Evidence - Santa Clara Law



Evidence

Outline

I. Introduction

A. Evidence – testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.

1. Direct evidence – evidence that directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. (Eyewitness evidence is direct evidence.)

2. Circumstantial evidence – relies on inferences from other facts. You must prove fact 1 and then you want to say that fact 2 is more likely because of fact 1. In order to determine if the evidence is relevant, you have to look at the connection between facts 1 & 2. This is the probativeness of evidence.

3. Probativeness – the evidence has to have a tendency to prove or disprove a fact.

B. Testimony – a form of evidence presented by calling a witness to the stand, swearing in the witness, asking the witness questions – the responses to those questions are evidence.

C. Motion in limine – judge rules in advance whether evidence should be kept out or not.

D. Preliminary fact – before we can admit the evidence, we have to prove some prerequisite to the admission of evidence itself.

1. CEC 400: preliminary fact means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence.

E. Voir dire – a form of cross-examination permitted before the evidence is admitted.

II. Relevance

A. Conditional Relevance

1. Important issue re preliminary facts is who will decide the fact, the judge or the jury?

a. Judge: FRE 104(a) and CEC 405 – preponderance of the evidence (final determination)

i. FRE 104(a) – the prelim fact can be determined by any evidence, admissible or not (judge determines)

ii. CEC 405 – court determines by preponderance of the evidence existence or nonexistence of the prelim fact if the preliminary fact is also an issue in the action

iii. Examples of 104(a)/405 questions for the judge – disqualification of witness for lack of mental capacity, qualifications of an expert witness, privileges admissibility of a confession because it’s involuntary, hearsay exceptions.

iv. Significant difference between CEC & FRE – FRE 104(a) allows you to bootstrap, meaning you can use the statement itself to prove a statement. No parallel clause in CEC 405 – under 405, judge must make the determination based on admissible evidence only.

b. Jury (issue of conditional relevance): FRE 104(b) and CEC 403 – evidence “sufficient to support a finding” (once the judge decides there’s enough to go to the jury, the judge instructs the jury)

i. FRE 104(b) – when the relevancy of the evidence depends on the fulfillment of a condition of fact, the court shall admit it upon or subject to the introduction of evidence sufficient to support a finding of fulfillment of the condition (jury determines)

ii. CEC 403 –

B. Discretionary Balance – need to know the code section names for these!

1. FRE 403/CEC 352

2. You make a relevancy objection, hearsay objection, etc. – then you make a 403/352 objection – if you don’t make it, it will be waived.

3. Court is required to balance the following factors: probative value v. unfair prejudice, confusion of jurors, and undue consumption of time.

a. Prejudice – there’s a risk that the jury will use the evidence improperly and lead to a decision based on improper considerations. (We can’t use jury instructions to deal with this because the jurors might not be able to disregard what they already heard.)

b. Confusion of jurors – People v. Collins: prosecutor cooked up an idea of calling a mathematical expert to prove his case against D, and the Product Rule of Probability was used – super confusing to the jury and not even accurate. Risk of mathematical stuff like this leading the jury down the wrong path.

c. Undue consumption of time – if 30 witnesses all saw the same thing, you don’t need to bring in every single person to testify because this will just be a waste of time. The judge can say pick your best 3, and I’ll allow you to bring those in.

C. Specialized Relevance Rules - extrinsic policy considerations

1. Jury Deliberations (FRE 606/CEC 1150) – rule that evidence of what went on in the jury room cannot be offered in a challenge to the jury’s verdict.

a. FRE case Tanner v. U.S. – court said if they could show by any other evidence that the jurors had been drinking it would have been allowed in – but they only had evidence of what went on in the actual juror room.

b. CEC rule is less strict than FRE – it allows evidence of conduct in the jury room to be taken into account.

c. Prop 8 issue – does CEC 1150 exclude relevant evidence?

2. Subsequent Remedial Measures (FRE 407/CEC 1151)

a. FRE 407 – when, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. The exclusion of evidence is not required when offered for another purpose, such as proving ownership, control, or feasibility or precautionary measures, if controverted, or impeachment.

b. Evidence can be allowed in for other purposes:

i. Mahlandt v. Wild Canid Survival – case of the wolf attacking a beagle and then being tied up, and then allegedly attacking a little boy. Evidence that the wolf was tied up after the beagle attack would be admissible under a negligence theory because it was NOT a sub remedial measure with regard to the boy.

ii. Tuer v. McDonald – hospital changed its procedure with regard to surgery patients and administration of Heparin after guy died because his Heparin had been discontinued. This cannot be offered as evidence under 407 because it was a subsequent remedial measure.

c. FRE 407 recently amended to include “defect in a product or its design.” It used to track the language of CEC 1151, which says that such evidence is inadmissible “to prove negligence or culpable conduct.” 407 now says product defect or design defect, but 1151 does not.

3. Compromise Offers (FRE 408/CEC 1154) – you can’t use the fact that people have offered to compromise as evidence because people also compromise for other reasons.

4. Liability Insurance (FRE 411/CEC 1155) – evidence that a person was insured is inadmissible to show negligence.

a. Difference between FRE and CEC:

i. FRE 411 says evidence that a person “was or was not insured” will not be admissible.

ii. CEC 1155 says evidence that a person “was insured” will not be admissible.

5. Plea Bargaining (FRE 410/CEC 1153) – these are different from other rules because the evidence is inadmissible in ALL cases, not just certain cases.

