Shared Flashcard Set


Evidence Rules
CEC and FRE differences

Additional Law Flashcards




Oral Testimony as a Form of Secondary Evidence
CEC § 1523: General rule is the oral testimony is not admissible to prove the content of a writing, except when one of the following 4 conditions is met:
1. The original was either lost or inadvertently destroyed, or
2. The proponent does not have the original or a copy and was not able to rx procure the original copy using the court process or other means, or
3. The proponent does not have the original or a copy & the writing is not closely related to controlling issues in the litigation
4. Does not require that the originals be unavailable, but applies when the writings are so voluminous that it would waste the court’s time to examine the entire batch.
i. When the only evidence sought is the “general result of the whole,” the court finds a thorough examination to be a waste of judicial resources
ii. Ask the witness who has read all of the documents to summarize them.
Best Evidence Rule Under the FRE 1001-1007
Operates from the presumption that the original is preferred and lists exceptions to the rule that the original document is required. A duplicate can be offered in lieu of the original, unless a genuine question is raised about the original’s authenticity or in circumstances where it would be unfair to admit the duplicate. Whether inscriptions on chattels are subject to the BER is left to the judge’s discretion.
a. Exceptions to the BER: Original not required if:
i. It has been lost or destroyed in good faith
ii. Cannot be obtained by available judicial process
iii. Opponent was responsible
iv. The writing is not closely related to the controlling issues
v. A duplicate is offered
vi. The contents of a writing may be proved by the testimony or deposition of the party against whom it is offered, or by the opposing party’s written permission.
The Completeness Doctrine
CEC § 356: When one party offers into evidence only part of the conversation, the other side can offer into evidence the result of the conversation which is necessary to make it understood
a. Applies to conversations, acts, declarations, documents

b. FRE Differences: Only applies to writings or recorded statements.
Witness Competency
CEC 700: The general rule that is all people are qualified to be witnesses, unless there is a reason to disqualify them.
1. Governed by sufficiency standard

2. FRE 601 Difference: State law governs requirements for competency when dealing with state law claims in federal court (Erie)
Disqualification of a Witness
CEC § 701: A witness is disqualified as a witness if
(1) The witness is incapable of expressing himself in a way that we can understand, or
(2) The witness is incapable of understanding the duty to tell the truth.
a. Governed by sufficiency standard
b. Competency challenges: Opponent will have to convince judge by a preponderance that witness is not qualified
Oath Requirement
CEC § 710: Every witness before testifying shall take an oath or make an affirmation or declaration in the form provided by law, except that children under 10 and persons with significant cognitive impairments may, at the court’s discretion, promise to tell the truth.

a. FRE 603 Difference: Omits special language for children.
Prohibition Against Testimony Not Based on Personal Knowledge
CEC § 702/FRE 602: A witness may only testify about matters he has personal knowledge of [subject to provisions regarding expert witnesses]
a. Governed by sufficiency standard
CEC § 750: Subject to all the rules of law relating to witnesses, including the oath and personal knowledge requirements.

a. FRE 604 Differences: Subjects the interpreter to the same oath or affirmation requirement, but also requires the translator or interpreter to be qualified as an expert.
Judge as Witness in the Current Proceeding
CEC § 793: Before a judge presiding at the trial may be called as a witness, he shall inform the parties of the 411 he has concerning any fact or matter about which he will be called to testify.
1. Disqualified from testifying if any party objects. Upon such objection, the judge shall declare a mistrial
2. A party that calls the judge to testify as a witness consents to the granting of a motion for mistrial
3. If no objection, the judge may testify as a witness.

1. FRE 605 Differences: The judge presiding at trial may not testify as a witness, no objection need be made.
Testimony by Judge in a Subsequent Proceeding
CEC § 703.5: The judge is disqualified from testifying in a subsequent proceeding except as to a statement or conduct that could (a) give rise to civil or criminal contempt, (b) constitute a crime, (c) be the subject of investigation by the State Bar or Commission on Judicial Performance, or (d) give rise to disqualification proceedings. Applies to arbitrators and mediators, with a special exception for certain family law mediators.
Jurors as Witnesses in the Current Trial
CEC § 704: Jurors should reveal any personal connections to the case.
1. If neither party objects, the juror can actually testify. Upon an objection, the judge shall declare a mistrial
2. Calling the juror as a witness means consenting to a mistrial.

1. FRE 606(a): Members of the jury cannot testify. If a juror is called to testify, the opposing party may object outside the presence of the jury.
Juror Testimony as Evidence to Test a Verdict
CEC § 1150: Jurors may testify in post-trial or post-verdict proceedings about statements, conduct, conditions, or events that are likely to have influenced the verdict improperly, but may not testify about how this improper influenced actually affected their thought processes.
1. FRE 606(b): Allows the juror to testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any jurors, or (3) whether there was a mistake in entering the verdict onto the verdict form
Testimony of Hypnosis Subject; Admissibility, Conditions, Criminal Only
CEC § 795: Permits the use of a previously hypnotized witness’s testimony if certain requirements are met:
1. The matters were related and recalled by the witness prior to hypnosis
2. The pre-hypnotic memory was recorded or transcribed
3. The hypnosis session was videotaped
4. The hypnosis session was conducted with notice and according to established protocols by a licensed professional, and
5. The court holds a hearing to determine the reliability of the witness’s testimony (C&C ev. standard) b4 admitting the testimony
Testimony of Hypnosis Subjects, Civil Cases
Shirley-Haynes line of cases: A trial court must conduct a hearing to determine (1) whether the witness underwent hypnosis (2) for the purpose of restoring memory about the subject of the hypnotic session, and (3) whether any proposed testimony is about events recalled and related to other pre-hypnosis events. Then, the court will use its discretion to determine whether to admit the evidence.
General Rule as to Credibility
CEC § 780: Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:
(a) His demeanor while testifying, and the manner in which he testifies
(b) The character of his testimony
(c) The extent of his capacity to perceive, recollect, or communicate any matter about which he testified.
(d) The extent of his opportunity to perceive any matter about which he testifies
(e) His character for honesty or veracity or their opposites
(f) The existence or nonexistence of a bias, interest, or other motive
(g) A statement made previously by him that is consistent with his testimony at the hearing
(h) A statement made by him that is inconsistent with any part of his testimony at the hearing
(i) The existence or nonexistence of any fact testified to by him
(j) His attitude toward the action in which he testifies or toward the giving of testimony
(k) His admission of untruthfulness
Witness Credibility Prior Consistent Statements
CEC § 791: A party may rehabilitate the witness’s credibility by offering a prior statement that is consistent with current testimony after the witness has been impeached. It is admissible if the statement occurred before an inconsistent statement, or a motive for bias, recent fabrication or other improper motive arose.
Prior Inconsistent Statement for Impeachment Purposes
CEC § 770: Can offer a prior inconsistent statement for impeachment purposes as long as the witness was given the opportunity to explain or deny the statement, or has not yet been excused from testifying, or unless the interests of justice require otherwise.
Child Witnesses
a. To testify, child witnesses must meet the guidelines of § 701 competency: The judge may ask preliminary questions to make such a determination, focusing in the child’s ability to distinguish between the truth and a lie. Inconsistent or exaggerated testimony goes to a child’s credibility, not competency.
b. Court Control Mode of Interrogation CEC § 756(b):
i. With a witness under 14, the court shall take special care to
ii. Protect the child from undue embarrassment
iii. restrict undue repetition of questions
iv. Ensure questions are stated in an age appropriate manner respective of cognitive level
c. Leading Questions CEC § 767: Permitted on direct exam for children under 10 in prosecutions for:
(1) child endangerment
(2) Cruelty to children
(3) Lewd acts with children
FRE 613 Prior Statements of Witnesses
(a) Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness: Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).
General Rule for Character of Witnesses
CEC § 786 (civil): Only character evidence for honesty or veracity (or their opposites) is admissible to support or attack witness credibility.

a. FRE 608 Differences: Limited to character for truthfulness or untruthfulness. Opinion and reputation evidence of truthful character only admissible after evidence of bad character has been admitted for the purpose of attacking his credibility. Specific instances of character for truthfulness may be asked about, but not proved by extrinsic evidence.
CEC § 785/FRE 607
Any party may support or attack the credibility of a witness
Good Character of a Witness
CEC § 790: Evidence of the good character of a witness is inadmissible to support his credibility unless evidence of his bad character has been admitted for the purpose of attacking his credibility.

a. FRE 608(a) Differences: Permits good character evidence for truthfulness after any attack on “character by reputation, opinion, or otherwise.”
Specific Instances of Conduct to Support or Attack Witness Credibility
CEC § 787: Evidence of specific instances to prove a trait of his character is inadmissible to attack or support the credibility of a witness, except as relating to convictions.
a. Exception: Can use specific instances if it is going to undermine the basis for opinion or reputation evidence (if there is a good faith basis)

a. FRE 608(b) Differences: Subject to 609, specific instances on the character for truthfulness may be asked about on cross examination, but may not be proven by extrinsic evidence.
Impeachment with Felony Convictions
CEC § 788: May use felony convictions to attack the credibility of a witness where the felony conviction involved a crime of moral turpitude, subject to the following limitations:
(a) A pardon based on innocence has been granted
(b) A certificate of rehabilitation and pardon has been granted
(c) If the case has been overturned, but does not apply to any criminal trial where the witness is being prosecuted 4 a subseq. off.
(d) The conviction was under the laws of anther jx and the witness has been relieved of the penalties and disabilities arising from the conviction pursuant to a procedure substantially equivalent to that referred to in (b) or (c)

a. Subject to 352 balancing Test: Beagle factors
1. How must bearing does the conviction have for veracity?
2. Was the conviction remote in time?
3. When the prior conviction involves veracity, but is very similar to the current crime, highly prejudicial
4. Whether allowing the conviction to come in means that the witness decides not to take the witness stand.

