1. Identify probative value of the proffered evidence

2. Identify dangers

3. Balance

Dangers generally are those that might affect the integrity of the fact finding process

Specifically:

1. Unfair prejudice

2. Confusion of issues

- jury will be tempted to focus on collateral issue

3. Misleading the jury

- risk of mistaken inference by jury

Dangers

1. Unfair prejudice

2. Confusion of the issues

3. Misleading the jury

Considerations

1. Undue delay

2. Waste of time

3. Needless presentation of cumulative evidence

When a defendant offeres to stipulate to his conviction for a prior felony, and a prior felony is an element of the crime at issue in the present case, P must accept.

This is not generally true, however. Usually a P is entitled to prove the elements of its case in whatever way they deem fit.

An out of court statement offered to prove the truth of the matter asserted.

Duh.

FRE 401: Evidence having any tendency to make the xistence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

CEC: basically the same

1. Unfair prejudice

2. Confusion of the issues / misleading the jury

3. Undue delay, wate of time, needless presentation of cumulative evidence

When evidence is admissible for one purpose but not for another and the jury might be tempted to use it for the forbidden purpose. It is not discretionary.

Also, consider whether party who the evidence is introduced against would be willing to stipulate to the existence of the evidence in the context of the admissible purpose. (Old Chief)

1. Proponent of evidence offers evidence of the conditional fact

2. Judge determines whether a reasonable jury, based upon that conditional factual evidence, could find that fact was true (lower than preponderence of the evidence standard)

3. Jury determines whether underlying fact is actually true

1. Criminal trial

2. Testimonial hearsay

-Statements made under circumstances that an objective witness would reasonably bleieve that the statement would be available for use at a later trial

-Note that there is a difference between statements to "resolve an immediate emergency" and "investigation"

1. Declarant testifies and is subject to cross AND the statement (one of the following):

- Inconsistent with declarant's current testimony

- Is consistent with declarant's current testimony and used to rebut a charge of fabrication or improper influence or motive

-Identifies a person as someone the declarant perceived earlier

What must the judge decide to determine whether a co-conspirator admission is admissible under the "non-hearsay" 801 standard? 

Can the hearsay statement itself be used to establish the three prongs above? 

Judge must determine

1. If there was a conspiracy in the first place

2. Statement made during conspiracy

3. Statement was made in furtherance of the conspiracy

The hearsay statement being considered can be considered but cannot be conclusive evidence of the prongs.

In joint trials of co-conspirators, a facially incriminating statement implicating a co-defendant who does not take the stand cannot be adequately cured by a limiting instruction.

Hillmon allowed statements of intent to be used as circumstantial evidence of conformity with that intent.

Houlihan limited those statements to use as circumstantial only of the declarant's future behavior, not that of another.

1. Recorded by business (note broad defintion)

2. Regularly maintained

3. Made promptly 

4. Based on knowledge (of either person recording or from info transmitted by someone who had knowledge)

5. Supproted by testimony (individual testifying as to record must know how it is prepared--FRE allows certification instead of testimony)

6. Appears trustworthy (assumption is in favor of trustworthiness)

1. Activities of office or agency

- Receipts, etc

2. Matters observed and reported pursuant to duty to report

- In crim cases cannot be matters observed by police/law enforcement due to CC considerations (but if neutral probably ok)

3. Factual findings resulting from an investigation made pursuant to authority granted by law

- ONLY civil

-UNLESS against the government 

MUST BE TRUSTWORTHY!

1. Spoken without hope of recovery in shadow of impending death

2. Personal knowledge of cause of death

-Preponderence of the evidence standard showing they would know the cause of death

3. Related to cause of death

-No extraneous bullshit

What are the elements of the residual exception?

What are the two interpretations of FRE 807's residual exception?

Elements

1. Offered as evidence of a material fact

2. more probative than any other evidence proponent can get through "reasonable" efforts

3. Must serve general purposes of evidence rules and interests of justice will best be served by admission

4. Proponent provides sufficient notice

Two Interpretations

1. Close enough

- Something is really close to getting in under an exception but doesn't quite get there

2. Exceptional

-Established exception does not apply but the same gurantees of trustworthiness apply

1. Criminal cases

2. Pertinent character trait

-must be related to crime charged

1. D opens door

2. To rebut claim of self defense by D to show peacefulness of victim

DOES NOT EXIST IN CA

1. Reputation

2. Opinion

3. Specific Instances of conduct

1. Cross examination of character witness to impeach reputation or opinion evidence

2. When character is an essential element of crime

OR

3. Cram that shit in as evidence of:

-Motive

-Intent

-Preparation

-Opportunity

-Knowledge

-Identiy

-Absence of mistake

-Accident

IF the purpose above speaks to an actual issue in the case and can pass 403

1. Regular practice of meeting a particular kind of situation with a specific type of conduct

2. One's regular response to a repeated specific situation

3. Routine practice of an ORGANIZATION

- Morally neutral evidence of highly regular activity in specific situation is more likely admissible as habit than character

Psychological Theory:

- Non-volitional/semi-automatic nature of habit

-More likely admissible 

Probablility Theory

- Person's regular response to a specific situation

The statute prohibits the use of character evidence against the  victim regarding past sexual behavior and sexual predisposition EXCEPT in the following circumstances:

1. Specific instances of sexual behavior to prove someone else was the source of semen or injury

2. Prior sexual conduct between D and V when consent is raised as a defense by D

3. Evidence that would violate constitutional right to confrontation

any evidence indicating that the defendant committed any other sexual assault (413) or child molestation (414), even if never charged. It can be used to demonstrate any matter to which it is relevant (not just sexual assault/child molestation guilt), including propensity to commit.