III. Character Evidence – “French rules” – everything is permitted except that which is specifically prohibited.

A. Character: Propensity – using character evidence as propensity evidence is prohibited. (Using it to show that D is a bad man and therefore it’s more likely that he engaged in this conduct.)

1. The problem with character evidence isn’t that it’s not relevant – it’s that it can be TOO relevant. There is a tendency to draw too strong an inference from character evidence.

2. Character rules DO exclude relevant evidence, so this was a Prop 8 problem in CA. But then CEC 1101 was amended after the enactment of Prop 8 to add words that are not found within the fed rule. “Or whether a D in a sexual act did not reasonably and in good faith believe that the victim consented” – this makes it clear that this would be among the alternative theories of relevance that would allow prior bad act evidence. The CA legislature reenacted the entire statute to save it.

3. Good character evidence – you can only hear the bottom line conclusion – in my opinion, he’s an honest man, etc. Cross-examination is allowed with respect to BAD acts. Prosecution can rebut your good character evidence with bad character evidence. Evidence of good character rarely introduced for this reason – they don’t want to be cross-examined re bad character evidence.

4. When character evidence is allowed in:

a. FRE 405(b)/CEC 1100 – Character directly in issue – for example, a child custody case. Evidence would show if woman is a good mother. Libel case – can show rep is already so bad that he had no rep to be damaged – his rep is directly at issue here.

b. FRE 404(b)/CEC 1101(b) – To show preparation, intent, knowledge, opportunity, identity, motive, plan or negate accident or mistake. Can’t show rep/opinion evidence, but can show evidence of specific acts.

i. U.S. v. Trenkler – D was accused of building a bomb for a friend to use to blow up his father, and an officer was killed by the bomb. To prove that he made this bomb, they wanted to offer evidence that 5 yrs earlier he made a very similar bomb. The theory is that the 2 bombs are so similar that this proves his identity as the bomb-maker.

ii. U.S. v. Stevens – reverse use of FRE 404(b). D offers evidence of a prior/subsequent bad act by someone else to show it was not him. Victims were robbed/assaulted and they picked out a photo of D and identified him in a lineup. A few days later another robbery took place in the same location and very similar ways. Reason to believe the robberies were done by the same guy. Victim of 2nd robbery said D was NOT the guy who did it. D wants to say that since the other man perpetrated the 2nd crime, it was NOT he who committed the first.

B. Propensity Exceptions – there are times when we allow people to go through the propensity box to actually show propensity.

1. Character: Sex Cases

a. FRE 413 – applies to sexual assault in criminal cases. If D is charged with sexual assault (doesn’t have to have been convicted/charged for the prior occasion.) Admitted for any purpose for which it’s relevant – can come in to show propensity.

b. FRE 414 – applies to child molestation in criminal cases. Separate rule of admissibility only for child molest cases. If D is on trial for child molestation, prior offenses of child molestation are allowed in. There is no cross-admissibility for sexual assault/child molestation.

c. FRE 415 –

d. CEC 1108 – if D is accused of a sexual offense, evidence of D’s commission of another sexual offense is admissible – very broad definition of sexual offense, even includes pornography offenses.

e. CEC 1109 (enacted after outrage over the OJ trial) – all evidence of prior domestic violence is admissible, even DV against someone other than the victim in this case.

f. Reputation “Have you heard” v. Opinion “Do you know” – FRE now allows evidence to be offered in the form of both reputation and opinion.

2. Character: Victim

a. CEC 1103 – allows opinion, reputation, or evidence of specific instances of the victim of the crime for which D is being prosecuted – D must open the door for this evidence.

i. This is one of the sections specifically referred to in Prop 8 as an exception, so it is preserved in its entirety. They did this to save the rape shield law, which is also part of 1103.

ii. When D opens the door to attacking the character of the victim, prosecutor can rebut that evidence with evidence of good rep, good opinion, and good conduct of the victim.

iii. CEC 1103(c) – the rape shield law – clearly keeps out relevant evidence. Limits evidence of sexual conduct with other individuals other than the D himself.

b. FRE 404 – character of alleged victim. Significant difference from CEC 1103.

i. Even if D hasn’t opened the door by bringing in bad character evidence of the victim, the prosecution can come in with good character evidence on the victim to the rebut any evidence that the victim was the first aggressor. (Not limited to trait of violence – open for any trait.)

ii. Exception under CEC is for sexual conduct and under FRE is for sexual behavior. Behavior includes activities of the mind, such as fantasies or dreams. Under FRE, door is opened wider to include imagined conduct – this can come in to show consent as long as it’s with the D on trial in this case.

3. Evidence of Habit – we’re saying this person isn’t making choices – this is an automatic response.

a. FRE 406 – refers to both habit of a person or routine practice of an organization.

b. CEC 1105 – refers to “habit or custom” but not routine practice of an organization. But “custom” means everything referred to under the FRE, so there should be no different result under FRE and CEC.

c. What about stopping for a beer on the way home from work everyday – is this a habit or a conscious decision? Comment to FRE 406 suggests that evidence of intemperate habits is generally excluded. (But drinking is treated differently than something like heroin addiction – a heroin addict will shoot up 4 times a day without thinking about it, and this would be relevant to show habit.)