b. FRE 609 Differences: Permits impeaching a witness with prior convictions and provides a different standard depending on whether the witness to be impeached is the criminal D in the current case & whether the conviction involved dishonesty.
i. Conviction for a crime involving dishonesty or false statements:
a. Admissible against any witness, regardless of whether felony or misdemeanor
ii. Conviction for a crime not involving dishonesty or false statements: Only felony convictions are admissible if:
(1) Witness not accused: Must pass the 403 “substantially outweighed” test
(2) Witness is accused: Evidence will be admitted if the probative value “weighs more” than the prejudicial effect to the criminal defendant.
iii. Timing: The conviction may not be used if a period of 10 or more years has elapsed since the date of conviction or release, unless (1) Court determines in the interest of justice, the probative value of the conviction supported the specific facts and circumstance; (2) Written notice is required for convictions more than 10 years old.
Misdemeanor Convictions in CA
Can’t use in civil cases. Will need to use Prop 8 section 28(d) to get misdemeanor convictions admitted in criminal cases. If the misdemeanor is relevant to the character for truthfulness, then it will be admissible as long as it does not violate some other rule.
Criminal Cases After Prop 8
Changes the rules for use of character evidence to attack the credibility of a witness.
a. CEC § 786 doesn’t apply in criminal cases. However, still subject to CEC § 1101(c): Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness. Leaves open a window for credibility of a witness.
b. Limitation for honesty or veracity is thrown out, and we are left with credibility, which is broader.
c. CEC § 790 also out: So you can bolster your witness’s credibility BEFORE it gets attacked
d. CEC § 787 also out: Can use specific instances of conduct to bolster or attack credibility in criminal trials
Drugs and Alcohol
a. Need to show how the fact that witness uses would distort their perception
b. Repeated use: could rise to the level of habit (CEC § 1105)
c. Not character for truthfulness: can’t use the fact that a witness is a drug addict to say they are a liar, but can say it impacted his ability to perceive
d. However, repeated drug use can rise to level of not a distorted perception bc drunk all the time
Mental Disorder
Central inquiry whether the disorder impaired witness’s capacity to perceive at the time the witness observed the events in question.
(1) Factors to consider:
(a) nature of the condition
(b) temporal recency or remoteness of the condition
(c) whether the witness suffered from the condition at the time in question
Impeachment by bias or interest
CEC § 780(f): Determine whether the witness has some motive or interest that would influence his testimony
1. Experts: may have to disclose fees, as well as willingness to testify for the other side
2. Common gang membership: questionable
3. A threat is another improper interest or motive
i. Can’t be offered against the accused as consciousness of guilt, unless there is suff evidence to connect the accused to the threat.
ii. Can be offered by accused: “Prosc. threatened you w/ 15 yrs of jail time if you didn’t testify, isn’t that true?”
4. Extrinsic proof of these biases or interests is permitted subject to 352:
i. If the witness is key, and
ii. The bias is the only way to discredit him,
iii. The judge is more likely to allow a greater inquiry into the basis to discredit him
Religious beliefs
CEC § 780/FRE 610: Prohibits the use of the witness’s religious beliefs or opinions to prove the witness’s credibility is impaired or enhanced. Affiliation with a church is admissible to show bias.
Lay opinions
CEC § 800: If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including, but not limited to any opinion that is
(a) Rationally based on the perception of the witness, and
(b) Helpful to a clear understanding of his testimony.

1. FRE 701 Differences: Adds that a lay opinion cannot be based on scientific, technical, or other specialized knowledge
Expert opinions
CEC § 801: If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:
(a) Related to a subject that is sufficiently beyond the common experience that the opinion would assist the trier of fact, and
(b) Based on the expert’s specialized knowledge, skill, experience, training, education, etc.
(c) The expert must have perceived the information, or otherwise had the information revealed to her before or during the hearing
(d) The expert’s opinion must be based on matters of a type reasonably relied on by experts in the field generally.
(e) Expert can base her opinion on both admissible and inadmissible evidence.

1. FRE 702 Differences: Combines the expert qualifications of CEC § 710 with the testimony limitations of CEC § 801 and has a modified standard for determining whether expert testimony is admissible:
(1) The testimony must be based on sufficient facts or data
(2) The testimony must be the product of reliable principles and methods, and
(3) The witness has applied the principles and methods reliably to the facts of the case.
Basis for Expert Opinion
Must have a proper basis for expert testimony

a. Statement of Basis of Opinion CEC § 802: A witness testifying in the form of an opinion may state on direct exam the reasons for his opinions and the matter upon which it is based, unless he is precluded by law from using such reasons or matter as a basis for his opinion. The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.
1. Preponderance standard for qualifying an expert

b. Opinion Based on Improper Matter CEC § 803:
1. If the expert relies on information that is unusual or different from that of other experts, then the rx reliance test is not met
2. Where the basis for the expert opinion is not proper, then the foundation for the expert opinion is not adequate. In such cases, the court will sustain an objection to the expert’s opinion testimony.

c. FRE 703: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
1. Differences from CEC: Applies a similar test to that of CEC 801.

d. Opinion based on opinion or statement of another CEC § 804: If an expert witness testifies that his opinion is based in whole or in part of the opinion or statement of another person, the other person may be called and examined by any adverse party. N/A if the person is (1) a party, (2) a person identified with a party, or (3) a witness who has testified in the action concerning the subject matter of the opinion or statement.

1. FRE 705 Differences: Permits the expert to testify about his opinion without first testifying as to the underlying facts or data unless the court orders otherwise.
Expert Opinions on Ultimate Issues
Experts can give opinions on ultimate factual issues if the opinion will help the jurors to decide an issue that is beyond their scope of common knowledge. Experts cannot give opinions on ultimate legal issues, such as whether the D had a legal duty to the P.

a. CEC § 805: Testimony in the form of an opinion or inference otherwise admissible is not objectionable bc it embraces the ultimate issue to be decided by the trier of fact.

1. FRE 704 Differences: Adds a specific provision to the general rule on ultimate issues to prohibi an expert witness from testifying about whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense in a criminal case.
New Scientific Techniques or Procedures
Different tests apply to novel techniques or approaches, or when the data has a misleading aura of infallibility

a. CA Court: Kelly Test instead of rx reliance Test: The methods or techniques relied upon by the expert must be generally accepted in the scientific community

b. Federal Court: Daubert Standard: Additional factors
i. Tested theory or techniques
ii. Subject to peer review
iii. Known or potential rate of error and standards of controlling a techniques operation
iv. Theories generally accepted or rejected by scientific community?
Expert Witnesses and Credibility
1. Expert Testimony may be used to explain a witness’s conduct by proving
a. Rape Trauma Syndrome
b. Child Sexual Abuse Accommodation Syndrome
c. Intimate Partner Abuse and CEC § 1107: Lets us use expert testimony about intimate partner battering and its effects, but it cannot be used to prove that the defendant committed the battery that is the subject of the criminal charge.
2. When the evidence may be offered: (1) after the accused has attacked the witness’s credibility, or (2) Prosc’s case in chief
3. The accused may rebut with evidence that the witness does not suffer from the symptoms
4. Polygraph Evidence CEC § 351.1: Bans the results of a polygraph exam, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph in a criminal cases, unless all parties stipulate to admissibility.
Qualification of an Expert Witness
CEC § 720
(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which the testimony relates. If the opposing party objects, such special knowledge, skill, experience, training or education must be shown before the witness may testify as an expert
(b) An expert’s special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony.
a. Expert’s qualifications governed by preponderance standard
b. Qualifications to meet preponderance test:
- Education
- Experience
- Employment
- Faculty positions
- Professional Associations
- Training
- Special licensing/continuing education
- Publications
- Experience as an expert witness
- Speaking at conferences

a. FRE 702 Differences: Requires a preponderance of the evidence (like CEC) to show that the proffered expert has the “knowledge, skill, experience, training, or education” to qualify her as an expert in a particular field.
Cross examination of expert witness
CEC § 721:
i. Expert witnesses may be cross-examined by opposing counsel about
- Qualifications
- The subject of the expert testimony, and
- The basis for the opinion
ii. But may not be cross-examined about a text, treatise, or journal, unless it was
- Consulted by the expert
- Admitted into evidence
- Established by testimony to be reliable, or
- Considered to be reliable by judicial notice.
a. Areas of cross-examination inquiry:
- Overstating education, experience, or training
- Testifying for one side more than the other side
- Fees paid
- Past experiences testifying for this particular attorney or client
- Basis for opinion
- Reasonable reliance or Kelly
- Degree of certainty
- Treatises or other experts who disagree
- Other bias or interest in the litigation

