact we are trying to prove more likely that it would be without the evidence
o Fact we are trying to prove is of consequence. Or is an issue in dispute, so it is a function of materiality
• probative ness
o direct versus circumstantial- direct is immediate of circumstantial requires an inference from fact to the goal of the fact
o direct evidence is always probative is only when we are drawing an inference that we have to figure out if the evidence makes it more likely than not
o Always ask what is the inference, the possibility that the inference is wrong. Does not serve to exclude the evidence, it must only meet the threshold of relevant evidence
o the test of relevance is not if it's solely prove your case, but rather if it is a brick in the wall of proving your case, so it can have minimal value and still be fine
o if it makes a fact more likely in this probative, solely because it makes it more likely than less likely
• materiality
o now, we ask, what is at issue in the case and to what extent can we control, what is at issue in the case
o here, we also consider the discretionary balance from CEC 352 and FRE 403
o now, lawyer can control what is at issue in a given case
o In a civil case. A person can admit some and deny others, which determines what is at issue
▪ so what to keep how and what to let in become relevant to the case and becomes a tactical choice
▪ for instance, admitting responsibility and leaving liability for trial
▪ so pleadings can control what is at issue
o criminal cases have no complaints in answer to narrow the issues
▪ the guilty or not guilty is only thing for the defendant to say
▪ Can defendant stipulate to an element of the crime. To minimize prejudice to the jury
▪ the prosecution does not have to stipulate, but will rather stick to guns and prove the entire case
o Old chief-the only real case where a prosecutor was required to accept the stipulation. Here possession of the weapon was on offense because he was a convicted felon
▪ prosecution refuses to stipulate in order to prove previous felony as a precursor to this offense
▪ this is a very limited decision and really based on prior conviction
▪ here this is only a construing of the FRE, so the states are free to follow or not follow this rule
o California interpreted old chief rule to say prosecution needs to prove that you are a convicted felon. But the felony underlying the conviction is irrelevant. In other words, it can be proven by stipulation. There may be cases where the nature of the previous felony is relevant to the case
o Generally, you cannot control what is in dispute in a criminal case. And neither party will be compelled to accept a stipulation
• OJ example with Ronald Shipp, conversation about lie detector and dreams. Ask work dreams relevant? Defense threatens to call experts to say dreams mean nothing. And so dispute
o explicit rule of exclusion, 351.1
▪ nothing is surrounding polygraph is admissible
▪ any reference or explanation of why not to take one is kept out
▪ Not because it is irrelevant. After all, it seems to make the fact that you are lying more likely
▪ this comes within the proposition eight, because it is subsequent and comes from a two thirds vote
o another problem is if statement is relevant is only relevant in the context it was said in so taking it out does not seem relevant any longer
o Judge gave special instruction. It is conditional relevance, because jury must find that he made the statement in order to consider it at all. He then says, if it was unconscious then no value and not relevant. If a daydream. Then the jury can consider it
o Underlying relevance issue is if having a dream proves anything. So does this have any probative value at all? Most courts will exclude dreams as irrelevant saying it really proves nothing
FRE 410 - says it directly proves without an inference or presumption
FRE 401
FRE 402
CEC 210
CEC 240
CEC 350
CEC 351
Conditional Relevance
FRE 104 - parallel to CEC 405, part b is conditional relevance. Not really different from the CEC rule. FRE 403 is more clear though.
o FRE 104a - court is only bound by privilege evidence, but can look at anything, it does not have to be admissible evidence, therefore the judge can look at hearsay, and the evidence whose relevancy he is to determine - bootstrapping.
o California explicitly rejects bootstrapping; it says the judge even if he makes preliminary determination as to admissibility can only consider admissible evidence. So, he cannot look at the actual evidence at issue.
o For both note distinction between preliminary that determines relevance of evidence and those that do not. This will decide who ultimately decides the issue and how to instruct the jury.
CEC 400
CEC 401
CEC 402
CEC 403-one of two alternatives to determine preliminary facts here inadmissible unless the judge finds sufficient evidence to sustain the preliminary facts as existing. When this happens, the court tells the jury to decide if preliminary fact exists. Then consider evidence. If yes, and don't if no. Conditional relevance rule
o confusing because it gives four circumstances
o relevance of proffered depends on preliminary then conditional
o Preliminary fact is the personal knowledge of witness regarding his testimony. Speculation not allow, but rather only if they have personal knowledge. Speculation not relevant
o Preliminary fact, is authenticity of a writing this goes to the jury, because conditional relevance. Because a writing that is not authentic is irrelevant
o evidence is a statement or conduct of person and the preliminary fact is whether the statement was made or conduct done
o So, 403, a one through four. I'll go to say conditional relevance
o OJ files example with the Bronco and chain of custody issues - classic 403 case where judge decision was if sufficient evidence for jury to find that the evidence was in the car when it was seized, also will give jury a conditional relevance instruction.
o One of key blood stains for OJ too, preservative in lab is found in stain, if planted blood stain, then not relevant, so it becomes a 403 question to submit to the jury. Conditional relevance instruction as well. If planted may even show that the cops are framing OJ, so relevant, but for a different purpose. Jury actually found it was planted.
o
CEC 404
CEC 405-1 of two alternatives to determine preliminary facts. Here court decides based on law and jury does not get conditionally
o Distinction between CEC 403 and 405 is if relevancy of the evidence depends on the disputed fact. If yes we leave the determination of the disputed fact, to the jury judge must decide if there is a minimal level of evidence for the jury to make determination
Discretionary Balance
o So far only minimal showing of more likely was necessary to introduce, now looking at a balance between probative value balanced against unfair prejudice, confusion, and the cost of undue consumption of time, the judge does this balancing.
o CEC and FRE are basically the same.
o Probative Value - asking judge to assess the weight of the evidence, in other words more likely to be admitted has stronger inference attached.
o Two elements of relevance
▪ Fact gives logical inference to fact trying to prove
▪ Fact is of consequence to this lawsuit.
o So when we ask the judge to look at this, we are asking him to look at both.
o For instance, if fact is not in dispute the justification to enter this evidence has a higher burden of showing.
o Unfair Prejudice - problem of the jury drawing an improper inference from the evidence.
o We are usually talking about evidence that gives rise to two inferences
▪ One is fine and that is what we are trying to do
▪ The other is one that is incorrect to draw from the evidence.
o So, look at risk of this improper inference to see if it outweighs the value.
o Frequently, these rulings could go either way and therefore subject to appeal as abuses of discretion, however, because usually close this is hard to show.
o Abuse of discretion must also lead to effect on the outcome.
o In other words this evidence is still relevant, but keeping it out anyways.
o Again remember to ask what it has relevance to.
o Is alternative evidence from the prosecution relevant to this balance in considering whether to admit the evidence?
o Is this a relevant consideration to look over prosecutor's shoulder?
o Comment to 403 says pretty clearly that this is a consideration.
o Another aspect of unfair prejudice
o Potential prejudice concerns twelve jurors in jury box, or to twelve hypothetical reasonable person jurors.
o What about actual racial composition for the jury, etc.
o Does the judge need to know exactly who is sitting on the jury?
o Rule says "the" jury, but does it mean the jury hearing the case, or is it more of a general term to a reasonable jury.
o Example is OJ tapes of Fuhrman saying "nigger" where judge did not allow all of tape because too prejudicial.
o For confusing example is math professor who uses product rule of probability, to say low probability of anyone but defendants as guilty. Jury might be confused by the math and give the evidence more weight than they should.
o Probability may come in, but bad math here, not necessarily bad law.
FRE 403
CEC 352
Specialized Relevance Rules
o These rules all say that you can use evidence for this purpose unless specifically prohibited.
o Plea bargaining is an absolute exclusion.
o All of these rules exclude relevant evidence, unless specifically exempted by proposition 8, they are abrogated. No specific exceptions under that proposition for these.
o All under extrinsic policy
| |Federal |California |
|jury deliberations |606 |1150 |
|subsequent remedial measures |407 |1151 |
|compromise offers |408 |1154 |
|liability insurance |411 |1155 |
|plea bargaining |410 |1153 |
o Broad argument that some of these may count as privileged communications.
o Remember purposes of privileges to promote other policies. Such as lawyer client to further open communication.
o Must ask if these are relevant in criminal cases, because this is only place that proposition 8 would become relevant. Normally, we would think of a lot of these as corresponding to criminal cases.
o Jury evidence and flipping of cassette tape example - CEC would say conduct and so it is not okay, but FRE would say that it is extraneous evidence, real question is if listening to that tape would cause a prejudicial error, not harmless.
o Does proposition 8 override 1150 because jury affidavits are relevant evidence.
o CA said the tape contents could not have made a difference. Federal court said that it would affect the outcome of the case, so it is admissible. So they reverse the conviction on habeas corpus.
o Question is if in CA we can harass jurors after the trial.
o We address the problem head on, say that the jury should not be referred to by name, nor should they have their addresses, etc. published. They are referred to by number, and attorneys are not given an opportunity to contact the jurors after trial.
FRE 407 - Subsequent Remedial Measures - where defendant fixes defect after injury occurs or something. Seems a relevant concession to the crime.
o Courts will not use against people, so they encourage to go ahead and act and not used against you.
o What about Pinto case, and a conscious decision to not fix because liability suits will be cheaper. Memos were admitted.
o Only excludes corrective measures that are taken after the accident that is in dispute in the case.
o Wolf problem - does dog chaining come in to evidence.
o Only applies when using to show culpability or negligence.
o What about concern jury will still use it, and use it for wrong purposes
o Even if rule is being used to admit as okay, the defendant can say that the prejudicial impact outweighs the probative value (403)
o We follow alternate rule in CA, split in rules as to if Erie will apply or not, so check which circuit you are in.
FRE 408 - Compromise offers. CA and Federal want to encourage settlement before trial.
o Remember though the evidence is not admissible only for specific purposes listed, and is admissible for any other, French rules thing.
o Thus, negotiations not admissibility for admitting liability or such.
o Is settlement of a civil claim evidence of anything in a criminal prosecution?
FRE 409
FRE 410
FRE 411 - liability insurance - evidence of insurance not admissible to show negligence.
FRE 606 - says jury may not testify about jury deliberations. This clearly keeps out relevant evidence.
o Some question of does this apply only during deliberations, and outside of the room it is not privileged.
o Depends on if you read rule broadly or not.
o Court in Tanner said you need extrinsic evidence to prove misconduct besides the jury statements.
CEC 1150 - So, you can show improper conduct of jurors, but cannot say how it affected the mindset of any juror during deliberations, under CEC so CA wants to only protect mental processes, so what happened is not excluded.
CEC 1151
CEC 1152
CEC 1153 - plea bargaining - promote judicial efficiency, and conserve resources.
o If negotiations break down and trial happens, jury doe snot hear about negotiations take place.
o This is not because it is irrelevant, but rather it is very prejudicial.
o German rule saying you can't use this for any purpose, but proposition seems to allow evidence now.
o Prosecutors don't do this, because they want to encourage plea bargaining, and this would hurt them.
CEC 1154 - similar to FRE 408, would this keep out same evidence federal would? Yes, it shouldn't make a difference if we are talking about a civil case or a criminal case.
o But prop 8 concerns come in, court can avoid proposition 8 by using 352.
o 352, however, not meant for judge to make up his own rules, he only has discretion to control fact-finding process in this trial.
CEC 1155 - liability insurance - evidence of insurance not admissible to show negligence. CA rule only excludes evidence to show directly non-insurance.
o This rule keeps out evidence of very limited evidence anyways.
o Only keeping it out when used for a specific purpose, so there may be other ways to use it making it relevant.
Character: Propensity
• three ways to prove character
o reputation
o opinion
o specific acts
• PINKOIMP exceptions for character evidence these only apply to evidence of acts, it cannot be used to admit reputation or opinion.
o P - Preparation, Intent, Negate accident, Knowledge, Opportunity, Identity, Motive, Plan.
o These exceptions all go around this broad rule of exclusion.
• Use of 403 and 352 may not be consistent, so judicial discretion would make non-uniform and this rule is to make it uniform. It is prefabricating the 403 balance.
• Anything that comes in under exception will be accompanied by a limiting instruction to jury to not use as character. Still a risk the jury will not be able to following the limiting instruction.
• Prosecutor will usually choose several of these exceptions so that they have several ways to get evidence in.
• Still need to assure that the impermissible inference that he did act this time because he did act before, is not drawn.
• Preparation - evidence of prior bad act to show preparation for the crime.
o May show that person had guns before the crime, so prepared for crime with the guns - Zackowitz case
• Intent and Negate Accident - closely related so usually used in conjunction.
o Like child abuse case, where say previous abuse shows not likely an accident on this occasion, or that there was an intent to act on this case.
o Brides in Bathtub case where we introduce prior incidents to show it is less likely this is an accident.
• Knowledge - very often an element of the offense that prosecution must prove, prior bad acts like hacking may not have to be charged.
o Dispute here as to what level of proof you need to say that this is sufficient to admit prior bad acts to show knowledge.
o Jury determines as a conditional relevance issue if prior bad acts certain enough. So, really need to show some evidence of prior to get it to the jury.
• Opportunity - things like showing person was in the area at the time of the crime, can infer opportunity from previous bad incidents in the area or such.
• Identity - the greater the similarity between the prior bad act and the current crime, the greater the likelihood that it was the same person who did the same crime again.
o Greater the similarity, the greater likelihood the jury will make inappropriate inference.
o Need circumstances of crime to be so similar we can draw conclusion. Where similarities so great, that the probative value of the evidence outweighs prejudice.
o Trenkler and how close the bomb construction is.
• Motive - can show previous bad acts in order to show a motive for the current crime.
• Common design or plan - Ewolt case is famous here, because it overruled previous rule and said that evidence of common scheme can only be shown if we are showing they are connected together as part of same transaction or plot.
o Ewolt - about child abuse of one daughter, and older daughter wants to testify he did the same thing to her. Not allowed for this.
• All of these go to using specific prior bad acts; next there is propensity which is where we would be drawing impermissible inferences from bad reputation. Evidence by defendant must be introduced first of good character, which opens the door for prosecution to rebut. Allows only evidence of reputation or opinion under this. This is the good-bad rule where we limit reputation or opinion evidence to if defendant introduces first, then prosecution can rebut.
