Evidence and the Litigation Process - Santa Clara Law
Table of Contents TOC \o "1-3" \h \z \u I.Evidence and the Litigation Process PAGEREF _Toc311016801 \h 41.Evidence Defined PAGEREF _Toc311016802 \h 42.Rules Governing Admissibility and Use of Evidence PAGEREF _Toc311016803 \h 4A.Time Limitations PAGEREF _Toc311016804 \h 4B.The Jury System PAGEREF _Toc311016805 \h 5C.Societal Values PAGEREF _Toc311016806 \h 5II.The Two Basic Types of Evidence PAGEREF _Toc311016807 \h 51.Direct Evidence PAGEREF _Toc311016808 \h 52.Circumstantial Evidence PAGEREF _Toc311016809 \h 5III.Procedure for Admitting or Excluding Evidence PAGEREF _Toc311016810 \h 51.Admissibility PAGEREF _Toc311016811 \h 5A.Objection Sustained PAGEREF _Toc311016812 \h 5B.Objection Overruled PAGEREF _Toc311016813 \h 52.Rulings on Admissibility of Evidence at the Trial Level PAGEREF _Toc311016814 \h 6A.Roles of the Court and Jury PAGEREF _Toc311016815 \h 6B.When No Objection Made PAGEREF _Toc311016816 \h 6C.Objection Made Before Trial – Motion in Limine PAGEREF _Toc311016817 \h 6D.Introduction Part of Transaction PAGEREF _Toc311016818 \h 63.Appellate Review of Trial Court Rulings on Admissibility PAGEREF _Toc311016819 \h 6A.Exception – criminal cases PAGEREF _Toc311016820 \h 7B.Timely objection PAGEREF _Toc311016821 \h 7C.Ground for objection valid PAGEREF _Toc311016822 \h 7D.Prejudicial error PAGEREF _Toc311016823 \h 74.Preliminary Determinations Concerning Admissibility PAGEREF _Toc311016824 \h 7A.Preliminary Facts about Which Judge Makes Ultimate Decision – Legal Admissibility PAGEREF _Toc311016825 \h 7B.Procedure PAGEREF _Toc311016826 \h 7C.Procedure in Making Preliminary Fact Determinations PAGEREF _Toc311016827 \h 8D.Preliminary Facts as to Which Jury Makes Ultimate Decision – Conditional Relevance PAGEREF _Toc311016828 \h 8IV.Relevance PAGEREF _Toc311016829 \h 81.General Principles of Relevance PAGEREF _Toc311016830 \h 8A.Probativeness and Materiality – FRE 401 & 402 PAGEREF _Toc311016831 \h 8B.Limited Admissibility PAGEREF _Toc311016832 \h 9C.Conditional Relevance – FRE 104(b) and CEC § 403 PAGEREF _Toc311016833 \h 9D.Probativeness versus the Risk of Unfair Prejudice – FRE 403 PAGEREF _Toc311016834 \h 92.The Specialized Relevance Rules PAGEREF _Toc311016835 \h 10A.Subsequent Remedial Measures – FRE 407 PAGEREF _Toc311016836 \h promise Offers and Payment of Medical Expenses – FRE 408 & 409 PAGEREF _Toc311016837 \h 11C.Liability Insurance – FRE 411 PAGEREF _Toc311016838 \h 11D.Pleas in a Criminal Case – FRE 410 PAGEREF _Toc311016839 \h 123.Character Evidence PAGEREF _Toc311016840 \h 12Three basic forms of evidence offered to prove a particular trait of a person’s character: PAGEREF _Toc311016841 \h 12A.The General Rule – FRE 404 PAGEREF _Toc311016842 \h 12B.Evidence Falling Outside the General Rule PAGEREF _Toc311016843 \h 13C.Exceptions to the General Rule PAGEREF _Toc311016844 \h 15D.Evidence of Habit – FRE 406 PAGEREF _Toc311016845 \h 174.Impeachment and Character for Truthfulness PAGEREF _Toc311016846 \h 18A.Impeachment by Opinion, Reputation, and Cross-Examination about Past Lies – FRE 404(a)(3), 608 PAGEREF _Toc311016847 \h 18B.Impeachment with Past Convictions – FRE 609 PAGEREF _Toc311016848 \h 18C.No use of Extrinsic Evidence PAGEREF _Toc311016849 \h 19D.California – CEC 787, 788 and Prop 8 PAGEREF _Toc311016850 \h 205.The Rape Shield Law – FRE 412 PAGEREF _Toc311016851 \h 20A.Exceptions – 412(b) PAGEREF _Toc311016852 \h 20B.California PAGEREF _Toc311016853 \h 21V.Hearsay – FRE 801 and 802 PAGEREF _Toc311016854 \h 211.The Rule against Hearsay PAGEREF _Toc311016855 \h 21A.Defining Hearsay – FRE 801 PAGEREF _Toc311016856 \h 21B.Applications of Hearsay PAGEREF _Toc311016857 \h 222.Statements That Are NOT Hearsay [FRE 801(d)] PAGEREF _Toc311016858 \h 24A.Prior statements by witnesses [FRE 613] PAGEREF _Toc311016859 \h 24B.Prior statement by witness [FRE 801 (d)(1)] PAGEREF _Toc311016860 \h 25C.Admission by party-opponent [FRE 801 (d)(2)] PAGEREF _Toc311016861 \h 263.Admissible Hearsay – The Exceptions to the Hearsay Rule PAGEREF _Toc311016862 \h 29A.Declarations of Present Sense Impressions – FRE 803(1) PAGEREF _Toc311016863 \h 29B.Excited Utterances – FRE 803(2) PAGEREF _Toc311016864 \h 29C.Then existing mental, emotional, or physical condition – FRE 803(3) PAGEREF _Toc311016865 \h 30D.Statements for purposes of medical diagnosis or treatment – FRE 803(4) PAGEREF _Toc311016866 \h 32E.Refreshing recollection – FRE 612 PAGEREF _Toc311016867 \h 33F.Recorded recollection – FRE 803(5) PAGEREF _Toc311016868 \h 33G.Business Records – FRE 803(6) PAGEREF _Toc311016869 \h 34H.Official Records - FRE 803(8) PAGEREF _Toc311016870 \h 36I.Declarant Unavailable PAGEREF _Toc311016871 \h 374.Hearsay and the Right to Confrontation PAGEREF _Toc311016872 \h 42VI.Confrontation and Compulsory Process PAGEREF _Toc311016873 \h 421.The Confrontation Clause PAGEREF _Toc311016874 \h 42VII.Lay Opinions and Expert Testimony PAGEREF _Toc311016875 \h 441.Summary PAGEREF _Toc311016876 \h 44A.Introduction PAGEREF _Toc311016877 \h 44B.Lay opinion PAGEREF _Toc311016878 \h 44C.Expert testimony PAGEREF _Toc311016879 \h 442.Lay Opinions - FRE 701 PAGEREF _Toc311016880 \h 45A.Nonexpert opinions that are excluded PAGEREF _Toc311016881 \h 45B.Exceptions to opinion rule PAGEREF _Toc311016882 \h 453.Expert Testimony – FRE 702 & 703 PAGEREF _Toc311016883 \h 46A.Requirements for admissibility PAGEREF _Toc311016884 \h 46B.Ensuring the reliability of expert testimony – Daubert and Kumho PAGEREF _Toc311016885 \h 47C.Sources of expert’s data PAGEREF _Toc311016886 \h 48D.Disclosure of bases of expert opinion PAGEREF _Toc311016887 \h 50E.Qualifications of expert witness PAGEREF _Toc311016888 \h 50F.Subject matter of opinion PAGEREF _Toc311016889 \h 50G.Cross-examination and impeachment of expert witnesses PAGEREF _Toc311016890 \h 52H.California differences PAGEREF _Toc311016891 \h 52VIII.Authentication, Identification and the “Best Evidence Rule” PAGEREF _Toc311016892 \h 521.Authentication and Identification PAGEREF _Toc311016893 \h 52A.Types of Evidence PAGEREF _Toc311016894 \h 52B.General Rule – FRE 901 PAGEREF _Toc311016895 \h 532.The “Best Evidence Rule” PAGEREF _Toc311016896 \h 57A.Statement of the rule PAGEREF _Toc311016897 \h 57B.What constitutes “original writing” PAGEREF _Toc311016898 \h 57C.Limitations on the rule PAGEREF _Toc311016899 \h 57D.Justifications for nonproduction of “original writing” PAGEREF _Toc311016900 \h 57IX.Privileges PAGEREF _Toc311016901 \h 581.The Spousal Testimonial Privilege – CEC 970 PAGEREF _Toc311016902 \h 58A.Who may assert? PAGEREF _Toc311016903 \h 58B.Duration PAGEREF _Toc311016904 \h 58C.Exceptions – CEC 972 PAGEREF _Toc311016905 \h 582.The Marital Confidences Privilege – CEC 971 PAGEREF _Toc311016906 \h 59A.What is privileged? PAGEREF _Toc311016907 \h 59B.Actions in which assertable PAGEREF _Toc311016908 \h 60C.Who may assert? PAGEREF _Toc311016909 \h 60D.Duration – CEC 980 PAGEREF _Toc311016910 \h 60E.Exceptions PAGEREF _Toc311016911 \h 60F.Waiver PAGEREF _Toc311016912 \h 60Evidence and the Litigation ProcessEvidence DefinedA broad definition of “evidence” is material from which inferences may be drawn as the basis for proof of the truth or falsity of a fact in dispute.Rules Governing Admissibility and Use of EvidenceThree principal concerns underlie the legal rule of admissibility:Time LimitationsSome time limitations on the matters and materials to be considered during a trial are essential to the trial’s resolution; otherwise, the litigation might go on forever.The Jury SystemBecause the jury system relies on nonexperts to decide cases, an even more pressing concern of the admissibility decision is the protection of inexperienced jurors from improper or inappropriate influences.Societal ValuesCertain kinds of highly probative materials are kept out of evidence in order to encourage certain behavior and confidential relationships and to protect the privacy and dignity of the individual.For example, privileged communications and unconstitutionally seized evidence as well as subsequent remedial measures and offers to compromise fall into this category.The Two Basic Types of EvidenceDirect EvidenceDirect evidence, sometimes simplistically termed “eyewitness” evidence, proves a proposition directly rather than by inference. Here, the witness actually saw the crime or event takes place and can describe it.Circumstantial EvidenceCircumstantial evidence depends on the inferences for its relationship to the proposition (material issue) to be proved. It is evidence of a subsidiary fact from which, alone or in conjunction with other facts, the existence of an ultimate fact (proposition, material issue) can be inferred.Procedure for Admitting or Excluding EvidenceAdmissibilityObjection SustainedIf an objection is sustained by the trial judge, the evidence is excluded from the fact finder’s consideration.Objection OverruledIf an objection is overruled, the evidence is received and can be considered by the fact finder. When error in the overruling of the objection is asserted, the making of the objection preserves the objecting party’s rights on appeal.Rulings on Admissibility of Evidence at the Trial LevelRoles of the Court and JuryCourtThe admissibility of the evidence is determined solely and exclusively by the trial judge. The judge alone decides whether an item of evidence can be considered by the fact finder.JuryThe weight and credibility of received evidence are always up to the jury to decide.SummaryAdmissibility is a question of law to be resolved by the trial court; what weight and credibility is to be accorded evidence that the trial judge has ruled admissible is a matter to be resolved by the jury. When No Objection MadeFailure to object is considered a waiver of any existing ground for objection.Objection Made Before Trial – Motion in Limine Either part may make a motion in limine (“at the threshold”) before trial asking that evidence be excluded or admitted. The trial judge may rule on the motion or defer ruling until trial. If the trial judge makes a definitive ruling, the objection need not be renewed at trial in order to preserve rights on appeal.Introduction Part of TransactionWhen the plaintiff introduces evidence as to part of a conversation or event (the part favorable to the plaintiff), the defendant can cross-examine or introduce rebuttal evidence as to any other part of the same transaction to make it fully understandable. Any objection the plaintiff might have invoked as to the defendant’s evidence (privilege, hearsay, etc.) is deemed waived because it was the plaintiff who elected to introduce part of the transaction.Distinguish – writingsWhen a writing or recorded statement is offered, the adverse party need not wait for cross-examination or rebuttal; he can just insist that the proponent of the evidence introduce any other part “which ought in fairness to be considered contemporaneously with it.”Appellate Review of Trial Court Rulings on AdmissibilityThe following are the grounds for reversal of the trial court’s judgment on appeal for the improper receipt of evidence:There was a specific objection;That was timely made;The ground for the objection was valid; andThe error in overruling the objection was prejudicial.“Specific objection” means that the objection must state the particular legal ground or reason that the evidence was inadmissible.Exception – criminal casesIn criminal cases, if the error in the admission (or exclusion) of evidence is so fundamental that is has deprived the accused of a fair trial, it constitutes a ground for reversal even though the accused failed to object with specificity at the trial level.Timely objectionTimely means that ordinarily the objection must have been interposed before the evidence with received (i.e., before the witness answered, or before the exhibit was shown to the fact finder).Motion to strikeA motion to strike is an objection to evidence made after it has already come in. It is effective only when there was no opportunity or basis for an earlier objection.Ground for objection validThe evidence must have been legally inadmissible for the reason(s) stated in the objection. It is immaterial that another unstated ground for the objection existed; the unstated ground cannot be raised on appeal for the first time.Prejudicial errorThe evidence must have constituted prejudicial error, which means that it probably had a substantial influence on the verdict or otherwise “affected a substantial right” of the objecting party.Preliminary Determinations Concerning AdmissibilityPreliminary Facts about Which Judge Makes Ultimate Decision – Legal AdmissibilityWhen the preliminary fact relates to the legal admissibility of the offered evidence (e.g., the qualifications of an “expert” witness or the existence of a privilege), the existence of the preliminary fact is generally determined by the trial judge alone. The proponent of the evidence must establish the preliminary fact by a preponderance of the evidence.ProcedureQuestions of legal admissibility must be decided by the trial court before the evidence is admitted. Once the jury hears disputed evidence, the damage is done because there is a real risk that any instruction to disregard it will be ineffective.Distinguish – questions of conditional relevancyWhen the preliminary fact relates to whether the evidence has been linked to the case at all (conditional relevancy), it is assumed the jurors will ignore the offered evidence if they do not find the preliminary fact to exist.Procedure in Making Preliminary Fact DeterminationsIt is up to the trial judge to decide whether the determination of a preliminary fact issue shall be conducted in or out of the jury’s presence. In practice, the jurors are usually excused whenever the evidence, if found inadmissible, might have a prejudicial impact on them.Exception – admissibility of confessionBecause of the obvious prejudicial nature of confessions to crime, hearings on their admissibility must be made outside of the jury’s presence.Exception – testimony by accusedIf in a criminal case the accused elects to take the witness stand to testify on a preliminary fact question (e.g., the circumstances surrounding an allegedly illegal search), the jury must be excused if the accused so requests.Evidence that can be considered – FRE 104(a)The FRE and the trend in state courts permit the trial judge to consider any nonprivileged relevant evidence. Thus, the rules of evidence, except as to privilege, do not apply in preliminary fact determinations.Under the FRE, the trial judge can rely on affidavits and other forms of hearsay to determine the admissibility of other evidence.Preliminary Facts as to Which Jury Makes Ultimate Decision – Conditional RelevanceWhen the preliminary fact goes to the relevance, credibility or weight of evidence, the trial judge initially determines