What categories of evidence can be excluded for public policy reasons?

FRE and CA

• Liability Insurance (to prove neg, D's ability to pay, EXCEPT to show control, destruction of evidence)
• Settlements and offers to settle (and statements made in connection) [CA: mediation proceedings too]
• Pleas later withdrawn, offers to plea, & related statements
• Payment or offers to pay medical expenses (FRE only: admissions of fact ARE admissible!)
• CA: Expressions of sympathy in civil cases

1. pattern of fraudulent claims

2. prove a preexisting condition

Character evidence in civil cases...

Admissible?

Generally inadmissible

EXCEPTION: D's past acts of sexual assault or child molestation?

EXCEPTION: When character is at issue (defamation, negligent entrustment, child custody, tortious assault and battery where V's character of violence is at issue; fraud, deceit, misrepresentation)

MIMIC:

Motive

Intent

absence of Mistake

Identity

Common plan or scheme

(and remember 403!)

Criminal: reputation and opinion evidence INADMISSIBLE. specific acts admissible ONLY to prove another man was source of semen, OR prior acts of consensual sex btwn D and V.

[CA's Prop 8 leaves these prohibitions untouched]

Civil: Generally inadmissible. But if P put her reputation at issue, admissible IF probative value substantially outweighs unfair prejudice.

Only D can open the door (EXCEPTION: prosecution can bring in D's past acts in sexual assault or child molestation cases [in CA, domestic violence cases too])

P can counter on pertinent character trait

Reputation and opinion evidence only, cross-examination can include specific acts. [CA's Prop 8 allows specific acts in by NON-cross-exam!]

Only D can open the door on Victim's character.

EXCEPTION in homicide cases: if D offers evidence that V attacked first, then prosecution can open door

Prosecution can rebut on same character trait re: either V or D [CA: only if D raised violence trait]

Direct exam: no specific acts [CA: specific acts okay]

Cross-exam: specific acts okay

Calls for narrative

Unresponsive (FRE: only examining counsel can raise... in CA both can)

No leading

Assumes facts not in evidence

Lack of foundation, speculation, personal knowledge

Argumentative

Compound

This is a hearsay exception

Witness is on stand and can't remember.

Foundational basis:

W had personal knowledge of the facts

Document made by W, under W's direction, or adopted by W...

... while fresh in W's memory

Accurate when made

Exemptions:

• admission of party opponent
• prior inconsistent statement given under oath at trial or deposition
• prior consistent statement
• statement of ID of a person made after perceiving that person

Based on witness's perceptions

Rationally based

Helpful to trier of fact (gives more info?

NOT based on scientific, technical, or other specialized knowledge

• Helpful to jury - gives more info? (scientific, technical, or other specialized knowledge?)
• W is qualified
• W believes in opinion to Rz degree of certainty
• Supported by proper factual basis:
• personal knowledge
• admitted evidence
• inadmissible evidence Rzably relied upon
• And one of two tests:
• FRE: Daubert/Kumho standard: "Opinion based on reliable principles/techniques that were reliably applied"
• Peer reviewed and published
  
• Tested and subject to retesting
  
• Low error rate
  
• Rz level of acceptance
  
• CA: Kelley/Frye General Acceptance Standard: "Opinion based on principles generally accepted by experts in the field" (cutting-edge inadequate)
  
• if fails test then not "relevant" (Prop 8 only admits "relevant" evidence)
  

Method to impeach (hearsay exception)

Can also be offered for its substance (and is NONHEARSAY) IF:

• given under oath at trial or deposition or grand jury

Can present extrinsic evidence ONLY if witness first given chance to explain or deny (unless justice requires)

Yes, ONLY if witness is first cross-examined about the facts that show bias or interest.

(note: otherwise-inadmissible evidence re: arrests, liability insurance, etc. can be used here to impeach!)

Rules regarding prior convictions and non-convicted actions, for impeachment purposes?

(FRE and California)

ADMISSIBLE only to impeach (no discretion, UNLESS 10+ years since conviction and prison... then "does unfair prejudice outweigh PV?")

Crime w/ no false statement?

Only FELONIES admissible, and judge has discretion

Non-conviction misconduct evidence?

Admissible, if false statement 

NO extrinsic evidence

FOR CALIFORNIA:

CEC says inadmissible...

BUT if criminal case, Prop 8 allows ANY crime involving "moral turpitude" ("relevant"!)... court must balance (e.g. age of conviction)

"Moral turpitude"=crimes of lying, violence, theft, extreme recklessness, and sexual misconduct

Non-conviction misconduct evidence?

Same rules as above, AND can use extrinsic evidence!

