CALIFORNIA EVIDENCE

I. PRELIMINARY MATTERS
A. Which Law and Rules o E!idence A""l#$ Fede%al law and Fede%al Rules o
E!idence &FRE' !s. S(a(e law and Calio%nia E!idence Code &CEC')Which Cou%(
A%e You In*
1. MBE-ONLY Federal Law and FRE
2. Essays
a. Figure out which court you are in-FEDERAL (federal law and FRE aly! or
"#A#E ($alifornia law and $E$ aly!%
b. #he fact attern will tell you whether to aly $E$ or FRE OR fact attern will
tell you which court you are in& and then you will 'now which rules of e(idence
)ust *e alied%
(1) +Answe% acco%din, (o Calio%nia law.-- +uly ,-.,& /uestion 01 Fe*
,-..& /uestion 21 +uly ,-.-& /uestion 01 +uly ,--3& /uestion 01 Fe*
,--3& /uestion 0%
(2) +Answe% acco%din, (o (he Fede%al Rules o E!idence.-) Fe* ,-.,&
/uestion 0%
(3) 4f 5uestion does not indicate which rules aly use FRE% +uly ,--6&
/uestion 0%
NOTE$ For the )ost art& the federal and $alifornia rules are (ery si)ilar& although the
wording )ay differ1 )any of the $alifornia rules contain clarifications or ela*orations of
the rinciles found in the Federal Rules% 4f your )aterials do not descri*e or e7lain a
difference& assu)e the law is the sa)e%

.. C%i/inal &Li0e%(# a( s(a1e' o% Ci!il &22 a( s(a1e'$
1. For $R4M4NAL )atters in $AL4FORN4A "#A#E court& discuss P%o"osi(ion 3 -
the 8#ruth in E(idence9 a)end)ent to $alifornia% (Ma'es all rele(ant e(idence
ad)issi*le in a cri)inal case& e(en if otherwise o*:ectiona*le under the $E$&
su*:ect to so)e e7cetions%!
C. Whe%e no %ule is discussed4 (he%e is NO DISTINCTION 0e(ween FRE and CEC.
Re(iew your MBE E(idence )aterials for rules and e7a)les%
2
II. RELEVANCE 5Ini(ial anal#sis in an# 6ues(ion)is (he e!idence %ele!an(*5
A. Definition; BO#< $E$ AND FRE; E(idence is rele(ant if it has any tendency to
)a'e the e7istence of any fact of conse5uence to the deter)ination of the action
)ore or less ro*a*le than it would *e without the e(idence%
.. Distinction;
1. FRE$ Any fact- it need not *e a fact in disute%
2. CEC$ Mus( "e%(ain (o a 7dis"u(ed ac(.7
E8AMPLE$ =rosecution of con(icted felon with a gun% 4f you stiulate to the fact
that the erson is a con(icted felon& this is no longer a disuted fact% #herefore&
in $A state court& the fact that erson is a con(icted felon is no longer rele(ant
since it is not disuted& therefore& that fact is not ad)issi*le% 4n federal court& it
would still *e considered a rele(ant fact& e(en though it is not disuted& and
therefore& ad)issi*le%
C. PROPOSITON 3$ 8#ruth in E(idence9 A)end)ent to $A $onstitution%
1. ALL rele(ant e(idence is ad)issi*le in a cri)inal case& e(en if otherwise
o*:ectiona*le under the $E$& su*:ect to certain e7cetions%
2. E>$E=#4ON" #O =RO= ?; #hese o*:ections are NO# o(erruled *y =ro ?;
a. $onfrontation clause (e7clusionary rule!
b. <earsay
c. =ri(ilege
d. "econdary@Best E(idence Rule
e. $haracter E(idence (to ro(e DefendantAs or Bicti)As conduct!
f. Balancing under $E$ 0C,- courtAs ower to e7clude if unfair re:udice
su*stantially outweighs ro*ati(e (alue% E(en though rele(ant& it is )ore
re:udicial than ro*ati(e%
3. =ro ? DOE" affect i)each)ent of witness for cri)es@rior *ad acts%
4. NO APPLICATION OF PROP 3 TO CIVIL CASES.
D. .ALANCIN9$ Re)e)*er the *alancing test alies only to RELEBAN# e(idence
and is used only to e7clude rele(ant e(idence that is not e7cluda*le or inad)issi*le
on other grounds% 4n other words& the *alancing act o*:ection is the LA"#
o*:ection@consideration%
1. FRE &Rule :;<'$ #he court )ay e7clude rele(ant e(idence if its ro*ati(e (alue is
su*stantially outweighed *y a danger of one or )ore of the following; unfair
re:udice& confusing the issues& )isleading the :ury& undue delay& wasting ti)e&
or needlessly resenting cu)ulati(e e(idence%
2. CEC &Rule <=>'$ #he court in its discretion )ay e7clude e(idence if its ro*ati(e
(alue is su*stantially outweighed *y the ro*a*ility that its ad)ission will (a!
necessitate undue consu)tion of ti)e or (*! create su*stantial danger of undue
re:udice& of confusing the issues& or of )isleading the :ury%
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E. P?.LIC POLICY E8CL?SIONS TO RELEVANT EVIDENCE
1. Su0se6uen( Re/edial Measu%es$ E(idence of safety )easures or reairs after
an accident is inad)issi*le to ro(e negligence%
a. FRE$ E7clusion of su*se5uent re)edial )easure co(ers negligence AND
"%oduc(s lia0ili(#@s(%ic( lia0ili(# cases.
b. CEC$ E7clusion of su*se5uent re)edial )easures does NO# aly in strict
lia*ility (roducts lia*ility! cases% Ne,li,ence onl#.
2. Oe% To Pa# Medical EA"enses$ E(idence of ay)ents or offers to ay )edical
e7enses is inad)issi*le when offered to ro(e lia*ility for the in:uries in
5uestion%
a. FRE$ Only e7cludes offers to ay )edical e7enses& NO# any acco)anying
state)ents%
NOTE$ Acco)anying state)ent could *e e7cluded under FRE if it was art
of a settle)ent offer% ("ee *elow%!
b. CEC$ Also )a'es acco/"an#in, s(a(e/en(s )ade along with offers to ay
)edical e7enses inad)issi*le%
E8AMPLE$ After a car accident& dri(er states; 8DonAt worry it was )y fault& 4
rear-ended you and 4 will ay your )edical e7enses%9
FRE$ Only the offer to ay )edical e7enses is e7cluded and state)ent 84t
was )y fault& 4 rear-ended you9 would *e ad)issi*le%
CEC$ #he entire state)ent will *e e7cluded% $E$ rule is *roader%
E8AMPLE$ After a car accident& dri(er states; 84f you sign a release& 4 will ay
your )edical e7enses *ecause it was )y fault 4 rear-ended you%9
Dnder *oth FRE and $E$& the entire state)ent will *e e7cluded-the offer to
ay )edical and the acco)anying state)ents--- as *oth are arts of the
offer to settle% Dnder $E$& e(en if not art of an offer to settle& the
acco)anying state)ent to the offer to ay )edical e7enses is e7cluded%
Dnder FRE& in order to e7clude the whole state)ent& it )ust *e art of a
settle)ent offer%
3. Se((le/en( Oe%s$ Both FRE and $E$ e7clude settle)ent offers and
state)ents )ade in connection with settle)ent offers for uroses of ro(ing
lia*ility& ro(ided the clai) is disuted either as to (alidity or a)ount%
a. FRE$ Both FRE and $E$ e7clude settle)ent offers and state)ents )ade in
connection with settle)ent offers for uroses of ro(ing lia*ility& ro(ided the
clai) is disuted either as to (alidity or a)ount%
b. CEC$ E7tends this rule to discussions and state)ents during /edia(ion%
4. Plea Ne,o(ia(ions$ "o)e con(ersations in lea *argain discussions are not
ad)issi*le in a ci(il or cri)inal case e(en if a lea agree)ent is not reached%
4
$on(ersations are considered ri(ileged and therefore& inad)issi*le%
a. FRE$ Li)ited to con(ersations with rosecutors%
b. CEC$ $o(ers con(ersations with rosecutors AND (he "olice& as long as
they are state)ents )ade in the course of *ona fide lea negotiations% Does
not include unsolicited offers to lead guilty& state)ent )ade to transorting
olice officers& sontaneous state)ents in court%
5. EA"%essions o S#/"a(h#
a. FRE$ No rule here%
b. CEC$ 4n a $4B4L case& $E$ also e7cludes the ad)ission of state)ents&
writings& and *ene(olent gestures e7ressing sy)athy relating to the ain&
suffering or death of a erson in(ol(ed in an accident& which state)ents are
)ade to the erson or their fa)ily% But state)ents of fault )ade in connection
with such an e7ression are NO# e7cluded%
E8AMPLE$ After a car accident& dri(er states; 84 a) so sorry you are hurt& 4
should not ha(e *een dri(ing so fast and rear-ended you%9
FRE$ #he entire state)ent would *e ad)issi*le%
CEC$ 84 a) so sorry9 is inad)issi*le as e7ression of sy)athy *ut 84 should
not ha(e *een dri(ing so fast and rear-ended you9 is ADM4""4BLE *ecause it
is rele(ant e(idence and not e7cluda*le as offer to ay )edical e7ense or
settle)ent offer or any other reason%
III. WITNESSES AND TESTIMONIAL EVIDENCE
A. Co/"e(enc#
1. FRE$ E(eryone is co)etent to *e a witness in federal court%
2. CEC$ A erson is dis5ualified to *e a witness if he@she is;
a. incaa*le of e7ressing hi)self@herself concerning the )atter so as to *e
understood& either directly or through interretation1 or
b. incaa*le of understanding the duty to tell the truth%
.. Pe%sonal Bnowled,e$ Dnder *oth FRE and $E$& lay witnesses (not aearing as
e7erts! can testify only a*out )atters of which they ha(e =ER"ONAL
ENOFLEDGE%
1. Must ha(e e7erienced so)ething through the fi(e senses%
C. Oa(h
1. FRE$ Before testifying& e(ery witness )ust ta'e an oath that he@she will testify
truthfully
2. CEC$ Before testifying& e(ery witness )ust ta'e an oath that he@she will testify
truthfully E>$E=# if he@she is a;
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a. $hild under the age of .- or
b. Deendent erson with a su*stantial cogniti(e i)air)ent
May *e re5uired only to ro)ise to tell the truth%
D. Cud,e and Cu%o%s As Wi(nesses
1. +udge
a. FRE$ =residing :udge a*solutely *arred fro) testifying as a witness in the
trial%
b. CEC$ =residing :udge )ay testify as a witness& if no*ody o*:ects%
2. +ury
a. At trial@=re-(erdict; FRE and $E$ are the "AME; A :uror )ay not testify as a
witness at trial in front of the )e)*ers of the :ury%
b. After trial@=ost-(erdict;
(1) FRE$ +uror can only ro(ide infor)ation regarding OD#"4DE
influences that )ay ha(e affected the (erdict& *ut cannot testify as to how
those influences affected their reasoning%
(2) CEC$ More e7ansi(e than FRE; +urors can ro(ide infor)ation on ANY
i/"%o"%ie(ies o% inluences (ha( /a# ha!e aec(ed (he Du%o%s& *ut still
cannot testify as to how those influences affected their reasoning%
E. Re%eshin, Recollec(ion
1. Fritings
a. FRE$ 4f a witness uses a writing to refresh her recollection rior to testifying&
the ad(erse arty is entitled to ha(e the writing roduced only if the court in its
discretion deter)ines that roduction of the docu)ent is necessa%# in (he
in(e%es(s o Dus(ice%
b. CEC$ #he writing /us( *e roduced at the hearing uon the re5uest of the
oosing arty%
(1) E7cetion; 4f the writing is not in the ossession or control of the
witness or the arty eliciting the testi)ony%
E8AM TIP$ Fith refreshing recollection& loo' to see if hearsay e7cetion
for recorded recollection co)es into lay% BO#< FRE and $E$ ro(ide