only whether there has been a minimal showing of the preliminary fact – i.e., a showing that would be sufficient to sustain a finding of fact on appeal. If there has been such a minimum showing, the trial judge will admit the evidence.RelevanceGeneral Principles of RelevanceProbativeness and Materiality – FRE 401 & 402The trial court will admit only evidence that bears such a sufficient relationship to the matters in dispute that it may be deemed “relevant” under FRE 402.ProbativenessThis means that the evidence offered must logically tend to prove the proposition for which it is offered.To be relevant, evidence need not be absolutely determinative of the fact to which it is directed; it need not be conclusive. All it needs to do is make the fact somewhat more likely than it would be without that evidence.MaterialityThe test of materiality relates to whether the evidence is offered upon a matter properly in issue – i.e., what issue is the evidence relevant to?Matters always in issueThe credibility of each witness who testifies is always in issue. Limited AdmissibilityWhere the evidence is relevant on only one issue, no problems arise. Where, however, the evidence could be relevant on several issues, it may be admissible on one issue, but for some reason inadmissible on another.Rule of limited admissibilityWhen evidence is admissible for one purpose, it is not rendered inadmissible solely because it is improper or irrelevant for some other purpose (FRE 105). In such a case, the trial judge must, upon request, instruct the jury that it is to consider the evidence only for the purpose for which the evidence is admissible, and to disregard it for any other purpose (FRE 105).Conditional Relevance – FRE 104(b) and CEC § 403Conditional relevancy is occurs when the relevancy of one piece of evidence depends on the admissibility of another piece of evidence. The judge determines whether to (1) admit is subject to the admission of another piece of evidence or (2) not to allow its admission until the other piece of evidence is admitted.Example: In a homicide case involving a stabbing: a knife found in the accused’s possession may be admitted into evidence only if the evidence connecting the knife to the crime is also admitted. Probativeness versus the Risk of Unfair Prejudice – FRE 403The judge is vested with broad discretion to exclude evidence – no matter how relevant – when “its probative value is substantially outweighed by the danger of:unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence. Photos and Other Inflammatory EvidenceGruesome photos, while probative to show the cause of death, nonetheless might have such an inflammatory effect upon the jury that the judge may decide to keep them out of evidence altogether.Evidence of FlightThis may be relevant as to the theory that the innocent never run. It adds likelihood to the prosecution’s case that the defendant, who fled, had something to hide.The Specialized Relevance RulesSubsequent Remedial Measures – FRE 407General RuleEvidence that, following an injury to the plaintiff, the defendant made repairs or took other remedial measures is generally held not admissible to prove negligence or other culpable conduct in connection with the event.RationaleThe subsequent repair does not logically establish prior lack of care by the defendant and admitting such evidence would tend to discourage beneficial changes from being made following an accident.Admissibility for other purposesTo impeach the defendant’s witnesses as to the safety of the conditionExample: D’s engineer testifies that D’s stairway was safe and proper at the time P fell; evidence that this engineer personally ordered installation of railing on the stairway after the accident is admissible as tending to impeach his testimony.To show ownership or control of the instrumentality causing the injuryTo show that the defendant was attempting to conceal or destroy evidenceExample: D’s repairing of the fender on her car to cover up evidence of collision with P (when D denies her car struck P).To show that precautionary measures were feasibleThis is admissible when D has denied such measures were feasible or that they used the “safest” method or design.Admissibility in strict liability casesFederal RulesFRE 407 applies in strict liability cases as well as in negligence cases. 407 specifically provides that “evidence of the subsequent measures is not admissible to prove…a defect in a product, a defect in a product’s design, or a need for a warning or instruction.”CaliforniaWhen the case is strict liability, evidence of subsequent repairs may be admissible as tending to show that the condition repaired was promise Offers and Payment of Medical Expenses – FRE 408 & 409Offers to compromise – FRE 408Evidence that the defendant has paid or offered to pay money in settlement of a claim is not admissible to prove liability. Statements during negotiationsThe Federal Rules exclude any conduct or statement made in the course of negotiating a compromise – as well as the offer to compromise itself.Note: Physical evidence, otherwise discoverable, does not become inadmissible at trial simply because it was shown to the opposite party in a vain attempt to settle the case – this cannot be used as a way to prevent critical evidence from being admitted.Offers and statements not excluded by ruleEvidence that a witness settled before trial with one of the parties may be admissible to show the witness’s bias because the deal may have prejudiced the witness in favor of that party.Payment of medical expenses – FRE 409Evidence that the defendant has paid (or offered to pay) the plaintiff’s medical, hospital, or similar expenses is generally inadmissible because it is held not relevant to prove the defendant liable for the plaintiff’s injuries (the “Good Samaritan” rule).However, admissions of fact accompanying offers to pay medical expenses are admissible. For example, only the admission at the scene of a car crash is admissible (in red): “Shoot, sorry I ran the red light, would you let me pay for your medical bills?”Liability Insurance – FRE 411Evidence that either party carried (or did not carry) liability insurance is inadmissible as proof of negligence or wrongdoing. For one, there is very little logical relevancy – the fact that the defendant carried insurance hardly tends to show he was negligent. Second, the risk of prejudice is very high (i.e., a jury influenced by the fact that insurance coverage is available to one party may result in an improper ruling solely for insurance reasons).Admissibility for other purposesProof of ownershipTerms of insurance may be held admissible if there is a dispute as to ownership or control of the vehicle involved in an accident or as to agency or employment of the person covered by the policy.Pleas in a Criminal Case – FRE 410FRE 410 provides that statements made during plea bargaining with a prosecuting attorney are not admissible. There are two requirements that must be met:It only applies to statements made during the plea bargaining with an attorney for the government, not to plea bargaining with law enforcement investigators.However, the protection of the rule can be waived. A defendant may be required to sign a form waiving 410’s protection as a condition of plea bargaining.Character Evidence“Character” evidence is evidence of a general human trait, such as honesty, violence, cowardice, or carefulness. It is sometimes called “propensity.”Three basic forms of evidence offered to prove a particular trait of a person’s character:Testimony by witnesses who know the person as to their opinions of his character;Testimony by witnesses who may or may not actually know the person as to his reputation in the community; orTestimony or proof as to specific acts (past conduct) by the person that reflect on the particular character trait involved.Exam Tip:In determining whether character evidence is admissible, remember that there are two main questions that you will have to ask yourself:Is the evidence being offered for an admissible purpose (e.g., to prove intent or motive as opposed to show action in conformity with character); andIf the evidence is for an admissible purpose, is the evidence being admitted in the proper form (e.g., opinion or reputation testimony as opposed to specific acts).The General Rule – FRE 404Evidence of a trait of character is generally not admissible to show action in conformity with that trait on a particular occasion. Thus, in a criminal case, the prosecution generally cannot introduce evidence that the accused is a “bad” person or that he has a propensity to commit the crime with which he is presently charged. “Once a thief, always a thief” is not good law.RationaleWhatever relevancy such evidence might have is simply outweighed by the risks of undue prejudice and confusion of the issues.Evidence Falling Outside the General RuleEvidence of other crimes and acts is admissible when it is offered to show something other than character.“KIPPOMIA” list – FRE 404(b)A standard list of such noncharacter uses of other-crimes evidence is set forth in FRE 404(b).KnowledgeThis may be used to show that the defendant had knowledge of how to commit an admittedly complicated crime or had knowledge that there was an opportunity to do so – e.g., the defendant previously hacked a corporation’s computer system may be admitted to show the defendant had the requisite knowledge to hack X Corporation’s system.IntentWhen evidence of prior crimes is admissible as bearing on intent, the present crime charged must require a specific intent – e.g., larceny.PlanEvidence of prior criminal acts by the accused is admissible to prove the existence of a larger continuing plan, scheme or conspiracy of which the present crime is a part of.PreparationEvidence of prior crimes by the accused is admissible to show the accused’s preparation to commit the charged crime. For example, evidence that the defendant stole a car is admissible to show the defendant’s preparation to facilitate the charged crime of robbing a bank.OpportunityEvidence of prior crimes by the accused is admissible to show the accused’s opportunity to commit the charged crime. For example, if the defendant is charged with stealing a package from a locked mailroom of which he had no authority to enter, proof that the defendant was seen in the room is admissible to show the defendant’s opportunity to steal the package.MotiveWhen evidence of prior crimes is admitted to reflect on motive, the defendant must be given an opportunity to deny his commission of the past crimes, or otherwise to show that he had no such motive.IdentityAbsence of Accident or mistakeEvidence of prior crimes may also be admitted to show absence of mistake or accident in the commission of the present act – i.e., to rebut the accused’s assertions that it was all an innocent mistake.Effect of limited admissibilityNote that, in the above cases, the prosecution is not, in theory, offering the evidence of prior crimes to show the defendant’s bad character. Thus, even when such evidence is successfully introduced, it can be used only to show a specific point as to identity, common plan, etc., for which it was introduced. The prosecution will not be permitted to argue to the jury that these crimes also show the defendant to be a bad person and hence, more likely to have committed the crime presently charged.KIPPOMIA list not exhaustiveEvidence of past crimes or misconduct is admissible when offered for any purpose other than showing generalized criminal propensity.NOTE: Admissibility is still subject to the rule that the evidentiary value of the past crimes must outweigh the risk of the prejudice flowing from the use thereof.Quantum of proof requiredWhen evidence of other crimes or bad acts is admissible to show identity, motive, plan, intent, etc., the proponent need not show that anyone was actually convicted of the other crimes or acts. It is enough to prove that the other acts occurred.The Huddleston StandardIn Huddleston v. United States, the Court held that the prosecution was not even required to show by a preponderance of the evidence that the defendant had committed the prior crimes. FRE 104(b) governs the reception of the other-crimes evidence, and under that rule evidence whose relevancy depends upon the fulfillment of a condition of fact is admissible when there is evidence sufficient to support a finding that the condition has been fulfilled.Character evidence when character (and not conduct) is in issue – FRE 405(b)When a party’s evidence is in issue under the pleadings – civil or criminal – character evidence is admissible.FRE 405(b) provides that any of the three kinds of character evidence is admissible character itself is the ultimate fact is dispute.Civil cases where character is an element of the charge or defenseSlander, libel, defamation (but clarify whose character is in issue)Negligent entrustment or supervisionChild custodyWrongful death (loss of consortium, future earnings) – relevant on the issues of damagesCriminal cases where character is an element of the charge or defenseEntrapment (this is the ONLY criminal scenario)The defense of entrapment applies if the police were responsible for inducing the defendant to commit a crime which he was not otherwise likely to commit, and does not apply if the defendant was predisposed to commit the crime charged. Therefore, if the defendant raises the defense of entrapment, evidence that he had previously acted in such a way (committed such a crime) is relevant to establish his predisposition to do so at the time when the incident defendant was charged for occurred.Reputation evidence when reputation (and not conduct or character) is in issueWhen reputation alone is in issue, it may be proved only by testimony of witnesses as to the party’s reputation in the community – not by opinions of the witnesses or by evidence of specific acts or conduct.Exceptions to the General RuleCriminal cases – accused’s evidence of his good characterAs a matter of fairness, the accused in a criminal prosecution may always introduce evidence of his good character to show the improbability that he committed the crime of which he is charged.Pertinent traits required – FRE 404(a)(1)Most courts insist that the character evidence be relevant to the charges made against the accused.Forms of evidence admissibleThe FRE allows the use of the accused’s reputation in the community and opinion evidence – testimony of witnesses who know the defendant personally and give their opinion as to the defendant’s character traits.Specific conduct disallowedNote that evidence of specific acts may not be used by the defendant to show his good character.Prosecution may rebut evidence of good character – FRE 404(a)(1)While the prosecution is ordinarily forbidden to introduce evidence of the bad character of