• Also another category where character is directly in issue like for libel or such, and then you can literally offer character evidence to show bad character.
• Evidence of prior specific acts is a question of conditional relevance, where the court admits for jury to consider.
• For the pinkoimp exceptions, still only specific bad acts, and then need to give jury limiting instruction to say only use for exception purpose, and not admitted to show general propensity to engage in bad conduct.
• Difference in criminal versus civil. In criminal context - where propensity evidence may give the jury a doubt about bad act, may be allowed, so good character evidence, but remember opens the door.
• So, if you don't open the door, then it will not come in.
• Rule designed to keep out tonally unless you open door.
• Remember defendant can offer evidence of his good character, but still not permitted to offer specific instances, only allowed reputation or opinion.
• Possible proposition 8 conflict where a criminal case.
• Michelson case - says specific previous criminal violation admission would undercut the character evidence that the defendant introduced. Said give jury credit to follow instructions where told.
FRE 404 - main character evidence rule - two ways to prove character: reputation or opinion can show a person is a good person for the inference that he did not do the bad act, or that they are a bad person, so they did the bad act. Or may show a prior specific bad act to say bad person, then they are more likely to do the bad act. Or, that a good act makes them a good person, so that they did not do the bad act.
o This evidence is still relevant, but too prejudicial compared to its probative value; we don't want jury to convict based on their character and not the appropriate facts, and confusion on focus.
CEC 1100
CEC 1101 - substantially similar to federal rule, but more exceptions to the CA rules. In b, there are specific exceptions listed. So, says all exceptions above, but also that the list is not exclusive.
o Re-enacted by 2/3rds legislature vote, so valid under proposition 8.
o Still means that specific instances inadmissible.
Character: Sex Cases
o FRE 413 and 414 are sexual assault or child molest, the evidence may be admissible to show propensity, literary for purpose before said as impermissible.
o These crimes are unique because there is a higher propensity to re-commit, so greater relevance.
o Public policy also favors allowing it here. Still a fear though that jury will put people away for prior conduct and not current crime.
o More a fear of distraction to the jury of their current duties.
o Judge still has discretion under 403/352.
o Guardia - about gynecologist who molests patients. Judge does not allow because of 403 and huge issue in proving each incident in order to admit them, so real danger in confusion.
o Give jury limiting instruction here too, to say they can use it for the most logical and relevant purpose. Thus, being straight with them.
o Kirsch says to get past 403 need to show common scheme or plan.
o CA is the only jurisdiction where they have extended this exception to domestic violence cases as well. Some fear that this will just continue to expand.
o Federal rules limit evidence that is admissible to events of a similar nature, for instance an age difference in rape of minors, etc.
o Under Federal - not limited to criminal actions, but allowed to admit for civil too.
FRE 413 - broader than 414, because sexual assault is a broad category.
FRE 414
FRE 415
CEC 1108 - several differences form federal rules, wide opening of the door. Criminal action where sexual offense charged, then previous sexual offense is not inadmissible.
o Says accused of sexual offense means that any prior will be admissible.
o Includes pornography of children as a sexual offense.
o Allows some evidence in that federal rule would keep out.
o Big Difference - this only applies to a criminal action. Not admissible for civil actions.
CEC 1109 - direct reaction to OJ trial, and allows the same exception for domestic violence.
o Fuhrman's racism and previous events with Nicole were not allowed under 1101 and exceptions. So, split in who wants what to come in.
o Fuhrman evidence shows motive here, but assault would show he was perhaps more likely, so only possibility here was attempt under common scheme or plan.
o In order to allow domestic violence under a common plot, you would have to show some sort of pattern, especially escalated pattern, then can say her death is within the pattern. Question was how many events do you need to show the common scheme or plan.
o 1109 changed to include domestic violence as admissible, does not have to be a physical assault in these cases, nor does it have to be the same victim. So, now this is permissible to show propensity directly.
CEC 1102 - says that despite 1101, under this you can introduce opinion and reputation evidence.
CEC 1103
Character: Victim
o Evidence of victim's bad character through reputation and opinion is desirable and seems to be relevant.
o Rape shield comes in here, and excludes relevant evidence because it recognizes the public policy as more important than admitting all the evidence.
o Belief that the shield law will encourage more victims to come forward, because rape is an underreported crime. No real misuse by jury, because victim is not on trial.
o Note: if defendant attacks the character of the victim, then they open the door for evidence of the victim's good character and evidence you defendant's bad character.
FRE 404 - a2 notes the above principal, and says that the character trait admitted must still be pertinent and prosecution can rebut the same.
o Also says that if you haven't offered evidence, then if defendant comes in and says victim started it and was first aggressor, then prosecutor can offer evidence of the peacefulness of victim.
FRE 405 - comment suggests that how the question is asked will not be the focal point, so maybe you can ask either way.
o Previous understanding was: So, things such as "have you heard" has general approval, but a question of "do you no" is not........NOTE THESE FORMS THEY ARE IMPORTANT
o California says that you must ask "have you heard for reputation evidence, but an opinion witness can be asked both.
o Rape shield law - says evidence of victim's prior sexual conduct with someone other than the defendant is not admissible to show consent, so other relevant purpose may be admissible for.
o Says that rape can be found in condition of victim's genitals, so evidence of past sexual history may be allowed to give alternate explanation for genital condition.
o Evidence of prior sexual activity with the defendant is admissible to show possible consent.
o Both CA and federal extend this protection to civil and criminal case, FRE has one rule, but CEC has two. They are parallel and operate in the same way.
o CEC has a weird part, saying that rapes occurring in prison allow admission of victims prior history - may be they will not be as reluctant to testify, or if they are it will be for another motive.
FRE 412
CEC 1103
CEC 1106
CEC 782
CEC 783
o California different than 404, and more narrow, says character evidence of violence, so trait proven is limited to violence.
o California also notes opinion, reputation, or specific instances, so CA opens door for the specific acts unlike federal.
o HYPO 1 - murder case/ D's theory is self-defense. D has 2 prior convictions for assault with a deadly weapon and victim is meek and mild. D says victim is a mean drunk who has been his wife.
o Can Pros. admit evidence of two prior assaults? Not as propensity evidence because not under 1108 as a domestic violence case for example under 1109, will be kept out as propensity, also unlikely that a prosecution could get it in under pinkoimp exceptions.
o Under 404a2 - can we offer victim as meek and mild in order to rebut evidence of defendant, but then can admit evidence of peacefulness to rebut evidence of self-defense.
o D must admit something first still in order for the door to be open for the above to be admitted by Pros.
o So, defendant may not bring in at all, in order to keep door closed.
o What about defendant showing evidence that victim is a mean drunk? Defendant can offer evidence that victim has bad character via opinion or reputation.
o For defendant to admit evidence of 2 wife beatings by victim - must ask if relevant - possible it shows violence of Vic. Under CEC may admit for specific instances because of violence, under FRE you cannot admit these specific instances only reputation and opinion.
o If D admits prior bad acts of victim, he opens the door to:
▪ Having shown victim's bad reputation, prosecution now show that the victim was meek and mild.
▪ What about the specific instances? CEC seems to allow the limited admissibility as does the federal rule. Remember bounce back for the FRE, where now evidence of specific instances allowed.
o So, lesson is that if you are the D in this case, no way you will go there and open the door for this. It hurts the case too much, so rebuttal will just damage more than advantage you can gain through using the evidence.
o HYPO 2 - rape case, with consent defense
o D has 2 prior similar rapes, and a child molest.
o D wants to show victim's fantasizing about him as expressed to others, victim's prior sleep-overs with other guys, victim's prior false accusation.
o Prosecution -
▪ 2 prior similar rapes - yes, can come in under 1108 because it was sexual assault.
▪ Child molest no problem under 1108 as well, Under FRE will not come in at all.
o D's case
▪ D in very different tactical position, because his character has already been hurt, so he should look for any way he can to attack victim's character without fear of backlash.
▪ Here, victim is now protected under rape shield law.
▪ Fantasizing? CA says not admissible, FRE will say yes, because it includes fantasies, FRE says behavior where CEC says conduct so there is a major difference.
▪ Prior sleepovers have too little relevance, so not likely to come in.
▪ Prior false accusations? Does not go to consent, but may go to witness credibility, still subject to other rules, but not even sexual conduct so it may come in. Some CA cases and ones in casebook say that this usually can be admitted.
o Note, witnesses not protected under rape shield, only the victim is. Also another person who had sex with the witness can testify because they are not the victim.
Habit; Character for Truthfulness
FRE 406 - difference between character and habit.
o Opinion evidence can be used in these cases.
Also, if relevant, we can prove by specific instances
o Can prove using reputation.
o How much do we need to show a habit?
o Is it connected to how many times it has occurred, or is it more something we do without thinking, so more a routine thing.
o CA allowed the evidence of habitual drug use to prove the defendant used PCP on the day of the incident......Wizard case.
o Hard to generalize, but this is a tactical run around the propensity rule for inadmissibility. No, note that if you can convince the court that it is habit, then admissible under 406, but not under 403
FRE 608- Now, can character evidence impeach, as in impeaching witnesses and challenging their credibility?
o Says character evidence can be admitted to support or attack a witness.
o Can be reputation or opinion, we say if you want to use good reputation, you have to wait until witness's character has been attacked, and then offer a rebuttal as such.
o Evidence of truthfulness is admissible if it has been attacked. So, P can attack witness's character by bad reputation or opinion.
o FRE says specific instances may not be proven by specific instances, but they may be inquired into on cross examination of the witness.
o If prior behavior is a felony conviction, then we can use extrinsic evidence and whatever else to prove that she is lying if she does not confirm.
o So, the prior specific acts under FRE can be admitted if they are felony convictions if they are on cross to rebut what she said then extrinsic evidence is okay, if not convictions, then cannot use extrinsic evidence.
o None of this is the same as Michelson case - where we are probing the perception of the defendant, but here out inquiry is directed to the witness's own prior behavior
o Confusion surrounding witness's prior conviction - we can offer evidence on cross, and extrinsic evidence, but his is still subject to rule 403
o 403 - Still balance where not admissible if "substantial" outweighs probativeness, so presumption is that the evidence will be admitted unless the other party shows this substantial outweighing of the probative value. This is the normal 403 balance.
FRE 609 - four different standards under this rule to allow
o Crime involves "dishonesty": No discretion to exclude under 403 balance.
o Any felon; witness other than the criminal defendant: so perfect 403 balance - different because not prejudicial to defendant at all.
o Any felony; witness is criminal defendant: 403 reverse burden of proof now substantial is missing from the balance, only minimal difference in significance is required.
o Conviction more than 10 years old: 403 "substantial" reverse burden of proof - do not admit unless probative substantially outweighs the prejudice, so substantial is shifted to the other side.
o Thus, four different ways judge is to apply his discretion
o Bruer case - D. has to prior convictions. More than 10 years old parole was actually served less than 10 years ago. Now we use approach three saying do the balance, but there does not need to be a substantial outweighing question is how important is it for jury to be aware, versus the risk that they will use this as propensity evidence. This risk is even greater when the prior conviction is the same as the current charge against D.
o The United States Supreme Court puts the sting back in saying that if judges in limine was wrong. If that D. has put the D. on and elicited the conviction themselves then the issue is waived on appeal. So the only way for D. to challenge judge's ruling on appeal is if they force the prosecution to get it elicited. This is in reaction to the practice of defense attorneys trying to take the sting out of the conviction by eliciting themselves
• thus this applies to federal courts only
• California has not adopted this waiver on appeal. So it allows
o really, we are admitting as evidence of character, we are saying that someone who has broken the law, is likely to lie to not be convicted again
o so in a way, jury will assess the credibility differently for convicted felon rather than others
o Bracken case-the first category, where judge does not have discretion to exclude conviction, which involves dishonesty. Here, a defendant that wants to testify. On trial for bank robbery with two prior convictions for bank robbery. Possible prejudice because propensity evidence prosecution says you have no discretion to exclude because it is evidence of dishonesty
o Dishonesty, under 609 is regarding propensity to lie, so misrepresentation or deceit. So unless the crime. We're trying to show involves lying or misrepresentation or deceit. It will not qualify under the no discretion category.
CEC 1104
CEC 1105 - says habit or custom may come in, but this is not the same as propensity. Under this Furhman's history of staging crimes not allowed by Ito due to 352 balance and not under this.
Clause in FRE that it does not have to be corroborated by an eye witness. Te FRE reflects the common law treatment of habit as a last resort. So, courts would say only if no eyewitnesses available then you can admit, the FRE explicitly rejects this saying that no eyewitness clause needed. All
o Absence in the CEC has not been construed to maintain the common law stuff, but rather is treated as being identical to the FRE.
o CEC also refers to custom, rather than routine practice of organization. Here the terminology difference does not reflect a substantive difference.
o Kabral from Wizard - doctor told family to stop administering the anti-seizure medicines, dr. wanted to u stop se his routine practice to say he did not tell them to stop taking,
o Challenge under this is to come up with enough frequency proof to show that it rises to the level of proof.
CEC 786
CEC 787-different approach than FRE as to specific instances of past. But 787 says no admission of prior specific instances at all, unless under 788 for prior felony convictions. So complete bar to all except those under 788
• What about proposition eight? Seems 787. Does exclude relevant evidence so judge must agree that 787 is unconstitutional in California because of proposition eight, with exception for 352. Thus your objection in a criminal case must be based on 352, and not on 787 because of proposition eight issue
• still does not allow evidence of truthfulness to impeach testimony in a criminal case again shift to 352 instead of a blanket exclusion
CEC 788-prior felony convictions
• Felony convictions to impeach under California rule. Here rule complicated by proposition eight provision, which permits the use of any felony conviction for purposes of impeachment without limitation
• originally, this was taken to mean the 352, cannot exclude a felony conviction
• People versus Castro-without limitation does not mean the evidence of relevance has been abolished. Also, the court noted that the all relevant evidence of proposition eight preserved the judge's discretion under 352. So court can sure this is not being intended to eliminate the discretion under 352.