e7cetion when the witness has insufficient resent recollection to testify
fully and accurately *ut recorded the facts at the ti)e or soon after the
occurrence%
#he written state)ent does not co)e in1 the witness )ust instead read it
to the :ury& unless ad(erse arty offers state)ent as e7hi*it%
#he ad(erse arty has the right to (.! insect the recorded ast
recollection1 (,! use it in cross-e7a)ination1 (0! show it to the :ury for
co)arison1 and (H! introduce rele(ant ortions of it into e(idence%
2. <ynosis;
a. FRE$ No rule li)iting the use of hynosis for refreshing recollection%
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b. $E$; Dis5ualifies so)e witnesses who were hynotiIed to refresh
recollection& as descri*ed *elow;
(1) 4n ci(il cases& witnesses who ha(e *een hynotiIed cannot testify%
(2) 4n cri)inal cases& a witness who has *een hynotiIed can testify if;
i% there is a written record of the witnessJs re-hynosis
recollection1
ii% the hynosis session was (ideorecorded and
conducted *y a licensed rofessional (and olice&
rosecutor& or defense counsel are not resent!1 and
iii% the witness testifies only a*out things re)e)*ered
*efore the hynosis%
(3) NOTE$ A cri)inal defendant who has undergone hynosis can testify
without restriction%
F. Founda(ional Ma((e%s$ +udge& as gate'eeer& deter)ines foundational )atters& i%e%
ad)issi*ility& ri(ileges& hearsay % % % *y a "%e"onde%ance o (he e!idence (i%e%
)ore than C.K!% +udge decides what :ury will get to hear as e(idence%
1. FRE$ +udge can )a'e findings on foundational facts *ased on ANY#<4NG
(including inad)issi*le e(idence! to decide whether or not foundation has *een
)et and whether the trier of fact will hear e(idence%
2. CEC$ +udge is li)ited to ADM4""4BLE e(idence in the foundational hearing to
decide whether foundation has *een )et%
9. La# O"inion$ BO#< $E$ and FRE; Lay witnesses can testify to an oinion if
oinion is;
1. rationally *ased1
2. on the witnessAs ercetion1 and
3. helful to a clear understanding of the witnessAs testi)ony or deter)ination of
fact in issue%
NOTE$ Legal conclusions are not ad)issi*le as lay oinion e(idence& *ut lay oinion
on things li'e seed of a car& handwriting& sanity& into7ication are er)issi*le lay
oinions% Re)e)*er 8BEM=""%9
V Value o OneEs Own Land
E E/o(ional S(a(e o O(he%s
Lay witnesses cannot offer a clinical diagnosis *ut can&
for e7a)le& testify that so)eone was uset or
into7icated%
M Measu%e/en(s
"eed of a (ehicle1 height& weight& distance.
P Ph#sical S(a(es
4nto7icated1 tall@short1 fat@s'inny1 healthy@sic'1 hay@sad%
S Senso%# S(a(es
")ells& sounds& tastes& and colors%
S Sani(# o a Tes(a(o%
#his is only in the case of a will contest%
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E8AMPLE$ 8Defendant was dri(ing a*out ?- )iles@hour% "he was *eing negligent in
dri(ing that fastL9
Lay oinion a*out the seed; ADM4""4BLE
Legal conclusion a*out negligence due to seed; 4NADM4""4BLE%
F. EA"e%( O"inion$ =er)issi*le if;
1. <elful to assist trier of fact (:udge@:ury!
2. Fitness is 5ualified
REMEMBER 8"EEE#9
S S"ecial S1ills
B Bnowled,e
E Educa(ion
E EA"e%ience
T T%ainin,
8
3. Fitness *elie(es in oinion to reasona*le degree of certainty
4. Oinion is *ased on relia*le rinciles that were relia*ly alied%
5Loo1 o% scien(iic e!idence5
a. FRE$ Daubert standard
(1) +udge is ulti)ate gate'eeer
(2) Ve%# %es(%ic(i!e$ #he "ure)e $ourt offered a list of factors
(8#A=E"9! that could *e considered *y :udges when deter)ining the
relia*ility of an e7ertAs oinion testi)ony%
b. CEC$ Kelley/Frye; 4f no(el scientific area@theory& )ust ha(e gained ,ene%al
acce"(ance in the rele(ant scientific co))unity%
NOTE$ As a ractical )atter& there )ust *e a u*lished aellate oinion or a
full-*lown e(identiary hearing on the area%
Kelley/Frye is NO# A==L4$ABLE to non-scientific or )edical oinions%
5. Oinion suorted *y a roer factual *asis%
a. FRE$ Generally& oinion cannot *e *ased on inad)issi*le e(idence%
b. CEC$ E7ert can *ase oinion on 4NADM4""4BLE e(idence-e%g% <earsay%
I. +udicial Notice
1. Mus( !s. Ma#
a. FRE$ 4f re5uested& court )ust ta'e :udicial notice of )atters generally 'nown
in :urisdiction% 4f not re5uested& court MAY ta'e :udicial notice%
b. CEC$ Re,a%dless o whether re5uested& the court M?ST ta'e :udicial notice
of )atters generally 'nown within :urisdiction%
2. Ci!il !s. C%i/inal
a. FRE$
(1) $i(il case; +ury M?ST accet :udicially noticed fact%
(2) $ri)inal case; +ury MAY accet :udicially noticed fact%
b. CEC$ +ury M?ST accet :udicially noticed fact in .OTF ci!il and c%i/inal
cases%
C. EAclusion in E%%o%$ =reser(ing on the record :udgeAs ruling on e(idence for aeal%
At the trial le(el& need to ade5uately descri*e e(idence& e7lain why e(idence is
rele(ant& why e(idence is ad)issi*le& why :udge should let it in& or& if grounds for
o*:ections& state grounds for o*:ection to ad)ission of e(idence% A*sent a great
)iscarriage of :ustice& if you fail to reser(e on the record at trial le(el& e(idence will
not *e ad)issi*le on aeal%
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IV. CFARACTER EVIDENCE &FRE :;:@ CEC GG;G'$
A. Me(hods o P%o!in, Cha%ac(e%$ (.! Reutation1 (,! Oinion1 (0! "ecific acts-
rarely er)itted
1. FRE$
a. Direct; Only reutation and oinion%
b. $ross; Reutation& oinion AND secific acts%
2. CEC$
a. Attac'ing DefendantAs $haracter (on cross or direct!; Only oinion and
reutation%
b. Attac'ing Bicti)As $haracter; Reutation& oinion AND secific acts%
NOTE$ Ma'e sure to re)e)*er which )ethods of ro(ing character can *e used
in all scenarios under *oth FRE and $E$% #he a(aila*le )ethods to ro(e
character )ay differ *ased on whether it is on D4RE$# e7a)ination or $RO""
e7a)ination or whether it is DEFENDAN#A" or B4$#4MA" character at issue%
.. 9ene%al Rule$ Dnder *oth FRE and $E$& character e(idence is inad)issi*le to
ro(e conduct in confor)ity therewith%
1. E>$E=#4ON; 4f character is an essential ele)ent of clai) or defense (e%g%
defa)ation& child custody& negligent suer(ision!%
NOTE$ E(idence of character )ay *e ad)issi*le when offered for a urose other than
to show conduct in confor)ity with oneAs character- re)e)*er MIMIC%
C. $i(il $ases;
M Mo(i!e
I Iden(i(#
M A0sence o Mis(a1e
I Iden(i(#
C Co//on Plan o% Sche/e
#his includes 'nowledge& oortunity& and rearation%
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1. FRE$ ONE ADD4#4ONAL E>$E=#4ON where defendantAs character can *e used
to ro(e conduct in confor)ity; In a case where clai) is *ased on seAual assaul(
o% child /oles(a(ion& defendantAs rior acts of se7ual assault or child
)olestation are ad)issi*le to ro(e defendantAs conduct in this case%
2. CEC$ No additional e7cetions%
D. $ri)inal $ases;
1. 9ene%al Rule on E!idence o Deendan(Es Cha%ac(e%$ Dnder *oth FRE and
$E$& the door to using character e(idence to ro(e defendantAs conduct is
$LO"ED at start of case% #he rosecution cannot *e the first to introduce
character e(idence& *ut if Defendant O=EN" the door *y introducing character
e(idence M E4#<ER ,ood cha%ac(e% o Deendan( o% 0ad cha%ac(e% o !ic(i/
-- the rosecution can re*ut under certain circu)stances% =ro ? does NO#
change this rule under $E$%
a. E8CEPTION$ =rosecution )ay *e the i%s( to offer e(idence of defendantAs
character to ro(e defendantAs conduct in the following instances;
(1) FRE and CEC; 4n cases of se7ual assault or child )olestation&
rosecution )ay offer e(idence that defendant co))itted other acts of
se7ual assault or child )olestation%
(a) NOTE$ Dnli'e the FRE& $E$ does not er)it such e(idence in ci(il
cases in(ol(ing se7ual assault%
(2) CEC$ 4n rosecution for cri)e of do)estic (iolence or elder a*use&
rosecution )ay offer e(idence that defendant co))itted other acts of
do)estic (iolence or elder a*use%
E8AMPLE$ Defendant is charged with assaulting a wo)an% =rosecution
wants to introduce e(idence of two rior con(ictions for assault%
FRE$ 4NADM4""4BLE -door closed& rosecution canAt oen& no e7cetion%
CEC$ 4NADM4""4BLE -door closed& rosecution canAt oen& no e7cetion%
E8AMPLE$ Defendant is charged with )olesting a child% =rosecution
wants to introduce e(idence of two rior con(ictions for child )olestation%
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FRE$ Ad)issi*le-e7cetion for se7ual assault and child )olestation cases%
CEC$ Ad)issi*le-e7cetion for se7ual assault and child )olestation
cases%
E8AMPLE$ Defendant is sued for da)ages in ci(il suit arising out of rae
of wo)an% =laintiff wants to introduce e(idence of two rior con(ictions for
se7ual assault%
FRE$ Ad)issi*le-e7cetion for se7ual assault and child )olestation in ci(il
cases%
CEC$ 4nad)issi*le-NO e7cetion for se7ual assault and child )olestation
in ci(il cases%
E8AMPLE$ Defendant is charged with a*using his )other& a senior
citiIen% =rosecution wants to introduce e(idence of two rior con(ictions
for assault of his father%
FRE$ 4nad)issi*le-door closed-no alica*le e7cetion%
CEC$ Ad)issi*le-e7cetion for do)estic (iolence and elder a*use%
2. Me%c# Rule$ Both FRE and $E$ allow a cri)inal defendant to introduce
e(idence of good character that would *e inconsistent with co))ission of cri)e%
#<4" O=EN" #<E DOOR and allows the rosecution the oortunity to re*ut
such e(idence with e(idence of the defendantAs *ad character%
a. DefendantAs character e(idence )ust *e related to cri)e charged- cannot
introduce e(idence of character trait for eacefulness@non(iolence in
connection with cri)e where no (iolence at issue%
b. Fhen rosecution re*uts with e(idence of defendantAs *ad character;
(1) FRE$ On D4RE$# e7a)ination& reutation and oinion only% On
$RO"" e7a)ination& reutation& oinion AND secific acts%
(2) CEC$ Fhen attac'ing DefendantAs character-whether direct or cross-
reutation and oinion ONLY%
3. Vic(i/Es cha%ac(e%$ Deendan( o"ens doo% 0# in(%oducin, e!idence o
VICTIMEs 0ad cha%ac(e%
a. FRE;
(1) Fhere court has ad)itted e(idence of (icti)As character offered *y
accused& rosecution )ay offer e(idence that accused has "AME
character trait% Any character trait is fair game.