the accused, if the defendant introduces evidence of his good character, the prosecution is then entitled to rebut the defendant’s evidence by showing the defendant’s bad character.Cross-examination of defendant’s character witnesses – FRE 405(a)To test the credibility of witnesses’ statements as to the defendant’s good reputation, the prosecutor is permitted to attempt impeachment of the witnesses by examining them as to the defendant’s past crimes and misconduct (specific acts), which otherwise would not be permitted into evidence.The defendant’s character witnesses can be asked about anything that might logically reflect on the defendant’s reputation. However, any crimes or misconduct raised must have some relevancy to whatever aspect of the defendant’s character is in issue.Exam Tip: The defendant does not place his character in issue merely by testifying; testifying places the defendant’s credibility in issue. For the defendant to place his character in issue, the defendant must present evidence of his good character.Character evidence in civil action – FRE 404(a)The general rule is civil cases is the same as in criminal cases: Evidence of either party’s character is generally held not admissible to reflect on whether a party acted (or did not act) in a certain way on any particular occasion.Criminal cases – accused’s evidence of victim’s character to show action in conformityHomicide casesThe character of a homicide victim is often is issue when the accused claims to have killed in self-defense.The defendant may introduce evidence of the victim’s violent nature or disposition in an attempt to show either: The likelihood that the victim was the aggressor; orThat the accused’s apprehension of harm from the victim was reasonableNote: evidence that the victim’s violent nature was communicated to the defendant is not hearsay because it is offered not for the truth of the matter asserted, but to show cause for a reasonable apprehension of harm on the part of the defendant.Rebuttal evidenceIn rebuttal, the prosecution may introduce evidence as to the “peacefulness” of the homicide victim – to offset any inference that the victim was the first aggressor. The prosecution may also attack the defendant’s character for the same trait as which the defendant attacked the victim’s character.Character evidence to reflect on credibility of witness – 404(a)(3)To impeachAny time a witness takes the stand, her character is in issue. This applies to all witnesses – including the parties to a civil action and the accused in a criminal prosecution. A witness can be impeached by showing either:Poor reputation for truth; orPrior felony (punishable by more than 1 year in prison) convictionsTo rehabilitateA witness who has been impeached by the adverse party may be rehabilitated by the party who called that witness by proof of her good reputation for truthfulness.Sex crimes - FRE 413, 414, & 415Under Rule 413, when a criminal defendant is accused of sexual assault, the prosecution may introduce evidence that the defendant committed other such crimes to show his propensity to commit sexual assault. Rule 414 creates the same rule for cases in which a criminal defendant is charged with child molestation.Rule 415 provides for the admissibility of evidence of other offenses in civil cases involving sexual assault or child molestation.Remember: Rule 403 may be used to exclude other-offense evidence if its probative value is substantially outweighed by unfair prejudices.CaliforniaThe same applies in California, evidence of prior sexual assault by the defendant is admissible to show it is more likely the defendant committed this sexual assault under CEC 1108.Evidence of Habit – FRE 406The acts claimed to be a “habit” must be:SpecificRoutine (performed without deliberation); andContinuousThis requires that for an act to be a habit, it must be a “regular response to a repeated specific situation.”Forms of evidence admissibleHabit or custom may be proved by either opinion or evidence of specific behaviorCommon is testimony to specific acts of past behavior, when the instances are sufficient in number to establish the routine, semiautomatic response that is “habit.”Impeachment and Character for TruthfulnessImpeachment by Opinion, Reputation, and Cross-Examination about Past Lies – FRE 404(a)(3), 608Opinion and Reputation (bad acts) – FRE 608(a)The evidence must be attacking the credibility of the witness through his or her character for truthfulness or untruthfulness. If it is attacking the witness’s character for untruthfulness, it shall be admissible. However, if the evidence is supporting the witness’s character for truthfulness, an attack on that witness’s character for untruthfulness must have previously occurred. An attack may be in the form of (1) opinion or reputation, (2) cross-examination of specific acts of untruthfulness, (3) evidence of a prior conviction, and (4) potentially evidence of prior inconsistent statements. Remember, showing a witness’s bias is NOT an attack on his character for truthfulness.Specific Instances of Conduct (bad acts) – 608(b)The evidence MUST be introduced in cross-examination. Two possibilities arise in this situation:The evidence may be admitted if it concerns the witness’s character for truthfulness or untruthfulness – this goes to the credibility of the witness; orThe evidence may be admitted if it concerns another witness’s character for truthfulness or untruthfulness if the other has already testified – this goes to the current witness’s knowledge of another witness.In either case, if the evidence is going towards a witness’s character for untruthfulness, it may be admissible.If the evidence is supporting a witness’s character for truthfulness, an attack on the relevant witness’s character for untruthfulness must have already occurred.Impeachment with Past Convictions – FRE 609Conviction not involving dishonestlyA conviction for a crime punishable by death or imprisonment in excess of one year may be admitted in order to impeach the witness.Conviction involving dishonesty or false statementIf the crime is one of dishonesty, the conviction is admissible to impeach the witness regardless of its possible sentence so long as it meets the statutory required time limit.Timely MannerEvidence of a conviction more than 10 years old is not admissible. The time starts counting from either the day of the conviction or the day the individual was released from prison, whichever is later.Balancing under FRE 609Accused as the witnessEvidence that the accused with convicted must meet 609 balancing.Witness other than the accusedEvidence that a witness other than the accused was convicted is admissible if it meets 403 balancing.Judge’s discretion under FRE 609It is immaterial whether the case is civil or criminal or whether the witness to be impeached it the accused or some other witness. The judge has no discretion to exclude such convictions.Conviction NOT involving dishonesty or false statement – 609 balancingWitness other than the accusedOnly felony grade convictions may be used if the judge finds that the probative value of the conviction is not substantially outweighed by the concerns of 403.Witness is the accusedOnly felony grade convictions may be used if the judge determines “that the probative value of admitting the conviction outweighs its prejudicial effect to the accused.” [Harder standard for the prosecution than 403; more protective of the accused]No use of Extrinsic EvidenceNo extrinsic evidence is allowed to prove specific acts of conduct when admitted under 608(b) [cross-examination of a witness with specific acts of lying by that witness or cross-examination of a character witness with specific acts inconsistent with trait for truthfulness or untruthfulness.Extrinsic evidence is allowed when proving a witness’s bias or to prove a prior conviction under 609.California – CEC 787, 788 and Prop 8California Civil CasesSpecific acts 787Section 787 prohibits the use of specific instances of a witness’s conduct (other than convictions) to prove a character trait to attack (or support) the credibility of the witness.Prior convictions - 788Section 788 applies and restricts impeachment to any felony conviction. The Code does not distinguish between convictions predicated on negligence or strict liability and convictions based on a higher mens rea, such as recklessness, knowledge or purpose, or the nature of the crime committed – so long as the conviction is a felony it may be used to impeach a witness.In California, judges retain the discretion to exclude convictions that say little or nothing about the witness’s predisposition to lie under oath.California Criminal CasesIn criminal cases in California, Prop 8 repeals CEC 787, 788 and 790. Subject to § 352 balancing, all relevant evidence is admissible - this means specific acts (opinion and reputation are also admissible).Furthermore, any conviction, whether it is a misdemeanor or felony, may be used to impeach as long as the crime is of moral turpitude.Also note, good character (truthfulness) may be offered before attack and all three forms may be admitted. Bad character (untruthfulness) may take any form as well. Finally, under Prop 8, extrinsic evidence is allowed.The Rape Shield Law – FRE 412To prevent putting the victim’s prior sex life “on trial,” “rape shield” statutes provide that evidence of the victim’s sexual conduct with other men is inadmissible on the issue of whether she consented to sexual intercourse with the accused. Exceptions – 412(b)In a criminal case:Evidence of specific instances of sexual behavior by the alleged victim is admissible if offered to prove that a person other than the accused was the source of semen, injury or other physical evidence.Evidence of specific instances of sexual behavior by the alleged victim with the accused is admissible to prove consent Evidence the exclusion of which would violate the constitutional rights of the defendantMust be offered by the defense, where defendant had knowledge of consensual sex with others, and he believed the victim was consenting. Goes to whether he believed she was consenting – not going to show the type of person she is but what his mind state was at the time and helps to explain his actions.CaliforniaCEC 1103(c) is equivalent to FRE 412.Hearsay – FRE 801 and 802The Rule against HearsayThe rule against hearsay is stated: If evidence is “hearsay,” it is prima facie inadmissible. [FRE 802]Defining Hearsay – FRE 801Hearsay is defined as 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.” [FRE 801(c)]Statement definedA hearsay state may consist of any of the following, if offered to prove the truth thereof [FRE 801(a)]:Oral StatementsA witness offers testimony about statements made either by the witness or someone else outside of court.WritingsA witness offers any documents, written or prepared by the witness or someone else.Assertive conductA witness offers testimony as to how the witness or someone else acted outside of court, where the conduct was intended by the actor as a substitute for words.Elements of hearsayHearsay has three essential elements:An assertion (or conduct that translates into an assertion); Made or done by someone other than a testifying witness on the stand; and Offered in evidence to prove the truth of the matter asserted.Applications of HearsayStatements not offered to prove their truthThe hearsay rule is not applicable, under any definition of hearsay, when evidence of the out-of-court words or actions is offered only to show that the statement was made or that it had a certain effect on a listener or observer, rather than to prove the truth of the facts asserted.Words legally significant in and of themselvesWhen the issue is simply what words were spoken – the words themselves being in issue – evidence as to what was said is admissible.Words of offer, acceptance, rejection in contract termsWhen a suit is brought on a contract, the fact that there was an offer, acceptance, etc., can, as a practical matter, be proved only by evidence of the out-of-court words or conduct involved. Those words or actions are not offered for the truth of any facts asserted but only to demonstrate what was said or done.Note: If a writing of a contract is offered, it must be authenticated.Words of gift, sale or bailmentWhen a party claims to hold property by virtue of a gift, sale or bailment, that party can testify as to the words used in the transaction – not to prove their truth but merely to show what was said.Words alleged to be deceitfulIn a fraud action, the plaintiff offers the out-of-court statement made to her solely to prove what was said, not that it was true.Words offered to show effect on hearer or readerEvidence of a statement made to a person, or within his hearing, may be offered to show his state of mind in the sense that he had notice, knowledge, motive, good faith, duress, probable cause, etc., or that he had acquired information that had a bearing on his subsequent conduct.Examples: (1) words of warning or notice; or (2) inflammatory or accusatory words (e.g., words offered to prove anger or other motive, thus reflecting on the hearer’s or reader’s later conduct are not hearsay).Words offered as circumstantial evidence of declarant’s state of mindStatements that circumstantially or indirectly reveal the declarant’s state of mind are not hearsay. Examples: (1) When the declarant’s sanity is in issue, his statement, “I am the Prince of England” is not hearsay when offered as circumstantial evidence of the declarant’s insanity; (2) statements made by an automobile driver before an accident that his brakes were defective would be admissible as circumstantial evidence of the declarant’s knowledge of the defect.Prior statements by witness affect credibilityUnder the Federal Rules, a restricted class of prior statements by a witness is received as nonhearsay (and thus as substantive proof):Prior inconsistent statements that were made by the witness while testifying under oath at some prior trial or hearing (including grand jury investigation), or in a deposition;Prior consistent statements, not under oath, offered to rebut an express or implied charge against the witness that her direct testimony is a recent fabrication; andPrior identifications of a personAlso, under FRE 613, prior inconsistent statements by a witness (not a party to the suit) which were not under oath may be admitted but for impeachment purposes only. Assertions as to declarant’s state of mindA direct out-of-court assertion by the declarant as to her state of mind (e.g., “I hate Fred” or “I intend to go to New York”) is hearsay. The reason is that the trier of fact must determine the truth of the assertion in order to determine the declarant’s state of mind.Note: There is a hearsay exception for declarations of state of mind – FRE 803(3).Conduct – assertive and nonassertiveAssertive conductEvidence of out-of-court conduct that was intended as a substitute for words is hearsay when offered to prove the truth of what was intended to be asserted. [FRE 801(a)]Examples: Declarant shakes her head from side to side in answer to a question as a substitute for saying the word “no”; victim points at a suspect in a police lineup as a substitute for saying the words, “that is the man”; statement made by a deaf person in sign language. Such conduct, intended to be assertive and simply a substitute for words is hearsay.Nonassertive conductNonassertive conduct is not treated as hearsay and hence is admissible not only to show the declarant’s state of mind but also to prove the truth of the matter asserted.Examples: Defendant’s flight from arrest may not be intended by her to reflect on her guilt of the crime for which she is being sought, but such nonassertive conduct may nonetheless be considered to reflect an awareness of guilt.Nonhuman evidenceTestimony by a witness as to “statements” made by nonhuman declarants (e.g., machines, bloodhounds, etc.) does not violate the rule against hearsay.Examples: Witness on the stand testifies that the radar equipment “said” D was driving at 90 mph; the parking meter “said” that D’s allotted time had expired; that the computer printout “said” that D’s bank balance was $30.Note: The argument for it to be an assertion by a person is that at some point, a person had to write the computer code to formulate the response.Note: Check for confrontation issues here in criminal cases – it may be that the statement from a machine analyzing a blood sample is not hearsay but if the administrator does not testify, it will violate the Confrontation Clause.Statements That Are NOT Hearsay [FRE 801(d)]Prior statements by witnesses [FRE 613]Under the Federal Rules, a prior inconsistent statement may be proved by either cross-examination or extrinsic evidence. However, extrinsic evidence of a prior inconsistent statement is admissible only if the witness is, at some point, given an opportunity to explain or deny the statement; the opportunity need not come before introduction of the statement.When the prior inconsistent statement was written or signed by the witness, the only foundation necessary is that the witness be shown the statement and asked whether in fact she wrote or signed it.Distinguish when the witness whose credibility is under attack is a party to the suit, her prior inconsistent statement constitutes an admission and is independently admissible as substantive evidence.Note: Federal Rules: unless the prior inconsistent statement was made under oath (below), it is admissible solely for impeachment purposes.California: a prior inconsistent statement in California is admitted as substantive evidence, not just for impeachment purpose because of Prop 8 – criminal cases only.Prior statement by witness [FRE 801 (d)(1)]Witness must testify and be subject to cross right now – whether the prior statement was under oath is irrelevant.Prior inconsistent statement [FRE 801(d)(1)(A)]The prior inconsistent statement by a witness must have been under oath and in a proceeding. A proceeding includes (1) a prior trial, (2) a preliminary hearing, (3) a deposition, and (4) a grand jury hearing.Example: P sues D for personal injuries arguing that the injuries were a result of D hitting P with his car on June 1. P testifies on December 1 that he suffered serious injuries in the accident. On cross, D asks P whether on August 1, P told his wife he was not hurt when the car hit him. P objects.The statement (P’s response) would not be admissible under 801(d)(1)(A) as it was not made under oath.However, in California, under CEC 1235, the statement would be admissible as substantive evidence.Prior consistent statement [FRE 801(d)(1)(B)]The prior consistent statement does not have to have been under oath, but must be offered to rebut an express or implied charge of recent fabrication or improper influence or motive on the part of the witness.Again, in California, under CEC 1236, the statement would be admissible as substantive evidence.Prior statement of identification [FRE 801(d)(1)(C)]A prior out-of-court identification statement of a witness who, although subject to cross-examination, is unable because of memory loss to explain the basis for the identification is admissible.Scenarios from U.S. v. Owens:After a robbery, V is at the police station and identifies the robber. V testifies he picked the right man but can’t remember who it was. The police officer at the station testifies V came to the station and pointed at D, identifying him as the robber.FRE: Here, the statement is admissible and Owens says this situation satisfies the requirement of being subject to cross-examination.CA: Under CEC 1238, a foundation must be set where the witness testifies that the identification was a true reflection of his opinion at the time. It is likely that because he can remember making the identification, this would suffice.Same as above but instead, V has no memory of making any identification at the station. The police officer still testifies V made the identification.FRE: It is unclear how the FRE would handle this because this is the question that was left open in Owens.CA: This would most likely be inadmissible under CEC 1238 because the CA rule requires a foundation to be laid first such that the witness testifies the identification was a true reflection of his opinion at that time. Since V cannot remember making the identification, he cannot possibly state it was a true reflection of his opinion at the time.Admission by party-opponent [FRE 801 (d)(2)]**This MUST be offered against the declaring party**Statement by the party [FRE 801(d)(2)(A)]There are two simple requirements for this exemption:The party made a statementThe statement is offered against the partyThis is not required to be a confession; any statement made by a party can be used against that party: this can be incriminating or exculpating and by a plaintiff or defendant.Note: In a criminal court, a victim is not a party. The parties are the defendant and the state.Example: D is charged with speeding and reckless driving, separate offenses each of which carry a punishment of up to 6 months imprisonment. D enters a plea of guilty to both charges and receives probation. Following the guilty plea, plaintiff sues D alleging negligence in his driving that resulted in injuries to plaintiff. During the civil trial, plaintiff seeks to introduce certified copies of the transcript during which D pled guilty. D objects. As trial court, how do you rule?Objection overruled. The transcript is admissible under FRE 801(d)(2)(A) as a party admission because it is a statement made by the party and offered against the party.Note: a plea of guilty is admissible given it was not withdrawn.Adoptive admission [FRE 801(d)(2)(B)]This occurs when:A party fails to respond or makes an evasive reply to accusatory statements Made to the party or within his hearing, andA reasonable person in such a position would have unequivocally denied such accusations.The party must have been present and capable of hearing and understanding the accusations.The party must have been physically and mentally able to deny the accusations; and The party must have had the opportunity and motive to deny the accusations, i.e., a reasonable person would have denied the accusatory statement under the particular circumstances.However, when one is in police custody, silence in response to a statement or accusation will not be held as an adoptive admission because of one’s constitutional privilege against self-incrimination.Note that an adoption must also be voluntary. Statement by an authorized person [FRE 801(d)(2)(C)]A statement made by a person with express or implied authorization by the party to make such a statement concerning the subject is admissible.Examples of authorized persons: A party’s records or books are usable against him, with or without any intent to disclose to third persons. Also, a party’s counsel is also an authorized agent.Statement by a party’s agent [FRE 801(d)(2)(D)]Statements made by third persons may be imputed to a party and may be admissible as affirmative evidence against that party when the following are established:The statement was made by a party’s agentThe statement was made within the scope of the agency; andThis means the statement of an employee working in finance about a mechanic’s work cannot be imputed to the company for a claim of negligence against the company and mechanic because the mechanic’s job is not within the scope of the finance department’s duties.The statement was made during the existence of the relationshipNote that it would be admissible if a fellow mechanic from the company made a statement about the accused mechanic’s negligence.Examples: Product liability action by P against D, a new car dealer from whom she bought the car, alleging that a construction defect in the steering mechanism caused the accident that led to P’s injury. At trial, to prove the defect, P testifies that after the accident, she showed her car to X, D’s service manager. P states that X told her that the car’s steering mechanism was not assembled correctly.Since the mechanic was an employee of the dealership and the statement was made during his employment, it should be admissible as a statement by a party’s agent.Prosecution of D for murder. D calls W to testify that shortly after D’s arrest, W attended a press conference given by X, D’s lawyer, and that at the press conference X stated “I was with D in another state on the day of these crimes and D could not have committed them.The statement by X would inadmissible because it is being offered by D in support of D. 801(d)(2)(D) requires the statement must be offered against the declaring party. Statement by co-conspirator [FRE 801(d)(2)(E)]The conspiracy in which the defendant was involved must be establishedThe statement must have been made during the conspiracyThis means before the crime was completed or before the declarant withdrew from the conspiracyThe statement must have been made in furtherance of the conspiracyThe statement must relate to the effort to accomplish the illegal objective and is not merely narrative in natureExample: Prosecution of D for importing and selling bootleg copies of software program “Mirrors XP” and with conspiracy to commit that act. To prove D’s guilt, prosecution calls W, who testifies that a few weeks before the police arrested D, X, and Y for the crime, she overheard a conversation between X and Y in which X stated “D’s bringing in a shipment of MXP on flight 612 in San Jose.”The statement is admissible because the shipping of MXP was in furtherance of the conspiracy and the statement was made during this act. Since X, Y and D were all arrested as co-conspirators, the evidence is admissible.Admissible Hearsay – The Exceptions to the Hearsay RuleDeclarations of Present Sense Impressions – FRE 803(1)Declarations made by a person while perceiving an event or condition (even though not “exciting”) which describes or explains the event or condition is admissible as an exception to the hearsay rule.This is so because the spontaneity and contemporaneity of the declaration are deemed to be assurances of its trustworthiness, and the words used are regarded as the best evidence of the then-existing sense impressions experienced by the observer.There is no requirement that the declarant be (1) involved in the event, (2) a party to the suit, (3) unavailable or (4) identified.The Federal Rules admit declarations made either while the declarant was perceiving an event or condition or immediately thereafter – thus perhaps covering the case when a witness makes a report of an accident or crime very shortly after its commission.California requires that the statement be made contemporaneously.Excited Utterances – FRE 803(2)Statements of any person (participant or observer) made at the time of some startling event and under the stress of its excitement, are admissible as a hearsay exception.RequirementsThere must be an event startling enough to produce shock and excitement in the observer.The statement must be made while the observer was under the stress of the shock and excitement. It must be spontaneous, with no time for deliberation.There is no mechanical test as to when the statement must be made but the categorization of excited utterances is limited to statements made soon after the event because of the requirement that the declarant still be under the stress of excitement.DeclarantCompetencyThe age of the declarant is generally immaterial. The declarant need not be a competent witness at the time of trial. All that is required is that the declarant has had:Personal knowledge of the facts (i.e., was a percipient witness), The powers of perception and recollection and The ability to utter almost instinctive exclamations.IdentityThe declarant need not be identified if his existence and personal observation of the facts are established by inference from the circumstances (e.g., witness testified, “I heard someone yell, ‘Look out!’”). The lack of the declarant’s identity goes only to the weight of the declaration, not to its admissibility.Personal ObservationHowever, when the witness testifies, “I heard someone (an unidentified speaker) at the scene of the accident say Albert’s car ran the light,” this is not admissible because there is no showing that the unidentified “someone” was a percipient witness. Meaning, the speaker may have arrived after the accident and been told this by someone else.Scope of ExceptionExamples:An agent’s admission of fault, inadmissible as a vicarious admission against the employer because it is outside the scope of the agent’s authority or employment, may nevertheless qualify as an excited utterance.A statement by the victim of an attempted homicide, inadmissible as a dying declaration because it was not made under any sense of impending death, may still be sufficiently spontaneous to be received as an excited utterance.Then existing mental, emotional, or physical condition – FRE 803(3)Physical conditionsWhen a person’s physical condition at a specified time is in issue, that person’s spontaneous declarations made at that time are admissible to prove the condition.State of MindAn indirect assertion (e.g., “Fred is a liar” to show the declarant’s dislike of Fred) is not hearsay under the Federal Rules.Present mental or emotional stateWhenever a person’s state of mind at a particular time is itself in issue (e.g., did D intentionally hit Fred?), that person’s declarations as to his state of mind at the time in question are admissible, provided they are made under circumstances indicating sincerity.This covers any declaration to a person’s intent, motive, plan, emotions (love, hate