• Statement has independent legal significance (e.g. contract, defamation, adverse possession ["this is my land"], ownership dispute ["this is a gift"])
• Showing effect on listener (e.g. infliction of emotional distress)
• Showing speaker's knowledge of facts stated (e.g. gang leader/bank robber w/ note w/ D's address)
• Circumstantial evidence of state of mind (e.g. D pleading insanity, "I am Dracula")

• Nonhearsay
• Acknowledgment of one of the relevant facts (don't need foundation)
• By opposing party, or:
• authorized spokesperson (express or implied)
  
• employee, concerning the matter, w/in scope of employment, and made during employment relationship [CA: only when THAT e'ee's negligent conduct is basis for e'er's liability (respondeat superior)]
  
• adoptive admission (indicating belief in truth of a nonparty's statement)
  
• co-conspirators (made during course and in furtherance of conspiracy)
  

• Former testimony
• Declaration against interest
• Dying declaration
• Statements of pedigree
• [CA's "O.J. Exception"]
• [CA's physical/mental-condition-at-issue exception]

• Prior inconsistent statement given under oath at trial, deposition, grand jury [CA: don't need oath]
  
• Prior consistent statement to rebut charge of fabrication, improper influence, or motive
  
• Prior identification: statement identifying a person after perceiving a person

• Previous statement was at a proceeding or deposition
• Opposing party had opportunity to examine also
• Opposing party's motive was similar to motive now

Hearsay exception:

• Declarant must be unavailable
• At the time made, against own financial interest or subjected him to criminal liability [CA: social interest too]
• [FRE only] If offered to exculpate D, D must have corroborating evidence

Hearsay exception:

• Declarant must be unavailable (CA: and dead)
• applies in civil cases and criminal homicide cases (CA: all criminal cases too)
• Made while believing was about to die
• Describing cause or circumstances leading to impending death

Hearsay exception:

• Describing event or condition
• While perceiving it, or immediately thereafter
• [CA: Must be explaining declarant's conduct while engaged in it!]
• CA's "O.J. Exception" (declarant must be unavailable):
• statement made at or near time of injury or threat
• describing or explaining injury or threat
• in writing, recorded, OR made to police or medical professional
• under trustworthy circumstances
• [watch out for Confrontation Clause!]

Hearsay exception:

• About past or present mental or physical condition, or its cause (can be for someone else)
• Made for medical diagnosis or treatment (excise portions not for this purpose)
• [CA also requires: declarant was a minor describing an act of child abuse or neglect]

Rules regarding

Business records?

Public records?

Hearsay exceptions

BUSINESS RECORDS

• Record of events, conditions, opinions, or diagnoses [CA: simple opinions or diagnoses only]
• Kept in course of regularly conducted business activity
• Made at or near time of matters described
• By person w/ knowledge of the facts in that record
• It was regular practice of business to make such record
• POLICE REPORTS: not officer's opinions or factual conclusions, and doesn't extend to witness-declarants (no business duty)
• CA: maybe, if sources of information indicate record's trustworthiness (need independent ground(s) of admissibility)

PUBLIC RECORDS

• Must be one of these [FRE - prosecution CANNOT use #2(???) and #3!]:
• #1. describes activities of the office (e.g. manual)
• #2. describes matters observed pursuant to duty imposed by law (CA: record made w/in scope of duties, at or near time of matters described, and circumstances indicate trustworthiness)
• #3. contains factual findings resulting from investigation made pursuant to authority granted by law
• POLICE REPORTS: officer's opinions or factual conclusions CAN get in
• CA: same as under Business Records

Must be felony conviction.

[CA: CEC says only use in civil cases, BUT for criminal cases Prop 8 gets in crimes of "moral turpitude" (misdemeanors too!) b/c relevant!]

If hearsay offered against D in criminal case, EXCLUDE if the following are true:

• Declarant doesn't testify at trial and is now unavailable
• Statement was "testimonial" (made in court or to further a police investigation aimed at producing evidence for the prosecution)
• NOT to deal w/ ongoing emergency
  
• Defendant didn't have chance to cross-examine declarant at the time

• Ancient documents
• 20+ y/o [CA: 30+ y/o])
• no irregularities on its face
• found in a place of natural custody
• certified copies of public documents (deeds)
• acknowledged documents (notary)
• official publications (govt pamphlets)
• newspapers
• periodicals
• business records [FRE only]
• Trade inscriptions, tags/labels purporting to have been attached in course of business [FRE only] (Coke can)

[CA: Secondary Evidence Rule, exempt from Prop 8 so stuff stays out]