(a) Re)e)*er under FRE& on D4RE$# e7a)ination& ONLY reutation and
oinion%
12
b. CEC$
(1) Fhere court has ad)itted e(idence of (icti)As character for !iolence
offered *y accused& rosecution )ay offer e(idence that accused has
(iolent character (a narrower (ersion of FRE!%
(a) Re)e)*er& when attac'ing B4$#4MAs character-whether on direct
or cross- ALL )ethods a(aila*le- reutation& oinion AND secific
acts%
E8AMPLE$ Defendant is charged with assaulting a wo)an and clai)s
self-defense% Defendant offers e(idence of wo)anAs (iolent character%
=rosecution wants to introduce e(idence of defendantAs two rior
con(ictions for assault%
FRE$ Ad)issi*le- court has ad)itted e(idence of (icti)As character
offered *y accused& rosecution )ay offer e(idence that accused has
"AME character trait%
CEC$ Ad)issi*le- court has ad)itted e(idence of (icti)As character for
!iolence offered *y accused& rosecution )ay offer e(idence that
accused has (iolent character%
E8AMPLE$ Defendant is charged with falsifying infor)ation on a loan
alication% Defendant clai)s the *an' )anager falsified the docu)ents
without his 'nowledge and offers e(idence of *an' )anagerAs su*)itting
false ta7 returns% =rosecution wants to introduce e(idence of defendantAs
two rior con(ictions for er:ury%
FRE$ Ad)issi*le- court has ad)itted e(idence of (icti)As character
offered *y accused& rosecution )ay offer e(idence that accused has
"AME character trait (dishonesty!%
CEC$ 4nad)issi*le- the $E$ e7cetion is li)ited to (icti)As character for
!iolence offered *y accused& e(idence of defendantAs dishonest character
trait is not ad)issi*le%
4. Fo/icide Case$ Vic(i/Es Cha%ac(e%
a. FRE$ 4n a ho)icide case when defendant clai)s "ELF-DEFEN"E or
introduces any e(idence that (icti) was first aggressor& the rosecution )ay
auto)atically offer e(idence of the (icti)As trait for eacefulness@non(iolence
to re*ut e(idence that the (icti) was the first aggressor%
13
b. CEC$ No si)ilar rule% "elf-defense clai) is not considered an attac' on
(icti)As character& so rosecutor canno( auto)atically offer character
e(idence of (icti)As eacefulness@non(iolence%
5. Ra"e Shield Law$ FRE and $E$ rules are funda)entally the sa)e% =ro ? does
NO# aly to e(idence *arred *y rae shield law%
a. 4n any ci(il or cri)inal roceeding in(ol(ing alleged se7ual )isconduct&
e(idence offered to show the alleged (icti)As se7ual *eha(ior& se7ual
redisosition& and other se7ual history is e7cluded% Alies for use as
i)each)ent and character e(idence%
b. E>$E=#;
(1) =ast acts with other eole to show that defendant was not the source of
se)en or in:ury%
(2) =ast acts with defendant that tend to show consent%
(3) 4f e7clusion of e(idence would (iolate any constitutional right of the
defendant%
6. Deendan(Es Pas( SeAual Conduc( (Re(iew of rules discussed a*o(e!
a. FRE$ Ad)issi*le in cri)inal se7ual assault or child )olestation cases1
Ad)issi*le in ci(il cases of se7ual assault or child )olestation%
b. CEC$ Ad)issi*le in cri)inal cases where defendant accused of se7ual
assault& child )olestation& do)estic (iolence& or elder a*use% INADMISSI.LE
IN CIVIL CASES.
(1) "u*:ect to *alancing under "ection 0C,%
V. IMPEACFMENT OF WITNESSES
4)each)ent )eans calling into 5uestion a witnessAs credi*ility% #here are se(eral
)ethods to i)each including;
(.! $ontradiction
(,! =rior 4nconsistent "tate)ent
(0! Bias& 4nterest& or Moti(e
(H! =rior $on(ictions
(C! =rior Bad Acts
A. I/"each/en( .# Con(%adic(ion$ "i)ly )eans introducing e(idence or testi)ony
that contradicts what witness said%
E8AMPLE$ Fitness testifies the house had a green e7terior% #esti)ony can *e
i)eached *y another witness who testifies the house had a *lue e7terior%
14
.. I/"each/en( .# P%io% Inconsis(en( S(a(e/en(s$
NOTE$ Re)e)*er if state)ent offered only to i)each No hearsay concerns% 4f
state)ent is *eing offered for truth of )atter asserted therein& need to consider
hearsay (see )ore in deth discussion of hearsay issues *elow%!
1. FRE$ 4f rior inconsistent state)ent gi(en under oath at trial or deosition& it is
eAcluded fro) hearsay rule and can *e ad)itted to ro(e truth of facts asserted%
2. CEC$ "tate)ent is considered hearsay *ut there is a hearsay eAce"(ion for ALL
inconsistent state)ents )ade *y witnesses& whether or not )ade under oath&
and therefore& state)ent can *e ad)itted to ro(e truth of facts asserted%
E8AMPLE$ Fitness stated re(iously to a third arty that the house had a in'
e7terior *ut at trial testified that the e7terior was green%
FRE$ =rior inconsistent state)ent to third arty can *e used to i)each
witnessAs testi)ony *ut NO# to ro(e that the house was in'& *ecause
state)ent was not )ade under oath%
CEC$ =rior inconsistent state)ent to third arty can *e used to i)each
witnessAs testi)ony AND to ro(e that the house was in'%
E8AMPLE$ Fitness stated in his deosition that the house had a in' e7terior
*ut at trial testified that the e7terior was green%
FRE$ =rior inconsistent state)ent to third arty can *e used to i)each
witnessAs testi)ony AND to ro(e that the house was in'%
CEC$ =rior inconsistent state)ent to third arty can *e used to i)each
witnessAs testi)ony AND to ro(e that the house was in'%
C. Reha0ili(a(ion o Wi(ness ?sin, P%io% Consis(en( S(a(e/en(s
1. FRE$ =rior consistent state)ents are ad)issi*le to REBD# a charge of recent
fa*rication or i)roer influence& )oti(e or *ias%
2. CEC$ =rior consistent state)ents are ad)issi*le to reha*ilitate a witnessAs
credi*ility that has *een attac'ed with a rior inconsistent state)ent or with a
charge of *ias or recent fa*rication& *ut ONLY 4F rior state)ent was )ade
BEFORE incident gi(ing rise to the challenge to the witnessAs credi*ility (e%g% the
rior inconsistent state)ent& the *ias& or the clai)ed recent fa*rication%!
Te/"o%al li/i(a(ion.
D. I/"each/en( .# P%io% Con!ic(ions
1. Felon# Con!ic(ions
a. FRE$
(1) False S(a(e/en(s; Felony con(ictions in(ol(ing alse s(a(e/en(s (er:ury&
fraud! are ad)issi*le with no *alancing needed eAce"( for old
con(ictions- o!e% G; #ea%s old%
15
(a) O(er .- years; Balancing under FRE 2-3(*! not inad)issi*le to
i)each unless the ro*ati(e (alue su*stantially outweighs the
re:udicial effect (re(erse H-0!%
(2) Not false state)ents; Felony con(ictions NO# in(ol(ing false
state)ents )ay *e ad)issi*le *ut su*:ect to the Rule :;< 0alancin, (es(
(i%e%& e7cluded if the ro*ati(e (alue is su*stantially outweighed *y unfair
re:udice!%
b. CEC$
(1) Mo%al Tu%"i(ude$ All felonies in(ol(ing 8)oral turitude9 are
ad)issi*le *ut court MD"# do Rule <=> 0alancin, (es( to )a'e sure the
danger of unfair re:udice does not su*stantially outweigh the ro*ati(e
(alue%
(2) No )oral turitude in(ol(ed-4NADM4""4BLE% Prop 8 does not make these
crimes admissible in criminal cases because crimes must involve moral
turpitude to be relevant for impeachment%
(a) Moral #uritude N readiness to do e(il
.! Most se7 cri)es
,! $ri)es of dishonesty (er:ury& grand theft& recei(ing stolen
roerty& ta7 e(asion!
0! $ri)es of (iolence (assault& *attery& )urder& )anslaughter& rae&
sousal a*use& (andalis)!
H! $ri)es against roerty (*urglary& arson!
C! Other serious cri)es (escae& drug sales& hit and run& 'idnaing&
e7tortion& statutory rae!