4. Character for Truthfulness

a. Impeachment of Witnesses – you can’t impeach the credibility of a D by showing their prior convictions. But if D gets on the witness stand, this stuff will be allowed in to show you shouldn’t believe D’s testimony. Safer course for D might be to just stay off the witness stand.

b. CEC 780 – nice list of all the ways to impeach a witness

c. Use of convictions as impeachment

i. FRE 609 – the rule sets up a hierarchy in terms of what kind of crime a person was convicted of:

• Dishonesty/false statement (misdemeanor or felony) – this is the only provision where we see 403 eliminated. Judge does not have discretion to weight probativeness. You have the absolute right to get up and impeach a witness with a crime of dishonesty or false statement. (Crimes involving some sort of misrepresentation or lie, like perjury.)

• For any other felony – the judge applies the 403 standard – he can exclude the evidence if there is substantial prejudice outweighing the probative value.

• Any other felony and the witness is the D in a criminal case – we eliminate the “substantial” requirement from 403. IF there is a risk that the probative value will be outweighed (not substantially outweighed). This gives greater protection to the D.

• Prior offense 10 years old – this will not be let in unless probative value substantially outweighs the prejudicial effect.

• Juvenile – court may allow evidence of a juvenile adjudication (other than the accused) if it would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fail determination of the issue of guilt or innocence.

ii. You can opt to take the sting out by bringing up the conviction yourself – but if you do this, you’re waiving your right to challenge the judge’s ruling on letting it in on appeal because you brought it in yourself.

iii. CEC 787 – subject to CEC 788, evidence of specific instances of conduct relevant only as tending to prove a trait of his character is admissible to attack or support the credibility of a witness.

• Prop 8 problem – if showing the witness lied on a job application, this is relevant – so 787 is abrogated by Prop 8 in criminal cases. Prop 8 opens the door to attacking the credibility of a witness not only with prior convictions, but also with prior bad acts. (And if witness denies these bad acts, we can bring in extrinsic evidence to show that he lied.) Only limitation on this is under 352.

5. Competency and Personal Knowledge

a. Competency – competence of witness to testify. This is a 405 question for the judge (not an issue of conditional relevance.)

i. People v. White – witness could not speak, could only raise her right knee to indicate yes and not raise it to indicate no. This witness was not competent to testify because counsel could only ask yes or no questions for the testimony.

ii. Children often a problem as witnesses – sometimes don’t know the difference between truth and lie, often want to give answers that please, etc.

iii. Voir dire examination of witness – exam of witness before the person is allowed to testify.

iv. FRE 601 – every person is competent to be a witness except as otherwise provided in these rules. (No actual test of witness competency here.)

v. CEC 780 –

b. Personal Knowledge

i. Hypnosis

• People v. Shirley – Cal Supreme Ct ruled that a witness who’d been hypnotized could no longer testify because of the problem of establishing what in the witness’s testimony was based on personal knowledge and what was based on hypnotic suggestion. Opinion did not survive Prop 8, BUT…

• CEC 795 – enacted by legislature so it comes within the Prop 8 exception for those enacted by 2/3 vote.

• Strict rules for hypnosis under 795 – must be videotaped, must be the same recollection given before hypnosis, etc.

ii. Repressed memories

• Franklin case – case of woman who claimed she remembered seeing her father murder a girl 20 years earlier. Defense said her memories could have come from elsewhere, like news clippings at the time – and they wanted to let these news clippings in. Father was convicted. But later court held it was error to exclude these new clippings – it was not a prerequisite to show that the witness had actually read them.

IV. Hearsay

A. Hearsay Rule – FRE 801(c) – hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [(a) – a “statement” is 1) an oral or written assertion or 2) nonverbal conduct of a person, if it is intended by the person as an assertion. (b) – a “declarant” is a person who makes a statement.]

1. The Hearsay Triangle (good approach to figuring out hearsay) – traces the route from the making of the statement to the finding of the fact. 2 routes to get from statement to the fact:

a. Truth route – we depend on determining the truth of the person making the statement. We only go through this when the truth of what was said is trying to be determined. (Sometimes we don’t care about the truth – we just care about whether the statement was actually made.)

b. __ route?

2. Example – Police officer conducting search at a crack house and there’s a knock at the door, officer asks who is there and the guy says “I need a fix.” If offered to prove that the guy knew he was knocking on the door of a drug house, this is hearsay. If offered to prove that the premises were in fact a drug house, then this is not hearsay.

3. Implied assertions – at common law these were considered hearsay. Today this is not the case. In order to be hearsay, the statement must be an INTENDED assertion.

a. Ship captain case – ship captain inspected a ship and then brought his wife and kids onboard to set sail. Impliedly, his conduct asserted that this ship is seaworthy. Captain did not intend to make a statement that the ship was safe – so under our definition today, this would NOT be hearsay. So the evidence would be admissible.

b. Conduct sometimes DOES intend to make an assertion. Anchita holiday example – issue was whether govt took proper precautions at the bombing site. Head guy said he was taking his wife and daughters with him to the site of the nuclear blast. Offered is the conduct of him taking his family there. This is different from the ship captain example because the guy intended to show that the site is safe. So this IS hearsay because it’s intended to be an assertion.

4. Statement ( State of mind of declarant and Effect on listener ( Prove the truth

B. Hearsay Exceptions – CEC uses the term “exception” and FRE uses the term “not hearsay.” Doesn’t really make a difference what you call it though.