• Applies to writings (any tangible collection of data - videos, x-rays, computer disks, recordings...)
• Offered to prove contents of writing (case turns on contents)
• The Rule:
• Need the original, UNLESS bad faith by proponent
• Usually admissible if a DUPLICATE (copy produced by same impression that produced the original, or a machine) [CA: also lets in other written evidence of contents of original, e.g., handwritten notes]
• EXCEPTION: genuine question as to authenticity of original (e.g. doctor's notes might be altered)

• Communication btwn attorney and client or their representatives (e'ee of a corporation represented by atty? privileged only if authorized to communicate [NOT mere witnesses])
• Intended by client to be confidential (objective)
• Made to facilitate legal services

Physician-Patient privilege (NOT under FRE - but in most states), REQUIRES:

• [doctor-patient privilege doesn't apply in criminal cases]
• intent that info be confidential
• for purpose of obtaining diagnosis or treatment
• pertinent to diagnosis or treatment

• Spousal testimonial privilege [FRE: criminal cases only]
• Can refuse to testify against spouse about anything [CA: all cases, and can't even be called to stand]
• only lasts DURING marriage
• [one can testify over spouse's objection]
• Spousal confidential communication privilege
• Confidential spousal communications (in reliance upon intimacy of the marital relationship - not in front of stranger and not on routine matters)
• MADE during marriage

• Counselor-victim (sexual assault or domestic violence)
• Penitent and clergy
• News reporter refusing to disclose sources is immune from contempt of court

What facts are appropriate subject matter for judicial notice, and must a jury accept it?

MUST a judge take judicial notice?

When can judicial notice occur?

• Notorious facts: generally known w/in the Jx
• Manifest facts: capable of accurate and ready determination by resort to easily accessible sources whose accuracy cannot Rzably be questioned

Defendant says he hit old lady after she brought out her knitting needle. Says he saw her poke a boy in the eye with it before.

Is this inadmissible specific-acts character evidence?

No - it is not offered to prove character.

Defendant is proving an element of self-defense.

Prosecution for tax evasion. D filed tax return stating he had no income. P offers into evidence a loan application D submitted to a bank saying "I earn $1,000,000 per year." Declaration against interest? Any other theory?

•  
  • Not a declaration against interest (supported D's loan)
  • IS a party admission

Murder prosecution. The government offers the sound recording of a telephone call Victim made to 911 in which she calmly stated, "My former husband [Defendant] kicked me in the head 20 minutes ago." When the police arrived Victim was unconscious. She later died of a brain injury. Admissible under Federal or California hearsay law to show the Defendant kicked Victim?

·      Federal

o   Not present-sense impression

o   Not excited utterance

o   Not dying declaration

·      California

o   YES "O.J." exception

§  Declarant unavailable

§  Made at or near time of injury or threat

§  Describing or explaining infliction or threat

§  Recorded (or made to police (911 operator))

§  Trustworthy circumstances (was found dead of brain injury)

o   Confrontation Clause?

Not testimonial (to police, but was regarding an ongoing emergency)  

·      Client meets with attorney and states, "I want you to look for some tax shelters for me because my rich parents are about to have a fatal accident." The attorney called the police, who arrived at defendant's home too late to prevent the "accident." Is the client's statement admissible?

o   Attorney-Client Privilege

o   Federal law: NO, b/c was not asking help for the crime/fraud (tax shelters… okay!(?))

o   CA: YES, "Dangerous Client Exception"

What is the effect of Proposition 8?

Attack plan under California Evidence problems?

In criminal cases, although evidence is inadmissible under CEC, it STILL gets in if it's "relevant"!

7 exceptions:

• Exclusionary rules under U.S. Xn (e.g. Confrontation Clause)
• Hearsay law
• Privilege law
• Limits on character evidence a/b victim in a rape case
• Rule prohibiting prosecution from opening the door on D's character
• Secondary evidence rule
• CEC 352 (like FRE 403)

• Size it up: civil or criminal? CA or federal? Prop 8?
• What are the causes of action? What are the defenses? [to assess logical relevance of each piece of evidence]
• What part of trial? (e.g. prosecution witness under direct exam?)
• FORM (lawyer's questions, W's answers...)
• PURPOSE
• logical relevance
• legal relevance (public policy exceptions [rule, policy], prejudice IF it jumps out...)
• Character (say general rule first!) [impeachment later]
• PRESENTATION
• Witness: competency, personal knowledge, impeachment
• Real evidence: authentication
• HEARSAY (say general rule first; use as many exceptions as you can! for double hearsay, use first in time... FRE has catchall (incidents of trustworthiness))
• PRIVILEGES