(b) $ri)es NO# in(ol(ing )oral turitude
.! $ri)es in(ol(ing negligence or unintentional acts
,! 4n(oluntary )anslaughter
0! Drug ossession
(3) No au(o/a(ic G; #ea% (i/e li/i( on cri)es li'e under FRE% But $E$
allows courts to *alance& which er)its consideration of any factor *earing
on ro*ati(e (alue& including age of con(iction%
E8AMPLE$ Defendant testifies a*out his wherea*outs at the ti)e of the alleged
offense% =rosecution wants to offer e(idence that Defendant re(iously was
con(icted of felony er:ury%
FRE$ Ad)issi*le to i)each defendant with no *alancing%
"te .; =rior con(iction in(ol(ing dishonestyO YE"
16
"te ,; Not )ore than .- years oldO YE"
No "te 0@*alancing Ad)issi*le%
CEC$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing%
"te .; Moral #uritudeO YE" go to ste ,@*alancing%
"te ,; Balance-does danger of unfair re:udice su*stantially outweigh ro*ati(e
(alueO
NOTE$ Fhen DEFENDAN# is the witness *eing i)eached& need to consider
ossi*ility that rior con(iction )ay *e used@interreted as character e(idence&
tending to ro(e defendant acted in confor)ity with character& and need to weigh
this as otential unfair re:udice co)ared to ro*ati(e (alue (*alancing test!%
#he cri)e with which defendant is charged in current case will *e i)ortant; 4f
Defendant charged with assault and rior con(iction *eing used for i)each)ent
is also for assault& higher ro*a*ility of unfair re:udice%
E8AMPLE$ Defendant testifies a*out his wherea*outs at the ti)e of the alleged
offense% =rosecution wants to offer e(idence that Defendant was con(icted of
felony er:ury in .332%
FRE$ =ro*a*ly 4NADM4""4BLE%
"te .; =rior con(iction in(ol(ing dishonestyO YE"
"te ,; Not )ore than .- years oldO NO need to *alance& not auto)atically
ad)issi*le%
"te 0; #he %e!e%se *alancing test; 4nad)issi*le to i)each unless the ro*ati(e
(alue su*stantially outweighs the re:udicial effect% Burden on "%o"onen( o
e!idence in re(erse *alancing test to show )ore ro*ati(e than re:udicial
ro*a*ly 4NADM4""4BLE%
CEC$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing%
"te .; Moral #uritudeO YE" go to ste ,@*alancing%
"te ,; Balance- does danger of unfair re:udice su*stantially outweigh ro*ati(e
(alueO Re)e)*er& no auto)atic .- year ti)e li)it on cri)es li'e under FRE% But
$E$ allows courts to *alance& which er)its consideration of any factor *earing
on ro*ati(e (alue& including age of con(iction%
E8AMPLE$ Defendant testifies a*out his wherea*outs at the ti)e of the alleged
offense% =rosecution wants to offer e(idence that Defendant re(iously was
con(icted of assault%
FRE$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing%
"te .; =rior con(iction in(ol(ing dishonestyO NO go to ste ,@*alancing%
17
"te ,; Balance- does danger of unfair re:udice su*stantially outweigh ro*ati(e
(alueO
CEC$ =ossi*ly ad)issi*le to i)each defendant%
"te .; Moral #uritudeO YE" go to ste ,@*alancing%
"te ,; Balance- does danger of re:udice su*stantially outweigh ro*ati(e
(alueO
E8AMPLE$ Defendant testifies a*out his wherea*outs at the ti)e of the alleged
offense% =rosecution wants to offer e(idence that Defendant re(iously was
con(icted of felony drug ossession%
FRE$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing%
"te .; =rior con(iction in(ol(ing dishonestyO NO go to ste ,@*alancing%
"te ,; Balance- does danger of unfair re:udice su*stantially outweigh ro*ati(e
(alueO
CEC$ 4NADM4""4BLE to i)each defendant%
"te .; Moral #uritudeO NO 4nad)issi*le%
2. Misde/eano% Con!ic(ions
a. FRE$
(1) False S(a(e/en(s; )isde)eanor con(ictions in(ol(ing alse s(a(e/en(s
(er:ury& fraud! are ad)issi*le with no *alancing needed eAce"( for old
con(ictions- o!e% G; #ea%s old% Same rule as felony convictions.
(a) O(er .- years; Balancing under FRE 2-3(*! not inad)issi*le to
i)each unless the ro*ati(e (alue su*stantially outweighs the
re:udicial effect (re(erse H-0!%
(2) Not false state)ents; Misde)eanor con(ictions NO# in(ol(ing false
state)ents are 4NADM4""4BLE%
b. CA$ $E$ )a'es )isde)eanor con(ictions inad)issi*le BD# =ro ? *rings
the) *ac' into lay for $R4M4NAL cases only%
NOTE$ #his is the rule under $alifornia state law-=ro ?- *ut it is NO#
ursuant to the $alifornia E(idence $ode% #hat is why this section has state
rule denoted *y 8$AL9 and not 8$E$%9
(1) $i(il cases; 4NADM4""4BLE (=ro ? has no alication to ci(il cases%!
(2) $ri)inal cases; =ro ? in lay%
(a) Mo%al Tu%"i(ude$ All felonies in(ol(ing 8)oral turitude9 are
ad)issi*le *ut court MD"# do Rule <=> 0alancin, (es( to )a'e sure
the danger of unfair re:udice does not su*stantially outweigh the
ro*ati(e (alue%
(b) No )oral turitude in(ol(ed-4NADM4""4BLE% Prop 8 does not make
18
these crimes admissible in criminal cases because crimes must
involve moral turpitude to be relevant for impeachment.
Same rule as felony convictions.
E8AMPLE$ 4n a ci(il action for negligence& Defendant testifies a*out the
recautions he too' leading u to the accident resulting in in:ury to =laintiff%
=laintiff wants to offer e(idence that Defendant re(iously was con(icted of
)isde)eanor charge of falsifying infor)ation on loan docu)ents%
FRE$ Ad)issi*le to i)each defendant%
"te .; =rior con(iction in(ol(ing dishonesty and not )ore than .- years oldO
YE"
No "te ,@*alancing
CEC$ 4NADM4""4BLE to i)each defendant% Misde/eano% con!ic(ions
inad/issi0le in CIVIL cases.
E8AMPLE$ Defendant is *eing rosecuted for *urglary and testifies a*out his
wherea*outs on the night in 5uestion% =rosecution wants to introduce
)isde)eanor con(iction for etty theft%
FRE$ 4NADM4""4BLE to i)each defendant%
"te .; =rior con(iction in(ol(ing dishonesty and not )ore than .- years oldO NO
No "te ,@*alancing 4NADM4""4BLE; Because it is a misdemeanor con(iction
not in(ol(ing dishonesty& it is not ad)issi*le to i)each%
NOTE$ Many theft cri)es do NO# in(ol(e dishonesty (theft& ro**ery& *urglary!
*ut theft cri)es in(ol(ing so)e lying (e)*eIIle)ent& theft *y false retenses! do
in(ol(e dishonesty%
CAL$ =ossi*ly ad)issi*le& su*:ect to *alancing test%
Re)e)*er& under E(idence code )isde)eanors are inad)issi*le to i)each
BD# =ro ? )a'es all rele(ant e(idence ad)issi*le for $R4M4NAL cases only%
"te .; Moral #uritudeO YE" go to ste ,@*alancing%
"te ,; Balance- does danger of re:udice su*stantially outweigh ro*ati(e
(alueO
=re:udicial and ro*ati(e considerations; (.! Danger of rior con(iction *eing
used as i)roer character e(idence since theft cri)e si)ilar to *urglary and
witness in 5uestion is defendant1 (,! consider age of the con(iction%
3. ?se o EA(%insic E!idence$ Dnder *oth FRE and $E$& if the con(iction is
otherwise ad)issi*le& e7trinsic e(idence can *e used to ro(e the con(iction%
19
E. I/"each/en( .# P%io% .ad Ac(s
1. FRE$
a. T%u(hulness$ Must *ear on truthfulness or lac' thereof of witness%
b. $i(il AND cri)inal cases%
c. "u*:ect to *alancing test%
d. NO e7trinsic e(idence& can 5uestion witness on cross-e7a)ination%
2. CAL$ =rior *ad acts@non-con(ictions are inad)issi*le to i)each under E(idence
$ode1 BD# =ro ? )a'es the) ad)issi*le in cri)inal cases& if they are rele(ant%
a. Mo%al Tu%"i(ude$ #o *e rele(ant the )isconduct )ust *e act of )oral
turitude%
b. Only $R4M4NAL cases% Prop 8 has no application to civil cases.
c. "u*:ect to *alancing test%
d. EA(%insic e!idence and cross-e7a)ination can *e used%
E8AMPLE$ 4n a ci(il action for negligence& Defendant testifies a*out the
recautions he too' leading u to the accident resulting in in:ury to =laintiff%
=laintiff wants to offer e(idence that Defendant lied on his DMB alication
saying he ne(er suffered an eiletic seiIure%
FRE$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing test%
"te .; =rior Bad Act in(ol(ing truthfulnessO YE"
"te ,; Balancing- does danger of re:udice su*stantially outweigh ro*ati(e
(alueO
Me(hod$ =laintiff can as' Defendant on cross-e7a)ination 8DidnAt you lie on
DMB alicationO9
CAL$ 4NADM4""4BLE to i)each defendant%
E(idence code does not recogniIe non-con(iction *ad acts as er)issi*le
)ethod of i)each)ent and =ro ? has no alication to ci(il cases%
E8AMPLE$ Defendant is *eing rosecuted for securities fraud and denies
falsifying any docu)ents% =rosecution wants to offer e(idence that Defendant
lied on his DMB alication saying he ne(er suffered an eiletic seiIure% Fhen
as'ed whether he lied& Defendant says 8no%9 =rosecution wants to offer into
20
e(idence DMB records and DefendantAs )edical records%
FRE$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing test%
"te .; =rior *ad act in(ol(ing truthfulnessO YE"
"te ,; Balancing- does danger of re:udice su*stantially outweigh ro*ati(e
(alueO
Me(hod$ =rosecution can as' Defendant on cross-e7a)ination 8DidnAt you lie on
DMB alicationO9 BD# when Defendants says 8No&9 rosecution is stuc' with
that answer% No eA(%insic e!idence er)itted to ro(e lying on DMB
alication%
CAL$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing test%
"te .; 4s this a cri)inal caseO YE"% =ro ? can ro(ide for i)each)ent with
non-con(ictions *ut only alies to cri)inal cases%
"te ,; =rior *ad act in(ol(ing )oral turitudeO YE"
"te 0; Balancing- does danger of re:udice su*stantially outweigh ro*ati(e
(alueO
Me(hod$ =rosecution can as' Defendant on cross-e7a)ination 8DidnAt you lie on
DMB alicationO9 Fhen Defendants says 8No&9 rosecution is a*le to introduce
eA(%insic e!idence (DMB records& )edical records! to ro(e the rior *ad act%
E8AMPLE$ Defendant is *eing rosecuted for securities fraud and denies
falsifying any docu)ents% =rosecution wants to offer e(idence that Defendant
stole fro) a re(ious e)loyer%
FRE$ 4NADM4""4BLE%
"te .; =rior *ad act in(ol(ing truthfulnessO NO- theft does not in(ol(e
truthfulness%
4NADM4""4BLE
CAL$ =ossi*ly ad)issi*le to i)each defendant& su*:ect to *alancing test%
"te .; 4s this a cri)inal caseO YE"% =ro ? can ro(ide for i)each)ent with
non-con(ictions *ut only alies to cri)inal cases%
"te ,; =rior *ad act in(ol(ing )oral turitudeO YE"- )oral turitude is *roader
than federal rule a*out truthfulness%
"te 0; Balancing- does danger of re:udice su*stantially outweigh ro*ati(e
(alueO