fear), confusion, knowledge or other mental state.Examples:A person’s declaration, “I intend to send Larry some money,” is admissible to show her intention toward Larry.Testator’s declarations of love and affection toward a beneficiary are admissible in a will contest case as evidence of the desire to make a valid gift to that beneficiary.A person’s declarations as to where he intends to make his home are admissible to establish his domicile.Present intent to show subsequent conductA person’s out-of-court declarations of state of mind may be admissible not only as proof of the person’s state of mind at the time the declarations were made, but also to show the probability that the person committed some subsequent act pursuant to that declared state of mind.Examples:Letters written by D stating that D was planning to go to New York are admissible as proof that D had in fact gone there.Declarations by a deceased of an intent to commit suicide (or of prior acts of attempted suicide) are admissible when the issue is whether the deceased took her own life or was murdered.Effect on third personsDeclarations of intention to frame, kill, or attack another are admissible to prove that the declarant did in fact commit the act, and did so intentionally. Such declarations may also be used to show their effect on a third person in whose presence they were made.Example: In a homicide case, evidence of threats that the deceased (X) had made to D (“I’m going to kill you!”) are admissible as circumstantial evidence that D’s killing of X was in self-defense. The declarations tend to show both that X had been the aggressor and also that D was in reasonable fear of attack.Probable conduct of third personsOut of court declarations made by a declarant as to his state of mind cannot be used to implicate or reflect upon the probable conduct of a third person.Examples: D’s declaration that he and X are planning to commit a crime is by itself insufficient to prove that X was involved and is inadmissible hearsay as to X.A homicide victim’s declaration to a friend, shortly before her death, “I know my husband is going to kill me,” is inadmissible hearsay in a murder prosecution against the husband. The victim’s state of mind was not in issue, and the declaration was irrelevant as to the husband’s state of mind or to explain his conduct.CA: CA has held that the declaration of the deceased, “I am going out with Frank tonight,” was admissible against defendant Frank.Past state of mindCourts hesitate to receive out of court declarations of intent to show the declarant’s state of mind at a time when she committed some past act – i.e., past state of mind (e.g., “I didn’t mean to hit him” – offered to show lack of intent at the time of the alleged battery). Such declarations involve danger of defects in memory.Exception: When the issue relates to the execution, revocation, or interpretation of a decedent’s will, courts admit evidence of declarations by the testator, made both before and after the execution of the will, to reflect on testamentary intent, state of mind, undue influence, etc., at the time the will was made.CA view: CEC 1251 states that when a declarant is now available, his out of court declarations as to his “state of mind, emotion or physical sensation,” either at the time he made the declarations or at any prior time are admissible when such factors are in issue and when nothing indicates the declarations are untrustworthy.Statements for purposes of medical diagnosis or treatment – FRE 803(4)The Federal Rules have rejected the limitation against declarations of past physical condition and allow such declarations when they are made to a physician or other medical personnel for the purpose of medical diagnosis or treatment. The Federal Rules allow declarations not only of past symptoms and medical history, but also of the cause or source of the condition insofar as reasonably pertinent to diagnosis.Statements made for the purpose of having the doctor testifyThe committee notes say that statements made for the purpose of preparing the doctor to testify also qualify under the 803(3) exception. The same stipulations apply whereas statements of fault are inadmissible.Statements of cause v. statements of faultStatements of causeCause is within the rule if the statement is necessary for diagnosis or treatment, e.g., “The car hit Sue,” or “The shelf landed on me.”Statements of faultFault is inadmissible, e.g., “John was driving the car that hit me,” or “The shelf that landed on me was broken and overloaded with boxes.”Statements combining cause and faultStatements that combine the cause of the injury with the fault of the injury will need to be parsed. The portion of the statement that describes the cause is admissible whereas the portion that describes the fault is inadmissible. For example, when looking at the statement: “John was driving the car that hit me.” “The car hit me,” would be admissible, whereas “John was driving,” would not be admissible.Refreshing recollection – FRE 612If on the stand, the witness must state that they don’t remember in order for him/her to have their memory refreshed. If the witness answers and counsel asks “are you sure?” hinting the witness may have answered incorrectly, FRE 612 may not be used to refresh their memory.Any objectThe witness may be shown any object (writing, recording, or other) to refresh his memory. This may take place before or during trial.Object taken awayOnce the witness has looked at the writing, recording or object, it must be taken away from the witness and he must testify without looking at it.Note: this section does not permit the witness to read from the record, look below for “recorded recollection.” Note: this evidence is not admitted into evidence, meaning the jury cannot look at it, unless so desired by the adverse party (below).Object given to adverse partyOnce the witness has used a writing, recording or object to refresh his memory, it must be given to the adverse party to inspect, cross-examine with it and introduce it into evidence if they so desire.If the adverse party wants to admit it into evidence, no objection of lack of foundation, best evidence rule, privilege or hearsay will be sustained.Note: if the writing, recording, or object was used to refresh the witness’s memory before trial, the judge has discretion whether to produce it to the adverse party.Note: the adverse party may need to ask the witness during cross-examination to learn whether they were shown a writing, recording or object to refresh their memory before trial.Recorded recollection – FRE 803(5)RequirementsThe declarant must testifyThe declarant must have 1st hand knowledgeThe witness (declarant) must have insufficient memoryThis is the same as with FRE 612, the witness must say “I don’t know.”The witness must identify the item used as substitute for “live” testimonyItem must have been made or adopted at or near the time This means the event must be “fresh in the declarant’s mind”The document must be authenticated and not have been tampered with since its conception.The writing or recording is read to the jury by the witness but not moved into evidence.Object given to adverse partyThis is the same requirement as above in FRE 612.Confrontation issueA lack of memory by the witness does not violate the confrontation issue as per Owens and FRE 801(d)(1)(C).California Evidence Code 1237The rules for California are essentially the same.Business Records – FRE 803(6)Entry in “regular course of business”The record must be written and made in the course of a regularly conducted business activity. This requirement encompasses (i) the types of activities that may be “business” activities; (ii) the necessity of the entrant being under a duty to make the entries; and (iii) the necessity that the records relate to the primary business of the organization.“Business” definitionThe Federal Rules’ definition includes every “business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.”Note: this covers the records of many organizations that are not regarded as “businesses” in the normal sense – e.g., hospitals, churches, schools, etc.“Regular course of” businessIt must appear that the records in question were prepared in the regular course of business activity involved, and that it was the regular practice to make the particular record or entry in question.The record must be made by someone whose duty it was to make such entries as part of his employment.The records in question must be of a type customarily maintained by the organizations as part of its primary activities.Note: hospital records are generally held admissible only to the extent that they are reasonably related to the diagnosis and treatment of the patient’s conditions.Form of recordsThe Federal Rules admit records being offered that are the original entries as well as any form, if the records are made in the regular course of business.This means that only the physical records can be offered, not a testimony recalling the record.Example: When business records have been stored on a DVD for use in computers, and the original entries are destroyed, the printout sheets from the computer are admissible.Contents of entryThe Federal Rules allow into evidence entries of “acts, events, conditions, opinions or diagnoses” if they were made in the regular course of business.The entry must consist of matters that were either: (i) within the personal knowledge of the entrant; or (ii) transmitted to the entrant by someone who was under a business duty to report such matters to the entrant and who had firsthand knowledge of the facts.Examples:Safety reports, police reports, etc., based on the firsthand knowledge of the reporting officer are admissible. But such reports based solely on the statements of bystanders to the officer (no business duty to report) are not.Admissibility may be found when the employee of one business entity prepares a record that is then transmitted to and kept by a separate business entity, at least if this was part of a continuing contractual relationship between the entities.Note: watch for a hypo involving a police report containing the statements of witnesses. Generally, witnesses, or even parties, are not under a business duty to convey information to the police. Therefore, the report containing their statements cannot qualify as a business record, although it may be admissible under another hearsay exception or as an admission.Time of entryThe entry must have been made at or near the time of the transaction – i.e., while the entrant’s knowledge of the matter was still fresh.Availability of entrantThe Federal Rules have eliminated the requirement of unavailability. It is for the court to decide whether the record is sufficiently trustworthy.There must be a determination of whether the evidence is testimonial or not: if not testimonial, there is no confrontation issue. Rarely, if ever, will a business record be testimonial and require confrontation.Records authenticatedBusiness records will not be admissible unless authenticated. The traditional away to “authenticate” business records is by having the custodian of the records “or a qualified witness” (not necessarily the original entrant) appear in court, identify the records and testify as to their mode or preparation and safekeeping.Under the Federal Rules, business records are admissible without a sponsoring witness if the records are accompanied by a certification/declaration of the custodian or other qualified person that the records meet the foundational requirements of the business records exception (i.e., that the records were timely made and kept in the regular course of business, and it was the regular practice of the business to make the records).Limitation – trustworthinessThe trial court has the inherent power to exclude any business entry when “the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.”Official Records - FRE 803(8)Agency operations – FRE 803(8)(A)Records as to the activities for functions of a governmental agency are admissible even though not entirely based on personal knowledge of the reporting officer – e.g., records of receipts and disbursement of government monies.Matters required to be reported – FRE 803(8)(B)All matters that a governmental agency is required by law to observe and report on (e.g., weather records) are admissible.Criminal casesHowever, this does not apply to matters “observed” by police officers in criminal casesFactual findings made pursuant to an investigation – FRE 803(8)(C)Such findings are admissible if they were made pursuant to authority granted by law. The fact that the public official considered hearsay reports from persons who were not public officials in making the findings does not prevent the record from being received under the exception.TrustworthinessThe opponent may demonstrate that the source of the information is untrustworthy and the court may exclude the evidence. Criminal CasesThe findings may not be used against the accused in a criminal case but may be used against the government if offered by the accused.Examples:In an action against an employer for discriminatory employment practices, an investigation report prepared by an Equal Employment Opportunity Commission investigator would be admissible. Similarly, the report of a military investigator about the cause of an aircraft crash is admissible, for its factual-findings and for its conclusion the crash was due to pilot error.Declarant UnavailableThe following are exceptions to the hearsay rules when the declarant is NOT the defendant!Definition of “unavailability” – FRE 804(a)In civil and criminal cases:PrivilegeRefusal to testify despite a court order to do soLack of memoryIf the declarant testifies as to lack of memoryPhysical or mental incapacityCompetent proof that the witness who testified in the earlier trial is now too ill or infirm to testify establishes “unavailability”AbsenceIf the declarant is absent from the hearing and proponent of testimony has been unable to procure the declarant’s attendance by process or other reasonable meansNote: Death of a witness also satisfies the unavailability requirementFormer testimony – FRE 804(b)(1)Declarant must be unavailableA witness’s recorded testimony from some earlier trial, deposition, or proceeding is admissible only if the party against whom it is now being offered:Was a party to the earlier trial or proceeding (or a predecessor in interest if a civil action); Had an opportunity to examine the witness at that time; andHad a similar motive to develop the witness’s testimony (by direct or cross-examination) as that which he now hasPredecessor in interest – must be a civil caseA “predecessor in interest” is someone from whom the present party has a close relationship with; for example, an employee and employer.Dying declarations– FRE 804(b)(2)Declarant must be