a. FRE 705 Differences: Permits the expert to testify about his opinion without first testifying as to the underlying facts or data, but recognizes that the expert may be required to disclose that information on cross-examination. Does not contain any counterpart to the portions of the CEC about full cross examination, but in practice, most judges permit the same inquiry under FRE 402 as long as it is relevant to issues in the litigation, including the credibility of witnesses.
1. Proponent establishes qualification, and the adverse parties have a chance to immediately voir dire the expert about her qualifications.
Cross-examination of experts about publications
a. CEC § 1341: Historical works, books of science or art, and published maps or charts, made by persons indifferent between the parties, are not made inadmissible by the hearsay rule when offered to prove facts of general notoriety and interest.
b. FRE 803(18): Permits cross examination of experts about statements in such treatises, regardless of whether the expert relied on that treatise in forming her opinion. Also, the statements from such treatises may be admitted for the truth of the matter if:
1. The statements are established as reliable authority by expert testimony or judicial notice, AND
2. the treatise was relied upon by an expert witness on direct OR
3. was called to an expert’s attention on cross
4. as long as an expert is available on the witness stand, to assist the jury in applying the treatise
Court Appointed Experts
a. CEC § 722/FRE 706(c): Allows the opposing party to ask questions about whether the expert is court-appointed or hired by a party as well as questions about the compensation the expert receives for her testimony.
b. CEC § 723: Permits the court to limit the # of expert witnesses called by any party
c. CEC § 730: Permits judges to appoint experts as needed to testify as well as to investigate and prepare reports
Burden of proof
CEC § 500: Except as otherwise provided by law, a party has the burden of proof as to each fact, the existence or nonexistence of which, is essential to the claim for relief or defense that he is asserting.
Burden of Production
CEC § 550: Determines which party must produce evidence on a particular issue. The party that has the burden of proof on a particular issue, also starts off with the burden of producing evidence on that issue. The burden of production can shift later in trial. The burden of producing evidence as to a particular fact is on the party against who a finding on that fact would be required in the absence of further evidence.
CEC § 600(b): A deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.
CEC § 600(a): An assumption of fact that the law requires to be made from another fact or group of facts found or otherwise established in the action. A presumption is not evidence.
Rebuttable Presumptions
The other side is permitted to introduce evidence to disprove the presumed facts, even if the basic facts are established. If they do that, the jury is not instructed to presume the fact, rather they hear the evidence on both sides and decide whether or not to find the fact. If the presumption is not rebutted, we instruct the jury to find that fact.
Conclusive Presumptions
A rule of substantive law that states that if the basic facts are founds, then the presumed facts must be found. Any evidence to the contrary does not matter, even if it is very strong.
Rebuttable Thayer Presumptions
CEC § 603: Shift the burden of producing evidence to the opposing party. When one side has produced enough evidence of the basic facts to trigger the presumption, the likelihood is that the presumed fact is true.
Rebutting a Thayer Presumption
CEC § 604: If P establishes the basic facts of element X by a sufficiency standard, then a D’s motion for a directed verdict based on the absence of evidence of X will be denied.
a. If the D then fails to introduce any evidence disproving X, the judge will tell the jurors to find X if they first find the basic facts by the appropriate standards.
b. But, if D disproves X by a sufficiency standard, the judge will say nothing to the jurors ab the presump.
Rebuttable Morgan Presumptions
CEC §§ 605-606: Presumptions that shift both the burden of production, and persuasion. When a Morgan presumptions applies, the court instructs the jury to find the presumed fact unless the other side produces enough evidence to meet the appropriate standard of proof.
Presumptions in Criminal Cases
Morgan presumptions and conclusive presumptions are unconstitutional in criminal cases.
1. CEC § 607: Enacted to prevent Morgan presumptions from being used in criminal cases except where the basic facts are proven BARD and the jury is instructed that they may find the presumed facts, but only if the D did not raise a rx doubt as to the presumed fact.
Presumptions Under the FRE
a. FRE 301: Shift only the burden of production, and do not shift the burden of proof. The FRE does not recognize Morgan pres.
b. FRE 302: In federal civil actions, presumptions affecting the elements of a claim for relief or defense shall be governed by the applicable state law.
Judicial Notice
A process that allows the court to recognize certain facts and other 411 as true w/o either party having to present evidence to est.
Legislative Facts
1. The law;
2. Data and information used to interpret the law, like legislative histories
3. Facts that relate to the meaning of the law; and
4. Evidence of historical, societal, or social policies and practices
Adjudicative Facts
Those that are significant to the present case
Mandatory Judicial Notice
CEC § 451: The court shall take judicial notice of the following:
1. Decisional, constitutional, and public statutory law of CA and the United States
2. Regulations of state and federal agencies
3. Rules of court, the state bar, and professional conduct
4. The true meaning of English words, phrases, and legal expressions
5. Universally known facts that cannot be reasonably disputed.
Permissive Judicial Notice
CEC § 452: The court has discretion to notice certain matters:
1. Laws, regulations, and court decisions of other states;
2. Official acts of the United States or departments of other states;
3. Court records of CA and other courts;
4. Laws of other nations and international covenants, and
5. Locally known and easily verifiable facts.
Permissive JN matters may be treated as mandatory if:
CEC § 453:
1. Proper notice is given to the other side
2. Sufficient information is provided to the court to show that taking judicial notice of that matter is appropriate
Judicial Notice under the FRE
Applies like the CEC to adjudicate facts, but does not address the issue of legislative facts
a. FRE 201: Mandatory and Discretionary Judicial Notice
1. Discretionary: A court may take judicial notice whether requested or not.
2. Mandatory: A court shall take judicial notice if requested by a party and supplied with the necessary information
Judicial Notice in Criminal Cases
a. CEC § 457: Prevents the judge from taking JN of any fact that the prosecution is required to prove BARD
b. FRE: Converts judicial notice into permissive inferences with an instruction that the jury may, but is not required to, find the judicially noticed fact.
Procedures for Taking Judicial Notice
i. Request by party
ii. Categorized as mandatory or permissive
iii. Party provides the court with necessary information
iv. Other side has opportunity to be heard
v. Court makes decision and instructs jury
vi. Appellate court is bound by items properly noticed or which should have been judicially noticed.
Three Types of Privileges
1. Confidential Communication Privileges
2. Privileges that Exempt Certain People from Giving Evidence, and
3. Privileges that exempt witnesses from providing certain information
Sources of Privilege Law
CEC § 911: Privileges are created by statute. There are no common law privileges.

a. FRE: Does not codify any privileges. FRE 501 states that federal law as to privileges is governed by common law. There are proposed, but unadopted FRE on privileges.
i. Privileges are governed by common law, constitutional privileges, SCOTUS-enacted privileges, and acts of Congress
ii. Civil cases with state law claims are governed by state privilege law.
Confidential Communication Privileges: General Analysis
1. Are the parties to the communication covered by the privilege?
2. If so, is the communication within the scope of the privilege? If yes, there is a privilege
3. But has the privilege been waived? Once waived, its in.
4. If not waived, is there an applicable exception?
Confidential Communications Privileges: Types of Waivers
CEC § 912
1. Conscious Waivers
2. Negligent Waivers
3. Waivers by voluntary disclosure to a third person
a. Disclosure to rx necessary 3d parties is not a waiver
4. Waiver by consent of the holder
5. Waiver by one of several holder: waives as to own privilege, but not as to other holders
6. Waiver by contract
7. Waiver by using it to refresh recollection
8. The eavesdropper doctrine: not waived as long as communication took place in a setting in which parties had a rx expectation of privacy
Confidential Communinications Waiver under Proposed FRE 511
Waives if the holder or his predecessor voluntarily discloses or consents to disclosure.
Claiming a Privilege
a. Objection by party: state grounds for privilege, prove by preponderance that privilege exist.
b. The judge may also assert the privilege when no party in the current litigation has the ability to assert it.
c. Lawyers and doctors required to claim the privilege.
d. CEC § 919(a) and Proposed FRE 512: Applies to prevent waiver if a judge rules erroneously. Have to answer the question on privileged information, but then if the judge’s ruling is overturned on appeal, will not operate as a waiver in other circumstances.
General Rule About Judge Not Commenting on a Privilege
CEC § 913/ Proposed FRE 513: A claim of privilege, whether in the present proceeding, or upon a prior occasion, is not a proper subject of comment by judge or counsel. No inference may be drawn therefrom. And wherever possible, such claims should be made outside the presence of the jury.
CEC § 950: A lawyer is a person authorized or rx believed by the client to be authorized to practice law in any state or nation.
CEC § 951: A person who, directly or through an authorized representative, consults a lawyer for the purpose of retaining the lawyer or securing legal services or advice from him in his professional capacity, and includes an incompetent (a) who himself so consults the lawyer, or (b) whose guardian or conservator so consult the lawyer on behalf of the incompetent.
Corporate Clients in CA
Chadbourne Case covers who is protected
1. Employee a defendant in his own right (or may be charged with liability): Protected
2. Employee is the natural person to be speaking for the corporation: Protected
3. Employee has been a witness to matters which require communication to the corporate employer’s atty and the employee has not connection with the matters other than as a witness: Not Protected
4. Employee’s report or statement required in the ordinary course of the corp’s business: Protected
5. If, in the case of a employee last mentioned, the employer requires (by standing rule or otherwise) that the employee make a report, the privilege of that report is to be determined by the employer’s purpose in requiring the same; if the employer directs the making of the report for confidential transmission to its attorney, Privileged
6. When more than one purpose for making a report or statement, main purpose governs
7. Communication does not lose its privilege merely bc it was obtained by agent of the employer acting under agency
8. Indemnity insurance
9. Intent of the person from whom the 411 emanates originally governs its confidentiality.
10. Similarly, where the corporate employer directs the employee, at the request of its insurance carrier, to make such a statement, the intent of the employer controls; and unless the insurance carrier (or its agent) has advised the employer that the employee’s statement is to be obtained and used in such a manner, it cannot be said that the corporation intended the statement to be made as a confidential communication from atty to client.
11. Finally, no greater liberality should be applied to the facts which determine privilege in the case of a corporation than would be applied in the case of a natural person (or association of persons), except as may be necessary to allow the corporation to speak.
Atty-Client Privilege
CEC § 954/Proposed FRE 503:
i. Client has the privilege
ii. To refuse to disclose and prevent others from disclosing
iii. Confidential communications
iv. As long as a holder, authorized person, or the lawyer claims the privilege.
Confidential Communications: Presumption of Confidentiality
CEC § 952 The information must be transmitted in confidence
i. By means which, so far as the client is aware,
ii. Disclosed the information to no third person
iii. Other than those who are present to further the consultation
iv. or to whom disclosure is reasonably necessary for transmission or accomplishment of the purpose
Who can claim atty-client privilege?
i. The holder
ii. Someone authorized by the holder
iii. The person who was the lawyer at the time the communication was made. CEC § 955: The lawyer has the obligation to claim the privilege, which will survive after the client is dead, until probate closes.
Corporate Clients in Federal Court
Upjohn Approach or subject matter test is the majority federal rule. 4 factor test:
1. Made for the purpose of obtaining legal advice
2. Made at the request of superiors
3. Relating to a matter within the scope of the employee’s duties
4. And where the communication was treated as confidential
Waiver of atty-client privilege under the FRE
FRE 502
1. Voluntary disclosure in a federal proceeding or to a federal office or agency, generally waives only as to the information actually disclosed.
2. Subject matter waiver is limited to situations in which a party intentionally puts protected 411 into the litigation in a selective, misleading, and unfair manner.
3. 502(b) provides that an inadvertent disclosure does not operate as a waiver in a FEDERAL or STATE proceeding, if the holder took rx steps to prevent disclosure and promptly took rx steps to rectify the error.
4. If the disclosure took place in a state proceeding, it is not a waiver in a federal proceeding, if the disclosure either would not be considered a waiver in federal court, or was not a waiver under state law.
5. If a court order requires disclosure that is not a waiver, it will not be a waiver in another state or federal proceeding
6. Agreements regarding disclosure are only binding on the parties to that agreement, unless incorporated into a ct order
7. This rule applies to state proceedings, federal arb. proceedings, etc. where state law provides the rule of decision.
CA Exceptions to Atty-Client Privilege
a. Crime or Fraud CEC § 956: Communications involving future crimes are not protected