NOTE$ Re)e)*er that where Defendant is the witness& rior *ad act introduced
for i)each)ent has added ris' of undue re:udice as *eing used as i)roer
character e(idence- trier of fact )ay *elie(e *ecause Defendant stole *efore he
is )ore li'ely to co))it securities fraud% #he )ore si)ilar the charged offense
and the rior *ad act (or con(iction!& the higher the ris' of undue re:udice%
21
VI. FEARSAY
A. P%eli/ina%# Ma((e%s
1. Deini(ion$ (.! Out of court state)ent (,! offered for the truth of the )atter
asserted%
2. .u%den$
a. FRE$ O*:ecting arty has *urden to ro(e it is hearsay%
b. CEC$ =roonent of the e(idence has *urden to ro(e it is not hearsay%
3. EAclusions@EAce"(ions$
a. FRE$ Both e7clusions (nonhearsay! and e7cetions to the hearsay rule%
b. CEC$ Only e7cetions to the hearsay rule%
4. P%o" 3$ <earsay law is e7e)t fro) =ro ?- e(en in cri)inal cases& all the usual
rules of e(idence aly%
.. ?na!aila0ili(# o Decla%an($ Dnder *oth FRE and $E$& there are categories of
e7cetions to the hearsay rule that deend uon the declarant *eing 8una(aila*le%9
NOTE$ #he FRE and the $alifornia E(idence $ode are organiIed differently% #he
FRE searate out the hearsay e7cetions *ased on una(aila*ility1 $E$ does not do
so& *ut *oth ha(e hearsay e7cetions *ased on una(aila*ility%
1. Fhat constitutes una(aila*le- sa)e under FRE and $E$ unless noted
otherwise;
a. P%i!ile,e$ e7e)ted or recluded fro) testifying on grounds of ri(ilege%
b. Reusal$
(1) FRE$ refusal to testify desite court order%
(2) CEC$ refusal to testify out of fear%
c. Inca"a0le$ 4ncaa*le of testifying for reasons such as death& sic'ness&
i)air)ent%
d. Su0"oena$ a*sent fro) hearing desite roonentAs reasona*le efforts to
co)el attendance OR *eyond the courtAs rocess to co)el attendance%
e. Me/o%#$
(1) FRE$ DeclarantAs )e)ory fails& testifies to a lac' of )e)ory%
(2) CEC$ Further le(el of in5uiry as to )e)ory loss; Mere lac' of )e)ory will
not suffice1 need to esta*lish that )e)ory loss was caused *y hysical or
)ental da)age resulting fro) alleged cri)e& causing the witness to *e
una*le to re)e)*er%
22
2. Fo%ei(u%e doc(%ine (*oth FRE and $E$!; Declarant is not dee)ed una(aila*le
as a witness if the una(aila*ility is due to the actions of the roonent of a
state)ent o% (he "u%"ose o "%e!en(in, (he wi(ness %o/ a((endin, o%
(es(i#in,%
3. C%awo%d@Con%on(a(ion Clause$ BO#< FRE and $E$; Re)e)*er the 2
th

A)end)ent- $onfrontation $lause issue in a cri)inal case where the declarant
is una(aila*le; 8testi)onial9 hearsay state)ents will *e inad)issi*le unless the
defendant is gi(en an oortunity to cross-e7a)ine the declarant% #herefore&
e(en if hearsay law under either FRE or $E$ does not )a'e the e(idence
inad)issi*le& the "ure)e $ourt case of ra!ford and the $onfrontation $lause
analysis )ay )a'e the e(idence inad)issi*le%
a. Loo' for;
(1) $ri)inal case%
(2) At trial& declarant not a(aila*le to testify%
(3) "tate)ent is 8testi)onial%9
(a) "tate)ents to rosecution and so)e to olice& includes such things
as (.! u*lic records used against defendant1 (,! a state)ent during
olice interrogation& and (0! collecting infor)ation fro) an infor)ant%
(b) 8Non-testi)onial e(idence9 includes situations where the ri)ary
urose of the state)ent is to aid olice during an ongoing e)ergency%
(4) Defendant had no chance to cross-e7a)ine declarant when state)ent
was )ade%
C. D#in, Decla%a(ion EAce"(ion
1. FRE$
a. "tate)ents )ade *y a declarant who *elie(es he@she is a*out to die%
b. "tate)ent descri*es the cause or circu)stances surrounding his@her
i)ending death%
c. Declarant is ?NAVAILA.LE- *ut does not ha(e to *e dead%
d. Ad)issi*le in any ci!il ac(ion and in a ho/icide "%osecu(ion%
2. CEC$
P P%i!ile,e
R Reusal
I Inca"a0ili(#
S Su0"oena
M Me/o%#
23
a. "tate)ents )ade *y a declarant who *elie(es he@she is a*out to die%
b. "tate)ent descri*es the cause or circu)stances surrounding his@her
i)ending death%
c. Declarant is DEAD%
d. Ad)issi*le in all ci!il and c%i/inal cases.
D. Fo%/e% Tes(i/on# EAce"(ion
1. FRE$ For)er testi)ony not e7cluded *y hearsay rule if;
a. Declarant una(aila*le%
b. Declarant )ade state)ent under oath- so)e roceeding or deosition (does
not aly to grand :ury testi)ony!%
c. =arty against who) testi)ony is offered had o""o%(uni(# and /o(i!e (o
eAa/ine declarant%
(1) $ri)inal case; =arty against who) testi)ony is offered )ust ha(e *een
arty in re(ious roceeding% 4f not 4NADM4""4BLE%
(2) $i(il case; =arty in re(ious case OR redecessor-in-interest was a
arty (so)eone with close ri(ity-tye relationshi and si)ilar )oti(e!% 4f
not 4NADM4""4BLE%
2. CEC$
a. Declarant una(aila*le%
b. Declarant )ade state)ent under oath- so)e roceeding or deosition (does
not aly to grand :ury testi)ony!%
c. =arty against who) testi)ony is offered had o""o%(uni(# and /o(i!e (o
eAa/ine declarant%
(1) $ri)inal case; =arty against who) testi)ony is offered )ust ha(e *een
arty in re(ious roceeding% 4f not 4NADM4""4BLE%
(2) $i(il case; =arty in re(ious case OR "a%(# in ea%lie% "%oceedin, had
SIMILAR INTERESTS (=ri(ity NO# re5uired! for oortunity and )oti(e to
e7a)ine% 4f not 4NADM4""4BLE%
E8AMPLE$ +on and +ane were in:ured in a car accident% +on sued car
)anufacturer for in:uries resulting fro) defecti(e design of air *ag% E7ert
testified for car )anufacturer% E7ert has since left the country and is
una(aila*le for further testi)ony% +ane sues car )anufacturer for in:uries
24
resulting fro) defecti(e design of air *ag% $ar )anufacturer offers E7ertAs
testi)ony in +aneAs case%
FRE$ 4NADM4""4BLE% +ane was not a arty in the first case and she and +on
are not in ri(ity& +on is not her redecessor-in-interest& so for)er testi)ony
of E7ert cannot *e ad)itted and used against +ane%
CEC$ Ad)issi*le% +ane was not a arty in the first case *ut she and +on ha(e
si)ilar interests- and therefore si)ilar )oti(ation to e7a)ine the E7ert% No
ri(ity re5uire)ent under $E$ and for)er testi)ony of E7ert can *e
ad)itted and used against +ane%
d. For)er testi)ony is offered against the erson who offered it in e(idence in
her own *ehalf in the earlier roceeding& or against a successor in interest of
such erson%
E8AMPLE$ First roceeding was an ad)inistrati(e hearing for wage and
la*or clai)s against car )anufacturer% $ar )anufacturer offered E7ertAs
testi)ony in that case% E7ert has since left the country and is una(aila*le for
further testi)ony% +on sues car )anufacturer for in:uries resulting fro)
defecti(e design of air *ag% +on offers E7ertAs testi)ony fro) the
ad)inistrati(e hearing%
FRE$ 4NADM4""4BLE% #he two cases are too different- $ar )anufacturer did
not ha(e the sa)e oortunity and )oti(e to e7a)ine E7ert in *oth cases
such that the testi)ony fro) first case can *e used in the second case%
CEC$ Ad)issi*le% Fhen e(idence is offered AGA4N"# the erson who
originally offered it into e(idence- here& the car )anufacturer- $E$ does not
care a*out si)ilar )oti(ation to e7a)ine% E(en if cases are (ery distinct& if car
)anufacturer thought E7ert testi)ony was good enough to introduce it in the
first case& it is good enough to *e used against car )anufacturer in the
su*se5uent case%
E. P%io% Inconsis(en( S(a(e/en(s &Re!iew %o/ V... I/"each/en( 0# P%io%
Inconsis(en( S(a(e/en(s'
1. FRE$ 4f rior inconsistent state)ent gi(en under oath at trial or deosition& it is
eAcluded fro) hearsay rule and can *e ad)itted to ro(e truth of facts asserted%
25
2. CEC$ "tate)ent is considered hearsay *ut there is a hearsay eAce"(ion for ALL
inconsistent state)ents )ade *y witnesses& whether or not )ade under oath&
and therefore& state)ent can *e ad)itted to ro(e truth of facts asserted%
F. P%io% Consis(en( S(a(e/en(s &Re!iew %o/ V.C. Reha0ili(a(ion 0# P%io%
Consis(en( S(a(e/en(s'$ 4f rior consistent state)ents are otherwise ad)issi*le on
the issue of witness credi*ility& they are also ad)issi*le to ro(e the truth of their
content%
1. FRE$ =rior consistent state)ents are ad)issi*le to REBD# a charge of recent
fa*rication or i)roer influence& )oti(e or *ias% Nonhea%sa#.
2. CEC$ =rior consistent state)ents are ad)issi*le to reha*ilitate a witnessAs
credi*ility that has *een attac'ed with either a rior inconsistent state)ent or with
a charge of *ias or recent fa*rication& *ut ONLY 4F rior state)ent was )ade
BEFORE incident gi(ing rise to the challenge to the witnessAs credi*ility (e%g% the
rior inconsistent state)ent& the *ias& or the clai)ed recent fa*rication%!
Te/"o%al li/i(a(ion. EAce"(ion (o (he hea%sa# %ule.
9. Pa%(# Ad/ission$ Dnder *oth FRE and $E$& a arty ad)ission is a state)ent *y a
arty& or so)eone whose state)ent is attri*uta*le to a arty& offered *y a arty
oonent%
FRE$ Nonhearsay%
CEC$ <earsay *ut ad)issi*le under eAce"(ion%
1. Vica%ious Pa%(# Ad/ission$
a. FRE$ "tate)ent *y e)loyee of arty is arty ad)ission of e)loyer if (.!
state)ent concerned )atter within scoe of e)loy)ent AND (,! )ade
during e)loy)ent relationshi%
(1) +udge decides foundational facts%
b. CEC$ Only e)loyee state)ents that get ad)itted under (icarious arty
ad)ission theory are state)ents *y e)loyees whose conduct )a'es the
e)loyer (icariously lia*le under rincile of respondeat superior% E)loyer
is resonsi*le for e)loyeeAs words only if also resonsi*le *ecause of that
e)loyeeAs conduct% No issue a*out whether the state)ent is a*out
so)ething within the course and scoe of the agency% No li)itation that
state)ent )ust *e )ade while the e)loyee is still in the e)loy of the
e)loyer%
(1) +ury decides foundational facts%
E8AMPLE$ $usto)er at 4IIyAs 4ce $rea) dros her cone% E)loyee fails to clean
u the )ess in a ti)ely fashion and another custo)er slis and *rea's her leg%
=laintiff testifies 4IIyAs e)loyee said 84 should ha(e cleaned u the )ess *ut 4
forgot%9
26
FRE$ Ad)issi*le as nonhearsay- (icarious arty ad)ission )ade *y e)loyee and
a )atter within the scoe of e)loy)ent AND )ade during e)loy)ent
relationshi%
CEC$ Ad)issi*le as hearsay e7cetion- state)ent )ade *y e)loyee whose
conduct )a'es the e)loyer (icariously lia*le under the rincile of resondeat
suerior (negligent act of e)loyee )a'es e)loyer lia*le for negligence%!