Requires notice.

1. Negligence

2. Culpable conduct

3. Defect in product

4. Defect in product design

5. Need for warning or instruction

CAN be offered for any other purpose though, such as demonstrating ownership or feasibility of precautionary measures IF OPPOSING PART CLAIMS MEASURES WERE NOT FEASIBLE

1. Settlement

2. Settlement offer

3. Statements or conduct during the settlement negotiations

1. Party who is a natural person

2. Officer or employee of the party who is designated by attorney as representative for that party

3. Person whose presence is shown by  a party to be essential to the presentation of the party's cause

4. Person authorized by statute

CEC version is more discretionary

1. Dishonesty

2. Inconsistency

3. Bias or Motive to Fabricate

4. Incapacity

5. Specific contradiction

1. Evidence may only refer to chracter for truthfulness or untruthfulness. No general character attacks.

2. Truthfulness can only be demonstrated after evidence regarding a witness's untruthfulness has been introduced (no bolstering)

1. Only allowed on cross-examination

2. Concern witness's own untruthfulness OR the untruthfulness of another witness on which the current witness has testified

NOTE: Examiner may NOT produced extrinsic evidence to disprove any statement made after a question regarding specific instances of conduct. 

1. In civil or criminal case, if witness is not the defendant (subject to 403 and weighted in favor of admission)

2. If probative value of evidence outweighs prejudicial effect if witness is the defendant (weighted against admission)

1. Witness must be given an opportunity to explain or deny the statement.

2. Adverse party must be allowed to examine the witness regarding it

A collateral matter is one that is not related to the case at hand other than to impeach the witness's testimony. Extrinsic evidence is not admissible for purposes of impeachment if it is related to a collateral matter.

Question:

Would the party seeking to introduce the extrinsic evidence for impeachment be entitled to prove this element as part of its case (ie, is it relevant to the case at hand)?

1. Honesty

2. Consistency

3. Disinterest or Lack of Bias/Motive

4. Capacity

5. Specific Corroboration

1. Rationally based on perception of the witness

2. Must be rationally helpful to a clear understanding of the jury

3. Cannot be based on any expertise

1. Jury NEEDS an expert

2. Expert must have "knowledge, skill, experience, training or education in the field BEYOND common experience (CEC)

1. Testimony based on sufficient facts or data

2. Testimony is a product of reliabile principles and methods

3. Witness has applied the principles and methods reliabily to the facts at hand

1. Evidence presented outside of court

2. Presentation of evidence to expert at trial

3. First hand observation of scenario at hand

1. Communication

2. In Confidence

3. Between Attorney and Client (or agent of attorney)

4. To facilitate legal services

Upjohn established that corporations may assert ACP.

The privileged communcations are those that are:

1. Made by employees to corporate counsel

2. At the direction of corporate superiors

3. For purpose of getting legal advice

4. Rgarding matters within the employee's duties

5. Employees knew the purpose of the statements to corporate counsel

CFE is an exception to ACP where the attorney provides advice regarding a future wrong doing. The knowledge/complicity of the attorney is immaterial. 

Procedure:

1. Judge determines if there is af actual basis adequate to support a good faith belief by a reasonable person that the exception applies

2. In camera review conducted at discretion of trial court

1. Confidential Spousal Communication

-Communication

-In confidence

-Between spouses

-WHILE MARRIED

-However, testimony at issue can be during or after marriage

-CFE applies

-Waiver applies

2. Adverse Spousal Testimony

-Testifying spouse can choose not to testify against non-testifying spouse

-Only applies DURING the marriage

1. No possession/control of copy or original was lost or destroyed with NO BAD FAITH

2. No possession or control of original and no copy was procurable.

3. Writing was not central to the dispute

4. Oral testimony is only a summary

1. Not subject to reasonable dispute because (1 of these)

1. Generaly known within the territorial jurisidiction of the court OR

2. Capable of accurate and ready determination by resort to resources whose accuracy cannot reasonably be questioned

Note:

Judge cannot rely on personal knowledge

1. Criminal

-Jury MAY accept fact as conclusive 

2. Civil

-Jury must accept fact as conclusive

1. No distinction between adjudicative facts and legislative facts

2. Facts of generalized knowledge MUST be judicially noticed (no discretion)

3. Facts that fall under the FRE standard are discretionary notice

4. Court MUST take judicial notice if party requests it.