b. Parties Claiming Through Deceased Client CEC § 957: If two people are claiming your property after your death, and the lawyer knows what the client’s wishes were, lawyer needs to make the disclosure

c. Intention of Deceased Concerning Writing Affecting Property CEC § 960

d. Validity of Writing Affecting Property CEC 961

e. Breach of duty from Lawyer to Client CEC § 958: Where suing atty for some breach of duty

f. Lawyer as attesting witness CEC § 959: Where lawyer witnessed client signing will, can attesting they were of sound mind

g. Joint Clients CEC § 962: No privilege if joint clients sue each other

h. Reasonable Belief that disclosure is necessary to prevent crime resulting in death or bodily harm
Proposed FRE Exceptions to Atty-Client Privilege
1. Furtherance of crime or fraud
2. Claimants through same deceased client
3. Breach of duty from lawyer to client
4. Document attested by lawyer
5. Joint clients
CEC 990:
i. A person authorized
ii. Or reasonably believed by the patient to be authorized
iii. To practice medicine in any state or nation
CEC § 991:
i. A person who consults a physician
ii. Or submits to an examination
iii. For the purposes of diagnosis, treatment (palliative, preventive, or curative)
iv. Of a physical or emotional condition
Scope of Physician-Patient Privilege
The patient has the privilege
i. To refuse to disclose
ii. And prevent another from disclosing
iii. A confidential communication between patient and physician
Holder of physician-patient privilege
Patient, or the guardian or conservator of the patient if he has one, or personal repr. of deceased patient.
Who can claim physician-patient privilege
CEC § 994: The holder, a person authorized by the holder, and the physician.
Exceptions to Physician-Patient Privilege
a. Patient-Litigant CEC § 996: Where the patient sues in a way that puts their medical condition at issue

b. Crime or Tort CEC § 997: If using the phys’s services to help plan, commit, or escape detection from a crime or tort

c. Criminal Cases CEC § 998: To the extent relevant, privilege goes by the wayside.

d. Patient Condition to Recover Damages CEC § 999: When damages sought bc of patient’s conduct. Requires good cause.

e. Parties Claiming Through Deceased Patient CEC § 1000

f. Breach of Duty from Physician Patient Relationship CEC § 1001: where patient sues dr, or dr. sues patient for nonpayment

g. Intention of deceased on writing affecting property, and validity of writing affecting property CEC § 1002-03

h. Commitment and Competency Proceedings CEC § 1004-05

i. Required Report CEC § 1006 i.e. in a public record

j. Proceeding to terminate right, license, or privilege CEC § 1007: i.e. proceedings to take away drivers’ license
CEC § 1010: Person authorized to practice medicine in any state or nation and who devotes substantial time to practice of psychiatry, or who the patient reasonably believes devotes time to the practice of psychiatry. 13 different types of psychotherapist under the privilege.
Psychotherapy Patient
Person who consults physician or is examined by one for the purposes of getting a diagnosis or treatment (preventative, curative, or palliative) for a mental or emotional condition, or is examined for a research study on mental or emotional problems
Protected Communications Under Psychotherapist-Patient Privilege
a. Information obtained by examination for mental or emotional problems.
b. Confidential statements bw therapist and patient during their relationship, and diagnosis and advice from psychotherapist
c. As long as not disclosed (as far as patient knows) to others to whom disclosure is not rx necessary for the transmission or accomplishment of the purpose of the consultation. Rx necessary 3d parties
Dual privilege
Who can claim psych-patient privilege
The holder, or a person authorized by the holder, or the psychotherapist, if authorized and the holder still exists, whether or not the patient is a party to the proceeding seeking disclosure.
Exceptions to psychotherapist/patient Privilege
a. Crime or tort

b. Parties claiming through deceased patient

c. Breach of duty arising out of relationship

d. Intention of deceased patient concerning the validity of a writing affecting property interest

e. Patient-litigant

f. Proceedings to establish competence

g. Required Report

h. Court-appointed psychotherapist: If the therapist is there to evaluate whether or not to claim insanity, it is protected, but once patient asserts the insanity defense, not protected.

i. Patient danger to self/others
1. Tarasoff case: Psych liable in tort when she didn’t do enough and had reason to believe her patient was going to kill his gf
2. I there is a specific, identifiable victim, and psych has a rx belief that patient will harm them, psych must use rx care to protect the intended victim.

j. Child under 16 victim of crime: When therapist has reason to believe that a patient has been a crime victim, and believes it to be in the best interest of the child to disclose the information
*Unlike physician patient privilege, this applies in criminal proceedings
Proposed federal rules on psychotherapist-patient privilege
a. Proposed FRE 504 Definition of Psychotherapist: Limited to medical doctors and licensed psychologists engaged in diagnosis or treatment for mental or emotional conditions. No rx belief language.
b. Exceptions: Hospitalization proceedings, examination by order of a judge, and when the mental or emotional condition is an element of a claim or defense in litigation involving or about the patient.
Sexual Assault Victim-Counselor Privilege
CEC § 103.5

1. Parties to the communication protected by the privilege?
a. Sexual assault victim
b. Sexual assault counselor: Someone whose primary purpose is to render advice or assistance to sexual assault victims, must have training or experience doing so.

2. Communication within the scope of the privilege?
a. Must be to secure advice or assistance about mental, physical, or emotional condition caused by the sexual assault
b. Will include descriptions of the facts and circumstances surrounding the assault
c. The communication must have been transmitted in confidence
d. Rx necessary 3d parties
e. Eavesdropper doctrine applies

3. Dual privilege: Holder has a privilege to refuse to disclose and prevent others from disclosing
a. Can authorize other people to claim the privilege
b. The counselor has the obligation to claim the privilege on behalf of the victim if present when disclosure is sought
c. Victim does not have to be a party to the case to claim the privilege
d. Holder: victim, guardian/conservator, representative of deceased’s estate
5. Waiver? Waiver issues the same

6. Exceptions
a. In criminal cases when the information relates to the sexual assault that the complaining witness has been the victim of
b. Child abuse
Domestic Violence Victim-Counselor Privilege
CEC § 103.7: DV victims may claim a similar privilege for communications with a person in a DV victim service organization
1. Definition of victim and counselor: statute requires at least 40 hours of training
Human Trafficking Victim-Caseworker Privilege
CEC § 1038
1. Parties: Trafficking victim and caseworker
2. Holder: Victim
3. Who may claim: Holder, authorized persons, and the caseworker
4. Exceptions: Criminal proceedings, victim is dead, or victim is not a complaining witness in a criminal action
Clergy-Penitent Privilege
1. Parties to the Communication

a. Member of the Clergy CEC § 1030: Priest, minister, religious practitioner, or similar functionary of a church or of a religious denomination or religious organization

b. Penitent CEC § 1031: A person who has made a penitential communication to a member of the clergy

c. Penitential Communication CEC § 1032:
i. Communication
ii. Made in confidence
iii. In the presence of no third person so far as the penitent is aware
iv. To a member of the clergy who
(a) Is authorized by religious organizations to hear those communications
(b) Has a duty by the religious organization to keep those communications secret

2. Penitent Privilege CEC § 1033: dual privilege to refuse to disclose and prevent another from disclosing a penitential communication

3. Clergy Privilege CEC § 1034: Singular privilege to refuse to disclose a penitential communication

4. Proposed FRE 506 Differences: Clergy can assert the privilege on behalf of the penitent to prevent another from disclosing the 411
Confidential marital communications privilege
1. Privilege for Confidential Marital Communications CEC § 980: A spouse, whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose and to prevent another from disclosing a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife.

2. Exceptions
i. Crime or fraud
ii. Commitment or similar proceeding
iii. Proceedings to establish competence
iv. Proceedings between spouses
v. Certain criminal proceedings
vi. Juvenile court proceedings
vii. Communication offered by spouse who is also the criminal defendant
Spousal Testimonial Privileges
3. Privilege Not to Testify Against Spouse: A married person has a privilege not to testify against his spouse in any proceeding. The holder of the privilege is the testifying spouse.

4. Privilege Not to be Called as a Witness: A married person whose spouse is a party in a proceeding has a privilege not to be called as a witness by an adverse party without prior express consent of the spouse having the privilege unless in good faith without knowledge of the relationship.