E8AMPLE$ $usto)er at 4IIyAs 4ce $rea) slis on a uddle created fro) the
lea'ing air conditioner% =laintiff testifies 4IIyAs e)loyee said 8#hat air conditioner is
always lea'ing and the )aintenance )an should ha(e fi7ed it%9
FRE$ Ad)issi*le as nonhearsay- (icarious arty ad)ission )ade *y e)loyee and
a )atter within the scoe of e)loy)ent AND )ade during e)loy)ent
relationshi%
CEC$ 4NADM4""4BLE% Not e7e)t fro) hearsay rule as (icarious arty ad)ission
*ecause the state)ent was not )ade *y the e)loyee whose conduct )a'es the
e)loyer (icariously lia*le under the rincile of resondeat suerior% #he sea'er
did not do the negligent act%
F. Decla%a(ion A,ains( In(e%es(
1. FRE$ A state)ent *y an DNABA4LABLE declarant is ad)issi*le if& at ti)e it was
)ade& it was against the financial or cri)inal interest of the declarant (against
roriety or ecuniary interest& or e7ose the declarant to ci(il or cri)inal
lia*ility%!
a. Fhere defendant see's to introduce such a state)ent to e7culate hi)self or
inculate others& the state)ent )ust *e corro*orated to *e ad)issi*le as
declaration against interest%
2. CEC$ A state)ent *y an DNABA4LABLE declarant is ad)issi*le if& at the ti)e it
was )ade& it was against the financial or cri)inal interest of the declarant o% (he
s(a(e/en( was a,ains( (he social in(e%es( o (he decla%an( 0ecause i( %is1ed
/a1in, decla%an( an o0Dec( o +ha(%ed4 %idicule4 o% social dis,%ace in (he
co//uni(#.- " rule is broader than F#"%
3. Pa%(# Ad/ission !s. Decla%a(ion A,ains( In(e%es(
a. Dna(aila*ility is NO# re5uired for arty ad)ission1 una(aila*ility is re5uired
for declaration against interest%
b. =arty ad)ission ONLY for arties1 declaration against interest can co)e in for
any declarant who )eets the re5uire)ents%
I. S(a(e o Mind EAce"(ions) A!aila0ili(# o Decla%an( IMMATERIAL
27
1. EAci(ed ?((e%ance@S"on(aneous S(a(e/en(
a. FRE)EAci(ed ?((e%ance$ "tate)ents that (.! relate to a startling e(ent or
condition& and (,! were )ade sontaneously while the declarant was under
the stress of e7cite)ent caused *y such e(ent& (0! need NO# *e i))ediate
or sontaneous& if still under the condition of e7cite)ent& e7cited utterance
e7cetion will still aly%
b. CEC)S"on(aneous S(a(e/en($ State)ent (.! )ust urort to narrate&
descri*e or e7lain an act& condition& or e(ent ercei(ed *y the declarant
AND (,! was )ade sontaneously while the declarant was under the stress of
e7cite)ent caused *y such ercetion%
NOTE$ Fhile the FRE and $E$ )ay use different language& these
e7cetions are effecti(ely the sa)e% Loo' out for state)ents with e7cla)ation
)ar's (8L9! to indicate this hearsay e7cetion )ay *e alica*le%
2. P%esen( Sense I/"%ession@Con(e/"o%aneous S(a(e/en(
a. FRE)P%esen( Sense I/"%ession$ "tate)ent )ade *y the declarant
descri*ing or e7laining an e(ent or condition )ade while or i))ediately after
ercei(ing it% Does not need to *e 8e7cited9 *ut needs to *e )ade while or
i//edia(el# after ercei(ing%
b. CEC)Con(e/"o%aneous S(a(e/en($ "tate)ent offered (.! to e7lain&
5ualify& or )a'e understanda*le conduct of the declarant AND (,! )ade
while the declarant was engaged in such conduct% DeclarantAs words while
doing so)ething or e7eriencing so)ething are ad)issi*le under this
e7cetion& if the declarant is descri*ing his or her own conduct at the ti)e%
$his e%ception is much more narro! than the F#" present sense impression
e%ception to the hearsay rule.
#his e7cetion is generally for (er*al acts of legal significance& such as the
declarantAs intent to create a gift or a trust%
E8AMPLE$ #he e7ecutor of Grand)aAs estate sues A)y to reco(er
Grand)aAs dia)ond ring% A)y resents the testi)ony of George who says he
saw Grand)a hand A)y the ring and say& 84 want you to ha(e this%9
NOTE$ $E$ conte)oraneous state)ent e7cetion focuses on the
declarantAs su*:ecti(e intent regarding the act& while the FRE resent sense
i)ression e7cetion includes state)ents descri*ing E>#ERNAL heno)ena
ercei(ed *y the declarant% Dnder FRE& conte)oraneous state)ents
reflecting the declarantAs state of )ind regarding his own conduct are not
considered hearsay& so no e7cetion needed%
3. S(a(e/en( Desc%i0in, Inlic(ion o% Th%ea( o Ph#sical A0use$ The OC
28
Exception- Calio%nia Onl#
a. Re5uire)ents;
(1) DNABA4LABLE declarant1
(2) "tate)ent descri*ing or e7laining infliction or threat of hysical a*use1
(3) Made at or near ti)e of in:ury or threat1
(4) 4n writing& recorded& or )ade to olice or )edical rofessionals1
(5) Dnder trustworthy circu)stances%
b. #his e7cetion was *asis for ad)itting calls fro) Nicole "i)son to the
do)estic a*use shelter in the ci(il trial of O+ "i)son%
c. C%awo%d@Con%on(a(ion Clause Conside%a(ion$ 4f a state)ent is )ade to
olice and could *e considered 8testi)onial&9 raise the $rawford issue- the-
state)ent could still *e inad)issi*le& e(en though it 5ualifies for the O+
hearsay e7cetion& *ecause it )ay (iolate the confrontation clause under
$rawford%
E8AMPLE$ Girlfriend calls 3.. and screa)s& 8My *oyfriend :ust ulled a gun
on )eL9 Defendant (*oyfriend! is later charged with assault% Girlfriend dies
fro) in:uries% =rosecution wants to ad)it 3.. tae to ro(e Defendant had a
gun%
FRE$ Ad)issi*le% #his li'ely 5ualifies under two e7cetions; E7cited
Dtterance; (.! relates to a startling e(ent or condition& and (,! was )ade
sontaneously while the declarant was under the stress of e7cite)ent%
=resent "ense 4)ression; "tate)ent )ade *y the declarant descri*ing or
e7laining an e(ent or condition )ade while or i))ediately after ercei(ing it%
#he word 8:ust9 indicates state)ent is i))ediately after ercei(ing e(ent%
CEC$ Ad)issi*le as "ontaneous "tate)ent e7cetion- (.! urorts to
narrate& descri*e or e7lain an act& condition& or e(ent ercei(ed *y the
declarant AND (,! was )ade sontaneously while the declarant was under
the stress of e7cite)ent caused *y such ercetion% Note that the narrower
$E$ $onte)oraneous state)ent e7cetion would NO# aly here *ecause
declarant is not descri*ing her own conduct% 4t could ossi*ly *e ad)issi*le
under the O+ e7cetion as well- see discussion under ne7t e7a)le%
E8AMPLE$ Girlfriend calls 3.. and cal)ly says& 8An hour ago& )y *oyfriend
ulled a gun on )e%9 Defendant (*oyfriend! is later charged with assault%
Girlfriend dies fro) in:uries% =rosecution wants to ad)it 3.. tae to ro(e
29
Defendant had a gun%
FRE$ 4NADM4""4BLE% E7cited Dtterance; Does not 5ualify% Ford 8cal)ly9
indicates declarant was NO# under the stress of e7cite)ent% =resent "ense
4)ression; Does not 5ualify- 8an hour ago9 indicates that the state)ent was
not )ade while or i))ediately after ercei(ing the e(ent%
CEC$ =ro*a*ly ad)issi*le under the O+ e7cetion% Re5uire)ents; (.!
DNABA4LABLE declarant- girlfriend died1 (,! "tate)ent descri*ing or
e7laining infliction or threat of hysical a*use1 (0! Made at or near ti)e of
in:ury or threat- an hour ro*a*ly 5ualifies as 8at or near91 (H! 4n writing&
recorded& or )ade to olice or )edical rofessionals- 3.. call 5ualifies1 (C!
Dnder trustworthy circu)stances%
4s there a $rawford@$onfrontation $lauses concern hereO No& *ecause
state)ent was to 3..& not to olice or rosecutor and therefore not
8testi)onial9 so $rawford@$onfrontation $lause analysis is inalica*le& *ut
)a'e sure to raise $rawford concern in these conte7ts%
C. S(a(e/en(s o Men(al o% Ph#sical Condi(ion
1. EAce"(ion o% decla%a(ion o (hen eAis(in, "h#sical o% /en(al condi(ion$
a. Dnder *oth FRE and $E$& state)ent of declarantAs then e7isting hysical or
)ental condition or state of )ind (=RE"EN# #EN"E! is ad)issi*le to show
the condition or state of )ind% No need to show declarant una(aila*le%
b. "tate)ent descri*ing =A"# hysical or )ental condition- as )e)ory or *elief
- is not ad)issi*le to ro(e the fact re)e)*ered or *elie(ed under this
e7cetion%
2. EAce"(ion o% s(a(e/en( o "as( o% "%esen( /en(al o% "h#sical condi(ion
/ade o% /edical dia,nosis o% (%ea(/en(.
a. FRE$ A state)ent descri*ing "as( OR "%esen( )ental or hysical condition
of the declarant or of another erson is ad)issi*le if )ade for and ertinent to
/edical dia,nosis o% (%ea(/en(% No need to show declarant una(aila*le%
b. CEC$ A state)ent of ast OR resent )ental or hysical condition is
ad)issi*le if )ade for )edical diagnosis or treat)ent& *ut onl# i &G' (he
decla%an( was G> #ea%s old o% #oun,e% when s(a(e/en( was /ade AND
&>' desc%i0in, an ac( o child a0use o% ne,lec(. No need to show declarant
una(aila*le% $his e%ception is much more narro! than F#" e%ception.