• So what felony convictions are relevant to attack credibility?
o People versus beagle said courts could consider the following circumstances: only those convictions related to veracity have probative value so high threshold of probative value when witness to be impeached is the defendant.
o Proposition eight changes the somewhat, the court adopted a broader standard of relevance saying that the conviction only needed to reflect some moral turpitude. So what is really being proven is a lack of moral turpitude, and we can prove this from the existence of a prior felony conviction.
o Moral turpitude-generally a felony that require some sort of felony intents. The court will allow.
o So now in California in a civil case. Beagle applies, but in a criminal case, we shift, and we apply the Castro analysis, and the test of moral turpitude.
o 352 still available in both situations. Say, you can still fall on balance argument to get it excluded. Applying this analysis, CEC rule is much easier than the FRE rule
• OJ example-when we attack a witness based on underlying bias is this different than a character attack?
o Fuhrman and racism evidence of bias is different than evidence of untruthfulness from specific instances. Can also be seen as a motive this is more of a general character trait or condition that will affect the testimony given in the peculiar with a tough circumstances of this case
o Tapes of Fuhrman saying this art kept out by the judge, because they would affect the jury too dramatically and be very prejudicial. But the jury is told, the tapes exist and Fuhrman use the word. There, but two excerpts allowed with his voice saying that. Then it shows that Fuhrman lied.
CEC 789
CEC 790
• now in California and the cloud comes of the proposition eight
o 28F under proposition eight says any prior felony conviction can be subsequently used to impeach the testimony. Regardless of anything else
o This specifically designed to override cases limiting use of prior convictions in order to impeach a defendant. Even says "without limitation"
o So can 352 still apply?
o Even though CEC 790, which addresses reputation and opinion evidence. Even though this looks the same as the FRE seems relevant evidence. So 790 not applicable really in a criminal case
o So can judge use 352, to say until it is attacked it is a very little probative value. And yet waste much time. So judge can use 352, and his discretion. Absolutely OK, no problem with this
o So we achieve the same thing as we would under the FRE, we will use 352. Instead of 790, which would apply in a civil case
Review of Previous
• First ask if relevant, so look at what we are trying to prove first.
• So, in order for it to be relevant, it does not have to prove the fact, but make it more likely than without the evidence.
• Also, all evidence is not equally persuasive, but gives rise to strong presumption, but some only helps a little.
• By and large then you can make a 352 always, and court will look at both sides of the scale to say when probative enough.
• Not always a uniform outcome because based on discretion of the court. Appellate court will then always look at if an abuse of discretion to see if so wrong that we should reverse.
• For character evidence, most of the rules we look at are saying you can't go there, because the risk is too great that this evidence will be misused. So, rather than rely on the judge's discretion, these will occur with such frequency that we need a rule to get consistent result in these cases.
• So rule comes out: cannot use evidence of character to prove a person's conduct on a specific occasion, rule that totally keeps out evidence no matter what, another way of saying is propensity. This is 1101 which was reenacted to overcome proposition 8.
• Remember the chart in these cases; the rules may give us consistency, but not necessarily rationality. Justice Jackson said horrible, but judge will always have the 403 or 352 discretion to keep out for some reasons.
• Remember for character evidence two objections:
o Kept out by rule that excludes character evidence of this nature for this purpose.
o Secondly, even if the rule doe snot apply, the 403 or 352 under discretion to keep it out. Remember how to make this objection, think about how you are going to outline the possible prejudice to the jury by allowing this. Say that the other side will actually use to show propensity.
o So, when we make propensity exception, it becomes huge. So, now the evidence under those like 1108 we allow bad character to come in as propensity evidence e in these certain cases: sex, domestic violence. So, opening this door means that the 352 or 403 will rarely be a good argument to overcome.
• Always analyze if we can allow as reputation or opinion, or specific acts.
o Often we can allow as reputation or opinion, but not in the form of specific acts.
• Propensity not allowed in a civil case, but if it is directly in issue we will allow character evidence.
Competency & Personal Knowledge
• Inconsistent statements made outside of court come in under hearsay, but may be put in to attack the witness's credibility, or bias, or admission of not being truthful.
• Bear in mind that the hearsay rule is protecting our right of cross-examination, which protects our ability to present to the jury all of the facts and circumstances that should influence their determination of whether to believe this witness or not.
• Threshold determination as to if witness meets minimal requirement of competency.
• FRE and CEC different, because CEC spells out what competency is.
• CEC says that witness is inadmissible if they are not capable of responding to questions in a manner understood, or not capable of telling the truth/understanding the truth.
• FRE says every person can witness unless otherwise said. But state law will govern competency if it governs the cause of action. So, jury weighs the witness's credibility, but no preclusion to the witness testifying. Unless Erie situation.
• Under CEC, there is a threshold test of competency that permits the judge to preclude the witness from testifying altogether, Pursuant to CEC 405, not an issue of conditional relevance. So, it is possible for judge to say that the witness does not understand obligation to tell the truth, or does not have the capacity to communicate properly, therefore I will not let the witness to testify.
• But personal knowledge is a 403 question under CEC. This we say is a prerequisite to allowing the witness to testify. But, all we have to show is evidence sufficient to support a finding by the jury of personal knowledge, so conditional relevance.
• Note not the same as competency, more a question of relevance, whereas the competency is a question of will the testimony be too confusing or time wasting, etc. so possibly 352. Also, how do you cross-examine a witness that does not know the difference between truth and lies? So, essentially cross-examination in competency questions would be meaningless.
• Walters v. McCormick in Wizard - confused little girl. Girl agreed with all prosecution said, then all defense said, and jury left to decide. This is common with children who are trying to please.
• Main difference between federal and CEC, federal says let everyone testify and jury sort out the truth. The CEC has traditional view and the same that many states do, that the judge makes the initial determination of basic competency and this preserves the right to cross-examine.
• So, Constitutional issue may only come up in criminal cases, because that is where you get this constitutional right.
• People v. White - Wizard - nursing home patient and cannot speak.
• Hypnosis
o Shirley in CA was case where witness testified after remembering as a result of hypnosis, so it was confusing to find out what was product of hypnotic suggestion and what was remembered before.
o In these cases, the witness herself cannot tell us the courtroom description is what she remembered, or if it has been enhanced by hypnotic suggestion.
o The Shirley rule was a total exclusion rule, where a witness undergoing hypnosis, the witness could not testify about anything remembered from the hypnosis forward.
o Shirley does exclude relevant evidence, so that when proposition 8 comes down, it is abrogated in criminal cases. So, still the rule after proposition 8, but only good in civil cases.
FRE 601
FRE 602
FRE 603
FRE 610
CEC 700
CEC 701
CEC 702
CEC 710
CEC 767b, no leading questions unless it is on cross-examination. But, court may permit leading in the interest of justice if child is under 10 years of age. So, quite common in these cases to permit this.
CEC 780 talks about cross examination.
CEC 789
CEC 795 - enacted post proposition 8, goes through with 2/3 super-majority, so it overcomes proposition 8 through its exception. So, it is still good law in criminal cases. Only addresses criminal cases, so Shirley is still the law in civil cases, this is important to note.
• Rule means to preserve cross-examination of the witness. So, rule says that if you comply in a criminal case with all of these requirements, then the witness may still be able to testify.
o We require the substance of pre-hypnosis to be preserved, and then the hypnosis itself must be videotaped, performed by licensed hypnotist.
o This allows us to sort out what there before and what the hypnosis enhanced.
o The witness still can only testify as to what they remembered before.
o The main purpose of the hypnosis then is to get other details for investigation to get more facts or evidence. This evidence may not be affected by any issues, but rather would be admissible.
• USSC has addressed as well. The context there was about the testimony of a criminal defendant who was hypnotized, and now wanted to testify in his defense at his own trial.
o You cannot limit this, because right of accused to testify trumps the blanket exclusion.
o So, one exception to 795, which CEC recognizes. So, 795 does not apply to the testimony of D who wants to testify in his own case.
• CA
o Blanket exclusion in civil case, criminal case, we have a qualified rule of exclusion where you can testify to that before hypnosis.
o Exception to 795, we have another exception that D can testify on his own behalf.
• Is this an issue of personal knowledge or competency?
o Personal knowledge because of possible influence of hypnosis to give person their testimony. So, we are not talking about competency and capacity.
o Basic issue addressed is that of perception.
o 403 applies here, and so admissible as conditionally relevant, allows jury itself to make the determination. Jury can disregard if not based on personal knowledge.
o Franklin - daughter comes out twenty years after and says her dad killed her playmate and after therapy remembers in vivid detail. Normally we ask initially were you there, did you see, did you hear to meet the initial threshold.
▪ Here newspaper could have given same details.
▪ Judge discluded paper, without proof that the witness actually read it.
▪ Still leave question to jury to say if accurate memory or the product of the repressed memory.
Hearsay Rule
• Note 3 common mistakes or mindsets regarding understanding hearsay:
o Spelling: HEARSAY
o Hearsay is not admissible except as provided by the rules (802) - there are 29 exceptions
▪ In most cases, it will be admitted even if it is hearsay because there's an exception. Just because it's hearsay, doesn't mean it's not admissible.
o Distinguish between statements offered to prove truth of what is asserted or statements offered to prove that statement was made and inferring from the statement the truth of the fact that is trying to be proved.
▪ Before we decide whether to credit a statement as true, we want to know that the person who made it was sincere, may need to clarify ambiguity, so we want an opportunity to examine and inquire if they really believed what they were saying. Once we conclude that statement was sincerely made (actor believed it), to the extent that the statement is reporting something that declarant observed, we inquire into accuracy of their perception. Then we can come to conclusions about the statement.
• We want to cross-examine to test the aspect of ambiguity, sincerity, perception & memory.
• Sometimes, we don't care about credibility of declarant, we only want to know if statement was made and can we infer from the making of the statement did the declarant have a state of mind or did they know something? Or if made in presence of another person, we can infer that this third person had knowledge of the content of the statement (whether it was true or not). In these cases, we don't care about credibility if declarant, we care about the person testifying that the statement was made.
o i.e. witness testifies that she heard Jim tell the manager that oil was spilled. We don't care whether or not oil was spilled (we have other evidence for this); we want to prove that manager heard the report that the oil was spilled. The credibility at issue is of the person testifying that they heard the report. We want to cross-examine this witness. This is cross-examination not of the declarant but of the reporter who is making a testimony in court.
o If this statement was being offered to prove there was oil on the floor, the credibility of the declarant is at issue and we want to cross-examine him.
• Hearsay Example - collision at an intersection: witness says to her husband, "the light was red" at the time she witnessed the accident.
o P calls wife's husband to stand and he testifies that as soon as the accident occurred, she told him the light was red.
o Is this hearsay? What are we trying to prove? The light was red. So we want to cross-examine the declarant (the wife)
o if we could cross-examine her, we'd ask her: what light she meant was red; how good was her memory; where was she when she was on the street observing the accident; how long was she parked at the intersection ( test powers of perception and circumstances of her perception); where was the sun; how hard was it; any obstructions to vision? Offering her statement to prove the truth of what was asserted (that the light was red)
o When W testifies, she is testifying in court as to what she observed, her testimony is not hearsay.
o P tries to bolster W's account and asks her if she said anything to her husband at the time of the accident. This is still hearsay because she is reporting a statement she made out of court. Although she is the declarant, she can now be cross-examined but could not be examined at the time the statement was made.
▪ But this can come in because a hearsay exception for a prior consistent statement of a witness.
• Testing credibility
o Why do we rely on cross-examine to test credibility of an out of court statement? Is this the only way to test credibility of an out of court declarant?
▪ Think about example above, P can try to get in W's statement through the excitement exception: When people respond in excitement, they don't have time to deliberate and make things up.
▪ Can D raise argument that W has a bad memory, bad vision, has a bad reputation in the community as a liar??
o Common exception is that declarant is unavailable (i.e. after accident, W was hit by a truck and she died). Many hearsay exceptions require inability of declarant - recognition that hearsay is 2nd best to having declarant present to be cross-examined.
o What if declarant is available? Can D subpoena W and subject her to cross-examination? Yes. (But this does not cure the hearsay nature of the statement; it was still an out of court statement at the time it was presented in court).
• 3 elements of Hearsay
o Statement is made
o Statement out of court
o Statement offered to prove the truth of what was asserted.
• When we apply hearsay rule, we are keeping out relevant evidence. The fact that a statement wasn't cross-examined and being excluded because made out of court does not mean it's irrelevant.
o Proposition 8: hearsay is an explicit exception = hearsay evidence although relevant, can be inadmissible notwithstanding proposition 8
o There have been amendments to the hearsay exceptions, does proposition 8 affect these amendments? No because they are amendments permitting IN relevant evidence (expanding exceptions). Only limits to exceptions must be enacted by a 2/3 vote.
• Defining hearsay
o A statement can be non-verbal - think about witness who raised her knee to answer, this is not hearsay. But, if we want to offer evidence that the night the incident occurred (2 months earlier), she lifted her knee that night, and this is hearsay. (This evidence will still come in but as an exception to the hearsay rule.)
o Non-verbal conduct not intended as a substitute for oral/written expression (assertion is implied) is not hearsay. Whether non-verbal conduct is a statement (and thus hearsay) depends on whether the actor intended it to be a statement. If the assertion is completely implied and not intended, this is not hearsay. Treat non-verbal conduct as an out of court statement only if intended to be a statement. Conduct intended to be an assertion is hearsay.
• P 347 problem 7.8 - not hearsay
• P 348 problem 7.9 - this is hearsay because this is an intended assertion. He intended to say to the world that this is a safe explosion and I will show you that it is my taking my wife & kids.
• Wright v. Tautum - letters about competency of testator not intended as statements, not hearsay. Act of writing letter is not a statement because not intended to be an assertion about the competence of the recipient of the letter.
o Paul Revere and lights - yes intended as statement so hearsay.
o A kiss - not hearsay because not an intended assertion.
• Must be out of court - at time statement is admitted, no opportunity to cross-examine. Declarant is not available to be cross-examined at the time of the statement.
o What if in the other setting, declarant was subjected to cross-examination? Does not prevent the statement from being considered hearsay. Still hearsay if cannot be cross-examined at the time evidence is offered.
▪ In a typical criminal case, victim testifies at a preliminary hearing to find probable cause. At trial, attorney admits transcript of the preliminary hearing rather than the victim herself. Even though there was an opportunity to cross-examine at the time the statement was made during the preliminary hearing, don't have the opportunity now, so this IS hearsay. (But will still be admitted because exception that allows hearsay if declarant is now unavailable.)