unavailableA victim’s dying declarations about the cause or circumstances of his impending death are admissible as an exception to the hearsay rule. Type of action in which dying declarations are admissibleThe Federal RulesUnder the Federal Rules, dying declarations may be offered in:Any civil proceeding; orIn a homicide proceeding Dying declarations CANNOT be admitted in any other criminal cases!California – CEC 1242In California, dying declarations may be offered in any civil or criminal proceeding.Requirements for admissibilityVictim’s declarationThe dying declaration must be that of the victim, not some third person. Note: the deathbed confession of a third person that she killed the victim is excluded as a dying declaration; however, it could be a statement against interest.Sense of impending deathThe declaration must have been made by the victim while believing that his death was imminent.Percipient witnessThe victim must have had the usual capacities of a witness at the time of the declaration – i.e., the capacity to perceive, to relate facts, and to recognize the obligation to tell the truth.Facts related to cause of deathThe declaration must be:As to facts; andRelated to the cause or circumstances of what the victim believed to be his impending deathOpinionA declaration that is a mere opinion by the declarant is inadmissible (“I think D poisoned me”).Self-servingThe fact that the declaration is self-serving is no bar to admissibility (e.g., fatally injured motorist states that the other driver ran the red light).Death NOT requiredThe Federal RulesAs long as the declaration was made while the victim believed death was imminent, the victim need not have actually died. It is sufficient that he is otherwise unavailable at the time of trial.CaliforniaThe proponent does not have to establish the declarant’s unavailability as a condition of admissibility. Accordingly, dying declarations should be admissible in attempted murder prosecutions and personal injury actions even if the declarant unexpectedly survives and is available to testify.Rebuttal and impeachmentOnce admitted, the declaration is subject to all of the objections and grounds for impeachment that could be asserted if the declarant were on the stand testifying. Thus, the declarant can be impeached by showing that the declarant had withheld relevant facts or had made prior inconsistent statements, by proof of the declarant’s lack of perceptive capacity as to the facts, or by evidence of facts to the contrary.Statement against interest – FRE 804(b)(3) and CEC § 1230Declarant must be unavailableA hearsay statement may be received in evidence if:The declarant is not a party to the action, and is now unavailable to testify; andThe statement was sufficiently against important interests of the declarant when made so that a reasonable person in the same position would not have made the statement unless she believed it to be true.Corroboration required when offered in criminal casesPerception and knowledge at time of declarationThe declarant must have had the usual qualifications of an ordinary witness at the time of the declaration, and “particular, personal knowledge of the facts.” Typically, statements based only on the declarant’s opinions or statements are not admitted.“Against interest”The facts, to the declarant’s knowledge, must be to the declarant’s immediate prejudice at the time of the declaration, and the prejudice must be substantial.Pecuniary or proprietary interestA statement is against interest only if it is against the declarant’s pecuniary (financial – liquidated sum) or proprietary (property) interest. Example: A statement, “I owe Juan $1,000,” is against the declarant’s interest only if Juan’s claim is for $1,000 or less.Civil liability to anotherThe Federal Rules specifically state that a statement is against interest if it would tend to subject the declarant to civil liability to another person.Invalidating own claimThe Federal Rules also state that a statement is against the declarant’s interest if it would “render invalid a claim by him against another.”Example: admission of contributory negligenceCriminal liabilityStatements that admit the declarant to criminal liability are sufficiently against their interest.Statements offered by a criminal defendant to show her own innocence (by proof of out-of-court declarations by a third-person admitting the crime charged) are admissible only if there are “corroborating circumstances” that clearly indicate the trustworthiness of the statement.California: there is no requirement of corroborating circumstances so long as the statements admitting the crime are clothed with sufficient indicia of reliability.California – CEC §?1230Declarant must be unavailable.CEC § 1230 closely follows the Federal Rules except that declarations against “social grace,” are also included in statements against interest. This means that a declaration that creates a risk of making the declarant “an object of hatred, ridicule, or social disgrace in the community,” is sufficiently against one’s interest in California.California does not require corroboration where the statement against the declarant’s interest exculpates the accused.Prejudice known or apparentThe declarant must have known, or have been chargeable with knowledge, that the facts stated were so far contrary to her interest “that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.”No motive to falsifyThere must be nothing to indicate the declarant had some motive to falsify the facts stated.Distinguish declarations against interest from admissionsA declaration against interest can be a statement by a third party – it need not be a statement by a party to the litigation, as with admissions.“Unavailability” is required to lay the foundation for a declaration against interest, but not for an admission.A declaration against interest must be based on the personal knowledge of the declarant, an admission need not.A declaration against interest must be “against interest” when made; an admission only need be inconsistent with the position taken by the declarant (meaning offered against that party).Williamson v. U.S. analysisThis situation occurs when there is a statement made by a third person that the defendant and third person committed a crime – the statement thereby incriminates defendant.Williamson states that the non-self-inculpatory (not against one’s interest) statements are inadmissible even if they are made within a broader narrative that is generally self-inculpatory.Example: The declarant says, “Fred and I committed a crime.” Under Williamson, only the part “I committed a crime,” will be admissible.Third party self-inculpatory testimony that exculpates DefendantSuch evidence requires corroborative evidence of trustworthiness. Examples include:No motive of declarant to lieCharacter of declarant for truthfulnessOther persons heard statementStatement is spontaneous (e.g., excited utterance-esque)Timing of declaration Relationship between declarant and defendant and/or witness and defendantOther evidence that declarant committed crime (most persuasive)California – CEC 1230The declarant must be unavailableDeclarations against social interest are not includedDoes not require corroboration where the statement exculpates the accusedLimited to those portions disserving of declarant’s interest only (similar to Williamson)Hearsay and the Right to ConfrontationAlthough a piece of evidence may be admissible due to a hearsay exemption or exception, it must be determined whether the Confrontation Clause bars its admissible first.Hearsay and the Confrontation Clause are two separate determinations. Each must be done independently and for every piece of evidence.Confrontation Clause issues arise when the original declarant does not testify. This not only includes when a witness testifies as to what someone said (what they did or saw or otherwise) but to forensic lab tests, 911 calls or any other statements that are being introduced in order to prove someone’s guilt. The statement must be testimonial for the Confrontation Clause to apply (see below).Confrontation and Compulsory ProcessThe Confrontation ClauseWhen determining whether the Confrontation Clause applies to a certain piece of evidence, use a 3 step analysis to decide whether it is testimonial or nontestimonial. The need to parse the evidence may also arise and when that does happen, we will need to apply the test to each parsed piece.Crawford v. Washington Where testimonial statements are at issue, the Constitution requires the defendant be able to confront the witness.Does the evidence fit into one of the clear-cut categories: clearly testimonial or clearly nontestimonial?Testimonial evidence is excluded unless: 1) the declarant testifies or 2) the declarant is unavailable and the defendant had the prior opportunity to cross-examineNontestimonial evidence is admittedIf not, does the evidence fall into one of the formulations (Davis)?Ex parte (one sided) in court testimony or its functional equivalent: affidavits, custodial interrogation, prior testimony with no cross Pre-trial statements that declarants would reasonably expect to be used prosecutoriallyPrior statements under circumstances that objective witness to believe the statement would be available for later use at trialWhat is the primary purpose of the evidence (Davis)?If the primary purpose is aimed at primarily assisting a criminal investigation and such evidence will be used in litigation, it is testimonial.If the primary purpose is aimed primarily at resolving an ongoing emergency, the evidence is nontestimonial.Davis v. Washington – 911 callIssue: whether objectively considered, does the “interrogation” during the 911 call produced testimonial statements?Primary purpose test: Testimonial when:Made to police;Describes past events (not as they are happening) No emergencySimply to “learn” what happenedIndicia of formality (recorded, series of questions, following custody)Giles v. CaliforniaMust show that D acted with the purpose of preventing the witness from testifying (must show an intent to prevent the victim from testifying).Melendez-Diaz v. MAA state forensic analyst’s lab report, prepared for use in a criminal prosecution is testimonial evidence because they are prepared solely for litigationMichigan v. BryantMultifactor primary purpose test from Davis is context sensitive when determining when the emergency is ongoingThis case should not be read very broadly such that it applies to a numerous situations. Limit this reading to situations involving: police interrogation, near the time of the crime, a crime involving a violent weapon, an unknown reason for the violence against that particular person (by the police), and an unknown location of the accused.Lay Opinions and Expert TestimonySummaryIntroductionAn opinion is an inference or conclusion drawn from facts observed.The general rule is that a nonexperts called to the stand to give direct evidence (i.e., firsthand or eyewitness testimony) is restricted to describing relevant facts about which the witness has knowledge. The witness ordinarily cannot state opinions and conclusions drawn from his observations.Exceptions to the opinion ruleNonexpert witnessesNonexpert witnesses are allowed to give opinion testimony in two kinds of situations:When no better evidence can reasonably be obtained of facts that the witness personally observed; andWhen it is next to impossible for the lay witness to express the matter in any other wayExpert witnessesExpert witnesses are allowed to give opinion testimony. Opinion testimony by expert witnesses may be considered an exception to the general rule against opinion testimony, or it can simply be said to lie outside the general rule against opinion testimony by nonexpert witnesses [FRE 702]. The reason experts are allowed to give opinion testimony is because they possess training, knowledge, and skill in drawing conclusions from certain sorts of information or data that lay fact finders do not possess. However, experts may give opinion testimony only in areas in which the trier of fact cannot draw unassisted conclusions.Lay opinionThe admissibility of a lay opinion is generally within the discretion of the trial judge; that is, the opinion may be allowed if it is based on the witness’s perception, is helpful to the fact finder, and is not based on scientific, technical, or other specialized knowledge.Expert testimonyThe rules regarding expert testimony usually depend on modern science or are held to be within the trial judge’s discretion. Admission of the expert’s opinion depends on: (i) whether the specific knowledge is helpful; (ii) whether the witness is qualified as an expert; (iii) whether the opinion has a proper basis; and in some jurisdictions, (iv) whether the expert possesses a reasonable degree of certainty as to her opinion.Lay Opinions - FRE 701Nonexpert opinions that are excludedMatters upon which the opinions of lay persons are inadmissible:Standard of careWitnesses are ordinarily not allowed to express their opinions concerning “negligence: “or “fault.” Nor are they permitted to testify whether they would have acted as the defendant did.Cause of accidentAn accident may require the analysis of an expert but there are instances where a layperson commonly forms accurate opinions, e.g., whether a driver’s speed “caused him to lose control” of the vehicle – the admissibility of this depend on whether the opinion represents the best way of making the matter understandable to the trier of fact.Contracts and the likeThe existence or nonexistence of contractual or other similar relationships is ultimately a question of law, and a witness is consequently not permitted to testify thereto.Agency or authorizationExceptions to opinion ruleRequirements for admissibilityAccording to FRE 701, a nonexpert witness’s opinion is admissible if the trial court is satisfied that:Opinion is rationally basedThe witness’s opinion is “rationally based on the perception of the witness”(i.e., the witness personally observed that about which he has an opinion)Opinion is helpfulThe opinion is “helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.”This means that the subject matter of the witness’s opinion is something about which normal persons commonly form opinions (e.g., size, speed, smell, sound, etc.), and that testimony in the form of an opinion is the clearest, most understandable way of getting the matter to the jury.Opinion is not expert testimonyThe opinion cannot be based on “scientific, technical, or other specialized knowledge” within the scope of Rule 702.ExamplesInstances when a nonexpert witness’s opinion is admissible:Matters of taste, smell and appearanceIdentity – 801(d)(1)(c)Mental conditionThe opinion of a nonexpert witness is often admissible on the issue of the sanity or other mental state or a