3. S(a(e/en( o decla%an(Es PAST "h#sical o% /en(al condi(ion ad/issi0le (o
"%o!e condi(ion4 i a( issue in (he case. Calio%nia onl#.
a. 4ncludes a state)ent of intention%
30
b. No re5uire)ent that state)ent *e )ade for )edical diagnosis or treat)ent%
c. Declarant )ust *e DNABA4LABLE%
E8AMPLE$ +ac' :u)s out a window& and *efore he does so he says 84A)
sic' of life and 4A) going to 'ill )yself%9 4nsurance co)any wants to introduce
this e(idence to ro(e +ac' co))itted suicide and it was not an accidental
death%
FRE$ Ad)issi*le as declaration of then e7isting )ental or hysical condition%
CEC; Ad)issi*le as declaration of then e7isting )ental or hysical condition%
E8AMPLE$ +ac' falls out a window% "u*se5uently he goes to see a doctor
and states& 8My shoulder was 'illing )e last wee' *ecause 4 fell out of the
window due to a faulty latch%9
FRE$ Ad)issi*le as declaration of ast or resent )ental or hysical
condition )ade for )edical diagnosis or treat)ent%
CEC; 4nad)issi*le% $anAt 5ualify as then e7isting hysical condition
e7cetion& not discussing then e7isting condition% Dnder $E$& to 5ualify for
e7cetion for ast )ental or hysical condition )ade for )edical diagnosis or
treat)ent& declarant )ust *e a child under ., years of age in the case of child
a*use or neglect% #hat is not the case here% 4f +ac'As condition was at issue in
the case AND +ac' were una(aila*le& the state)ent could *e ad)issi*le
under $E$ as state)ent of declarantAs ast hysical or )ental condition
ad)issi*le to ro(e condition *ut we ha(e no indication that +ac' is
una(aila*le or whether the condition is at issue in this e7a)le%
E8AMPLE$ +ac' was tal'ing to his neigh*or and said 8Last wee' 4 was really
*lue and sic' of life and wanted to 'ill )yself%9 +ac' later died falling out of a
window and insurance co)any wants to introduce this e(idence to ro(e
+ac' co))itted suicide and it was not an accidental death%
FRE$ 4NADM4""4BLE% "tate)ent of =A"# )ental or hysical condition& so it
is not ad)issi*le as then e7isting state)ent e7cetion% "tate)ent not )ade
for )edical diagnosis or treat)ent& so not ad)issi*le under that e7cetion%
CEC$ Ad)issi*le as state)ent of declarantAs =A"# hysical or )ental
condition ad)issi*le to ro(e condition% #here is no re5uire)ent that the
state)ent *e )ade for )edical diagnosis or treat)ent and +ac' is
una(aila*le and his )ental condition is at issue in the case%
B. .usiness Reco%ds
31
1. Dnder *oth FRE and $E$& there are H re5uire)ents;
a. #he *usiness record )ust *e )ade in the regular course of *usiness (and not
)ade solely in anticiation of litigation!%
b. 4t )ust *e )ade at or near the ti)e of )atters descri*ed& *y a erson with
'nowledge of the facts in that record%
c. $ustodian testifies to the recordAs identity and its )ode of rearation%
d. 4ndicia of trustworthiness in )ethod and ti)e of rearation of record%
2. No need to show declarant una(aila*le%
3. Re)e)*er that a*sence of records can *e used to show so)ething did not
haen%
4. FRE$ Oonent of e(idence has *urden to ro(e *usiness record does not )eet
re5uire)ents *y reonderance of e(idence%
5. CEC$ =roonent of e(idence has *urden to ro(e *usiness record )eets all
re5uire)ents *y a reonderance of e(idence%
L. Pu0lic Reco%ds$ "i)ilar foundation to *usiness records *ut do not need to *e )ade
at or near ti)e of )atters descri*ed and not in regular course of *usiness& instead;
1. FRE$
a. Ad)issi*le if
(1) record descri*es the acti(ities or olicies of the office1
(2) record descri*es )atters o*ser(ed ursuant to duty i)osed *y law
(*ut not olice reorts in cri)inal cases!1 or
(3) record contains factual findings resulting fro) an in(estigation )ade
ursuant to authority granted *y law& unless untrustworthy (not a(aila*le in
cri)inal cases!%
2. Oonent of e(idence has *urden to ro(e *usiness record does not )eet
re5uire)ents *y reonderance of e(idence%
3. CEC$
a. Dnli'e FRE& $E$ does not li)it the use of official reorts in cri)inal cases& so
there is no eAclusion o %e"o%(s con(ainin, /a((e%s o0se%!ed 0# "olice
oice%s and o(he% law eno%ce/en( "e%sonnel.
b. =roonent of e(idence has *urden to ro(e *usiness record )eets all
re5uire)ents *y reonderance of e(idence%
M. P%io% S(a(e/en( o Iden(iica(ion$
1. FRE and CEC$ Out of court state)ent *y a witness identifying the accused is
ad)issi*le if; (.! state)ent of identification was )ade after ercei(ing erson
AND (,! declarant testifies at trial and is su*:ect to cross-e7a)ination a*out the
state)ent%
32
NOTE$ Loo' out for rior out-of-court identifications *y a witness who is NO#
testifying at the current trial and therefore is not su*:ect to cross-e7a)ination%
#his hearsay e7e)tion or e7cetion cannot aly if witness is not testifying at
trial%
2. FRE$ Nonhearsay
3. CEC$
a. <earsay E7cetion%
b. "tate)ents of identification are li)ited to cri)inal trials%
c. Additional re5uire)ents ()ore difficult to get state)ent in!;
(1) "tate)ent was )ade at a ti)e when the cri)e or other occurrence
was fresh in the witnessAs )e)ory AND
(2) Fitness )ust testify that he )ade the identification and that it was a
true reflection of his oinion at that ti)e%
(3) Fitness )ust testify that he )ade the identification and that it was a true
reflection of his oinion at the ti)e%
N. Lea%ned T%ea(ises
1. FRE$ Ad)issi*le to ro(e anything if treatise is acceted authority in field%
2. CEC$ &uch narro!er- e7cludes )edical treatises entirely and only ad)issi*le to
show )atters of general notoriety or interest%
O. Residual Fea%sa# EAce"(ion
1. FRE$ $atch all e7cetion- A state)ent not otherwise co(ered *y an e7cetion to
the hearsay rule is ne(ertheless not e7cluded *y the hearsay rule under certain
circu)stances; (.! state)ent )ust *e )ore ro*ati(e on oint than any other
e(idence1 (,! the arty )ust gi(e notice to the oosing arty1 (0! the state)ent
)ust concern a )aterial issue1 and (H! the :udge )ust ulti)ately deter)ine
whether& in the interest of :ustice& the state)ent should *e ad)itted%
2. CEC$ No 8catch all9 e7cetion%
33
VII. PRIVILE9ES
A. P%eli/ina%# Ma((e%s
1. FRE$ No secific ri(ilege ro(isions& co))on-law ri(ileges%
2. CEC$ 4ncludes ri(ilege ro(isions1 will not recogniIe secific ri(ileges unless
authoriIed *y statute%
a. =ro ? does NO# aly to )ost ri(ilege law% E(en in cri)inal cases& usual
rules of e(idence aly%
3. Di!e%si(# Cases in Fede%al Cou%($ "tate ri(ilege law alies%
.. A((o%ne#)Clien( P%i!ile,e$ A co))unication *etween attorney and client or their
reresentati(es intended *y client to *e confidential and )ade to facilitate rendition
of rofessional legal ser(ices is ri(ileged unless wai(ed *y the client%
1. Fed$
a. Attorney MAY clai) the ri(ilege on *ehalf of the client%
b. =ri(ilege sur(i(es death of client%
c. E7cetions;
(1) rofessional ser(ices were sought to further cri)e or fraud1
(2) two or )ore arties consult an attorney on a )atter of co))on interest
and the co))unication is offered *y one of these arties against another1
(3)co))unication relates to alleged *reach of duty *etween lawyer and
client%
2. CEC$
a. Attorney MD"# clai) the ri(ilege on *ehalf of the client%
b. =ri(ilege ends once estate of dead client is distri*uted and e7ecutor of estate
is discharged%
c. E7cetions;
(1) rofessional ser(ices were sought to further cri)e or fraud1
(2) two or )ore arties consult an attorney on a )atter of co))on interest
and the co))unication is offered *y one of these arties against another1
(3) co))unication relates to alleged *reach of duty *etween lawyer and
client%
(4) Addi(ional eAce"(ion$ =ri(ilege does not aly where lawyer
reasona*ly *elie(es disclosure of co))unication is necessary to re(ent
cri)e that is li'ely to result in death or su*stantial *odily har)%
C. Doc(o%)Pa(ien( P%i!ile,e
34
1. Fed$ No co))on-law ri(ilege%
2. CEC$ "tate)ents )ade *y a atient to a doctor for the urose of o*taining
)edical treat)ent or diagnosis for hysical& )ental or e)otional condition are
ri(ileged%
a. =atient holds the ri(ilege%
b. E7cetions- ri(ilege does not aly where;
(1) =atient uts hysical or )ental condition at issue in case (e%g% ersonal
in:ury!%
(2) DoctorAs ser(ices were sought to aid in cri)e or fraud or to escae
cature after a cri)e or tort%
(3) Lawsuit in(ol(es doctor-atient relationshi (e%g% )alractice%!
(4) $ri)inal cases or where doctor is re5uired to reort infor)ation to a
u*lic office (e%g%& gun-shot wounds and so)e co))unica*le diseases!%
D. Ps#cho(he%a"is()Pa(ien( P%i!ile,e
1. Fed$ $o))on-law sychotheraist-atient ri(ilege%
a. =atient holds the ri(ilege%
2. CEC$ "tate)ents )ade *y a atient to a doctor for the urose of o*taining
)edical treat)ent or diagnosis for hysical& )ental or e)otional condition are
ri(ileged%
a. =atient holds the ri(ilege%
3. EAce"(ions$
a. Aly to BO#< federal law and $E$;
(1) =atient uts )ental condition at issue in case%
(2) =sychotheraistAs ser(ices were sought to aid in cri)e or fraud or to
escae cature after a cri)e or tort%
(3) Lawsuit in(ol(es sychotheraist-atient relationshi (e%g%
)alractice%!