• Offered to Prove Truth of what's asserted.
o The same statement may either be hearsay or not be hearsay depending on the purpose for which the statement is being offered.
o For example, witness testifies that at 2 am, he received a telephone call from his brother who told him it was raining in London. Issue is whether witness's brother was alive at 2am. Purpose is to prove that brother was alive at 2am, thus this is not hearsay. Will infer he was alive regardless of what he said. Infer he was alive from the fact that he was speaking on the telephone.
▪ What if there is an issue of whether witness can be sure it was his brother. Witness can be cross-examined in court about his ability to identify his brother's voice, the accuracy of what was said, when the call happened, etc. These are issues that relate to witness's credibility in reporting the statement was made, but the statement itself is not hearsay and not concerned about the credibility of the brother (because not offering the statement to prove it was raining in London).
▪ If evidence was offered to prove that it was raining in London at 2am, credibility of brother is at issue and this statement is now hearsay. Offering statement to prove the truth of what was asserted.
o What if want to prove brother was in London when he made the call and not in NY? What was brother intending to say when he made the call? We are relying on brother's credibility when he says, "I'm in London" this is hearsay.
▪ If the statement is "It's raining in London" and we're inferring he must be in London to call and say it's raining in London, we are inferring his presence in London just from his statement. He is not directly asserting "I am in London," but was that what he intended to assert? If so, it would be hearsay.
• Don't forget § 352/403 even if not offering evidence as hearsay, issue is will the jury understand the non-hearsay purpose form the hearsay purpose and will there be prejudice?
• NON-HEARSAY PURPOSES
o Three situations going to draw an inference form the making of the statement (credibility of declarant is not at issue) bottom of triangle: offering statements for non-hearsay purposes
o 1 - prove operative legal effect
▪ Problem 7.7 page 343 - not hearsay. Not offering evidence to prove Masterson is a cheat. Offering to prove that statement was lie. Statement itself is contended to be defamatory. The making of the statement is the element that needs to be proven regardless of credibility of declarant.
▪ Verbal contract and witness testifies that party said I accept. Is this hearsay? No. Statement is not offered to prove truth of the acceptance, only offered to show that words themselves were said and the words have the operative legal effect of forming a contract. Not worried at all about credibility of declarant.
o 2-Show effect on listener - person was present and heard the words said
▪ i.e. watch out for Joey, he's looking for you and he has a gun. This is not hearsay because not offered to prove that Joey has a gun. Even if Joey doesn't have a gun, it's relevant to show that D thought Joey had a gun. Issue is simply, was the statement made? From the making of the statement to the D, we will infer D's state of mind.
▪ Risk: jury will draw the wrong inference from this evidence.
o 3-show knowledge/state of mind of speaker
▪ Drawing inference of speaker's state of mind from the making of the statement or from assuming the truth of the statement?
▪ Alleged battered wife on trial for killing her husband. Prosecution wants to offer evidence that before she shot him, she had made statements that suggested she wasn't afraid of him - show that she wasn't really a battered wife, her real motive was to get his estate. Trying to prove that D was not afraid of D and inferring her state of mind just from the making of the statement regardless of whether the statement is true or not.
• What if she said "when john gets angry, I have to run and hide." Can we separate the truth of the statement from just the making of the statement to infer her fear just from the making of the statement? IF she said "I'm afraid of John: this would be easy to see that using the statement to prove the truth of what was asserted, this is hearsay.
• Gets tricky because whether its hearsay depends on the purpose for which the evidence is being offered. IF offering to prove what is being asserted, then the credibility of the assertor is in question and we want to cross-examine.
FRE 801(a) - defines hearsay
FRE 801 (b)
FRE 801 (c)
FRE 802
CEC 225 - defines hearsay
CEC 1200
CEC 1202 - we can attack the declarant even though she never appeared in court. Her testimony was admitted by virtue of a hearsay exception and her reputation can now be attacked (same as if she testified in court), we can show prior acts that undermine her credibility, offer evidence of her lack of memory, evidence of prior conviction - these can all be admitted by extrinsic evidence. Only being denied the opportunity to cross-examine (which may be an important opportunity)
• CEC and FRE have different semantic approaches to the exceptions. So, they are really where we admit things which qualify as hearsay.
• FRE organizes the exceptions into three rules
o 801 - admissions and witness statements
o 803 twenty-three exceptions listed, we will talk about most frequently utilized ones. Apply even when declarant is available to bring into court.
o 804 lists all exceptions that require that we show the unavailability of the declarant before we can use the hearsay exceptions under.
• CEC is not as well organized, but will find the corresponding exceptions; they are spread out throughout code though.
• Reference Wizard Chart.
• Chart -
| |federal |CEC |
|party admissions |801(d)(2)(A) |1220 |
|adoptive admissions |801(d)(2)(B) |1221 |
|authorized admissions |801(d)(2)(C) |1222 |
|agent admissions |801(d)(2)(D) |Cf 1224 |
|co-conspirator statements |801(d)(2)(E) |1223 |
Admissions
• Exceptions from today are based on simple truth that you do not have the right to cross-examine yourself. But, we still exclude you from offering your out of court statement, because then the opposing party may not be able to cross-examine. So, your statements can be admitted by the other side, but not by the party himself
• Admission - does not have to be admission of liability or guilt, all that be required, is that it be relevant. It may be relevant because it shows you are conscious of your guilt, or you may be admitting a key fact that goes towards one of the elements of the crime.
• The statement need not be against the declarant's interest. This goes to another later exception.
FRE 801 (d) (2)
• (A) - same person that is here in court as a D or party and his own statement is offered against him. Could be statement after Miranda for example, possibly where often D will waive Miranda and try to give explanation to say innocent. May show consciousness of guilt.
o OJ example - prosecution wants to use part of his story to cops. CEC 356 comes in.
o OJ could not bring in as hearsay
o Issues arise of examiner bias - where examiner has a preconceived notion of how the experiment is to come out, then the research comes out this way usually. So, one needs neutral examiner.
o If prosecution inadvertently opens the door, then D can jump in and say you need the whole thing.
• (B) - adoptive admissions - say that at some point the person in court conducted himself in such a way that shows that he adopted the statement as his own. Possibly things like remaining silent in the face of an accusation is an admission of liability.
o Cannot use according to the USSC, because really D is using the silence that the Miranda guarantees against someone, so meaning is ambiguous and an unfair position to put them in?
o IF you question someone without a Miranda warning, and they remain silent, then the silence may be used against them.
o Jury will decide if relevant, so adoptive admission comes in if there is evidence sufficient to support a finding by the jury that there was an admission. So, we instruct the jury on conditional relevance basis.
• (C) authorized admissions - here person making admission is a person speaking on behalf of the D, not the D himself.
o We treat these as a statement by you yourself, if the statement is made by a person authorized by you to make the statement.
o To prove authorized, for both agent and co-conspirator statements we can consider the statement itself to determine if the party had authority.
o Basic 104 preliminary question rules: The court shall determine whether witness can say whatever, and the court is not bound by any rules of evidence except privilege. This is only where not a question of conditional relevance. Equivalent is CEC 405.
o Where a question of conditional relevance, however, it goes to the jury, so admitted conditioned on the showing of evidence to be sufficient of jury to find accordingly.
o If judge can look at statement to use in saying if they are admissible. This is consistent if not conditional relevance issue. If it is conditional relevance issue, then this is wrong to consider it before that initial evidence to show that it is sufficient to have jury find.
o Consider which preliminary fact is required for each of these exceptions.
o All of these are 403s, so you need to come in with evidence sufficient to prove the preliminary fact, before we let the statement in.
o Under FRE, when judge decides rules of evidence do not apply, but under CEC we never say this, but require the initial showing of sufficiency to be there still.
• (D) Agent admissions - where you did not give person the authority to say that specific statement. However, it is apparent that you have instilled him with authority to act on your behalf generally.
o Still must concern a matter within the scope of the agency or employment.
o No specific equivalent in the CEC, but CEC 356 - says where part is given by one party, and then the adverse party may bring in the whole, or additions that will make it understandable.
• (E) - Co-conspirator statements - back to Pinkerton where all members of your conspiracy is basically an agent of yours. There you are liable for all crimes committed by members of the conspiracy and in furtherance of the conspiracy.
o Here, if statement made in further of the conspiracy, then we can use the statement against you as the person stating it is considered an agent of yours. Must show conspiracy still in play, it existed in the first place, and the other party was in it with you.
o Under Borjelli - the FRE allows different approach again, in allowing judge to look at statement and then decide if the conspiracy, etc. existed. So, statement used to show the D's membership in the conspiracy.
o After Borjelli - FRE amended in its last sentence under (E) which now says contents considered, but that the statement alone cannot show the prerequisite preliminary fact. So, the amendment extends Borjelli up to authorized admissions and agent admissions too.
o So, 104a
CEC 1220 - parallel to FRE 801(d) (2) (A), virtually identical.
CEC 1221 - parallel to (B) above.
CEC 1222 - not specifically equivalent to (D), but 1222 says that we must show authority of person to make a statement. So, we must show actual authority.
• (b) Makes clear that this is conditional statement. Restates the 403 deal.
CEC 1223 - equivalent to (E) - says we make this the same as the others, so under rule 403. Court may enter evide3nce on condition that later you will show evidence sufficient to support a finding of the existence of the conspiracy and the D's involvement.
CEC 1224 - closes to (D) - but based on a different theory. Based on theory of liability asserted in the lawsuit. If respondeat superior is theory of liability, so any statement we can offer against the employee as an admission, we may admit against you. So, this rule is a broader admissibility test, no requirement to prove preliminary fact of the agency relationship. It only applies in civil cases, whereas the federal rule applies in both.
Prior Statements
• When we offer some out of court statement by declarant, when that person is testifying. This is likely okay, because we are offering the prior inconsistent statement to impeach the testimony being given in court.
• What if we do want to prove the truth of a prior inconsistency?
o We want an out of court statement to challenge a witness who now changes his mind. We want this to show that witness is now lying, but may not have been before.
o So, we want out of court statement in order to prove the truth of what was asserted.
o If all we are doing is impeaching the witness or undermining his credibility, we do not need anything to do with hearsay.
• CEC says consistency can come in under two scenarios
o If impeached by inconsistency (791),or
o If there is an implied charge of recent fabrication, bias, etc.
o Both still require that the consistency precede inconsistency.
FRE 613a - for impeachment with prior inconsistent, you do not have to show the statement to the witness to make this accusation.
• Process: elicit witness's statement, then can ask witness about statement on yes/no basis, then you have complied with 770.
FRE 801(d) (1) - (A) says if witness can now be crossed and at the time of statement was under oath or such okay
• Can also assert 403 balance requirement. So, even if non-hearsay witness, they may not add anything to the case, so no probative value.
• IF witness says that they do not remember, so we must ask if that loss of memory is genuine. So, a witness with genuine memory loss, then we cannot confront with a prior inconsistency.
• Loss of memory is a question for a judge.
• Says that the statement is consistent with testimony, and is offered to rebut recent change of fabrication. So, no requirement that it precede inconsistent.
o Tome v. US - court sees as subsequent consistent excluded. Basically court adopts CEC as proper interpretation.
• Just says offered to rebut implied charge of improper motive, or against admission of inconsistency.
• (C) Statement of identification - see below.
FRE 803 - past recollection recorded.
CEC 770 - says this extrinsic to show shall not be inadmissible unless the witness is finished indefinitely.
• Generally we must give the witness an opportunity to confirm or deny the outside of court statement.
• If witness admits the inconsistent statement, then we need no extrinsic evidence, because we have shown that she made the statement.
• Note that Proposition 8 does override 770 in criminal trials, so that 770 does not apply in this case, so prosecution then calls on judge to exclude the evidence under 352 balancing test by saying it will take too much time.
• So, despite proposition 8, you want to ask the witness about the statement while they are on the witness stand.
• Questions if silence counts. Fletcher v. Weir - implied assertion, but Miranda will render silence ambiguous by USSC. Here no Miranda, so court says you can use the silence in this context. So, we can impeach with prior silence under circumstances where we expect someone to speak.
CEC 791 - prior consistent statements.
• Says you can admit prior consistency only after witness credibility has been challenged by showing an inconsistency, or a recent fabrication accusation. So, the statement must still be prior to the fabrication or inconsistent statement.
• So, does 791 exclude relevant evidence? Yes, so what about prop. 8? D says 352 and undue3 consumption of time. Basically why are we taking up time with all of these prior consistencies when the credibility has not been challenged?
• For a civil case, judge will just say 791 applies, prop. 8 inapplicable.
• Cannaday case from Wizard - prior consistency made after inconsistency, but before the accusation of improper motive bias. It is allowed. Under FRE, allowed to come in because FRE encompasses both 791 a+b
CEC 1235 - comparison do 801(d)(A) - still a requirement where you confront witness with the statement before admitting extrinsic. NO requirement for under oath for previous statement, so it comes in because it is inconsistent. This is a big difference between this and FRE. Remember also that a 352 objection is also important, because you can object even if statement is being admitted only to impeach the credibility of the pawnshop owner.
CEC 1236 - hearsay exception which says statement can come in to bolster witness credibility and to prove the truth of what is asserted. Generally consistency only rebuts inconsistency only if it preceded the inconsistency.
CEC 1237 - past recollection recorded. Possibly can show prior list in order to confirm that you made the list, that it was truthful, that you confirm all of this now, and so now it can be admitted under an exception into evidence.
• Where a person is on the stand but no longer remembers what happened, so that you can refresh their recollection as in statement of prior something.
• Keep in mind they are testifying as to their refreshed recollection, so they are testifying about the past, but about their actual recollection then.
• Witness cannot simply be reading from an out of court statement. You must lay the foundation for past recollection and recording before refreshing.
• If person still does not remember, rule 5 all we have to do is illicit from her that at the time the memo was made the events were fresh in her memory, and she made the list at that time, or she adopted it after someone else made it.
• After she says the above, we can read the memo or other thing to the jury in order that they know. So, jury hears and no prejudice shown.
• Under this in CA we require that the document made at the time have been made by the witness himself. Or under his direction or by some other person for the purpose of recording the recollection of the same time. Important difference here, is that the witness does not have to adopt at this time so much broader
CEC 1238 - statement of identification - hearsay exception that will let this in and let it in for purpose of assertion
• CEC is a little more limited. It permits a statement of identification to be admitted as a hearsay exception, but requires that the statement have been made when recollection was fresh in his memory, and the witness must testify to that identification before we admit it, and he must admit that it truly reflected his opinion at the time.