1. Admissions – admissions statements does NOT mean there has been an admission of anything. The admission need not admit anything – it applies to any relevant statement by a party that is offered against him.

a. Party admissions (FRE 801d2A/CEC 1220) – “the party’s own statement”

i. OJ example – In OJ’s statement after he was arrested he said he had nothing to do with the murders and he gives an alibi. This is a completely exculpatory statement. The prosecutors want to offer this statement to show that he is lying (false exculpatory statement.) OJ can’t offer the statement himself because the hearsay rule keeps out even the party’s prior statements unless they’re offered against him.

b. Adoptive admissions (FRE 801d2B/CEC 1221) – “a statement of which the party has manifested an adoption or belief in its truth”

i. Franklin case – daughter went to jail and confronted her dad and said the truth will set you free – he responded by pointing to a sign that said this station may be monitored.

• Is pointing to the sign an indication that the statement is true, or an indication that he simply wished to exercise his right to remain silent? Courts say this is inherently ambiguous, so a statement made by a mirandized D will not be allowed in against him.

• Court in Franklin said one error in the trial was allowing in the statement of the alleged jailhouse conversation – his silence was ambiguous and not necessarily a concession of truth of the statement that had been made.

c. Authorized admissions (FRE 801d2C/CEC 1222) – “a statement by a person authorized by the party to make a statement concerning the subject”

i. This is when someone else is speaking on our behalf, and we have given them the authority to do so. The statement he/she makes can be offered against us.

ii. Here the question is authority – did you authorize this person to speak on your behalf?

iii. Under 104(a) we allow bootstrapping, but not under 104(b). Under CEC we do not allow bootstrapping, but we do under FRE. This is the case for authorized admissions, agent admissions, and coconspirator statements.

iv. Difference btw FRE and CEC – under CEC, we require independent evidence to support authority, membership in a conspiracy, etc. – no bootstrapping allowed. Not so under FRE.

d. Agent admissions (FRE 801d2D/cf CEC 1224) – “a statement by the party’s agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship”

i. Sophie the wolf case – case where the wolf allegedly bit a child. Even though jury ultimately determined that the fence and not Sophie injured the child, unfortunately for the defense (the wildlife center), their agent – Ken Poos – wrote a note to his boss mentioning that Sophie bit a child. Prosec said your agent made a statement that can be offered as your own. D said no, he didn’t know what he was talking about because he wasn’t a witness – he had no personal knowledge. Trial court kept it out based on this personal knowledge argument. Court of appeals said it IS an agent statement, and is admissible not only against him but also against his boss. NO requirement under 801 of personal knowledge!

e. Co-conspirator statements (FRE 801d2E/CEC 1223) – “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy”

i. Statement must be in furtherance of the conspiracy.

2. Prior Statements

a. Prior inconsistent statement (FRE 801d1A/CEC 770&1235)

i. Most often when we offer a prior inconsistent statement, we’re not offering it to prove the truth of what was asserted. Statement is being offered to show that the witness has said something different in the past than what she’s saying now.

ii. Barrett case – typical impeachment situation where you have a snitch testifying. Buzzy Adams is on the stand because he got a deal – he testifies that right after D was arrested, D told him he was involved in the stamp theft in question. Defense wants to attack and impeach the testimony of Buzzy. They call a witness who says that a year and a half after the burglary, Buzzy was in a restaurant and said to a friend that it’s too bad the D got indicted because he knows that D wasn’t involved. (Trial court rejected this, and court of appeals says it was to attack the credibility of the witness, so it was error to reject the evidence.)

b. Prior consistent statement (FRE 801d1B/CEC 791&1236)

i. If a witness is interviewed several times and always gives the same story, this can be used to bolster their credibility. But under CEC 791, it will only be allowed in if offered after the witness is attacked for having cooked up the story – otherwise it is a time-waster if no one is claiming the person’s not telling the truth in the first place.

ii. CEC 791 keeps out relevant evidence so it doesn’t apply to criminal cases.

iii. CEC 791 requires that the consistent statements have been made before the inconsistent statement.

iv. FRE – you will be permitted under the fed rule to offer prior consistency in order to rebut prior inconsistency.

v. Unlike CEC, FRE does not explicitly say that the prior consistency precede the alleged inconsistency. But the Supreme Court has said that this requirement is implied in the federal rule – this is the way they did it at common law and there’s no evidence that the drafters wanted to leave it out.

c. Prior identification (FRE 801d1C/CEC 1238) – we will allow a prior identification in as long as the witness is now on the stand.

i. Owens case – a prerequisite to this hearsay exception is that the witness is subject to cross-examination. Here D said he didn’t get to cross-examine the guy because he didn’t remember. Court says too bad, you still had the opportunity.

ii. CEC has a vouching requirement built in. The witness must say yes, that is an accurate reflection of my opinion at that time.

d. Past recollection recorded (FRE 803(5)/CEC 1237) – witness has a lapse of memory. For example, you ask the officer what the license number was and he says he can’t remember, can he refer to his report? So he looks and now he remembers and says the number. This is hearsay, but there’s an exception for this!

i. You need to lay a foundation and show the statement the witness is now relying on was accurately prepared.

• FRE 803(5) – if the threshold is met, the record can be read but can’t be admitted as an exhibit. If a witness can’t honestly say his memory is refreshed by looking at the record, we must elicit that he prepared the record or that when it was prepared by someone else, he adopted it.