close acquaintance. Note: An opinion as to whether the decedent seemed to be under the “undue influence” of another is improper. This is because sanity is a conclusion which normal persons can regularly draw but undue influence is a legal conclusion.Physical conditionIncludes apparent age, health or pain. Words such as “nervous,” “drunk,” etc., are permitted because the person’s conclusion may be difficult to describe by any language other than this way.Value DimensionsEstimates of any measurement or dimension are usually admissible when they will assist the trier of fact in its determination – e.g., size, speed, weight, color, quantity, time, etc.Example: A witness who had a glimpse of D’s passing car may be allowed to give an opinion as to its speed. The brevity of the observation goes to the weight of the evidence.HandwritingThe opinion identifying handwriting as that of a certain person is admissible if the witness is shown to be sufficiently familiar with that person’s handwritingNote: The general rule is that a nonexpert cannot base an opinion on a comparison of handwriting samples.Expert Testimony – FRE 702 & 703Requirements for admissibilitySpecialized knowledge helpful to fact finderThe opinions or inferences offered by the expert must depend on specialized knowledge, skill, experience, or training not within the ordinary experience of lay jurors.Witness specially qualifiedThe witness must be qualified as an expert – by reason of some specialized knowledge, skill, experience, or training in the pertinent field.Proper basis for opinionThe witness’s opinion must be based on matters upon which other experts in the pertinent filed reasonably rely in forming opinions about the subject in issue [Rules 702-703]. This may be any source such experts rely on. For example, doctors rely on statements by the patient, the patient’s relatives, and nurses as well as medical charts and x-rays.Underlying data revealed or availableThe Rules provide that a witness may give opinion testimony without first revealing the basis for her opinion, unless the court requires otherwise.Ensuring the reliability of expert testimony – Daubert and KumhoFRE 702(2) states that in order for an expert witness to testify, the testimony must be the product of reliable principles and methods. A series of court cases expanded on what this meant.Kelly-Frye TestThis test is currently only used in California state court and has been abandoned by the federal court.This test is only used when considering new or novel scientific principles as a basis for expert testimony. “When a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define.” The test set forth, now used in California, to determine whether a scientific principle is admissible is:The principle must be sufficiently established to have gained general acceptance in the particular field in which it belongs.Daubert FactorsThe Court charged the trail judges with the responsibility of acting as gatekeepers to exclude unreliable expert testimony. Daubert set forth a non-exclusive checklist for trial courts to use in assessing the reliability of scientific expert testimony. The specific facts explicated by the Daubert court are:Whether the expert’s technique or theory can be or has been tested – that is, whether the expert’s theory can be challenged in some objective sense, or whether it Is instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability;Whether the technique or theory has been subject to peer review and publication;The known or potential rate of error of the technique or theory when applied;The existence and maintenance of standards and controls; andWhether the technique or theory has been generally accepted in the scientific community.Not all the factors can apply to every type of expert testimony. Other factors that courts have determined to give appropriate consideration:Whether the testimony is based on research done independent from trial or whether the research was done specifically for the purposes of testifying.Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion (too great of an analytical gap between the data and the conclusion)Whether the expert has adequately accounted for obvious alternative explanationsWhether the expert is being as careful as he would be in his regular professional work outside his paid litigation consultingWhether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.Note: When a trial court rules that an expert’s testimony is reliable, this does not necessarily mean that contradictory expert testimony is unreliable. Competing, reliable testimony will go to the weight of the evidence presented.Kumho TiresThe Court in Kumho Tires clarified the holding in Daubert and stated that the gatekeeper function of the trial judge applies to all expert testimony, not just testimony based in science.Example: When a law enforcement agent testifies regarding the use of code words in a drug transaction, the principle used by the agent is that participants in such transactions regularly use code words to conceal the nature of their activities. The method used by the agent is the application of extensive experience to analyze the meaning of the conversations. So long as the principles and methods are reliable and applied reliably to the facts of the case, this type of testimony should be admitted.There is no suggestion that experience alone may not provide a sufficient foundation for expert testimony (think “My Cousin Vinnie” movie scene where the fiancé testifies as an expert due to her experience with a family-owned mechanic shop).Sources of expert’s dataThe opinion of an expert witness may be drawn from one of the following sources:Opinion based on facts personally observedThe expert witness can express an opinion or conclusion based on facts personally observed.Facts communicated by othersAn expert can also take into account facts communicated to her by others (e.g., the treating physician can base her diagnosis in part on the report of another physician or an X-ray technician).Nature of source of material – FRE 703If the data on which the expert bases her opinion or inference is of a type reasonably relied on by experts in forming opinions or inferences in the particular subject, the data need not itself be independently admissible in evidence.Inadmissible data may not be disclosed to juryThe fact that data which is otherwise inadmissible in evidence may not relied upon by an expert in forming an opinion does not necessarily mean that the expert will be allowed to disclose the data to the jury. Data that is otherwise inadmissible in evidence may not be disclosed to the jury by the proponent of the opinion unless the court determines that the data’s probative value in assessing the jury in evaluating the expert’s opinion substantially outweighs its prejudicial effect [Rule 703].When inadmissible data disclosed to juryWhen the court determines that otherwise inadmissible data should be disclosed to the jury, the court must instruct the jury that it may not consider the data for substantive purposes, but only to show the basis for the expert’s opinion.Opinion based on evidence adduced during trialAn expert witness who has been present in the courtroom can also base an opinion on the evidence adduced during trial, as long as the witness does not usurp the role of the jury by resolving credibility conflicts.Opinion based on hypothetical questionAn expert witness can base an opinion on data transmitted to her by means of a hypothetical question drawn from the evidence adduced at trial [Rule 705].Opinion based on data conveyed by counsel or othersRule 703 states the expert can also base her opinion on data conveyed by counsel or others outside of court.Opinions based on inadmissible evidenceAgain, the data presented need not be independently admissible in evidence if it is “of a type reasonably relied on by experts in the particular filed in forming opinions or inferences upon the subject.” Examples: The physician-expert may base an opinion, at least in part, on information gleaned from an x-ray. A handwriting expert can base an opinion on writing examples which, because of prejudicial content, are inadmissible.Opinion based on learned treatisesUnder the Federal Rules, when an expert witness has relied on statements in learned treatises during direct examination or they have been brought to her attention during cross-examination those statements can be read into evidence, either by the party calling the witness or by the cross-examiner [Rule 803(18)]. It must be demonstrated that the learned text is authoritative – the statements are then usable as substantive evidence and not merely for impeachment of an adverse witness.Disclosure of bases of expert opinionCalifornia approachFederal approachRule 705 permits examining counsel to ask the expert for an opinion and then immediately allow the opposing side to cross-examine, without any disclosure of the data underlying the opinion.Qualifications of expert witnessBefore a witness is permitted to give an opinion as an expert, counsel must satisfy the trial judge that the witness possesses some specialized knowledge, skill, or experience that qualifies her to render the opinion [Rule 702].Subject matter of opinionThe expert witness can testify only to matters embraced by her filed of expertise and about which people lacking the witness’s specialized knowledge are uninformed.Opinion on “ultimate issue”Testimony in the form of an expert opinion is not objectionable because it embraces the ultimate issue or issues to be resolved by the trier of fact [Rule 704(a)].Unhelpful opinions excludedNevertheless, testimony on an ultimate issue may still be excluded if it embraces a conclusion of law, or is unhelpful [Rule 702], prejudicial, or a waste of time [Rule 403]. Thus, opinions going directly to innocence or guilt are likely to be excluded in criminal cases.Criminal defendant’s mental stateAn expert witness testifying to the mental state or condition or a defendant in a criminal case may not state an opinion or inference as to whether the defendant had the mental state or condition constituting an element of the crime charged or of a defense thereto [Rule 704(b)]. Thus, an expert may testify that the defendant suffered from a mental disease or defect and can describe the characteristics or such a condition, but cannot offer a conclusion as to whether the condition rendered the defendant incapable of appreciating the nature quality of wrongfulness of her acts.Opinions on matters as to which jurors uninformedExamples:CausationExpert testimony regarding causation of an accident or occurrence is proper.SanityExpert opinion concerning a person’s sanity may be received even when sanity constitutes the ultimate issue – e.g., in will contests, guardianship proceedings and other civil cases. Keep in mind, nonexpert opinion is also admissible on this issue.HandwritingA handwriting expert may testify that two writings were probably prepared by the same person.Property valuesExperts (e.g., realtors) can give testimony as to property values. (A nonexpert – the property owner – may also be permitted to give valuation testimony)IdentityPhoto comparison experts can give opinions as to the identity of the person in a photograph.Opinions on matters as to which jurors competentExpert opinion is not allowed on the issues of “fault,” “negligence,” or “guilt” because these are conclusions that jurors are competent to draw from the facts presented in evidence.Examples: Opinions that a dip in the highway was a “dangerous condition” or that the plaintiff was driving “too fast for highway conditions” are improper because these were inferences jurors could readily draw from facts in the evidence. In a medical malpractice case an expert can testify about the standard of care, but not whether the defendant physician was “negligent.” Cross-examination and impeachment of expert witnessesAn expert witness can be cross-examined to the same extent as any other witness and can be impeached on the same grounds, plus the following:Lack of expert qualificationsPrior inconsistent opinionsAltering facts of hypothetical questionShowing compensation receivedContrary views of other experts; use of scientific texts, learned treatises, and journalsRebuttal testimony by other experts, called by an adverse party, is proper. It is permissible to show on cross-examination that pertinent texts, treatises, or articles in learned journals do no support the opinions expressed by the witness, at least if the witness stated that they were relied on in arriving at her opinion.Use of materials not relied on by expertCalifornia’s approachFederal Rules approachThe Federal Rules allow cross-examination of an expert witness concerning contrary views expressed in any authoritative scientific text, treatise, etc., regardless of whether the expert claims to have relied thereon [Rule 803(18)].Note: In most courts, the text, etc., it admissible solely for impeachment purposes and not as substantive evidence of the contrary views expressed therein.California differencesOf particular importance in criminal cases, California has a provision authorizing the use of expert testimony to prove battered women’s syndrome, including to explain why a woman suffering from the syndrome perceived a need to kill in self-defense. Authentication, Identification and the “Best Evidence Rule”Authentication and IdentificationTypes of EvidenceBy testimonyIf the evidence is of a type that can be readily identified by a witness, the witness’s testimony regarding the evidence is sufficient to authenticate it.Example: A witness in a murder case may testify that the instrument shown to her is the knife she found next to the body, that she recognizes it because of its peculiar markings, and that it is in the same condition as when she found it.Chain of custodyIf the evidence is of a type that cannot be easily recognized or can readily be confused or tampered with (e.g., blood sample), the proponent of the object must present evidence of its chain of custody. The proponent need not negate all possibilities of substitution or tampering in the chain of custody but must show that there was a strong probability of correct identification.Example: A white powder was seized from the defendant, and the prosecution’s chemist wishes to testify that she analyzed it and found it to be heroin. Clearly, it is necessary for the prosecution to produce evidence that the white powder seized from the defendant is indeed the same as that analyzed by the chemist (e.g., the powder was received from police, tested and put in a sealed, labeled bag and locked in a safe to which no one else had the combination).General Rule – FRE 901Before any writing (or secondary evidence of its content) may be received in evidence, it might be “authenticated”; i.e., the proponent must offer a foundation of