• Comparison to prior consistencies and inconsistencies....if we can identify a statement as an identification, we can avoid the limitation on inconsistent and consistent statements.
• Limited circumstances really such as line ups, etc.
• Weichell - composite drawing made from witness statement after the crime allowed.
• Open question of how narrowly the rules are to be interpreted.
• People v. Chavez - LA drive by shooting.
| |FRE |CEC |
|prior inconsistent Statement |801(d)(1)(A) |770/1235 |
|prior consistent statement |801(d)(1)(B) |791/1236 |
|statement of identity |801(d)(1)(C) |1238 |
|past recollection recorded |803(5) |1237 |
Unavailability Exceptions
|exception |FRE |CEC |
|Unavailable |804(a) |240 |
|Former testimony |804(b)(1) |1290 to 1292 |
|Dying declaration |804(b)(2) |1242 |
|Declaration against interest |804(b)(3) |1230 |
|Family history |804(b)(4) |1310, 1311 |
|Forfeiture |804(b)(6) |1350 |
• Preliminary fact that must be established always, is that the person is unavailable unavailability does not make it more or less relevant. The judge decides under 405; generally jury finds out somehow, we might tell why they are not available.
• Privilege cannot find will not testify, etc. used to show this and this is presented during testimony. It may not even be by the person themselves
• so if you have established that they are not present than you can call a person to tell what she said out of this court
• again by preponderance to the judge is all other 405s
• dying declaration exception
o must be statement made by declarant while death is believed to be imminent and the statement is about the circumstances or cause of the death
o assumption underlying rule is really religion based
o We admit despite ability to cross examine. But we do have the limit that it must concern the cause and circumstances of the death
o Shepperd v. US - woman tells nurse. She believes husband poisoned her
▪ Test is at the time she makes a statement she must think that I'm going to die soon. So here, no showing that the statement was made in expectation of death
▪ so, we need some evidence of the declarant state of mind at the time of the statement
o Remember under 105 a, the preliminary question does not have to be proven by admissible evidence. But CEC requires that preliminary be proven by admissible evidence
o A second problem is that suspicions are not enough. Even if the person is dying. Really, the requirement of the witness having personal knowledge. So need competence and personal knowledge always before any witness testifies
o difference between FRE and CEC in these cases is that FRE: is not available in a criminal case except in a prosecution for homicide whereas CEC 1242 makes the exception available in all actions
o what about statement in contemplation of suicide was not admitted in this type case
• declaration against interests
o Discusses pecuniary, property interests. Generally parties do not make false confessions.
o Underlying rationale is that generally when a person makes a statement against their interest, a reasonable person would not make a statement like this unless it were true.
o The problem most often arises when statements are mixed, as in where they are against declarant's interest, but implicate another person too. Implicating others is actually in your interests.
o Problem 7.22 example
o Williamson v. U.S. - USSC - catch man driving rental care with cocaine in the trunk. Says it is another's, and that man split, now trying to use under co-conspirator, but conspiracy is over when statements made. O'Connor believes it depends on how you construe statement as to if it is against interests or not.
▪ Court says parts of statement against himself and not the rest of statement admissible.
▪ Potential denier of right to confront one's accuser, her court has held it violates the confrontation clause.
o Two important aspects to this exception
▪ Difference between CEC and FRE, CEC seems broader because it includes making you an object of ridicule, hatred, or social disgrace. What if businessman admits affair with secretary which she predicates her claim of sexual harassment against the corporation. 1242 construes dying declaration does not apply to suicide contemplation. Also, not necessarily within scope of duty, so not against corporation interest under a type of agent deal.
▪ FRE contains a final sentence for where declarant will be implicated criminally by the statement, but the accused will be exculpated, there there must be corroborating circumstances. Comes form underlying suspicion or distrust of alleging that someone who will not testify and cannot be crossed to exculpate the accused. But will admit if there are corroborating things to show statement is the truth.
• The with the FRE does not explicitly require personal knowledge. Advisory committee Notes clearly say that one must still be considered a witness so need the personal knowledge under 804 and 803. So all hearsay exceptions in these two rules require knowledge. Without this, you need him to say in his statement that he saw or was able to infer it from the circumstances
• in the context of party admissions will not require personal knowledge, but rather will allow statements of conjecture or opinion
FRE 804-a defines unavailability.
• Privilege ruled on by the court refusal to testify despite court order. To do so.
CEC 240-defines unavailability, pretty closely parallel to FRE. Principal difference from FRE is this does not include a witness who refuses to testify despite a court order to do so.
• People v. Rojas - Kidd identifies shooters because he was in back seats. He testified at the preliminary hearing. Then he becomes the victim of repercussions from the two men at trial. He refuses to testify, judge says he has to, so now they want to admit the testimony he gave at the preliminary hearing. But same parties under oath, and available for cross exam at that time, but we can only use if he is now considered unavailable, which section of 240 does he come under
• the rest of the exceptions are similar between CEC and FRE
CEC 1242-explicit in saying that the person making the statement must have personal knowledge
CEC 1230
Prior Testimony
• difference big between criminal vs. civil case
• FRE 804(b) (1) - right away we establish that in a criminal case, the party who we got testimony from and that be admitted now must be the same, in a civil case the party that was elicited from and the one now must merely be a predecessor in interest.
• One reason for civil vs. criminal is that in criminal, there is a constitutionally protected right to confront your accuser.
• Remember also that between the two proceedings, the witness has become unavailable. This is second best, we allow former only because we cannot recall the witness to testify again and be crossed again. If witnesses are available, even with trial of the exact same case, they must be produced to come in and testify.
• Even though the criminal rule is designed to accommodate the right of confrontation, by saying it must be offered against same person in prior as it does now, so rule doe snot really give that protection that the constitutional requires. Even though the rule of evidence would allow the reading in, the D may still be able to say I am being deprived of my right to cross, where you can say there are avenues of examination that were not done at the first trial, but are available now. But, no waiver of 1st right because judge prevented, or evidence has come to light since then. So, that constitutional protection may still keep evidence out even though rule would permit this.
• Both the CEC and the FRE refer not only to situations where offered against same party in the first trial. Also addresses where evidence in the 2nd trial is being offered against the party who brought in evidence on their behalf in the 1st
o Important difference between CEC and federal
o FRE says that in this situation, you must have had opportunity and similar motive to offer the testimony. So, same standard if party had offered on behalf, or had it offered against them.
o CEC different under 1291 - no requirement of similar interest and motive when the party offered the evidence on his own behalf in the previous trial.
• US v. DiNapoli - USSC held that a similar motive and interest must be shown even where the party offered the evidence himself.
o Prior proceeding is a grand jury - important because there only prosecution can present his case. No judge present in these either. Defense may never learn what happened in the grand jury after an indictment is returned. Only transcripts you get in federal law is that of witnesses who will be called at trial. In CA, entire transcript is available to the public after the indictment.
o Here bid-rigging scheme and federal grand jury, conspiracy alleged, two witnesses at grand jury, now take the 5th and becomes unavailable. So, D wants to offer grand jury testimony, P says they did not have same motive in cross there. Also P says possible new evidence since then too, or evidence that did not want to use then.
o So motives from two are easily different.
o In CA, comes under 1291a1 because if person offered on former occasion on their behalf, then we can enter now without similar motive and opportunity.
• OJ example - blood drawn in jail to compare to crime scene. Preliminary hearing where there is opportunity to cross - some blood missing and they want old testimony admitted. We can bring in prior transcript if lab tech takes the stand in order to prove truth of what is asserted in the form of inconsistent statement.
o Now lab tech is unavailable due to physical illness.
o Can definitely use preliminary hearing testimony under 1291 because now offered against prosecution and witness unavailable.
o Judge let it in because prosecution never picked up on the difference of who offered so judge let in under 1291a1.
o For grand jury here, 1291a1 because prosecution offered, so now against them, so no similar motive interest requirement under the CA rules.
• Lloyd v. American Export Lines - predecessor in interest, a civil trial here. Even where parties different in previous because predecessors we open door a little wider for civil trial. FRE does require this, but CEC does not. Civil liability of the employer after two men fight.
o Court construed predecessor to mean same interest and motive, not privity as one would think.
o Wide breadth interpretation not widely adopted though, and this is only a circuit case.
o If this interpretation followed, then no difference between the federal and the California rule.
• Issue of what objections are waived to prior
o Federal gives none.
o CEC says if same party, objections may be made to former testimony when offered at subsequent proceedings.
o Can make relevance proceedings, even if not made before.
o Can make policy objections even if not made before.
CEC 1202 - will allow the tape of man at home that prosecution brings in to counter the two trial transcripts from defense. Two aspects
• We are saying unlike the foundation needed to lay in order to impeach, aka confronting witness with prior. We say if testimony impeaching as a hearsay statement, you do not have to lay that foundation. No prerequisite to challenge what the other side is using under hearsay.
• Hearsay statement out of court can be impeached with subsequent inconsistency. Live witnesses impeached with subsequent inconsistency. Live witnesses impeached with prior inconsistency. But inconsistency. But 1202 allows the subsequent inconsistency.
• 1202 does say that it does not allow things to be admissible if it is asserted to prove the truth. Subsequent inconsistency under 1202 only used to attack the credibility.
CEC 1290
CEC 1291 - can offer the former testimony, if offered against someone who offered in prior, or to someone who was a party, so had the opportunity to cross before.
CEC 1292 - says if civil action, then parties need not be the same, one only needs to show that the issue was similar enough to have the party originally cross-examine with same interest and motive. Says can only go intent privilege and form, etc.
Spontaneous & Contemporaneous Statements
| |FRE |CEC |
|Present sense impression |803(1) |1241 |
|excited utterance |803(2) |1240 |
|mental/emotional/physical condition |803(3) |1250, 1260 |
|medical diagnosis/treatment |803(4) |1251, 1253 |
• Remember back to the triangulation, when we allow statement we put into question the credibility of the declarant.
• So, for triangle of hearsay, we start with hearsay, and then go up to the declarant's state of mind, which connects to conclusion of truthfulness of the statement.
• Where just the making of the statement is at issue, we are not worried about the credibility of the declarant, but rather the reporter of the statement.
• Only when we offer statement to prove truth of the statement do we have a hearsay problem.
• Here, we carve out an exception, and the fundamental basis for this is that these statements allow little opportunity for reflection, so hard to fabricate the statement. The immediacy of the statement is really the tying factor for all of these exceptions. The following exceptions do not require that the declarant be unavailable.
• The following all have tremendous overlap.
• Is this conditional relevance? Relevant, so we are excluding relevant evidence under the hearsay rule, because the judge will then determine this, we can bootstrap under the federal rules, in other words use statement itself to determine if relevant or not.
• OJ example - judge's rule of prior evidence of domestic violence will be admissible to show motive and identity. Offered to prove the truth of what is asserted, in other words to prove the description of what happened one year before. Point is that we cannot characterize the entire 911 statements an excited utterance. Especially questions by operator on past history or opinion statements.
• Hillman exception - original of the mental/emotional/physical condition exception.
o Went to USSC twice, accident at a camp, P contends that Hillman was accidentally shot in the head while his partner was unloading a gun in a wagon. P is widow suing the insurance company.
o Insurance company says that that was not her husband who was shot; they say this is insurance fraud, and actual person killed was a drifter and they intended to kill him for money all this time.
o Last communication from man said he is going to the creek with Hillman. WE offer this in letter to girlfriend. We are trying to say that if he did intend to go to the creek, then it is more likely that he did go to the creek. Little motive to fabricate it.
o USSC allowed this exception and subsequently this exception and subsequently this exception became part of the federal rules of evidence 803(3). Allows a statement of the declarant's then state of mind, but not including a statement of memory or belief to prove the fact of memory or belief. So, broad exception here, that says if statement describes what person is feeling, intending, or experiencing; we have a hearsay exception.
o But Hillman case we must ask if statement proves Walters intent, but also describes the intention of Hillman as well. It is not admissible to prove Hillman's intent.
o Committee says specifically that Hillman is codified here, but the statement is only admissible to show intent of the declarant and not of anyone else.
• Statements to examining physician - 803(4), CEC 1251, 1253.
o So you can use 1251 to prove what you experienced at the time of the accident.
o We do not have a CA exception that allows any statement about diagnosis or treatment such as 803(4) but we can very often use 1251 to do the same thing. Also, under CEC it is not required that the statement be used to diagnose or treat.
o FRE reflects the theory that if you are seeking treatment, you are motivated to speak the truth and be accurate when speaking to your doctor for the purposes of treatment.
• Final thought, when we use today's exceptions, we need a hearsay exception because we are offering the statement to prove the truth of what is asserted.
o What if we are inferring the mental state of the declarant form the statement, so "ouch" instead of "I am feeling pain"
o In this case, we don't need a hearsay exception, we return to three exceptions where not hearsay at all.
o So, we only need a hearsay exception when the statement describes the state of mind that we are trying to prove.
FRE 803(1) - present sense, describes event or condition made while declarant is perceiving or right after. Here the key is contemporaneousness of the statement.
FRE 803(2) - doe snot require that it be and the same time. For this we are looking for excitement. Both (1) and (2) do not require the declarant to be participating in the event.
FRE 803 (3)
FRE 803 (4) - statement to examining physician. What if you are going to the doctor in order to get him to be a witness for you at your trial, are you motivated equally under these circumstances to accurately describe the extent of your injuries? FRE is broad enough to apply to any statement for diagnosis or treatment. Committee notes say that this is broad on purpose because the jury is not likely to make such a subtle distinction. So, it is important to realize that in CA we do not have an 803(4) but rather in child abuse cases we allow a small reflection of this.
FRE 803 (5)
FRE 612
CEC 771
CEC 1237
CEC 1240 - spontaneous statement made under the excitement caused by such present perception. CEC requires perception of the event so much be a witness, but FRE only requires that you are somehow aware of the event and you make a statement. So, CA rule much more narrow than federal.
CEC 1241
CEC 1251 - allows evidence of a previous mental or physical state only if the declarant is unavailable. This only has a partial parallel under the FRE, but not complete. State must be at issue in the action itself. It is not intended to prove anything else, not even conduct in accordance with that intent or state of mind.