5. FRE Differences: Accused has the privilege of preventing the spouse from testifying against him in a criminal case
Privilege not to be called as a witness and not to testify
CEC § 930: To the extent that such a privilege exists under the Constitution of the US or state of CA, a defendant in a criminal case has a privilege not be called as a witness and not to testify.
Privilege Against Self-incrimination
CEC § 940: To the extent that such a privilege exists under the Constitution or the State of CA, a person has a privilege to refuse to disclose any matter that may tend to incriminate him.
1. Federal 5th Amendment right against self-incrimination
Official Information and Identity of Informer
CEC § 1040
1. Official Information Definition
i. Information acquired in confidence
ii. By a public employee within the scope of his duties and
iii. Not disclosed to the public prior to assertion of the privilege
2. A public entity has a privilege
i. To refuse to disclose and prevent another from disclosing
ii. official information
iii. If the privilege is claimed by an authorized person, and disclosure is forbidden by law, or disclosure is against the public int.
Political vote privilege
CEC § 1050: Privilege to refuse to disclose the tenor of one’s vote in a public election where voting is by secret ballot, unless the person voted illegally or previously disclosed the tenor of their vote in an unprivileged situation.
Trade Secrets
CEC § 1060: The owner of a trade secret has a privilege to refuse to disclose or prevent others from disclosing a trade secretion, except when it is to conceal a fraud, or is otherwise unjust.
Newspaper privilege
CEC § 1070: In order to qualify for immunity from contempt, the person must show the following: (1) that she is connected to the news as a reporter, publisher, editor, or otherwise; (2) that she obtained or prepared the information she seeks to protect in the process of gathering, receiving, or processing information to communicate to the public; and (3) that the information she seeks to protect is unpublished, or that she did not disseminate it to the public. Court can overruled in the interests of justice if a criminal D’s due process rights will be affected.
Motion in limine
A motion filed on the eve of trial asking the judge to make a ruling in advance as to whether or not a certain piece of evidence will be admissible
Denial of a Motion in Limine
The judge can reconsider the motion if the party renews the objection at the time the evidence is offered. The party must renew the motion to preserve error.
a. The objection need not be renewed when:
1. The parties stipulate on the record that the limine ruling will be binding at trial; or
2. The judge overrules an objection that is specific, directed to a particular identifiable body of evidence, and gives the judge an opportunity to rule on the objection in its appropriate context.
Obligation to Object
CEC § 353: Failure to object waives the right to complain about erroneously admitted evidence.
a. A verdict or finding will not be set aside or judgment reversed by reason of erroneous admission of evidence unless: (a) the record shows that
(1) an objection or motion to strike, or motion to exclude was
(2) timely made
(3) on specific grounds, and
(b) The court finds the evidence should have been admitted on the stated grounds, and (c) the errors resulted in a miscarriage of justice
Meeting Objection with Offer of Proof
CEC § 354/FRE 103: Waive the ability to claim evidence improperly excluded unless the error
(a) affected a substantial right of the party, and
(b) the complaining party made known to the judge the evidence’s substance, purpose, and relevance
Common Objections
1. Leading Questions CEC § 767: Not allowed on direct or redirect examination, but permitted on cross and re-cross
2. Narrative: Does not give opposing counsel an opportunity to object to inadmissible testimony before it is given
3. Lacks Personal Knowledge: Witness must have actually perceived the subject of their testimony
4. Argumentative: A question asking a witness to reconcile a conflicting opinion
5. Irrelevant: see relevance
6. Calls for inadmissible opinion: A lay opinion is only admissible if it is based on personal knowledge and is helpful to a clear understanding of the witness’s testimony
7. Unresponsive CEC § 766 requires witnesses to give responsive answers to questions
8. Compound question
9. Assumes facts not in evidence: Would permit lawyers to testify
10. Asked and answered: N/A when a cross examiner asks a question the calling party asked and witness answered on direct
11. Objections to errors made in closing arguments: Objections to improper arguments must be specific if the answer is to be preserved on appeal.
Sufficiency Test
There must be enough evidence that a rx juror could find the existence of the fact to be true.
Items Governed by Sufficiency Test in CA
CEC § 403
(1) Relevance
(2) Personal knowledge of a witness
(3) Authentication of evidence
(4) Witness’s prior statements
(5) Identity of hearsay declarant
(6) Party admissions
(7) Conviction to attack credibility
Sufficiency Test in Federal Court
FRE 104(b):
1. When the relevance of evidence depends on the fulfillment of a condition of fact
2. The court shall admit it upon
3. Or subject to
4. The introduction of evidence sufficient to support a finding of the fulfillment of the condition
Preponderance Test
The court weighs and balances the evidence on both sides to determine whether it is more likely than not that this fact is true.
Preponderance Test in CA
CEC § 405: Judge can only consider admissible evidence when ruling whether the test has been satisfied
1. Items governed by preponderance test in CA
- Admissions during compromise negotiations
- Dying declarations, spontaneous statements
- Elements of hearsay exceptions other than identity of the hearsay declarant
- Witness’s mental capacity
- Pardon or rehabilitation granted for conviction
- Qualifications of experts
- Opinion as to sanity
- Handwriting matching
- Whether secondary evidence is admissible
- Existence of privileges and exceptions
Preponderance Test in Federal Court
FRE 104: Court is not bound by the rules of evidence, except those with respect to privileges, meaning the judge can consider inadmissible evidence.
i. Preliminary questions concerning
1. The qualification of a person to be a witness
2. The existence of a privilege,
3. or the admissibility of evidence
ii. Shall be determined by the court subject to the provisions of subdivision (b) [relevancy conditioned on fact]
Jury Instructions
Judge cannot give a jury instruction unless there was evidence presented in the case supporting the instruction
a. Flannel Case: Judge applies sufficiency test to determine whether not sufficient evidence has been introduced to support a jury instruction. However, if the evidence is minimal and insubstantial, the judge should not give the instruction.
CEC § 351/FRE 402: All relevant evidence is admissible, except as otherwise provided by statute
Relevant Evidence Defined
CEC § 210/FRE 401: Evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action
Sufficiency standard
Conditional Relevance
CEC § 403/FRE 104(b): Where relevance of proffered evidence depends on evidence of preliminary facts, the proffered evidence is inadmissible unless there is evidence sufficient to sustain a finding of the existence of the preliminary fact.

1. Sufficiency standard

2. Limiting instruction: Judge may instruct the jury not to consider the proffered evidence unless they find that the prelim. fact exists.
Balancing Test
CEC § 352/FRE 403: Otherwise admissible evidence should be excluded if its probative value is substantially outweighed by its prejudicial effect.
Probative Value
low, medium, or high. Looks at the quality of the evidence, its ability to prove/disprove something
Prejudicial Effect
The probability that the evidence's admission will: (a) necessitate undue consumption of time; or (b) create substantial danger of undue prejudice, of confusing the issue, or of misleading the jury
What is character evidence?
a. It is about the essential nature, quality, or particular trait of the person? If yes—character evidence.
b. Or does it merely describe what happened in a particular situation? Not CE
What is the purpose for offering character evidence?
a. To prove the character trait?
1. Admissible only when that trait is at issue in the case (CEC § 1100)
2. Opinion, reputation, and specific instances is admissible when the trait is at issue.
b. To prove conduct in conformity on a particular occasion?
1. Only admissible when a character evidence exception applies.
c. To prove something else other than the person’s essential character or conduct? i.e. using the evidence to prove some other fact that matters in the case, such as motive
1. Only admissible when relevant to prove a non-propensity purpose
Three kinds of character evidence
1. Opinion
2. Reputation
3. Specific instances
Use of Character Evidence to prove conduct in conformity
CEC § 1101(a): Evidence of a person's character is inadmissible to prove his or her conduct on a specified occasion unless and exception applies
The Mercy Rule
CEC § 1102: Evidence of a character trait of the defendant in a criminal action is admissible when:
i. Opinion or reputation evidence
ii. Defendant offers the evidence to prove his conduct in conformity with such character
iii. Or the prosecution offers the evidence to rebut defendant’s character evidence
Character of the Crime Victim
§ 1103: Can bring in character evidence of a crime victim when:
i. Criminal case
ii. Evidence of the victim’s character to show conduct in conformity
iii. Who has offered the evidence?
a. Defendant: Admissible if it is about a relevant character trait of the victim
b. Prosecution: Admissible if the D has already opened the door by offering character evidence about this trait
iv. All three kinds of CE admissible
v. Character evidence of D: When the defendant has offered evidence of the victim’s character for violence, the prosecution can rebut with evidence of the D’s character for violence
Character of a Complaining Witness in a Sex Crime
CEC § 1103(c): When there is a criminal case involving sexual misconduct, there are limits to bringing in character evidence about the victim.
a. Types of evidence admissible:
1. All three types of CE
2. Ev. of the victim’s sexual conduct with others only if the prosecution opens the door
3. Ev of victim’s sexual conduct with defendant
b. Limits:
1. Victim’s manner of dress not admissible by either side unless relevant & in the interest of justice
2. Evidence of victim’s sexual conduct with others if the prosecution has not opened the door.
Character of the Victim in Civil Cases Alleging Sexual Abuse
CEC § 1106: In civil case for sexual abuse/harassment
a. Type of Evidence Admissible:
1. All three types of CE as to plaintiff’s sexual conduct with D
2. Credibility evidence still admissible
3. Ev. of P’s sexual conduct with others only if P opens the door
b. Limitations: Evidence of the P’s sexual conduct with others is not admissible to show consent or absence of injury (unless injury alleged is loss of consortium)
Evidence of Another Sexual Offense
CEC § 1108: (a) In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.
(b) In an action in which evidence is to be offered under this section, the people shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, in compliance with the provisions of Section 1054.7 of the Penal Code.
a. Preponderance standard
Other Crimes of DV, Child Abuse, or Elder Abuse by Criminal Defendant
CEC § 1109:
(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.
(2)&(3) Are similarly worded, and apply to defendants accused of elder and dependent abuse, and child abuse, to permit evidence of the defendant’s commission of those other crimes under the same terms.

a. Limitations:
1. Acts over 10 years ago not admiss. unless in the interest of justice
2. Evid. of admin. agencies regarding health facilities not admissible
3. No cross offenses
Evidence of the Effects of DV
CEC § 1107: Specific instances of DV may be used for expert testimony regarding DV and its effect.
Evidence of Habit or Custom
CEC § 1105: Any otherwise admissible evidence of habit or custom is admissible to prove conduct on a specified occasion in conformity with the habit or custom
a. Sufficiency test
b. Must be specific, regular, and automatic
Use of Character Evidence to Prove Something Other than Conduct in Conformity
CEC § 1101(b): Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact other than his or her disposition to commit such an act
Non-propensity Character Evidence Purposes
I-Identity or Earmark
M-Mistake, absence of
A-Accident, absence of
Also-to complete the story
Sufficiency standard
Evidence of Similar Occurrences
Evidence of similar occurrences is not made inadmissible by the ban on CE bc the evidence is offered to prove a proposition other than a person’s predisposition to act in a particular manner.
a. Occurrences must be substantially similar unless it is a PL action
Subsequent Remedial Conduct
CEC § 1151: When, after the occurrence of an event, remedial or precautionary measures are taken, which, if taken previously, would have tended to make the event less likely to occur, evidence of such subsequent measures is inadmissible to prove negligence or culpable conduct in connection with the event. (does not include subs. remed. measures by 3d parties)
Offers to Plead Guilty and Guilty Pleas Later Withdrawn
CEC § 1153: Evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or to any crime, made by the defendant in a criminal action is inadmissible in any action or in any proceeding of any nature, including proceedings before agencies, commissions, boards and tribunals.
a. Bona fide negotiations: applies to good faith negotiations. Also protects statements made in the course of plea negotiations, except when made for impeachment purposes.
b. Does not apply to nolo contendere pleas
Compromise Offers
a. CEC § 1152. Offers to Compromise: Prevents the use of settlement offers and statements made in the course of settlement negotiations to prove liability on a civil claim. Also protects offers to pay out of humanitarian motives.

b. CEC § 1154. Offer to Discount a Claim: A statement made by a plaintiff during settlement negotiations saying that they will take an amount less than the damages they are seeking cannot be used to prove the invalidity of P’s claim.