• CEC 1237 – broader than fed. Does not require that the witness adopted a statement by someone else at the time it was made. Only requires that the statement was made when the event occurred, made by the witness himself, or made by someone else at the time of the statement for the purpose of recording it.

ii. You have a right to see everything that a witness used to refresh his recollection. You can insist on that right and then use the document to cross-examine.

• CEC 771 – the right even extends to something the witness used before they got on the witness stand. When examining a witness, you want to first establish what witness might have used to refresh their memory.

• FRE 612 – if the document was used by the witness to refresh before testifying, you don’t have an absolute right to view it. (Under CEC you have this absolute right.)

3. Unavailability Exceptions – FRE 804(a) and CEC 240 define unavailability. Significant difference between FRE and CEC is that under FRE, if a guy is held in contempt because he refuses to testify he’s considered unavailable. No parallel rule for when witness refuses to testify under CEC – this is a problem; there’s a hole in CEC here. Showing of unavailability is a 104(a) question for the judge to decide – same under CEC – not a question of conditional relevance.

a. Former Testimony (FRE 804b1/CEC 1290-92)

i. FRE

• Criminal case – must be same party. However, testimony does not have to be offered against the same party in the prior proceeding.

• Civil case – federal rule opens the door wider, allows the testimony to be offered either against the same party OR a party against whom the testimony was offered in the prior proceeding was a predecessor in interest. This expanded availability only available in civil cases.

ii. CEC

• 1291 – applies to both civil and criminal cases, same as the fed rule. Uses the term “successor in interest” – one who stands in the shoes of the party in the prior proceeding perhaps by inheritance, but has somehow succeeded to the interest that was being asserted in the prior proceeding.

• 1292 – addresses the broader availability of this exception in civil actions. Opens the door more broadly than the fed rule. No requirement of legal relationship here like predecessor in interest.

• “Former testimony” does not include depos under CEC.

iii. Significant difference btw FRE and CEC with respect to “predecessor in interest” in civil case.

• Court in Lloyd case says showing a predecessor in interest connection simply means that you had the same motive and opportunity to cross-examine that you have in this proceeding. This would not be a problem under CEC because 1292 doesn’t require predecessor in interest.

• U.S. v. DiNapoli

b. Dying Declaration (FRE 804b2/CEC 1242)

i. FRE – we can still use the exception if the declarant didn’t die but became unavailable for some other reason. (Only available in civil cases and criminal cases that involve homicide.) The statement must concern the cause or circumstances of the impending death.

ii. CEC – requires that the declarant is now unavailable due to death. (Available in civil or criminal cases and not limited to homicide cases.)

iii. Problem with dying declaration – whether the declarant actually had personal knowledge of what they were declaring. So you must show some circumstances to suggest that they had personal knowledge of what they were describing in their dying declaration.

c. Declaration Against Interest (FRE 804b3/CEC 1230) – theory is that people don’t normally implicate themselves in things that make them look bad unless they are true. So if we show the statement, when made, was against the declarant’s interest, we can offer it in the case.

i. Difference between FRE and CEC

• FRE defines the interests that we’re talking about – at the time it was made, the declarant had a pecuniary, proprietary, or liability interest.

• But CEC goes a step further – also allows the risk of making the declarant an object of ridicule or social grace in the community.

ii. Hypo – P is a female employee of a corp who is suing the corp for sexual harassment by her manager. Manager admits he had an affair with the employee but says it was voluntary – he then commits suicide. The statement is offered against the corp D. He’s unavailable because he’s dead. In CA, we can offer it as statement against interest. But under FRE we’d get a different result because it was not against his pecuniary or proprietary interest – it was only against his rep in the community – so we wouldn’t be able to get it in.

iii. What if the statement implicates the declarant but also implicates someone else even more?

• U.S. v. Williamson – guy was arrested with car of drugs, he admits that there were drugs in the car but implicates another guy Williamson. The statement incriminates Williamson more than it does him. Supreme court says the exception only extends to the portion of the statement that implicates the declarant. (No built-in guarantee of reliability when you’re laying the blame on someone else more than you.)

• SODDI defense – some other dude did it

d. Family History (FRE 804b4/CEC 1310, 1311)

e. Forfeiture (FRE 804b6/CEC 1350)

i. FRE – where the unavailability of the declarant is because the opposing party has made him unavailable, we are not going to exclude evidence when you created the situation.

ii. CEC – much more restrictive – limited to serious felonies, requires a higher threshold showing clear and convincing evidence, and statement has to be memorialized – can’t just be an oral statement.

4. Prior Testimony

5. Spontaneous and Contemporaneous Statements – availability of the declarant is immaterial; because there’s enough of a common-sense basis to give these statement reliability, we recognize an exception to the hearsay rule.

a. FRE 803

i. 803(1) – present sense impression – describing something as you see it or immediately thereafter. No problem of sincerity because no time to reflect on what you’re saying.

ii. 803(2) – excited utterance – even if the statement was not made immediately after perception of the event, if you’re still under the excitement of the event, you are still covered by the exception. This exception can last longer than in (1). If weak showing of excitement, must argue under (1). (1 and 2 are often argued together because of overlap.)

iii. 803(3) – then-existing state of mind, emotion, sensation or physical condition, but not including a statement of memory or belief.