CEC 1252
CEC 1253 - only for child abuse cases, this is much more restrictive than the 803(4) exception. Is really meant to make the prosecution of child abuse cases easier, so not really based on need for further reliability.
CEC 1260
Business & Official Records
| |FRE |CEC |
|Business records |803(6) |1270, 1271 |
|Public/official records |803(8) |1280 |
|Absence of entry |803(7),(10) |1272, 1284 |
• Business records exception-today the most frequently used hearsay exception. The theory underlying exception for business records goes back to the triangle. We let in, because ordinarily the circumstances under which the records of businesses are maintained. Suggest very little motivation to fabricate or misrepresent strong incentive to report things reliably and strong business incentive to make records accurate
• must be:
o Regular practice of keeping record.
o Record kept in this ordinary way.
o Contemporaneous.
o Must be transmitted from a source with personal knowledge.
• Shows that a particular transaction took place.
• Telephone record example, where you are trying to prove that call was made between two phone records. This is hearsay, but under the business record exception because it is a regular business record, which they normally kept
• look to 1560 through 1562 for specifics in California on how to admit business records
o they make the admission of these records a very smooth process
o subpoena duces tecum - order to appear and give testimony subpoena orders, you not only to appear, but to bring something with you, so usually a document
o alleviate the burden on businesses, and having to send a person down to authenticate by allowing an affidavit to verify
o allows a copy to be submitted, but still need to lay a foundation for the record, meaning we establish its accuracy in compliance with the rules
o 1561 says that you can submit an affidavit signed and sworn statement says what you would testify to. It must include the foundation for a business record
o Why is affidavit not hearsay? Really, 1560 and 1561, create another hearsay exception. By allowing proof by affidavit, instead of appearance by custodian. The opposing party, if they want to cross examine the custodian can insist that the custodian come to court to be cross-examined
• Palmer-railroad car accident, one could argue that a thorough investigation of the circumstances surrounding the accident of a railroad in the car is part of the ordinary business record of the railroad
o Railroad talk to the engineer who tells the interviewer, that they did all of the routine requirements of railroad approaching a crossing
o Engineers not dead. So no question that it is hearsay
o Court says this is not the type of business. We're talking about regarding business records is really meant for routine records. The whole purpose in this case is to get information for court. So there is this incentive for the engineer to exaggerate
o ultimately, the court excludes saying this is not a record kept in the ordinary course of business, because it is prepared with a lawsuit in mind
o Language of this rule is literally met in this case, but the circumstances under which this particular record is prepared to indicate a lack of trustworthiness. So the rule will not let in
• Beech aircraft-while using the official record exception. There is very little difference here between rule applied in the business record exception
o Section 8 - says factual investigation made pursuant to duty imposed by law may be allowed. But the trustworthiness requirement is still there
o Exception, D. is relying on in this case. Only applies to civil proceedings or against the government in criminal cases
▪ Because constitutional right to confront and cross-examine applies only in criminal prosecutions. So this may override a hearsay exception
▪ In 803(6) we avoid letting the statement in in criminal case
• Business records exception does not only apply to recordings of numbers and such. But extends to more extensive narrative reports such as investigations must always ask what the motive of the investigation was. We will not open the door broadly to all these reports. Although the rule is broad enough to let some of them in
• What about medical records from an emergency room or such. It is admissible, even though it contains medical opinion
• Statement of the victim to the doctor does not come in, because she did not have any business duty to report this. This
• Concept of limiting business record and official record is extremely important. We must remember always that requires a person to write down what is reported about during the normal commission of one's job
• police reports are business reports to
o The business he is in requires him to make an accurate record of what he observes. And this is kept in the official public record of the Police Department. But
o 803(8) carves out a note saying it excludes in criminal cases. Reports about matters observed by law enforcement officials or personnel
▪ important exclusion, because it shows these would normally come in
▪ note only in criminal cases
o So even though police report, could be offered in court to prove damages. If we are criminally prosecuting someone involved. We could not use the report. This is due to a right to cross-examine
• This exclusion doe snot come in 803(6) - must ask if police are a business to try this
o Extremely broad definition of business. So cops may be included
o Do circumstances of trustworthiness, keep this out? Possible motivation to be less than accurate
o U.S. v. Oates - extremely important. Here, the prosecution did exactly this and tried it to use 803(6) and not (8). Narcotics case, where they had to prove substance used by D. was an illegal drug
▪ chemist who did analysis wrote up a report because unavailable for trial
▪ Appeals said end run around, protection of section 8, which says you cannot do this in a criminal case. So, if under that section, then this would never be allowed
▪ So the court said that exclusion from section eight applies to section as well. So regardless of which statute police reports cannot come in in criminal cases
o what other exceptions allow these things to come in, other than official records exception
▪ what about calling investigator who interviewed the engineer asked if they talked engineer in hospital
▪ dying declaration possibly may allow but need to show it was made in contemplation of death
▪ point is that even though one exception gets knocked out, doesn't mean we shouldn't allow other statements to come in
• statement by the doctor could come in, but not really the statement of patient to the doctor, because not in the normal course of business
o Vigneau - purchaser fills out money order, and not the employee court excluded because there was no duty for the purchaser to fill this out
o Possible 803(4) exception for medical diagnoses, which permit statements. Even about cause or external source of injury so would come in, but not as a medical report
o First reproof statement was made through the report. Then prove truth of statement through exception in 803(4) for medical diagnosis
o he did have business duty to accurately report the statement that was made regarding the source
• FRE rules. Now allow just recently the same stuff from CEC 1560 through 1562, amended rule 902 for self identification. So 902 parallels California rules
CA exceptions
• by and large the underlying foundation that must be laid to prove that the record is a business record is the same
• FRE and CEC differ. When we are talking about the observations of the officer himself
o FRE does not permit this either, even where the officer observes himself
o CEC does not have this exclusion. So even in a criminal case. So long as the police report is offered to show observations, of police officer themselves. We will admit it as a business record or an official record
o People v. Parker - ordinary course of business chemist report here to, because in California judge overruled hearsay.
▪ Is report testimonial statement? If testimonial, 6th Amendment gives D the absolute right to cross-examine.
▪ Crawford should change the result here.
▪ Crawford says the constitutional right only applies to statements that are testimonial, but no offerance of a clear definition of what testimonial is.
• While reading Crawford think about whether this report meets the requirement of being testimonial, so is it prepared with the presentation in court in mind as the goal, so must ask if 6th amendment would give this right to cross-examine.
• Definition of business - every kind of business, would this apply to an illegal business?
o What about bookkeeper's records regarding out of state betters?
o Still has motive to keep accurate records, and no motive to really lie
o Generally courts will let in these records from illegal businesses so long as in regular course of business.
FRE 803 (6)-
FRE 803 (7) - absence of entry exceptions, offer evidence that entry is not included. Idea is we are offering the record to prove that a transaction did not take place that should. Curious because this is actually not hearsay - because there is no assertion.
FRE 803 (8)
FRE 803 (9)
FRE 803 (10)
CEC 1270-definition of business, which is more explicit about crossover between business rule and the official reports. So California business records exception does apply to government agency records
CEC 1271
CEC 1280-very broad as well. And even more than 1270. So when a government record. You can usually get it in under both. So you want to argue both
• Does not give the exclusion specifically for the criminal trial, and the exclusion of a police record or report. But note the comment
o does exclude reports from bystanders, etc. where that person has no business duty to report
o Person must have a duty to report in order to make the report. Where we record that statement admissible
o so in this respect their identical
CEC 1560
CEC 1561
CEC 1562
CEC 1564 - not required to personally attend unless you put in subpoena that you want the custodian to appear. What circumstances might yield this? Maybe question of need for explanation that only a person within the company can provide
• when you may not be able to tell from the record alone so that you want the jury to understand the significance of the record and the particulars thereon
CEC 1272, 1274 same as federal
New Exceptions & Confrontation Clause
• Courts left still free how to make rules to face novel situation.
• California does not have residual.
• CA S. Ct. In re: Cindy L. is a big case here, in Wizard.
o Court said that they could recognize exceptions no in the code.
o 1260 - Child abuse exception for criminal prosecution, but here it was a civil proceeding to take child from parents. So, they used authority to expand 1260 to cover this situation.
• So we do have by implication this same authority and power to recognize this. Same exception.
• Proposition not a problem, because we are not excluding, we are admitting.
• In CEC, we have four new exceptions since code was promulgated.
• Does ever hearsay exception violate the constitution right to cross-0exmain?
o Court in Maddox says no, because when 6th amendment was drafted, there were hearsay exceptions already and the framers were perfectly aware of these.
o So, court continued to confront the issue of how far exceptions can go before violating the constitutional right for the defendants.
o USSC says if it is firmly rooted exception, then the 6th amendment construed to say this is okay. If not firmly rooted, we will require particularized guarantees of trustworthiness. That phrase becomes focus of the cases going up.
o Crawford is one of the most important cases ever, and great example from Scalia and his belief in the Constitutional interpretation
• Said 6th amendment guarantees the testing of reliability by cross-examination, this almost turned the prior law on its head.
• Remember all hearsay exceptions deprive us of some right to cross-examine.
• What keeps interpretation from invalidating all hearsay exceptions? He goes back to what they had in mind when they drafted the 6th amendment. He says that the statements of a witness out of court were brought into court as a substitute for the witness.
• So, Scalia says 6th amendment does not protect all out of court declarants, but rather a protection against all testimonial statement, and thus if it is testimonial, then it must be cross-examined to be admissible. Not necessarily a cross in court, but if you interviewed before and could cross, then you would be allowing it in.
• Again all hangs on if it is testimonial, so how did the court define testimonial - court says there is a definition, but they are not going to determine it right now.
• Remember none of this is an issue in civil cases, because the 6th amendment does not guarantee that.
• So, every time you make a hearsay objection, you should make a constitutional objection as well, because you don't want to waive it.
• Be careful, because there are many cases where not saying constitutional objections constitutes a waiver.
• How will testimonial definition finally play out? Questions surrounding Roberts and Crawford from Scalia.
• Scalia makes clear that if we are talking about a police interrogation of the suspect, it is a testimonial
o What about bystanders?
o Do we ask about bystander's knowledge as to if this will be for court proceeding.
o What about the police motive in taking the statement, is it meant to be admitted in court.
• Cases since Crawford over issue of 911 calls, or excited utterances under Crawford.
o No flat absolute answer to whether this is testimonial or not, some indication it could go either way.
o If we just look at cop motivation, they are always preserving as evidence, so do we say that all statements to police officers are allowed.
o We are talking about statements that are hearsay exceptions under other rules, but then we say if they are testimonial we will exclude them, but if not testimonial then we will let them in.
• Unanswered question in Crawford - court does not necessarily throw Roberts out the window.
• Still a question of saying that the 6th amendment protects against admission because it is unreliable as per Roberts if Roberts still works.
• Now, will Crawford affect Oates or Parker
o Criminalist reports are testimonial by their very nature.
o Business record exception maybe should still be excluded by Crawford unless you can cross-examine.
o Intermediate CA courts have said 1360 and 12380 are unconstitutional under Crawford, clearly testimonial and cannot be admitted despite exceptions.
o CA courts have not addressed OJ exception 1370, maybe courts will treat like 911 and say that some are and some are not.
FRE 807 - residual exception, says where equivalent circumstantial guarantees of trustworthiness, and no in the other rules, also if it is the only evidence of a particular fact. Any general purpose of these rules will best be served by admitting these. FRE gives broad latitude. The question is if this is an automatic back up when you are already asserting 803 or 804 exceptions.
• FRE does say that if it is specifically covered under 803 or 804, then we cannot use 8078, does this mean totally can't use if mentioned, or do we mean a statement that is not admissible under 803 or 804. This is debate of Laster case.
o Lawyer cannot meet business record requirements, but let in under 807.
o Dissent is good, which says that that is not what 807 means.
CEC 1200B - California does not have a residual hearsay exception in the code, but look to the basic expression of the hearsay rule, which says that inadmissible unless the law says that it is.
• Note says by law, and not just by code.
• Definition of law in the evidence code - 160 in CEC law includes Constitution, Statutory and decisional law.
• So can we argue that the code opens door to recognition of new hearsay exceptions, because it says that hearsay exceptions can be defined by law.
CEC 1350 - also parallel to FRE 804(6) - covers situation where out of court declarant is unavailable. Because D has made him unavailable. AS in D had killed him.
• You must show, however, that getting rid of the person was meant to prevent that person from testifying, and we require this to avoid it being applicable in every murder case.
• Note issue of applying forfeiture where D is charged with killing the victim and the statements were by the victim.
• Giles case in Wizard is a case like this page 107
CEC 1360 - new exception, but limited to criminal cases. CA S. Ct. took care of this in Cindy L. to extend to civil case. So, anytime you want a rule limited to criminal cases to extend to civil, then you can argue that 807 should be used and Cindy L. is precedent in courts to do this.
CEC 1370 - is most dramatic from Legislature - the OJ exception.
• Enacted by legislature in direct response to ruling in the OJ case.
• Not limited to criminal cases.
• Allow of the following must apply
o Statement narrates infliction or threat of physical injury - means that this is allowed
o Declarant is unavailable
o Contemporaneous to injury
o Circumstances indicate trustworthiness.
o In writing to doctor, nurses, paramedic, or law enforcement official.
• OJ files and ruling that led to this exception - Nicolas statements in a police report. Ito excluded.
• So, legislature rides to the rescue. Now this rule would allow it in.
• Is the report a testimonial statement? If testimonial, it gets excluded under Crawford, so how do we reconcile this with the code?
• Remember that the constitution will still trump a statute
o Note applies with federal and state constitution.
o Also, stat Supreme Court can give more protection under the state constitution than federal constitution allows.
CEC 1380 - elder abuse could be argued as such.
Review of Hearsay
• Three questions to ask yourself
o Who is the declarant?
o Why is the statement relevant?
o Where is the declarant now?
▪ Often this is the key.
▪ If declarant is a party here in court, almost any statement allowed as an admission.
▪ If declarant available can offer a lot.
▪ IF declarant is unavailable, we open the door to a slew of exceptions that are limited to unavailability.
• Very often declarant is different than the reporter, reporter may be the one coming in to court to tell us what was said out of court. Quite often these two persons may be different and we must recognize this as a possible double hearsay issue.