c. Do not protect admissions of fault

d. Inadmissible ONLY when sought to be used to prove liability or invalidity of a civil claim
Liability Insurance
CEC § 1155: Prohibits offering evid. that a person had liability insurance to prove negligence or other wrongdoing.
Less Frequently Used Policy Exclusions
a. CEC § 1156. Records of medical or dental study of in-hospital staff committee
b. CEC § 1156.1. Records of Medical & Psychiatric Studies of Quality Assurance Committees
c. CEC § 1157&1158. Proceedings or Records of Organized Committees on Quality of Care
d. CEC § 1159. Animal Experimentation in Products Liability Actions
Expressions of Sympathy and Benevolence
CEC § 1160: Any statement or gesture expressing sympathy for pain and suffering, or death of a person in an accident will be inadmissible to prove liability in a civil case when the statement is made to that person or her family. Admissions of fault are not protected.
Mediation Provisions
CEC §§ 1115-1128. Do not apply to certain family code proceedings, or to settlement conferences in civil litig.

a. Mediation CEC § 1115(a): a process in which a neutral person or persons facilitate communication bw the disputants to assist them in reaching a mutually acceptable agreement.

b. General Limitation CEC § 1119: All admissions and other matters, including writings, that are disclosed in the course of mediation are inadmissible in non-criminal proceedings.

c. Mediator Reports CEC § 1121: Excluded unless all parties agree to disclosure

d. CEC § 1126: Protects the information after the mediation has concluded

e. Fraud, duress, or illegality: Can admit these communications to prove fraud, duress, or illegality

f. CEC § 1128: References to mediation in a subs. noncriminal trial are inappropriate and could result in vacating or modifying a decision or granting a new hearing or trial if substantial rights of a party are materially affected by the reference.
CEC § 1200/FRE 801: Evidence of a statement that was made other than by a witness while testifying at the hearing and is offered for the truth of the matter asserted (TOMA)

B. Hearsay Evidence is Not Admissible in Court Unless an Exception Applies
Hearsay Analysis
1. Statement? CEC § 225. A statement is oral or written verbal expression, or nonverbal conduct of a person intended by him as a substitute for oral or written verbal express.

a. Non-verbal conduct: Look at intent of the person engaging in the conduct to determine whether they intended their conduct to substitute for words. Assertive v. nonassertive conduct

b. Questions: Seeking information is not expression, however leading questions can be considered statements, also questions that contain implicit assertions

c. Silence: In general, not interpreted to substitute for an expression.
1. However, if directly asked to “speak up if everything is not perfect,” silence could be interpreted as non-verbal conduct intended to substitute for the assertion that everything is perfect.
2. It can get very tricky, and you should look at the surrounding circumstances. In some circumstances, courts have found silence to be assertive conduct if it is a situation where everyone would respond.
3. Criminal defendants: If a defendant doesn’t say anything in the face of police questioning, it just means that he is exercising his right to remain silent, especially after Miranda.
a. Minority view: Some courts have found that if someone remains silent before Miranda, it is assertive conduct, but small minority because the right to remain silent exists before Miranda is given.

2. Out of This Court’s Hearing: Meets this requirement if it is an oral statement that was made other than while testifying in the current trial or hearing.

3. What is the Statement Being Offered to Prove? If the statement is being used to prove that its message is true (TOMA), then met
a. Look at what the direct and indirect assertions are.
Options for Admitting Statements that may constitute hearsay
1. If the evidence is hearsay…
a. Try to offer the evidence in a way that is not hearsay
b. Ask a different question
c. Call the declarant to testify in court
d. Offer the statement for a non-truth purpose
Non-Truth Purposes
M: To prove verbal acts that are MATERIAL under the substantive law
Y: To prove WHY a particular course of action was taken
K: To prove possession of relevant KNOWLEDGE
I: To prove that information requiring further INVESTIGATION was available.
W: To prove that a WARNING was given
A: To prove that the declarant was conscious, or ALIVE
N: To prove the NATURE of a place of business
I: To IMPEACH a witness by disproving assertions testified to by them
S: To prove the declarant's indirect STATE of mind or emotion
Confrontation Clause and Hearsay
1. Confrontation Clause: 6th Amendment of the Const. guarantees criminal Ds the right to confront people who give evid against them
a. Hearsay Issues: When a witness repeats a hearsay statement made by someone else, the criminal D is not able to confront
b. Three Confrontation Rights:
1. To have prosecution witnesses present at trial
2. To cross-examine prosecution witnesses, and
3. To be present at one’s own trial
Confrontation Clause Analysis
ONLY Testimonial Statements Implicate the Confrontation Clause
1. If an out of court statement
2. Is testimonial and
3. Is offered for the TOMA
4. By the prosecution
5. Against the accused
Then, Defendant’s Confrontation Rights are violated UNLESS
1. The declarant is produced for cross-examination under oath; OR
2. Declarant is unavailable as a witness, AND the accused had a prior opportunity to cross-examine the declarant about the stmt.
Testimonial Statements
One that has governmental involvement and the solemnity of testimony at trial
1. Statements made under circumstances that would lead a rx person to believe that the statement would be available for later use at trial
2. Governmental Involvement: Look to primary purpose
a. If the primary purpose is to establish or prove past events that are potentially relevant to a later criminal prosecution, testimonial
b. Not testimonial where the statements are primarily made to aid or obtain help with a contemporaneous emergency.
Forensic Evidence and the Confrontation Clause
In United States v. Melendez-Diaz, S.Ct. held that reports by analysts at state labs were testimonial, and failing to provide the lab tech to testify at trial violates the CC.
1. People v. Gutierrez: CA Court of Appeal held that portions of the reports that were notes made contemporaneously with the examination of a body were non-testimonial.
Confrontation Clause Forfeiture Exceptions
1. Killing a witness: You cannot make a witness unavailable by killing them
2. Threats: If you threaten a witness, and they disappear, there is a hearsay exception, and you forfeit your confrontation rights
3. If you make a witness unavailable, you don’t get the benefit of making hearsay stmts admiss. bc of the unavailability
4. Criminal cases: For the forfeiture provisions to apply, you have to show a connection between the D’s actions and the missing witness.
For certain hearsay exceptions to apply, hearsay declarant must be termed unavailable as a witness

a. Types of Unavailability
1. Physical
2. Constructive
3. Fake: if fake, can’t use unavailability hearsay exceptions

b. CEC § 240: Unavailable as a Witness
(a) Except as otherwise provided in (b), “unavailable as a witness” means that the declarant is any of the following:
(1) Exempted or precluded on the ground of privilege from testifying concerning the matter
(2) Disqualified from testifying on the matter
(3) Dead or unable to attend or testify at the hearing because of then-existing physical or mental illness or infirmity
(4) Absent from the hearing and the court is unable to compel his or her attendance by its process
(5) Absent from the hearing and the proponent of his statement has exercised rx diligence but has been unable to procure his or her attendance by the court’s process
(b) A declarant is not unavailable if the reason for the unavailability was brought about by the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the declarant from attending or testifying.

c. Differences FRE 804(a):
1. A witness who refuses to testify despite a court order is also unavailable (case law in CA reaches same result)
2. FRE explicitly provides that someone who cannot testify because she no longer recalls what happened is also considered unavailable (CA case law reaches same result)

d. Preponderance standard governs unavailability
Party Admissions
CEC § 1220/FRE 801(d)(2): Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity.
a. Only admissible against the declarant

1. FRE Difference: Parties admissions are EXCLUSIONS to the hearsay rule
Adoptive Admissions
CEC § 1221: A statement is not inadmissible by the hearsay rule if
1. The statement was made
2. When the party is aware of its content and context
3. And manifests adoption or belief in its truth
4. And the statement is offered against this party.

1. FRE 801(d)(2)(B) Difference: EXCLUSION to the hearsay rule
Authorized Admissions
CEC § 1222: Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if
1. The statement was made
2. By a person authorized by the party to make the statement for him
3. Concerning the subject matter of the statement
4. After (or subject to) sufficient evidence offered to show such authority

1. FRE 801(d)(2)(C) Differences
1. EXCLUSION to the hearsay rule
2. Governed by preponderance standard
3. FRE does not contain for him language—statements made to the party can be an authorized admission
Co-conspirator's Admissions
Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:
1. The statement was made by the declarant while participating in a conspiracy to commit a crime or civil wrong
2. Made prior to or during the time that the party participated in the conspiracy
3. Statement was made in furtherance of the conspiracy
4. Offered after (or subject to) sufficient evidence to find participation in the conspiracy

1. Sufficiency test to establish there was a conspiracy

2. . FRE 801(d)(2)(E) Differences
1. EXCLUSION to the hearsay rule
2. Governed by a preponderance test.
Common Liability
CEC § 1224:
1. In a civil liability case
2. If the declarant’s liability is a foundation for the party opponent’s liability
3. As if he were a party to the litigation
4. The statement is admissible against the party opponent in the same way it would be against the declarant
Successors in Interest
CEC § 1225:
1. In a civil case,
2. If the right, title, or interest in a property or claim of a party
3. Depends upon the right, title, or interest of the declarant
4. A statement made by the declarant during the relevant time period
5. Is admissible against the party.
Prior Inconsistent Statement
CEC § 1235: Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing, and offered in compliance with 770
1. 770: Prior inconsistent statement admissible if:
(a) The witness was given an opportunity while testifying to explain or deny the statement, or
(b) The witness has not been excused from testifying.
1. FRE 801(d)(1)(A) Differences:
1. EXCLUSION to the hearsay rule
2. In order for the prior inconsistent statement to be admissible for the TOMA, it has to have been made under oath. Otherwise, only admissible for impeachment purposes
Prior Consistent Statements
CEC § 1236: Evidence of a statement made by a witness is not inadmissible under the hearsay rule if the statement is consistent with his testimony at the hearing and
(791): Is offered after the witness has been impeached, either by:
1. Confronting the witness with a prior inconsistent statement, or
2. By expressly or implicitly accusing the witness of bias, recent fabrication, or another improper motive, and
3. The consistent statement was made before the inconsistent statement was, or before the motive for bias, fabrication or other improper motive arose.