• If person says very calmly, “I’m very angry” – this is a hearsay problem because we’re not using tone of voice – we’re using it to offer the proof of what’s asserted. But 803(3) is the exception for this!!

• Mutual Life Insurance v. Hillmon – this case is the origin for this hearsay exception. SC said if somebody is expressing their own mental state of mind, the ordinary hearsay dangers do not apply. They are describing their present, existing state of mind.

• 803(3) is the codification of the exception carved out in Hillmon, but it’s limited. Does NOT include statement of memory or belief.

• Hypo – guy says his friend told him he was leaving the restaurant to go get some pot from Angelo. Now Angelo is on trial for the guy’s murder. The jury will use it for the wrong purpose – to infer what Angelo did, not what the guy did. So this is a 352 issue. Not admissible to show Angelo’s intention.

iv. 803(4) – applies to a then-existing state of mind, but broad exception for statements of medical diagnosis.

• Example – statement is “when I was struck by D’s vehicle, I felt a sharp pain in my back which ran all the way down my legs.” Not admissible under 803(3) because describing pain on a prior occasion. But if made in context of consultation of physician, 803(4) would let it in.

• Doesn’t require that diagnosis be simply to treat your pain – could be for the purpose of testifying as an expert witness or any consultation for medical diagnosis or treatment.

b. CEC

i. 1240 – spontaneous statement – statement narrating or describing what you saw. Different from FRE because allows the statement to relate to something that was just perceived. FRE 803(2) doesn’t say you must have perceived a startling event, but 1240 says it must be perceived by the declarant – so could produce a different result.

ii. 1241 – statement explains conduct of declarant and made while declarant is engaged in such conduct. Narrower than FRE because you actually have to be engaged in some sort of conduct that’s being explained. (FRE 803(1) says you just have to be perceiving, not engaged in conduct.)

iii. 1250/1260 – parallel Hillmon/FRE 803(3) exception. Distinction made here as to purpose for what the statement was offered – not spelled out in the fed rule.

iv. 1251 – separate exception for state of mind at a time prior to the statement if the declarant is unavailable and the evidence is offered to prove the prior state of mind when it is itself an issue in the action.

v. No general medical diagnosis exception under CEC. We usually end up using 1251 to say we’re admitting the statement of a prior sensation or state of mind and that prior state of mind is itself an issue in the action. (But this requires unavailability of declarant, so it’s much narrower exception than under the fed rule.)

vi. 1253 – medical diagnosis exception for cases of child abuse.

6. Business & Official Records

a. Business Records (FRE 803(6)/CEC 1270, 1271) – absence of a record is not hearsay, however if there’s any doubt they put in an exception just in case (like a guy who says he was on a boat but the boat records show he was not on it.)

i. To have business records admitted, you must show:

• 1. The record was made at the time the transaction was made.

• 2. It’s in the ordinary course of business to prepare this record.

• 3. The record was made in the ordinary course of business.

• [When showing this stuff, we can use FRE 901(11) – the company can certify it so we don’t have to waste time and testimony – but the certification itself is hearsay, so the opposing party can insist on cross-examining the person who certified the records.]

ii. Business records can come from businesses not considered standard businesses – like a prostitute’s trick book or a bookmaker’s bet sheet.

iii. FRE 803(6) – Business includes occupation and calling of EVERY kind, whether for profit or not.

iv. CEC 1270 – def of business is even more expansive than fed rule because includes “governmental activity” as well. Under fed, we usually treat govt records under official records.

v. Problems with applying these exceptions:

• Police reports – police and accident reports are based on narrations of persons who have no business duty to report to the police. So when the content is based on a statement by someone who has no duty to report to the person taking the report, this portion will not be admissible – but might get in under another rule. (At accident scene officer 1 measures skid marks and reports to main officer. We can offer the report to prove the length of the skid marks. Officer 2 reports back about what witnesses said. We can’t offer this part of the report because the witnesses had no business duty here.)

• Glitch under fed rule because doesn’t mention governmental activity, but there is a portion of 803(8) that explicitly excludes police reports in criminal cases – this is unlike the CEC which opens the door for police narratives.

• Palmer v. Hoffman – case against railroad when guy’s car was hit by train. RR conducted their own investigation and one guy was a conductor on train and he said there was a light and a bell. This guy died before trial so they want to offer a report of his interview as a business record. Court said inadmissible because not a normal business record – you’re in the business of conducting a railroad, not in the business of litigating.

• Reports containing opinions – can we actually prove a conclusion or opinion from the fact that it appears in a report?

1. FRE – language explicitly states that opinions and even medical diagnoses are admissible.

2. CEC – not as clear because 1271 says “act, condition, or event” – we don’t have the broad language of the fed rule to include opinions or diagnoses. CA courts have said if the opinion is based on a readily observable fact, it can be included within the exception. However, if the opinion/diagnosis involves a more complex judgment it will not be permitted. This carries over to official records as well.