evidence sufficient to support a finding that the document is genuine and is what it purports to be.Documents requiring independent proof of authenticityIn most care, the proponent of the writing must produce evidence apart from the document itself to show that it is genuine and is what it purports to be. There is no limit on the kinds of evidence that may be used for this purpose, but the following are the most commonly encountered [Rule 901(b), CEC 1410]:Direct evidence of authenticityTestimony of subscribing witnessesTestimony of subscribing witnesses is no longer required; however, if subscribing witnesses are available, their testimony is certainly one method that may be used to authenticate the document [Rule 901(b)(1), CEC 1413]Testimony of other witnessesThe testimony of any witness who saw the execution of the document, or heard the parties acknowledge the document, may be used to authenticate the document – whether the witness subscribed the document or not [Rule 901(b)(1), CEC 1413]Opinion to testimony as to handwriting identificationA writing may also be authenticated by evidence of the genuineness of the handwriting of the maker. Such evidence may be given by:Any person familiar with the handwriting of the supposed writerExpert testimony [FRE 901(b)(3), CEC 1418]Having the trier of fact compare it with some admittedly genuine document [FRE 901(b)(3), CEC 1417]Circumstantial evidence of authenticityAdmissionsIt may be shown that the party against whom the writing is offered has in the past either admitted its authenticity or acted upon it as if it were authentic.Authenticated by contentA writhing may be authenticated by a showing that it contains information that is unlikely to have been known to anyone other than the person who is claimed to have written it, or that it is written in a manner unique to that person. [FRE 901(b)(4), CEC 1421].Reply letter doctrineThus, a writing may be authenticated by evidence that it was received in response to a communication sent to the claimed author. Example: When E mails a letter to G, and a reply is received in which reference is made to E’s letter, this is sufficient evidence to authenticate the reply letter as having actually come from G. [CEC 1420] FRE?Authentication by proving document produced by reliable processWhen documents or other data compilations have been produced by some automatic process or system – e.g., X-rays or computer printouts – testimony describing the process and indicating its reliability is sufficient to authenticate [FRE 901(b)(9)].Authentication by ageCaliforniaDocuments affecting property are presumed to be authentic if it is shown to be at least 30 years old and is “fair on its face” – i.e., its condition creates no suspicion as to its authenticity, and it was kept or found in a place where, if authentic, it would likely be kept or found [CEC 643].Federal RulesAny document in any form (including data stored electronically) is presumed to be authentic if it is shown to be at least 20 years old and is “fair on its face.”Documents that are “self-authenticating”Certain kinds of documents or records require no independent proof of authenticity. Their nature is such that merely producing the document establishes prima facie its own authentication.Official documents under sealDocuments bearing the seal of any recognized government agency or department and the signature of an authorized signatory may be received into evidence without independent proof of authenticity [FRE 902(1)].Notarized documentsDocuments notarized (e.g., bearing the proper certificate accompanied by the notary’s seal and signature) do not need independent proof of authenticity [FRE 902(8)].CaliforniaCalifornia requires that the certificate also show that the parties appeared before the notary and acknowledged the genuineness of their signatures thereon [CEC 1451].Certified copies of public recordsA copy of any public record (including data compilations) may be received without further authentication if accompanied by a certificate showing that: The original is a document authorized by law to be recorded or filed in a public office and was so recorded or filed;The attached copy is a correct copy of the original; andThe certificate is signed by the custodian of the public record and bears the seal of that office.Certified copies of business recordsA record of regularly conducted activity is admissible without a sponsor witness if the record is accompanied by a written declaration of a qualified person (e.g., records custodian) that certifies that the record satisfies the requirements of the business records exception [FRE 902(11) – (12)].Promissory notesMiscellaneous – Federal RulesOther various records that are “self-authenticating” under the Federal Rules:Official publications (e.g., pamphlets published by public agencies)Newspapers and periodicals, trade inscriptions and the like affixed in the course of business and indicating ownership or origin [FRE 902(5) – (7)]Distinguish – authentication of oral statementsOral statements often require authentication as to the identity of the speaker, even though they are not documents.When authentication is necessaryAuthentication of an oral statement is generally required when the statement is admissible only if said by a particular person – e.g., admission by a party or prior inconsistent statements of a witness. In such cases, the proponent of the statement must produce sufficient evidence that the person claimed to have made the statements actually did so.Note: Not all oral statements need to be authenticated. In some cases, the identity of the speaker may not matter. Thus, if the only issue is whether the defendant had notice of a defect, the fact that someone told the defendant of the defect would be relevant without any showing as to who that person was.Methods of authenticationAn oral statement can be authenticated by the testimony of a witness who saw and head the speaker make it.Telephone conversationsWhen, however, the statement was made by telephone, the proponent may find it more difficult to prove that the statement was made by a particular person. In such a case, the statement must be authenticated in the same way as a document [FRE 901(b)(6)].Incoming callsMere assertion of identity is not enough; another form of identification must be accompany assertion: distinct statement (describing event only the two in the conversation knew), voice identification, reply doctrine, etc. Outgoing callsIf the dialed number is assigned to a private person or a business by the telephone company:Private personSimilar to incoming calls, need other circumstances including self-identification (still not sufficient), distinct contents of statements, reply doctrine, etc.BusinessAll of the above methods are sufficient as well as conducting business over the phone.The “Best Evidence Rule”The rule does not require a party to present the best or most probative evidence on an issue when more than one means of proof is available. Rather, the best evidence rule is a specific evidentiary requirement applicable to documentary evidence. It might therefore better be referred to as the “original writing rule.”Statement of the ruleTo prove the contents of a writing, the original writing itself must be produced, unless it is shown to be unavailable. [Rule 1002]What constitutes “original writing”The best evidence rule applies to all printed and written documents of any type whatsoever. Under the Federal Rules, “writing” is expanded to include photographs (including x-rays and motion pictures), recordings in any form (e.g., tape recordings), and any other form of data compilation. [Rule 1001]Duplicate originalsA duplicate is as admissible the same as original unless: The authenticity of the original is genuinely disputed; orIt would be unfair under the circumstances to admit the duplicate in lieu of the original (as where only part of the original was reproduced and the rest is necessary for cross-examination)Limitations on the ruleNot applicable to official recordsNote that the rule applies only to private writings: i.e., properly authenticated copies of any official document or recorded writing (e.g., a recorded deed) may be used in lieu of the originals. [Rules 902(4), 1005]Not applicable when contents of writing only “collateral”Not applicable when party admits contentsThe contents of a writing may be proved by the testimony or deposition of the party against whom it is offered by that party’s written admission, without accounting for the nonproduction of the original writing. Note that this rule does not extend to out-of-court oral admissions. [Rule 1007]Not applicable when proof is of oral conversation rather than a record thereofA witness can testify to oral conversation heard even though a written or otherwise recorded record (e.g., a tape) of it exists.Justifications for nonproduction of “original writing”The best evidence rule does not apply when it is impossible or impractical to produce the original writing in court because it is:Lost or destroyed;Unobtainable;Too voluminous; orIn opponent’s possession, and the opponent fails to produce itLost or destroyedWhen the original writing has been lost or destroyed without fault of the party offering the secondary evidence, the rule is not applicable. [Rule 1004(1)]UnobtainableUnder the Federal Rules, a writing is unobtainable only when it cannot be obtained “by any available judicial process or procedure.”Too voluminousWhen the original writings are so voluminous that it would be impractical to produce them in court, the court may disregard the rule and allow secondary evidence (e.g., a summary), if the originals are available for inspection by the adverse party. [FRE 1006]In possession of opponentFederal RulesThe Federal Rules state that the best evidence rule does not apply when the original writing is in the control or possession of the adverse party and that party fails to produce it upon reasonable advance notice.CaliforniaCalifornia holds the same that the best evidence rule does not apply but does not require that any “notice to produce” be given.PrivilegesThe Spousal Testimonial Privilege – CEC 970The privilege not to testify against one’s spouse applies equally in civil and criminal proceedings.Who may assert?The witness-spouse alone has the privilege to testify or to refuse to testify.DurationThe privilege may be asserted only during the marriage. It terminates upon divorce or annulment, in which event former spouse can be compelled to testify the other (even as to matters that occurred during the marriage).Exceptions – CEC 972A person does not have a privilege under the article in:A proceeding brought by or on behalf of one spouse against the other spouseA proceeding to commit or otherwise place his or her spouse or his or her spouse’s property, or both, under the control of another because of the spouse’s alleged mental or physical conditionA proceeding brought by or behalf of a spouse to establish his or her competenceA proceeding under the Juvenile Court LawA criminal proceeding in which one spouse is charged with:A crime against the person or property of the other spouse or child, parent, relative, or cohabitant of either, whether committed before or during the marriageA crime against the person or property of a third person committed in the course of committing a crime against the person or property of the other spouse, whether committed before or during marriageBigamyA proceeding resulting from a criminal act which occurred prior to legal marriage of the spouses to each other regarding knowledge acquired prior to that marriage if prior to the legal marriage the witness spouse was aware that his or her spouse had been arrested for or had been formally charged with the crime about which the spouse is called to testifyA proceeding brought against the spouse by former spouse as long as the property and debts of the marriage have not been adjudicated, or in order to establish, modify, or enforce a child, family or spousal support obligation arising from the marriage to the former spouse. In a proceeding brought against a spouse by the other parent in order to establish, modify, or enforce a child support obligation of the spouse.The Marital Confidences Privilege – CEC 971The second marital exclusionary rule is that neither spouse can refuse to disclose, or prevent another from disclosing, “confidential communications” made between the spouses during their marriage.What is privileged?The privilege applies only to confidential communications – i.e., some sort of expression from one spouse to the other intended to convey a message.Meaning of “confidential”The communication must be made out of the presence of third parties (except young children), and it must concern a matter that the communicating spouse would probably desire to be kept secret.Observations by spouse not privilegedNo privilege applies as to either spouse’s observations as to the physical or mental condition, actions, or conduct of the other spouse because no “communication” is involved.Actions in which assertableThe marital communications privilege may be asserted in any action, civil or criminal; it is not limited to actions in which the other spouse is a party.Example: If W is called as a witness in litigation between P and D, H, husband of W, may appear and assert the privilege to prevent W from revealing any of his confidences – even if W wants to testify.Is there a constitutional issue with this regarding the confrontation clause?Who may assert?The confidential communications privilege belongs to both spouses; i.e., either spouse may assert it to avoid giving testimony or to preclude testimony by the other.Duration – CEC 980The prevailing rule is that a confidential communications made during marriage is privileged forever – i.e., even after the marriage has been terminated.ExceptionsThe exceptions to the marital communications privilege are basically the same as those recognized under the rule prohibiting a witness-spouse from testifying for or against a party-spouse.Crime against spouse or childThus, when the defendant is charged with a crime against his spouse or the child of either spouse, he can defend himself by introducing evidence of communications with his spouse, and the spouse has no privilege to withhold such information.Furtherance of crime or fraudThe marital communications privilege does not apply when the communication is made “to enable or aid anyone to commit or plan to commit a crime or a fraud.”WaiverThe privilege is waived unless a specific and timely objection is made by the spouse entitled to assert it.Also, the voluntary disclosure to a third person waives the privilege as to the disclosing spouse. However, the other spouse can still claim the privilege. [CEC 912(a)-(b)] ................
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