(4) $o))it)ent roceedings%
(5) =atient is danger to self or others%
b. CEC EAce"(ion Onl#$
(1) Ta%aso EAce"(ion$ 4f sychotheraist has reasona*le cause to *elie(e
that the atient is a danger to hi)self or others& and that disclosure is
necessary to end the danger% Esta*lishing a duty to warn%
35
E. S"ousal P%i!ile,es
1. S"ousal Tes(i/onial P%i!ile,e$
a. .o(h ede%al and CEC$
(1) =er)its the witness souse to refuse to testify against his@her cu%%en(
souse% Must still *e )arried%
(2) =rotects ALL co))unications& regardless of confidentiality& *oth during
and *efore )arriage1 includes *oth testi)ony and o*ser(ations and
i)ressions%
(3) Fitness souse is the holder of the ri(ilege and can wai(e it if he@she
wishes%
b. Fed$ Alies ONLY in c%i/inal cases%
c. CEC$
(1) Alies in ci(il AND cri)inal cases%
(2) Fitness souse is ri(ileged not e(en to *e called to the stand%
2. S"ousal Coniden(ial Co//unica(ion P%i!ile,e$ Sa/e unde% ede%al and
CEC) No dis(inc(ions.
a. #he ri(ilege rotects coniden(ial co))unications )ade during (he
/a%%ia,e4 e!en i (he cou"le is no lon,e% /a%%ied%
b. Does not aly;
(1) 4n a ci(il action *etween the arties or
(2) 4n a cri)inal rosecution where one souse is charged with a cri)e
against the other souse or one of their children%
c. Both souses are the holders of the ri(ilege1 thus& neither souse can
unilaterally wai(e the ri(ilege without the otherJs consent%
F. Cle%,#)Peni(en( P%i!ile,e$ Both federal co))on law and $E$ recogniIe a ri(ilege
for confidential co))unication )ade *y a enitent to a )e)*er of the clergy%
1. $lergy )ust custo)arily recei(e such co))unications in order to *e ri(ileged%
2. Both enitent and clergy hold ri(ilege%
9. O(he% CEC P%i!ile,es
1. Cou%nalis() +Re"o%(e%Es Shield Law-$ =ro(ides i))unity fro) conte)t of court
for news reorter who refuses to disclose sources.
a. E7cetion; Disclosure can *e co)elled if necessary to ro(ide defendant
right to a fair trial%
2. SeAual Assaul( Counselo% H Vic(i/ P%i!ile,e$ $onfidential co))unications
with authoriIed se7ual assault counselor& case-wor'er& or counselor are
ri(ileged%
a. "i)ilar ri(ilege for do)estic (iolence cases%
b. =ri(ilege not a*solute1 court can co)el disclosure where the ro*ati(e (alue
36
of the state)ents outweighs the re:udicial effect%
VIII. WRITIN9S AND OTFER TAN9I.LE EVIDENCE
NOTE$ Fhen analyIing issues in this area& re)e)*er 8O=RA<9
A. Au(hen(ica(in, Docu/en(s$ All tangi*le e(idence )ust *e authenticated% #o
authenticate an ite)& the roonent )ust roduce sufficient e(idence to suort a
finding that the thing is what its roonent clai)s it is%
1. Ancien( Docu/en(s$ Docu)ent )ust *e of a certain age and found in a lace
where it would li'ely *e if it were authentic& nothing ointing to dou*ts a*out
authenticity%
a. FRE$ Docu)ent )ust *e a( leas( >; #ea%s old.
b. CEC$ Docu)ent )ust *e /o%e (han <; #ea%s old.
2. Sel)Au(hen(ica(in, Docu/en(s$ $ertain docu)ents are self authenticating%
a. FRE$ 4ncludes certified coies of u*lic docu)ents (deeds!& ac'nowledged
docu)ents& official u*lications (go(ern)ent a)hlets!& newsaers&
eriodicals& *usiness records& and trade inscritions& certified coies of
*usiness records%
O O%i,inal W%i(in,
4s the writing the originalO 4s the original re5uiredO
P P%i!ile,ed
4s the writing ri(ilegedO
R Rele!anc#
Is the writing releant!
A Ac1nowled,ed Docu/en(s
#his category refers to notariIed docu)ents& i%e%&
docu)ents acco)anied *y a certificate of
ac'nowledg)ent e7ecuted in the )anner ro(ided *y law%
F Fea%sa#
Is the writing hearsa" #r d#es it c#ntain $%lti&le hearsa"!
37
b. CEC$ ONLY ce%(iied co"ies o "u0lic %eco%ds such as Dud,/en(s. Other
docu)ents that are self-authenticating under FRE& )ust *e indeendently
authenticated under $E$%
.. .es( E!idence@Seconda%# E!idence Rule$ Rule alies only where e(idence is
offered to ro(e the contents of a writing (*roadly defined as tangi*le rocess to
record words& ictures& and sounds -- includes recording& (ideo& hoto&
$D@DBD@M=0%! #he rule re5uires roof of contents with original& *ut with )any
e7cetions% "o the real 5uestion *eco)es; other than the original& what tangi*le
e(idence is ad)issi*le to ro(e contents of a writing& recording& (ideo& hoto % % %O
1. FRE$ Dulicates ad)issi*le% A 8dulicate9 is a coy of an original roduced *y
sa)e i)ression that roduced the original or *y a )achine (e%g%& hotocoier&
ca)era& car*on coy!% <andwritten coy is NO# a dulicate%
2. CEC$ Seconda%# E!idence Rule$ Ad)its dulicates and other written e(idence
of contents of original& such as handw%i((en no(es%
a. =ro ? does NO# aly to the "econdary E(idence Rule& so e(en in a
cri)inal case& "econdary E(idence Rule will aly and )ay e7clude rele(ant
e(idence%
NOTE$ Re)e)*er the original is not re5uired& and other e(idence of the contents of
a writing& recording& or hotograh is ad)issi*le if the )ne)onic LOCS alies%
Lost M All the originals ha(e *een lost or destroyed& unless the roonent lost or
destroyed the) in 8*ad faith%9
Oonent M #he oonent has ossession of the original and has refused to deli(er
it (e(en uon notice *y the leadings or *y the court!%
Collateral M Fhere the writing& recording& or hotograh is not closely related to a
controlling issue% i%e%& witness )erely refers to a writing& *ut not to ro(e its contents%
Su*oena M #he original cannot *e o*tained *y any a(aila*le :udicial rocedure%
38
I8. APPROACF TO EVIDENCE ESSAYS
A. Fo%u/ and Case
1. $ourt; Are we in federal or state courtO Fact attern will let you 'now%
2. $ri)inal@ci(il caseO
a. Re/e/0e% i i( is a c%i/inal case in Calio%nia cou%( P%o" 3 co/es
in(o "la#I
3.
.. Iden(i# e!idence4 "a%(# (%#in, (o ,e( e!idence ad/i((ed4 whe(he% c%oss o%
di%ec(.
1. $onsider O*:ections to the for) of 5uestions
a. Leading
b. Nonresonsi(e
c. $alls for a Narrati(e
d. Assu)es Facts Not in E(idence
e. $o)ound
f. "eculation
C. Ini(ial Anal#sis$ Is E!idence Rele!an(*
1. Lo,ical Rele!ance$ E(idence is rele(ant if it has any tendency to )a'e the
e7istence of any fact of conse5uence to the deter)ination of the action )ore or
less ro*a*le than it would *e without the e(idence%
a. Re)e)*er the distinction *etween FRE and $E$; Dnder $E$& needs to *e a
8disuted fact%9
2. Le,al Rele!ance$ 4s there any reason why rele(ant e(idence should
nonetheless *e e7cludedO
a. Pu0lic "olic# eAclusions
(1) Lia*ility insurance
(2) "u*se5uent re)edial )easures
(3) Offers to ay )edical e7enses
(4) "ettle)ent offers
(5) =lea negotiations
(6) Offers to ay )edical e7enses
(7) CEC$ E7ressions of sy)athy
b. .alancin, o "%eDudicial i/"ac( !s. "%o0a(i!e !alue ($E$ 0C,& FRE H-0!
3. P%o" 3) CA C%i/inal Cases$ All rele(ant e(idence is ad)issi*le in a cri)inal
case& e(en if otherwise o*:ectiona*le under the $alifornia E(idence code& su*:ect
to the following e7cetions;
a. $onfrontation clause (e7clusionary rule!
39
b. <earsay
c. =ri(ilege
d. "econdary E(idence Rule
e. $haracter E(idence (to ro(e Defendant or (icti)As conduct!
f. $ourtAs ower to e7clude under $E$ 0C,
Eec(i!el#4 (he a""lica(ion o P%o" 3 is ai%l# li/i(ed4 ,i!en (hese
eAce"(ions.
D. P%esen(a(ion o E!idence
1. Wi(ness
a. $o)etency
b. =ersonal 'nowledge
c. Oath
d. +udge and :ury as witness
e. Refreshing Recollection@<ynosis
f. 4)each)ent &P%o" 3 co/es in(o "la# o% Calio%nia c%i/inal cases'
(1) $haracter for truth
(2) $ontradiction
(3) =rior inconsistent state)ents
(4) Bias& interest or )oti(e
(5) =rior con(ictions
(6) =rior *ad acts
(7) Me)ory or ercetion challenges
2. O"inion Tes(i/on#
a. Lay Oinion
b. E7ert Oinion (FRE Dau*ert (s% $E$ Eelley@Frye!
3. Cudicial No(ice
4. Docu/en( %elia0ili(#
a. Authentication
b. Best E(idence@"econdary E(idence Rule
E. P%o"e% Pu%"ose o% E!idence$ Li/i(ed ?se o Cha%ac(e% E!idence
1. $i(il $ases;
a. $haracter at issue in case
b. <a*it
c. FRE$ "e7ual assault or child )olestation
2. $ri)inal $ases;
40
a. M4M4$ rule
b. "e7ual assault or child )olestation
c. CEC$ Elder a*use or do)estic (iolence
d. Mercy Rule
e. Oening the door
F. Fea%sa# Rule (Grounds for e7cluding rele(ant e(idence!
1. Definition; (.! out of court state)ent (,! offered for the truth of the )atter
asserted%
2. $onsider whether state)ent offered for another uroses; Ber*al acts& effect on
listener& i)each)ent%
3. Nonhearsay and hearsay e7cetions%
a. Ma'e sure you are clear on e7e)tions and e7cetions under FRE and
e7cetions under $E$% For e7a)le& $E$ has a 8sontaneous state)ent9
e7cetion and FRE has an 8e7cited utterance9 e7cetion% FRE has 8resent
sense i)ression9 e7cetion& $E$ does not *ut the state)ent )ight 5ualify
for )ore narrow $E$ 8$onte)oraneous state)ent9 e7cetion%
b. Re)e)*er )ultile e7cetions )ay *e alica*le- discuss all of the) For
e7a)le& a state)ent )ay *e ad)issi*le as *oth a resent sense i)ression
and an e7cited utterance%
4. $onsider whether declarant needs to *e DNABA4LABLE for hearsay e7cetion to
aly%
9. P%i!ile,es (another ground for e7cluding rele(ant e(idence!
1. Attorney-client
2. =sychotheraist-atient
3. "ousal #esti)onial =ri(ilege
4. "ousal $onfidential $o))unication =ri(ilege
5. $lergy-=enitent
6. CEC$ Doctor-atient
7. CEC$ ReorterAs "hield Law
8. CEC$ "e7ual Assault $ounselor-Bicti)
F. Cou%(Es Powe% To EAclude ?nde% The .alancin, Ac( &FRE :;<@ CEC <=>'$
1. Re)e)*er that the final ste in any analysis whe%e e!idence is o(he%wise
ad/issi0le is to consider the courtAs ower to e7clude the e(idence if the ris' of
unfair re:udice su*stantially outweighs the ro*ati(e (alue of the e(idence% #his
)eans that if e(idence is e7cluded under the hearsay rule or on the grounds of
ri(ilege& you do NO# need to discuss whether it can *e e7cluded under the
*alancing act% But if there ARE no other grounds uon which to e7clude the
e(idence& consider the ris' of unfair re:udice as co)ared to the ro*ati(e (alue
of the e(idence%
41