3. Beech Aircraft v. Rainey – record the defense offers in a civil case is an official accident report prepared by a JAG. It’s an official govt report. (So it’s a law enforcement report but those are only excluded in criminal cases and this is civil.) Govt conclusion is that the cause of the accident was pilot error and not defect in aircraft. USSC looks at 803(8) and notes that unlike (6), (8) does not have the broad language allowing opinions and diagnoses. Question to the court is does this language allowing official govt reports to be admitted to show factual findings encompass opinions in the report based on the facts observed? Split opinion from the court. Legislative history points in 2 different directions. Senate version won out here and they said the conclusions of the report were allowed in. In CA – readily observable facts v. more complex – so unlikely that it would be admitted under CEC.

b. Public Records (FRE 803(8)/CEC 1280)

7. New Exceptions and Confrontation Clause

a. Sixth Amendment Confrontation Clause – “In all criminal prosecutions…the accused shall enjoy the right…to be confronted with the witnesses against him.”

i. Hearsay exceptions – no intent to disturb these exceptions with the confrontation clause. But what about the new hearsay exceptions? In CEC and FRE, there’s an open invitation to the courts to fashion new exceptions when necessary – also the legislature. So there are statutory creations that did not exist when the 6th amendment was written.

ii. When a new hearsay exception is created by decision or legislation, we’re creating a situation where if it applies to a criminal case, someone accused will not enjoy the right to be confronted with the witnesses against him. SC has said this doesn’t bring making new exceptions to a halt, but we have to insure that the new exceptions have as much guarantee of reliability and trustworthiness of the old exceptions.

b. FRE 803(24) and 804(5) – these used to have separate residual exceptions – gives rise to inference that purpose of residual exceptions was that if you didn’t meet stuff outlined in rules, there was possibility of admitting the evidence anyway. Now these are consolidated in ONE exception rule – FRE 807.

i. No residual exception clause in CEC for courts to carve out new hearsay exceptions. But the courts have done so anyway by looking at CEC 1200 – “except as provided by law, hearsay evidence is inadmissible” – and the definition of law includes statutory, constitutional, and decisional – so they go about it this way.

c. “Traditional, well-rooted” hearsay exception – Lilly v. Virginia says that when we make the inquiry of whether it’s a well-rooted exception, we have to look at how it’s being used.

d. CEC 1370 – “the OJ exception” – enacted after OJ trial because a number of statements were excluded as hearsay. Legislature enacted 1370 – any statement that describes how you were injured or threatened comes within this exception. Declarant must be unavailable, statement must be in writing or recorded, etc.

V. Opinions and Experts

A. Lay Witnesses – FRE 701

1. Lay witnesses may not express opinions. The rule permits “opinions or inferences rationally based on the perception of the witness” – like if a guy was drunk or angry – but not how fast a car was going.

2. U.S. v. Figueroa-Lopez – drug cops came in to describe what they saw on an arrest, but they went a step further and started characterizing what they saw, like code language that was used. They were giving opinions based on their training and experience as drug cops. Problem here was that the prosecution never set them up as expert witnesses, so their testimony was being elicited as lay witnesses and therefore was not ok. (No magic statement that makes you an expert – you just have to set it up properly by asking them first about their training, experience, etc., then go ahead and ask qs specific to the case.)

B. Expert Witnesses – FRE 702, CEC 801 & 720

1. Hines case – should we permit this guy to testify about misidentification by eyewitnesses? Court ultimately decides to admit the testimony. But other courts have said this takes the role of the jury out of their hands – they are equally as capable of assessing eyewitness testimony as the expert is.

2. Syndrome evidence – syndromes like battered women’s syndrome and rape trauma syndrome – studies attempt to educate juries on things like this that they may not be aware of. Should this be allowed? Is it beyond the common experience of jurors?

a. Jinro case – they wanted this guy to testify as a Korean cultural expert, but he basically just did a lot of stereotyping about how Koreans handle financial transactions. The problem was that he wasn’t really an expert.

3. High v. Jacobs – the expert said the use of force wasn’t justified. Whether the use of force was justified was the legal conclusion that we want to ask the jury about – it wasn’t for this guy to say.

4. FRE 704 – opinion on ultimate issue allowed. BUT expert testifying to the mental state of a D in a criminal case as to whether the D had the required mental state is not allowed – this is for the trier of fact to decide.

a. CEC 805 – opinion on ultimate issue not objectionable. No psych expert clause here, but the psych exception is in the penal code so they basically have the same effect.

5. Persuading the jury that your expert is more credible than the opposing expert – the key is in effective cross-examination. 2 opportunities: on voir dire and also after they express their opinion. You don’t want to stipulate that your person is an expert if you have a really great expert – you want the jury to be able to hear all about their qualifications.

6. Examination of experts on published studies – so and so’s study is a hearsay problem, but we have an exception for this: FRE 803(18) – learned treatises. You can whip out studies and have your expert read them to the jury and you can also whip them out on cross. NO exception like this in CA, but we do allow it on cross.

7. CEC 801(b) – expert’s opinion can be based on matter perceived by or personally known to the witness that is not actually admissible. (For example, psych expert might base his opinions on talking to the D’s mother, wife, etc. They are not here to be cross-examined. We offer this to bolster his conclusion, not to prove the truth of what was said.) But then this can be a 352/403 problem because the jury might use the statements to infer what actually happened.

8. Scientific Evidence

a. Frye – no general acceptance of polygraph tests. Our fear is that the jury will give it more weight than it deserves.

i. CA still follows the Frye test – Cal Sup Ct held that it is not abrogated by Prop 8.

ii. In CA we follow the Kelly-Fry standard, which keeps out polygraph evidence.

iii. First is it relevant? Then is it excludable under 352? Only if we get past these 2 issues do we get to the Kelly-Frye question.

b. Daubert ruling – sets up a precise standard for admission of scientific evidence.

i. FRE 702 now codifies the requirement of Daubert by saying the testimony has to be based on sufficient facts or data, is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.

ii. Holding in Daubert is that the FRE have abrogated/abolished th Fry standard. But the fed rule still requires that the evidence be scientific evidence.

iii. With the adoption of Daubert, we now have an argument that the polygraph IS a testable standard, subject to peer review, etc.