1. FRE 801(d)(1)(B) Difference
1. EXCLUSION to the hearsay rule
Statements of Identification
CEC § 1238: Evidence of a statement made previously by a witness is not make inadmissible by the hearsay rule if
1. The statement would have been admissible if said while testifying
2. Statement is identification of a party or participant in a crime or other occurrence
3. Made at a time while fresh in the witness’s memory
4. And the evidence is offered after the witness testisfies
a. That she made the identification, and
b. That it was a true reflection of her opinion at the time

1. FRE 801(d)(1)(C) Differences:
1. EXCLUSION to the hearsay rule
2. Less specific: only requires that the identification be made after perceiving the person
Fresh Complaints
The fact that someone complained about something right after it happened, rather than just complaining about it now, is more reliable. At the court’s discretion.
Refreshing Recollection
When a witness cannot remember something in an answer to the attorney’s question, the attorney is entitled to refresh the witness’s recollection, usually with some kind of document.
1. No hearsay issues: bc the witness is now testifying from the present (refreshed) recollection in court.
2. Procedure:
a. Ask the witness whether she remembers enough to respond accurately
b. If not, ask whether a particular document would refresh her recollection
c. If granted, the attorney has the document marked for identification, hands it to the witness, and asks to witness to read the document to herself.
d. After she reads the document, the attorney asks her if her memory is refreshed. If so, the attorney takes the document away and asks the witness to now answer the question.
Past Recollection Recorded
CEC § 1237: Evidence of a statement previously made by the witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying,
1. The witness had personal knowledge
2. No longer has sufficient present recollection to testify accurately or fully
3. Made or directed to be made
4. A statement in writing
5. While the matter was fresh in the witness’s memory
6. Intending to be a true and accurate record
7. Witness testifies that she no longer remembers enough to testify truthfully and accurately
8. Then the statement will be admissible for the TOMA—will be read into evidence but not received unless offered by an adverse party.

1. FRE 803(5) Difference: EXCEPTION to the hearsay rule (so actually the same in federal court)
Declaration Against Interest
CEC § 1230: Evidence of a statement made by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if
1) Declarant is unavailable as a witness [do CC analysis in criminal cases]
2) The statement, when made, was so far contrary to the declarant’s interest
a) A pecuniary (financial) interest, or
b) A proprietary (interest in property) property
3) Or so far subjected him to a risk of liability
a) Civil or
b) Criminal
4) Or so far tended to render invalid a claim by him against another
5) Or created such a risk of making him an object of hatred, scorn, ridicule or social disgrace
6) That a rx person in that position would not have made that statement unless he believed it to be true

1. Elements are governed by a preponderance test.
2. Statement itself is governed by a sufficiency test.

3. FRE 804(b)(3) Differences:
1. EXCEPTION to the hearsay rule
2. Does not include “hatred, ridicule, or social disgrace” meaning that some statements that will be included in the CEC will not satisfy the FRE
3. Requires corroborating evidence when the statement is offered in a criminal case to exculpate the accused

Dying Declarations
CEC § 1242 (doesn’t expressly require unavailability but all appellate court decisions, person has actually died)
1. Statement made by a dying person
2. About the cause and circumstances of their death
3. Based on personal knowledge
4. And under a sense of immediately impending death
5. Is not made inadmissible by the hearsay rule

1. Preponderance test: governs elements other than whether the statement was made and personal knowledge
2. Sufficiency test: governs statement, and personal knowledge.
OJ Simpson Crime Victim Hearsay Exception
CEC § 1370
(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:
- The victim is unavailable to testify (caused by the defendant’s criminal act)*
- The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon that victim
- The statement was made at or near the time of the infliction or threat
- The statement was made in writing, recorded, or made to medical or law enforcement officials
- The statement was made under circumstances indicating its trustworthiness, and
- The proponent gives advance notice to the other side, and
- The statement is less than 5 years old.
Declarant Killed or Kidnapped
CEC § 1350
- Only in cases charging a serious felony
- Declarant is unavailable
- There is no evidence that the proponent had something to do with it
- There is clear and convincing evidence
- That the declarant’s unavailability was knowingly caused by, aided by, or solicited by
- The party against whom the statement is offered
- For the purpose of preventing the arrest or prosecution of that party
- And that the unavailability is due to the death or kidnapping of the declarant
- The statement has been memorialized on tape made by a law enforcement official, or paper by a law enforcement official, signed and notarized, and
- Statement made under circumstances indicating trustworthiness
- Relevant
- Corroborated by other evidence
- 10 days notices requirement
Declarations Relating to Wills and Estates
1. Statements Concerning Decl.’s Will CEC § 1260: Evidence of a statement made by a declarant who is unavailable as a witness, that he has or has not made a will, or has or has not revoked his will, or that identifies his will, is not made inadmissible by the hearsay rule.
Subsection (b) permits the court to exclude the statement if the circumstances indicate a lack of trustworthiness

2. Statement of Decedent Offered in Action Against His Estate CEC § 1261: Evidence of a statement is not made inadmissible by the hearsay rule when offered in an action upon a claim or demand against the estate of the declarant if the statement was made upon the personal knowledge of the decl. at a time when the matter have been recently perceived by him and while his recollection was clear.
(b) Permits the court to exclude the statement if the circumstances indicate a lack of trustworthiness.

3. FRE 803(3) Differences: The FRE exception for wills is contained in the last clause of the general state of mind exception. Allows “a statement of memory or belief to prove the fact remembered or believed” if “it relates to the execution, revocation, identification, or terms of the declarant’s will.”
Former Testimony Definition
CEC § 1290: Means testimony given under oath in:
(a) another action or former hearing or trial of the same action
(b) a proceeding to determine a controversy conducted by or under the supervision of an agency that has the power to determine such a controversy and is an agency of the US or a public entity in the US (i.e. a prelim)
(c) a deposition taken in compliance with law in another action; or
(d) an arbitration proceeding if the evidence of former testimony is a verbatim transcript thereof.
- Does not include:
i. Probation revocation hearing testimony
ii. Defendant’s testimony at a motion to suppress
iii. Deposition taken in the action in which they are offered (CA Code of Civ Pro covers this)
Former Testimony Offered Against Party to Former Proceeding
Evidence of former testimony is not made inadmissible by the hearsay rule if declarant is unavailable as a witness:
(1) The former testimony is offered against a person who offered it on his own behalf before, or the successor in interest of such person OR
(2) The party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given, AND
i. had the right and opportunity to cross-examine the declarant
ii. with an interest and motive similar to that which he has at the hearing
(3) Former testimony is subject to the same limitations and objections as though the declarant was testifying except for objections as to the form of the question which were not make at the time, and objections based on competency or privilege which did not exist at the time former testimony was given.
Former Testimony Offered Against Non-Party to a Former Proceeding
CEC § 1292: Evidence of former testimony is not made inadmissible by the hearsay rule if
(1) the declarant is unavailable as a witness;
(2) the former testimony is offered in a civil action; and
(3) The issue is such that the party to the action or proceeding in which the former testimony was given had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party against whom the testimony is offered has at the hearing.
(b) Permits all objections except competency and privilege if they did not exist at the former proceeding.
Former Testimony Differences Under the FRE
FRE 804(b)(1) Differences:
1. EXCEPTION to the hearsay rule
2. Doesn’t list specific waivers of objections
3. Using deposition in the same case is permissible
4. No former testimony against a non-party unless they are a successor in interest
Spontaneous Statement
CEC § 1240 Spontaneous Statement: Evidence of a statement is not made inadmissible by the hearsay rule if:
1. The statement purports to narrate, describe or explain
2. An act, condition, or event
3. That was perceived by the declarant, and
4. The statement was made spontaneously
5. While the declarant was under the stress of excitement
6. Caused by that perception

a. Sufficiency standard governs whether the declarant made the statement
b. Preponderance standard governs the elements

a. FRE 803(2) Excited Utterance Differences:
1. EXCEPTION to the hearsay rule
2. The content of the statement must merely relate to the startling event
3. Judge can consider inadmissible evidence when using the preponderance standard
Contemporaneous Statements
CEC § 1241: Evidence of a statement is not made inadmissible by the hearsay rule if the statement:
(a) Is offered to explain, quantify, or make understandable conduct of the declarant, and
(b) Was made while the declarant is engaged in such conduct.

1. Sufficiency standard governs whether declarant made the statement
2. Preponderance standard governs the other elements
1. FRE 803(1) Present Sense Impression Differences:
1. EXCEPTION to the hearsay rule
2. Called “present sense impression” instead of contemporaneous statement
3. Focuses on description of an external matter, and includes statements about any event or other people’s conduct as long as made during, or shortly after perceiving such conduct
Indirect State of Mind
NOT hearsay because the statement is offered as circumstantial evidence to prove the truth of something else, not the TOMA
Statement of Then-Existing Direct Mental or Physical State
CEC § 1250:
(1) Statement of declarant’s then-existing state of mind (including feeling, emotion, pain, plan, intent, motive, design, or bodily health)
(2) When offered to prove that state of mind, etc.
(3) At that time, or at any other time at issue in the case
(4) Or when offered to prove or explain the declarant’s own conduct or acts
(5) Is not made inadmissible by the hearsay rule, subject to 1252 (trustworthiness element)

1. Can use the statement to prove subsequent conduct by the declarant, but not anyone else
2. 1252: Makes statements about then-existing state of mind inadmissible if made under circumstances such as to indicate its lack of trustworthiness.