• People v. Ernest is problem in Wizard -
• Step one is getting existence of a conversation into evidence
• When analyzing double hearsay sort out each declarant, because each declarant may raise separate issues.
• FRE 805, CEC 1201 double hearsay rule, says if each part under an exception then it all can come in.
• Biggest mistake you can make is to lump it all together in analysis
• Ask why is the statement relevant?
o This helps us determine if credibility of declarant is even in issue, if credibility of declarant not in issue, then the only issue is was the statement made. This comes down to credibility of reporter.
o Proving the statement was made will lead us to infer if statement was made, without the necessity of proving the credibility of declarant.
o When does this happen?
▪ Statement has independent legal effect
• Whose credibility at issue? Reporter in court now
• If statement has some legal effect, then we have no hearsay problem.
• The only issue is credibility of reporter.
▪ Use of statement to infer speaker's state of mind, not from what was said or proof of what was said, but just the fact that the words were spoken
• Again we are looking at reporter's credibility.
• Can infer knowledge of person by hearing that the words were spoken, no hearsay because no offering to prove truth of what is asserted.
• We are trying to infer from statement that he had particular knowledge.
• What if statement describes declarant's particular knowledge?
o We want to admit to prove that this was actually his state of mind, so now it is for hearsay purpose; we are trying to prove the truth of what was asserted.
o So, we want to prove by showing the assertion regarding his state of mind.
o Still come in under hearsay state of mind exception 1250 lets in.
▪ Inference from making of statement, the listener's state of mind.
• We want to show effect of hearing statement would be that the person to whom statement was spoken had knowledge of what the statement said. Infer this because statement made in his presence.
• So reporter's credibility is the only one at issue, and we can cross-examine him.
• So, if relevance proves speaker's state of mind or listeners or if has some legal significance, we have no hearsay problem.
o Double meaning from evidence.
▪ Still can shoot out the balance and that jury may not be able to distinguish, and judge will give limiting instruction.
▪ Non-hearsay purpose must still be relevant.
• Where is the declarant now?
o A party, or in relationship with person who is a party, then we are done. Note this carefully.
▪ No requirement that statement be against interest or anything.
▪ The only question is is it relevant
▪ Remember it must be against party who made it
▪ At any time he can take the stand to refute as well.
▪ Can be extended to agents or those on his behalf, or to co-conspirators.
o Is the declarant a witness?
▪ If yes, then everything declarant said outside of court is now admissible if inconsistent with what he is now saying, in CEC meant to prove truth of what is asserted, federal court says out of court statement must be under oath.
▪ If consistent, we can only offer if declarant has been challenged or accused of fabricating. Then statements made prior to motive to fabricate, they are to prove the truth of what is asserted.
▪ Statement of ID
▪ We might put him on the stand in order to get statements in
o If unavailable, we must prove and the ways are delineated in rules. Opens door to very many exceptions.
• After asking these three, we just apply the rules laid out in chart, but note significant differences between CA and federal
o When we apply these, many set out foundational showings required before we can utilize the exception.
o These preconditions of showing circumstances all are 405 questions for the judge. So, we must jump through the hoops and show exception is available and does apply under these circumstances.
o There are some preliminary questions as to hearsay that does affect relevance.
▪ CEC 403 - where it says what questions are decided by jury and not judge
▪ Whether judge or jury decides may be different under different rules.
• After hearsay questions answered, we must look to 6th amendment question as regarding right to confrontation.
o Remember only applies to criminal prosecutions.
o 6th amend. May not block all hearsay exceptions, because Crawford said only applies where the statement is testimonial. So, this is only real question to ask if awe are analyzing under the 6th amendment. So, even with exception, 6th amendment may keep it out from even hearsay.
o So, in these cases always object on constitutional issue as well, because if you do not make it, then you waive that objection.
o Then we ask what makes it testimonial, and the answer is we do not know yet
o If purpose is to preserve evidence for court cases, then may be testimonial
o 911 calls have been allowed
o May look to state of mind of declarant? And ask if they anticipated future use in proceeding as contemplated. Look at formality of preserving the statement.
o Bottom line is once we identify the declarant, the declarant's statement out of court is relevant and is being offered to prove truth of what is asserted, even if we find hearsay exception, we want to identify of all of the hearsay exceptions that could let it in. Judge's want to hear it all at once.
o So, even after we find good hearsay exception, we must go on to ask if testimonial, then if it is you must produce declarant, an dif not tough luck. If you cross-examined before, that may be good enough.
o So, 6th requires prior opportunity to cross, current opportunity, or waiver of opportunity. Such as forfeiture due to misconduct.
Opinions & Experts
• Expert testimony can be used to explain odd behavior by victim: is there a risk that the experts are taking over the jury's job?
• Expert opinions cannot be a determinative statement that decide the credibility of a witness: This usurps the job of the jury.
• Look at how helpful the testimony will be to the jury in determining the credibility of a witness
• US v. Hines: memory and perception expert testifies on cross-racial identification and how memory degrades over time. Expert not making a credibility decision, but giving the jury tools to better make a credibility decision. Expert cannot say in his opinion, the witness is incorrect.
• Expert Qualification is a 405 question for the judge to decide, not a conditional relevance issue, but the qualification issue is decided in the presence of the jury.
o Evidence offered to establish qualification used for two purposes: Judge determining expertise, also relevant to jury's assessment of what weight they will give to expert's testimony.
• Distinction on experts who are testifying on accepted techniques/practices v. experts testifying on cutting-edge new techniques.
• Might need separate hearing (Kelley-Frye Hearing) to determine the expert's qualification: if Judge decides if expert is okay, then jury hears most of the evidence brought at Kelly Frye hearing these hearings used for experts in questionable area or areas that aren't always considered valid scientifically
• Expert can be anyone with specialized knowledge. Not necessarily requiring formal training or education
• Can go after expert, just like any other witness on cross examination: bias mph with prior convictions. Prior inconsistent/consistent statements
• but voir dire gives opportunity to examine witness as to qualifications before testimonies given: this gives two chances to cross examine the expert
• Most effective cross exam of expert is to pick apart his assumptions. Show areas of the issue that expert is unfamiliar with
• Frye arose in context of admissibility of polygraph tests
o pivotal case as far as expert testimony
o in this case, defendant passed the polygraph and wanted to admit it to show this
o We let judge decide first if this meets the minimum of scientific reliability. Therefore, this is a threshold requirement. So then we would possibly allow as conditional relevance to jury after minimum reliability shown
o Federal case, not the Supreme Court, but it was widely accepted and became the prevailing test of scientific evidence admissibility in the court's
o left ambiguous as to standard and how widely accepted
• Daubert steps back and asked who should really be making this determination.
o Said that the FRE overruled Frye, and set up a harder tests than Frye had
o the court focused on the appropriate test for scientific techniques
o They want to know if it can be tested. If you can demonstrate the reliability of the results and can you replicate using these results
o this only applies to FRE though, and California decided to stick with Frye and not follow this new interpretation and note that they are not bound to
• In California, known as Kelly Frye test, because Kelly was the case where California adopted the Frye test, the court said proposition eight does not affect this test. We will look to peer review testing and rate of error
• Which test will result in broader admissibility?
• Daubert will be much more restrict judge says that even with that test. You must still show that the evidence is relevant to show what it is intended to show
• Kumo case the court goes further to say that it applies to any specialized evidence.
o Now judge can rule that you cannot admit scientific or expert evidence in favor of the defendant which would show the requisite causality.
o If you succeed there. You can motion for summary judgment. Thus, no trial and defendant can win if expert is excluded
• the California difference led to one of the most interesting aspects of the OJ trial
o First time in California, where the court would decide if the DNA testing was acceptable in California and also allow this evidence in both sides have experts to testify for and against the acceptance of this technique.
o Defense waived Kelly Frye attacked the evidence as sloppily handled instead.
o Defense did want to present the Kelly Frye evidence to the jury. So they waived right to have that hearing outside the presence of the jury a
FRE 701 - ordinary, non-expert witness.
• Can only testify to opinions or inferences rationally based on their perception and helpful to clear understanding of their testimony.
• Limited to personal knowledge
• (c) is different than CEC, CEC doesn't have it. Not based on scientific or other specialized knowledge.
• US v. Figeroa-Lopez - drug bust, D acted consistently with experienced dealer. None of cops qualified as experts. Objection under federal (c) would be specialized knowledge.
• Determine between: Rationally based perception v. specialized knowledge.
FRE 702
FRE 703 - facts or data reasonably relied upon by the expert perceived by made known to expert at or before time of hearing are OK. These facts underlying the expert's opinion, need not be independently admissible as evidence
• Coleman case in Wizard-mental health expert considers letters written about deceased wife about defendants abuse
o letters are hearsay and aren't in any of the exceptions
o 403/352 ruling, abuse of discretion to allow in the hearsay. Even when there's no bar on expert relying on the hearsay evidence in drawing his opinion: expert reliance on hearsay does not make expert testimony inadmissible
• First, determine everything the expert relied upon all reports that expert wrote. If the trial, the expert says something different. Then he stated in a report this can be used to impeach based on prior inconsistent statement.
• Do not necessarily want to accept a stipulation to expert qualification: want to impress the jury, as to you expert's qualifications. This is especially important will in a battle of experts case
• Right to elicit expert qualifications before expert opinion is presented. This is the opportunity in the voir dire of the expert. This can highlight the differences between your expert and the opponent's expert
FRE 704 - testimony not objectionable because it embraces an ultimate issue to be decided by trier of fact; but
• (b): In criminal case expert can't opine on D's mental state if it is an element of the crime.
• CEC has no matching exclusion, but CA Penal Code has this same exclusion.
CEC 720
CEC 721-cross-examination of expert
• expert cannot be cross-examined on contents of publication, unless
• Expert use the publication in his opinion.
• Publication admitted into evidence.
• Publication established as reliable authority by testimony or admission of a witness or by other expert testimony. This can usually be established during the voir dire and then used in your cross exam during the trial
CEC 800 - same as FRE 701, but without (c)
CEC 801
CEC 802
CEC 803
CEC 804
CEC 805
Authentication & Best Evidence
• Authentication must happen before you can admit evidence we need evidence sufficient to support a finding. In order to submit to jury therefore it is a conditional relevance issue
• Process-market item for identification prosecution usually uses letters and defense uses numbers.
o Under FRE there are several circumstances where you can just admit without establishing. This is for self authenticating
o CEC does not have self authentication. So we are going to have to call a witness to authenticate they are sworn the same as others that we asked them about exhibit at
• A roadmap might self authenticate as an example. If you can show is an official publication
• best evidence rule does not say that once we identify what is best evidence we must exclude any other evidence
• It simply says that if we are offering a copy or oral testimony as to the contents of the document. We have to explain where the original is and why we cannot produce it. Even though it is the best evidence available.
• FRE says proponent must show where original is in California we have shifted the burden to say that if you oppose you must show some objection. And then proponent will have to deal with.
• In film, not best evidence, but rather evidence to show document was altered. We are trying to offer circumstantial through the Xerox copy of the form. Judge's rulings were wrong in this case.
• Notes-best and secondary not in issue of conditional relevance, but goes to judge. Must show through preponderance where original is. And then judge will rule and this is final rule.
• Where best evidence rule is violated is where we don't have the document. So it is not here. The best evidence rule does not apply where we have a copy. Or what ever of the original in evidence already.
o Must explain the location of the original document to get around.
o Even oral description of what documents said were the document has been accounted for
o The trickiest part is understanding the difference between the original in a duplicate. There is a distinction.
o Most frequent objection to use when a person is talking about contents of a document without having the document in evidence
FRE 901
FRE 902 self authenticating
FRE 1001
FRE 1002
FRE 1003 -duplicate admissible to same extent as original, unless question of authenticity of original. Or just unfair to admit so this is secondary evidence rule. The difference between the two types is to must explain and carry the burden of admission. Duplicate must still be an accurate reflection of the original a Xerox is a copy and not a duplicate a fax is a copy also erred in not a substantial with respect to duplicate as it is for copies
FRE 1004
CEC 250
CEC 1400
CEC 1401
CEC 1402
CEC 1520
CEC 1521
CEC 1522
CEC 1523
Privileges - California spells out every privilege and makes clearer. That no privilege asserted, unless within the statue
• What you're saying for all of these is that in order to preserve some value or relationship. We will preclude or prevent the offering of evidence encompassed within that relationship or value. It may be relevant evidence, and of great significance, to the resolution of this case
• So every time we recognize a privilege and suppress evidence. We are excluding relevant even a proposition eight allows this without a problem. Because proposition eight itself creates an exception for privileges but privileges must be in existence before the proposition was enacted, because it says privileges existing at the time
• Can courts recognize new privileges?
o In CEC, California does not have the power to recognize new privileges in criminal cases.
o In a civil case. Proposition eight does not apply so, CEC evidence controls. This says that no nonstatutory privileges will be recognized in California, so in California courts are just not free to create new privileges ever. The state legislature must act to get new privilege
• Federal courts, very different on this count, because there is only one code section. With no definitions about privilege in these rules.
o Allowed the common law to govern privilege and eliminated a specific references out to put in this general rule. So really they are leaving it to the courts to construe and apply privileges through judicial precedence.
o So in federal court, we must look for cases to determine if a privilege exists, but these may not be consistent.
o So we must always argue that our side is more persuasive. And if nothing else, you can argue that the court should recognize a new privilege in this setting
• Fundamental difference between federal and California here in federal goes by case law. Because common law decisions. But in California must be in statute or just not recognize to.
• CEC contains 13 privileges and two that are not in this section (and news persons and mediators) then in other codes. There are some privileges recognize like California Code of Civil Procedure of the work product privilege. So not in statutes means does not exist. But in criminal, only those that existed at proposition eight enactment are OK, unless new ones are enacted by a two thirds vote to be applied in a criminal case
• Now look at what happens when a privilege is asserted under the CEC.
o First person deemed competent as a witness here.
o Now ask about conversation for example conversation with the defendant.
o Witness declines to answer based on privilege for instance against self-incrimination
o First question court must ask if the witness has the standing to assert the privilege a.k.a. you are the holder of the privilege.