VI. Authentication and Best Evidence

A. Authentication (FRE 901, 902/CEC 1400, 1402)

B. Best Evidence = “Where’s the original?” Rule (FRE 1001-04/CEC 1520-23)

1. Best evidence v. secondary evidence rule – question of burden. Under FRE, proponent offering has to account for the original. Under CEC, you can offer secondary evidence and it’s up to the opponent to question it.

2. Most common best evidence problem – witness is on the stand and we start asking him about a document and he starts describing it – but where the hell is it? We can’t accept an oral description of the document without actually seeing it. If it’s not available, we have to jump through the hoop of what happened to the document before we can accept the description.

VII. Privileges

A. FRE 501 – doesn’t spell out the specific privileges. They exist in the deleted materials that were never enacted because they were too controversial. 501 leaves it up to common law, reason, and experience.

B. CEC 900-920 – courts under our state system don’t have common law authority to create and spell out privileges. So in CA, if we get a new privilege, it will have to come from the legislature. So the CEC spells out the specific privileges that we allow.

C. Specific Privileges:

1. Psychotherapist/patient

2. Attorney/client

a. CA – A.B. 1101 is a new bill to take effect in Jan to change the business and professional code so that if a lawyer chooses to disclose secret info of the client, he will not be disciplined.

i. “…to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm…”

ii. It eliminates “by the client” in CEC 956.5 – just to prevent the criminal act in general.

iii. BUT this evidence can then be used against your (former) client if you disclose to prevent the harm.

b. Does the privilege remain after the holder of the privilege dies?

i. Federal – court in the Swidler case (where Ken Starr was trying to get the lawyer of a dead guy to disclose what his client said) that atty-client privilege survives the death of the client.

ii. California – this is NOT the law in CA. We look to the CEC to see if the privilege outlives the client. CEC says the privilege can only be asserted when a holder of the privilege is in existence.

c. CEC 955 – the lawyer shall assert the privilege when the client is not around to do it. (The holder of the privilege is the client, but you have a duty to assert it on behalf of your client – even at the cost of being held in contempt.)

d. Corporate Counsel – you have to remember you are NOT the lawyer of the people that work for the corporation, you are the lawyer of the corporation itself, so if you are asked about conversations with the CEO regarding transactions that are now in question – he does not have the privilege.

i. Upjohn case – Supreme Court rejected the control group theory (that the privilege only protects higher up people in the corp.) and said that it protects any communications with anyone for the purpose of rendering legal advice.

• Probably NOT the same outcome in CA – employees interviewed by corporate counsel will not be privileged.

e. Breach of Duty exception

i. If you client challenges his conviction on your legal competency, you can disclose the actual communication to explain why you did or didn’t do what the client claims was incompetent.

ii. CEC 958 – you CAN disclose confidential communications where you are accused of breaching a duty to your client and your communications justify what you did. Also works the other way around.

f. Joint clients exception

i. CEC 962 – even if clients waive the conflict of interest and are both represented by you, they need to understand that one client can’t assert the privilege against the other at some later point if there’s a dispute between them.

3. Husband/wife – this privilege is jointly held, unlike for other privileges. (Exception where one spouse is accused of abusing the other.)

4. Priest/penitent

D. Where work product or informant’s privilege are asserted, the judge can look at the actual info and then decide if it needs to be admitted. The privilege is normally absolute – for the other privileges, we won’t be required to reveal the info to a judge.

E. Waiver of Privilege – we identify the holder of the privilege and this holder of the privilege is the only person who can assert the privilege. If the holder fails to assert it, it is waived. This waiver concept is all based on Miranda.

VIII. Trial Objections

A. Introduction

1. The starting point is FRE 103 – states the standard for an objection.

a. CEC 353 – erroneous admission of evidence

b. CEC 354 – erroneous exclusion of evidence

2. You need to say on what grounds you are making the objection so it will be reserved on appeal.

3. If something comes out in narrative form that you weren’t expecting, make a motion to strike and ask the jury to disregard the answer.

4. Nonresponsive answers

a. General rule is that only the examining party can object to an answer that is nonresponsive. No legal ground for the opposing party to object to this.

b. CEC 766 changes this general rule – says that nonresponsive answers shall be stricken by any party.

5. Objection that a question is leading is only appropriate on direct examination. (The purpose is to lead on cross!)

6. Stuff examined on defines what can be examined on cross. If you go outside the scope of what was examined before it, they can object that you’re not within the scope of the direct examination.

7. Asked and answered – can’t keep repeating the same question over and over again.

B. Relevancy Objections

1. Relevance objections almost always go with a 352/403. You need to make it at the same time you make a relevance objection so that on appeal you can make it.

2. Both state and fed courts hold that if all you made was a relevance objection and it meets the minimal test of relevance – and you didn’t specifically make an additional objection under 352/403, you can’t raise it on appeal.

C. Hearsay Objections

1. FRE 105/CEC 355 – if evidence is coming in for a limited purpose, you have a right to have the jury instructed as to that limited purpose.

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