3. FRE 803(3) Differences:
1. EXCEPTION to the hearsay rule
2. Provides an exception to memories or beliefs about wills
3. Does not include the language “conduct of the declarant”
i. Hillman Doctrine: Refers to using the decl’s state of mind to prove decl’s subsequent conduct
ii. Prohibition against 2d party Hillman: cannot use the decl’s state of mind to prove someone else’s subsequent conduct
Previously Existing State of Mind
CEC § 1251:
(1) Statement describing state of mind (including intent, motive, plan, design, mental feeling, pain, or bodily health)
(2) Felt or experienced at a time prior to the making of the statement
(3) Is admissible if:
(4) The declarant is unavailable, and
(5) The prior state of mind, emotion, or physical feeling is itself an issue in the litigation

1. No analogous FRE: Just 803(4) which provides an exception for statements about medical conditions for purpose of dx or treatment
Felony Convictions
CEC § 1300: Evidence of a final judgment adjudging a person guilty of a crime punishable as a felony is not made inadmissible by the hearsay rule when offered in a civil case to prove any fact essential to the judgment whether or not the judgment was based on a plea of nolo contendere.
Judgment Against Person Entitled to Indemnity
Evidence of a final judgment is not made inadmissible by the hearsay rule when offered by the judgment debtor to prove any fact which was essential to the judgment in an action in which he seeks to:
(a) Recover partial or total indemnity or exoneration for money paid or liability incurred because of the judgment
(b) Enforce a warranty to protect the judgment debtor against the liability determined by the judgment; or
(c) Recover damages for breach of warranty substantially the same as the warranty determined by the judgment to have been breached.
Third Party Liability
When the liability, obligation, or duty of a third person is in issue in a civil action, evidence of a final judgment against that person is not made inadmiss. by the HR when offered to prove such liab, oblig, or duty.
Commercial Lists
CEC § 1340: Evidence of a statement, other than an opinion, contained in a tabulation, list, directory, register, or other published compilation is not made inadmissible by the hearsay rule if the compilation is generally used and relied upon as accurate in the course of a business as defined in Section 1270.

1. FRE 803(17) Differences: Market quotations, tabulations, lists, directories, or other published compilation, generally used and relied upon by the public or by persons in particular occupations [are not excl. by the hearsay rule]
Publications Concerning Facts of General Notoriety and Interest
CEC § 1341: Historical works, books of science, or art, and published maps or charts, made by persons indifferent bw the parties, are not made inadmissible by the hearsay rule when offered to prove facts of general notoriety and interest
1. Not admissible to prove facts at issue in the case
2. Doesn’t include medical journals

1. FRE 803(18) Learned Treatises Differences:
1. EXCEPTION to the hearsay rule
2. Statements contained in treatises, including medical treatises may be admitted for the TOMA if:
i. Statements are established as reliable
ii. Treatise was relied upon by an expert witness on direct examination, or called to expert’s attention on cross
iii. Expert is on the stand and able to explain the treatise
Misdemeanor Convictions
CEC § 452.5: Creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred.
Other Hearsay Exceptions
1. Family history
2. Ancient writings
3. Recitals and writings affecting property
4. Reputation in the community
Business Records
CEC § 1271: Evidence of a writing made as a record of an act, condition, or event, is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event, if
(a) The writing was made in the regular course of business
(b) The writing was made at or near the time of the act, condition, or event
(c) The custodian or other qualified witness testifies to the identity and the mode of its preparation; and
(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness

1. The proponent must provide sufficient admissible evidence to support a finding that the business record is authentic

1. FRE 803(6) Differences:
1. EXCEPTION to the hearsay rule
2. More specific and explicit about the personal knowledge requirement
3. Record must not only be made, but also kept in the ordinary course of business
4. Presumption in favor of trustworthiness, unlike CEC, where the proponent must first convince the judge that the record is sufficiently trustworthy.
Absence of an Entry in Business Records
CEC § 1272:
(1) An entry absent from a business record
(2) Where under CEC § 1271 such an entry would have been recorded
(3) offered to prove
- the non-occurrence of the act or event, or
- the non-existence of the condition
(4) Is admissible as an exception to the hearsay rule
Records by a Public Employee
CEC § 1280: Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if all of the following applies:
(1) Made by and within the scope of duty
(2) Of a public employee
(3) At or near the time of the act, condition, or event,
(4) And sources indicate its trustworthiness

FRE 803(8) Differences:
(1) Greater limit on the use against criminal defendants
(2) Greater scope of admissibility of opinion (investigations) in civil cases, and when offered against the government in criminal cases
Absence of Public Records
CEC § 1284: Permits the admission of a written statement, from the custodian of the public records, attesting to a diligent search and failure to find a record to prove the absence of a record in that office, therefore the nonoccurrence of an event.

FRE 803(10): Provides a hearsay exception for either certification or testimony about the absence of an entry in a record regularly made and preserved by a public office or agency
Public Employee Records and Criminal Cases
Business records and public records generally are not testimonial, and therefore do not implicate the CC
1. Record from law enforcement agency: Have to analyze the surrounding circumstances to determine whether the CC is implicated. Crime scene lab reports implicate the CC.
Multiple Layers of Hearsay
Must analyze each layer of hearsay to look for an exception or non-truth purpose. If each layer meets the requirements for a hearsay exception, then the hearsay rule will not bar admission of the entire statement
Definition of Authentication
CEC § 1400: Authentication of a writing means (a) the introduction of evidence sufficient to sustain a finding that it is the writing the proponent of the evidence claims it is, or (b) the establishment of such facts by any other means provided by law.
Definition of a writing
CEC § 250: Broadly defines a writing to include not only typewriting and handwriting, but also photostating, photographing, electronic mail, and facsimiles, including “every other means of recording upon any tangible thing and any form of communication or representation,” regardless of the manner in which the record was created.
Authentication Required
CEC § 1401: (a) Authentication of a writing is required before it may be received in evidence. (b) Authentication of a writing is required before secondary evidence of its content [i.e. witness testimony] may be received in evidence.
Witness to the Execution of a Writing
CEC § 1413: A writing may be authenticated by anyone who saw the writing made or executed, including a subscribing witness.

a. Foundation:
1. Does the witness recognize the document
2. If so, how?
3. Have there been any changes or alterations to the document?
Authentication by Admission
CEC § 1414: A writing may be authenticated by evidence that
(a) The party against whom it is offered has at any time admitted its authenticity; or
(b) The writing has been acted upon as authentic by the party against whom it is offered
Authentication by Handwriting Evidence
CEC § 1415: A writing may be authenticated by evidence of the genuineness of the handwriting of the maker.

a. Proof of handwriting by person familiar therewith CEC § 1416: Someone who is familiar with the writer’s handwriting can testify that it is the writer’s handwriting.

b. Comparison of handwriting by trier of fact CEC § 1417: Have the trier of fact compare handwriting and decide whether it is authentic.

c. Comparison of handwriting by expert witness CEC § 1418: Have handwriting expert testify as to its authenticity by comparing handwriting.
Procedures for admitting evidence
1. Mark
2. Identify
3. Authenticate
4. Lay foundation
5. Offer into evidence
Presumptions of authenticity
(Thayer Presumptions). Writings subject to a presumption of authenticity include:
1. Those with a certification of acknowledgement
2. Those with official seals of the United States, federal agencies, public agencies, admiralty courts, or notary publics
3. Domestic official signatures of public employees of the United States or any of its public entities or by a notary public; and
4. Foreign official signatures if accompanied by additional certifications from the consulate or embassy
Chain of Custody
Component of authentication that helps to ensure that tangible evidence was not substituted, replaced, or otherwise tampered with. Includes where, when, and to whom the evidence was transferred to
Authenticating Photos, Maps, and Moving Pictures
a. Get a witness to testify that the photo correctly represents what it purports to depict
b. Videotapes and DVDs: should be treated as a series of photographs. A witness must testify that it accurately depicts what was actually occurring.
c. Still Photos: Courts want the photographer to testify that the photo is what they actually saw through the camera lens. If photog not available, have someone who saw what was portrayed testify that it was an accurate portrayal of the scene.
Authentication under the FRE
FRE 901-902
1. Similar non-exhaustive list of ways to authenticate a document
2. Special attention to voice identification an computer printouts
3. Self-Authentication: Under FRE 902, the proponent need not authenticate a document that is self-authenticated. No extrinsic evidence of authenticity is required as a condition of admissibility. Includes: domestic public documents under seal, certified copies of public records, acknowledged documents, official publications, newspapers and periodicals, trade inscriptions, and commercial paper.
Secondary Evidence Rule
Applies when the parties seek to prove the content of a writing.
(a) The content of a writing may be proved by otherwise admissible secondary evidence. The court shall exclude the secondary evidence of the content of the writing if the court determines either of the following:
(1) A genuine dispute exists concerning a material term of the writing, and justice requires the exclusion, or
(2) Admission of the secondary evidence would be unfair
(b) Oral testimony not admissible unless it complies with the terms of 1523
(c) Still have to authenticate
SER Unfairness Factors
One of the reasons for excluding Secondary Evidence is when admission would be unfair. Factors to look at:
1. Attempting to use the writing in an unanticipated manner
2. Whether the original was suppressed in discovery
3. The original was not produced in reasonably diligent discovery
4. The original and secondary evidence are dramatically different
5. The original is unavailable, and if so, why; and
6. Whether the writing is central to the case.
- When one party is accused of purposefully destroying the original writing, courts will find it to be unfair to permit that party to offer secondary evidence on the content of the writing.
Types of Secondary Evidence
Includes copies or duplicates, computer printouts, or photos or recordings
a. If a writing meets the requirements of a business record, then a non-erasable optical image reproduction, a photostatic copy, a microfilm, or miniature, or any other photographic copy will be admissible as the original writing itself.
b. Reproductions of files, records, photos, fingerprints, and other matters maintained in the criminal justice system will be as admissible as the original.
c. When an original photo print of an original writing or video has been lost or destroyed, a copy will be admissible if properly attested to or certified.
d. Properly authenticated copies or translations of original Spanish title documents about land claims will be as admissible as the originals would be.
Additional Limitations to the Secondary Evidence Rule in Criminal Cases
CEC § 1522: In a criminal action, if the judge determines that the proponent has the original in his possession, custody, or control, and did not produce it to the other side or make it rx available before trial, the proponent will not be allowed to offer the secondary evidence. Does not apply to:
(1) Duplicate as defined in section 260
(2) A writing that is not closely related to the controlling issues in the action
(3) A copy of a writing in the custody of a public entity
(4) A copy of a writing that is recorded in the public records, if the record or a certified copy of it is made evidence of the writing by statute.
Applying the Secondary Evidence Rule
a. Is the writing subject to the rule? Business records, public records, writing by party, recordings/copies
b. Am I trying to prove the contents of the writing? SER doesn’t apply if trying to prove the absence of content
c. SER does apply, duplicate admissible
d. If no genuine dispute over material terms, and not unfair to admit?
a. Civil Case? Admissible
b. Criminal case: Was the original made “rx available” by the proponent? If yes, then admissible.
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