▪ Note that in CEC every privilege says who the holder of the privilege is and the holder is the only one who can waive it
▪ attorney-client client holds so lawyer cannot waive
▪ Pastor penitent both are holders
▪ Husband wife for communications, joint holders. So here, one spouse can object to the other waving the privilege and trying to disclose.
▪ Husband wife, not having to testify. Holder is party called to testify, so that person can waive
o There may be preliminary factual determinations that judge will decide. These are determinations, as far as was the relationship there, and is privilege valid in this case.
▪ If Judge allows jury doesn't hear.
▪ If Judge overrules objection saying not privileged. This is final and absolute. The evidence is admitted and the jury will be allowed to consider
o so CEC 45 will always apply to these preliminary factual determinations
o If Judge's ruling is wrong party to case. Even if not the holder can go up on appeal, to say that privilege was recognized erroneously, and so error by excluding evidence
o So Judge excluding is making a ruling that we can appeal and argued the rights to present evidence have been violated by judge's ruling.
o What if Judge lets the evidence in after overruling objection?
▪ Can party trying to keep it out. Go, on appeal and say that ruling was erroneous
▪ The only one with standing to challenge this ruling is the holder of the privilege. Otherwise no standing to object, even if you are a party
o this explains, 918, but the party may be able to challenge if you spouse is the party being forced to testify
o can judge asked a hear the disclosure in order to make his ruling
▪ really goes to absolute nature of the privilege
▪ section 915 says no disclosure can be compelled unless like a government agent or informant
▪ This is narrow exception, where otherwise the privileges cannot be pierced. In order to rule but Judge must rule blindly
• Where lawyers have some access to privileged material. Even where inadvertent lawyer must return the materials without reading it. And if they do read the document then lawyer can be recused from the case
o Regardless if it was carelessness to leave open to the other side still in violation and person can be disqualified.
o If private firm, this disqualification can be applied to entire firm.
o What if you have access to this privilege stuff? And it leads you to other evidence. So what if this disqualified person was not the one who now has the fruit of the poison tree. Not necessarily
• If you know that others are listening in on conversation. Then you cannot claim privilege, because you know, that is not confidential
• OJ example with football player friend-during one conversation sheriff claims he overhears conversation
o First, you need affidavit from privilege holder, saying that communication was confidential.
o They are not saying privilege was waived, but rather that this was not the type of communication covered by the privilege.
o CEC 912, and what is waiver of a privilege
▪ If holder disclose a significant part of communication or.
▪ Has consented to such disclosure by anyone
▪ so waiver requires a knowing disclosure of information that would otherwise be privilege and voluntarily releasing protected information
o 912 b-if one party of joint reveals in the other party can still assert the privilege. There is no waiver on part of party that did not waive voluntarily.
o Who has burden of proof to say whether communication was confidential or not.
▪ CEC 907-says that when privilege is made that communication is presumed confidential and opponent of privilege has burden to say not confidential
o Court cannot use privileged information to decide if privileged under 915 remember. So arguments must be made without any knowledge of content.
o How do you prove that it was or was not confidential?
▪ If guard says level of voices loud enough without straining. Is this enough.
▪ Do we look 2... subjective reasonable expectations and beliefs of the parties
o 1033 of the code for clergy penitent privilege-the comment says that eavesdropping on confidential is also protected here. Pretty clear that with respect to each droppers all of these communications are protected against them.
o So here again, 405 issue to be resolved by the judge
• Principles cut across the board. But we must look at them in different settings, such as corporate counsel and criminal defense
FRE 501
CEC 900
CEC 901
CEC 902
CEC 903
CEC 905
CEC 910
CEC 911
CEC 912
CEC 913
CEC 914
CEC 915
CEC 916
CEC 917
CEC 918
CEC 920
Attorney-Client Privilege
o Do we need to advise their clients that the privilege may not be absolute?
o So this is discretionary, and the lawyer does not have to disclose, but will this lead to competition among lawyers. Based on disclosure as an attractive thing.
o Uelmen - against rule change because of the exception. This is because of every case where lawyer knows that a person will be harmed. The lawyer can do stuff to stop short of disclosure to help. Also he knows of cases where the lawyer has prevented. Perhaps more successful in representing, because you can have the client reveal all and feel safe in so doing to represent appropriately.
Should we change these rules? The problem is that the client may only have told the lawyer because of belief in protection
o In California now, we say the choice is up to lawyer, and there will be consequences in terms of attorney-client privilege and punishment around.
o Note that the crime fraud exception to privilege is not the same as the above exception.
o If client discloses TU. The intent to harm a third person or commit some crime does not bring 956 into play. Unless the client is seeking to enlist the lawyer in the crime intended.
o What is protected is any information given by client to retain services. Or during the service its. So even if the client does not retain you, that gives you details well thinking about retaining you. That is privileged to.
o Under CEC you do not see what you did, in Zolan the because here you need some independent evidence other than confidential communication to show that some crime or fraud was about to occur. In order to use the 956 exception.
o What about identity of client for other factual information.
o If identity is relevant and has to keep confidential than it appears identity should be kept confidential.
o For reports. Maybe you have the information in the report is not privileged. But then the fact that so she communicated to the client is protected. So simply showing a document to your client is a protected event within your attorney-client privilege
o Two other exceptions
o Breach of duty arising out of lawyer client relationship.
▪ That arises where you client becomes your adversary. For example a claim of malpractice or ineffective assistance of counsel.
▪ Here, lawyer is being sued by his former client
▪ What if their discussions reveal that the claims are false because of a conversation he had with his client, then the privilege no longer applies, because of this section. So relevant as to a breach of duty by a lawyer, so exception applies and information can be disclosed.
▪ Many court have now said that you can use information of client' money ability where that person has not paid you.
o Joint clients - very high concern about a potential conflict of interest. So, you may even have to make choices favoring one over the other, you have a built in conflict
▪ This potential conflict can be waived by the client.
▪ These waivers happen a lot
▪ Under these circumstances the lawyer should get an informed waiver for the clients to be represented jointly
▪ If this does not work out, then clients end up in litigation against each other, then this section comes in.
▪ So, then this exception says if this happens neither of them can invoke the privilege against each other.
▪ Where this becomes a serious problem is when lawyers end up in joint defense agreement in corporate law area (where two lawyers work together and this is okay by the courts) problem is if one of the clients decides to turn state's evidence. What if that client's lawyer has had access to privileged information of others? This can be a very dicey area and present a lot of difficult.
o If we contact experts early, and they receive confidential information, they may be blocked from being a witness for the other side. Thus, we find a premium on contacting your experts as soon as possible.
o Tarasouff case - where victim's parents sue psychiatrist for not telling that patient was going to kill victim.
o 1024 of evidence code is where this duty to warn may come from, no duty to disclose the information in statute, but rather the information is not protected by privilege so psychiatrist can disclose, and under circumstances where you are aware of risks to third persons, you have a duty to disclose.
o CEC 956.5 - lawyer client exception is almost identical.
o Rules of profession conduct say that disclosure is optional for a lawyer, but what will court do the first time a victim sues the lawyer saying that lawyer had a duty to warn.
o Important difference between CEC and FRE for attorney client privilege
o Swidler and Berlin case - white house lawyer who committed suicide in the Clinton administration. Issue was if the attorney client privilege survives the client, where the client is now dead, because he is the holder.
o Federal courts apply common law and say that the privilege does survive the client.
o But in CA, this does not apply: here there must be a holder of the privilege in existence in order to assert that it still exists, therefore, once a client's estate is settled and no longer person representative there, there is no longer a privilege and there the privilege disappears.
o In CA S. Ct. HLC Properties v. Superior Court, just came down that held that once the estate finally distributed and the personal representative discharged, there is no holder in existence and the privilege is terminated.
o Corporate counsel and how privilege operates in these cases.
o Lawyer for the corporation, but often employees of corporation think of the lawyer as their own personal attorney.
o So, employees may consult with those in office and reveal confidential information, then the disclosures made to lawyer at some point are revealed without employees consent.
o So, burden on lawyer to tell people that they are the corporations' counsel.
o The employees conversations are protected under the corporation privilege, but corporation may decide that it is to their advantage to reveal information that may hurt their corporate officers.
o If corporation decides to stonewall and claim all employee information is protected by the privilege.
▪ Upjohn - USSC says privilege extends to all employees who convey information to corporate counsel in order for corporate counsel to function as a lawyer.
• The court rejects the government assertion that it is only the control group information that is protected.
• Here again this is USSC construing privilege based on common law.
▪ CA - Chadborn case - says that while privilege not limited to control group, we do say that the privilege cannot be used to insulate corporate employees who are witnesses simply by having them interviewed by corporate counsel. If employee is a witness then equally accessible to government.
o Attorney client privilege is absolute, so try to assert it always, and not like the work product which is much less restrictive.
CEC 950
CEC 951
CEC 952
CEC 953
CEC 954
CEC 955-lawyer shall claim privilege. If they were party to communication and are present when the information is sought to be disclosed. Since Navarro, law ahs changed, in CA penal code we have a misdemeanor crime for revelation of address or number of a witness. So, lawyer cannot release anything but the name of the witnesses.
CEC 956
CEC 956.5
CEC 957
CEC 958
CEC 959
CEC 960
CEC 961
CEC 962
Trial Objections
o Can have motions in limine in order to get advance ruling which the judge will do. No need to renew objection in order to preserve it. FRE 103 notes this specifically.
o Present rule allows you to take the sting out and do not waive the objection later for appeal so long as you have the in limine ruling.
o Big issue as to preserving for appeal when you are going into federal court from state court and ask for federal habeas corpus relief.
o Batson v. Kentucky - prohibits discriminatory use of preemptory challenges
o Becomes a problem when you do into federal on habeas corpus and federal court notes that you did not raise objection on federal constitution rights violation in state court, so waived the right there.
o Mantra Motion as solution to this: ask record to reflect that all hearsay objections will include violation of 6th amendment. So, if trial judge allows this, then all of you issues are preserved, or alternatively can come up with a shorthand way to have object on all layers. So, will help to make trial less repetitive.
o Not allowed on exam, be specific
o Look always for the 6th amendment objection along with hearsay objection. True if evidence is testimonial.
o Remember only applies in criminal cases, and only that D can assert this right, not the state.
FRE 103 - states that timely objection with specific grounds for objection.
o Means you must specify the grounds for your objection such as "I object on grounds this is hearsay"
o Note you have to use the 403 352 in order for judge to do balance and in order for you to preserve the issue on appeal.
o Really want to think about is this hurting my case, so how do I keep it out.
o Addresses both admission of evidence and exclusion of evidence rulings
o Ruling to admit evidence, then the grounds for objection must be there and be timely. This must appear in the record in order to preserve for appeal.
o If ruling excludes evidence, then you will not succeed on appeal, unless the substance of evidence was made known to court, or that the substance could come form context.
o Must explain why ruling will affect your case in order to be considered on appeal.
o IF answer goes beyond question, then can object as unresponsive. Also can move to strike in these cases. If truly prejudicial, you can move for a mistrial.
o CEC now allows either party to object to answers as non-responsive.
o
CEC 353
CEC 354
CEC 355
CEC 356
CEC 764
CEC 765
CEC 766
CEC 767
Proposition 8
• says all relevant evidence in criminal cases is admissible unless it is excluded in permissible ways by the rules
• basically, evidence code however, as saying that despite its relevance, we are going to keep it out
• this California constitutional amendment now abrogate those rules, not excepted makes that null for criminal cases
• So we really end up with two California evidence code, divided by criminal cases and civil cases. So the analysis must take one more step in criminal cases and look at proposition eight
• those still mandated by the Constitution of the United States are still valid as an exception to proposition eight
• The past by a two thirds majority vote. Or now or OK
• exceptions
o U.S. Constitution
o privileges in statute
o Note that we must figure out what is the privilege rule. And what is not in how we should define privileges
o hearsay-the hearsay rule, which does exclude relevant evidence
o CEC 352
o CEC 782
o Rape shield law-saying that victim of rape can not be asked about prior sexual activity. A way to protect and encourage victims to testify in order to put offenders away
o protection of the right of the press to not identify the sources
Federal Constitution
• Miranda - a way to exclude relevant evidence without a waiver under Constitution.
• United States Constitution was intended to limit federal authority but due process and 14th amendment extends to the states. So states must conform to Bill of Rights as well
• sixth amendment right to confront witnesses against you, right to examine your accuser, hearsay falls within this thus Can you do it because no cross was available
• Crawford v. Washington, which says that any testimonial statement is inadmissible unless you have an opportunity to cross-examine so now question is are you admitting testimonial statement
• United States Supreme Court cannot review a state case where state constitution is construed
• The states can give more rights and protections
Exam Notes
• List every objection that could be made should be made on the exam.
• Can say I would not object under these circumstances because it helps me, but list objections in addition.
• Use complete sentences, and offer explanation for the grounds of the objection.
• Respond to objections too, and say what probable ruling the trial court would give.
• Cover all bases of all sides especially in court and on exam.
• Note you only need to object to the question on the final.
• Always accompany relevancy objections with 403 or 352. If any question at all, or close issue, you want to argue that judge should use discretion due to waste of time or undue prejudice to the jury.
• Objections to character evidence are really relevancy objections, and more than that are on balance against admission.
• Objections on relevance not enough, when based on 404, so must make objection relevance, then objection improper character, and then balance objections. So need to be specific enough.
• For hearsay objections:
o Foundation not established can sometimes be objected on.
o Courts say objection to lack of foundation does not preserve hearsay objection, so you need to initially object that the evidence is hearsay, responding party would say something like it is a business record, but then you rebut saying no foundation established.
o If hearsay objection is sustained improperly, then if lawyer did not cite proper hearsay exceptions to get it in, then the appeals court will uphold this as appropriate, because lawyer was not specific enough.
o Very often, lawyer will say not offered for hearsay purpose, then court may allow in. Remember though that you need to request a limiting instruction to the jury in order to assure that they use it for appropriate purpose.
▪ When best to give jury instruction? Don't wait until end of trial, but ask for limiting instruction immediately after evidence comes in.
▪ FRE 105 - if you don't ask and judge does not give one, then it is waived for appeal. So, you must ask.
• Ask for limiting instruction when nonresponsive and such on exam.
• Cannot have lay witness draw a legal conclusion
• Note possibly over rape shield to say they are admitting statements to show alternative cause for the injuries possible
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