Escolar Documentos
Profissional Documentos
Cultura Documentos
Table of Contents
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i. inTRoducTion
The principle of personal knowledge (Evidence Code ' 702) which postulates that all
evidence outside the personal knowledge of a witness (including hearsay) is
presumptively inadmissible.
The principle of relevance (Evidence Code ' 351) which mandates that only relevant
evidence may be admitted.
The two most common exceptions to the personal knowledge requirement are:
Hearsay exceptions.
Generally speaking, there are four exceptions to the relevance requirement. Each must be raised
in a timely and proper manner. The four exceptions are:
The evidence=s Aprobative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.@ (Evidence
Code ' 352.)
Objections to the form of a question are designed to screen out questions that invite or permit
inadmissible material to come in. They insure that each question is framed:
In a neutral way that does not suggest the answer or assume or misstate the evidence;
and,
There are 23 different objections to the form of a question. They are included in the
comprehensive checklist of objections that follows. Generally speaking, these objections can be
grouped into three categories:
The question goes impermissibly beyond the personal knowledge of the witness; and,
The question calls for an answer whose relevance, if any, is outweighed by statutory
and constitutional provisions.
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Generally
Objection Supporting Authority
Relevance Evidence Code §§ 210, 350
Jury Selection
Asking the Juror to Prejudge the Evidence People v. Fowler (1918) 178 Cal. 657, 661
Indoctrinating on the Law or Facts C.C.P. § 222.5; Rousseau v. West Coast House Movers (1967) 256
Cal.App.2d 878, 882
Testing the Juror’s Knowledge of the Law C.C.P. 222.5.; People v. Love (1960) 53 Cal.2d 843, 852;
Misstating the Law Kelly v. Trans Globe Travel Bureau, Inc. (1976) 60 Cal.App.3d 195, 203-204
Question not related to any challenge for cause C.C.P. § 222.5; People v. Williams (1981) 29 Cal.3d 392, 407.
Opening Statement
Admissibility of Evidence
Asserted Facts are Unsupported by Evidence Smith v. Covell (1980) 100 Cal.App.3d 947, 958; Upham Co. v. United States
Fid. & Guar. (1922) 59 Cal.App. 606, 610
Fact Stated Will Not Be Proven Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 121; California Practice
Guide: Civil Trials & Evidence, Chap. 6-C 6:44 (2006)
Injecting Inadmissible Material Hawk v. Superior Court (1974) 42 Cal.App. 3d 108, 118.
California Practice Guide: Civil Trials & Evidence, Chap. 6-C 6:43 (2006)
Violation of Motions in Limine Hawk v. Superior Court (1974) 42 Cal.App. 3d 108, 118
Referring to the Liability of Others Evidence Code § 350; Neumann v. Bishop (1976) 59 Cal.App.3d 451, 476.
Mentioning Wealth or Poverty of Party Evidence Code § 350; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841,
860.
Misconduct - Generally Rules of Prof. Conduct, Rule 5-200; People v. Bolton (1979) 23 Cal.3d 208,
214.
Improper Form
Addressing Juror by Name People v. Freeman (1994) 8 Cal. 4th 450, 517-518; Neumann v. Bishop (1976)
59 Cal.App.3d 451, 474-475; 75A American Jurisprudence 2d Trial § 565
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Arguing the Case Williams v. Goodman (1963) 214 Cal.App.2d 856, 869; California Practice
Guide: Civil Trials & Evidence, Chap. 6-A 6:20, 6-C 6:60-61; Love v. Wolf
(1964) 226 Cal.App.2d 378, 392
Instructing Jurors on the Law Williams v. Goodman (1963) 214 Cal.App.2d 856, 869; California Practice
Guide: Civil Trials & Evidence, Chap. 6-C 6:63 (2006)
Misstatement of Evidence California Practice Guide: Civil Trials & Evidence, Chap. 6-C 6:58-59
(2006)
Stating Personal Belief or Opinion Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 119; California Practice
Guide: Civil Trials & Evidence, Chap. 6-C 6:68 (2006).
Protracted Opening Statement Bates v. Newman (1953) 121 Cal.App.2d 800, 809-810
Competency of Witnesses
Expert Witness
Expert Unqualified Evidence Code § 720
Lay Witness
Incompetent Evidence Code § 701.
Other Witnesses
Mediator Called as Witness Evidence Code § 703.5.
Assumes Facts Not in Evidence People v. Heldenburg (1990) 219 Cal.App.3d 468, 472; 3 Witkin Evidence,
Chap., XI, § 172.
Beyond Scope of Discovery C.C.P. § 2017 et seq.; Penal Code § 1054 et. seq.
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Calls for Legal Conclusion Evidence Code § 310; Downer v. Bramet (1984) 152 Cal.App.3d 837;
McHugh v. United Service Auto Ass’n (9th Cir. 1999) 164 F.3d 451, 454.
Calls for Narrative Schuur v. Rodenback (1901) 133 Cal. 85, 89.
Compound or Complex question Evidence Code § 765; Wiese v. Rainville (1959) 173 Cal.App.2d 496, 506.
Misusing Hypothetical Question Evidence Code § 801; People v. Gardeley (1996) 14 Cal. 4th 605; 31A Cal.
Jur. 3d Evidence §§ 599-600. [Conflict with other evidence in case] State
to Use of Solomon v. Fishel (Md. 1962) 228 Md. 189.
Hypothetical question does not contain all the Am. Towing & Lightering Co. of Balt. v. Baker-Whiteley Coal Co. (Md. 1912)
necessary facts 117 Md. 660.
Admissibility of Evidence
Improper Judicial Notice Evidence Code § 450
Privileged or Protected Information - Evidence Code § 952; Specific privileges are listed below
Generally
Inadmissible Mediation Communication Evidence Code §§ 1119 [Motion for New Hearing], 1128.
Exhibits
Lack of Authentication Evidence Code § 1400.
Best Evidence Rule; Oral testimony regarding Evidence Code § 412; repeated in criminal cases, see Evidence Code §
the content of a writing 1523.
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Witness Testimony
Collateral Matter Evidence Code § 352.
Beyond the Scope of Direct [or Cross] Evidence Code §§ 761, 773.
Wealth or Poverty of Party Injected Evidence Code § 350; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841,
860
Improper Impeachment Foreming v. Stockton Elec. R. Co. (1915) 171 Cal. 401, 408; 3 Witkin Evidence
4th Chap. XI § 328.
Privileges
Attorney-Client Evidence Code § 954.
Closing Argument
Admissibility of Evidence
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Excluded Matter Mentioned Hawk v. Superior Court (1974) 42 Cal.App. 3d 108, 118; California Practice
Guide: Civil Trial & Evidence, Chap. 6-C 6:43 (2006)
Discussing Wealth or Poverty of a Party Evidence Code § 350; Brokopp v. Ford Motor Co. (1977) 71 Cal.App.3d 841,
860
Restricting the scope of closing argument People v. Beivelman (1968) 70 Cal.3d 73, 76-77; People v. Polite (1965) 236
Cal.App.2d 85, 93 [both sides have broad discretion to argue the merits of the
case]; People v. Travis (1954) 129 Cal.App.2d 29 ["The right of discussing the
merits of the cause, both as to the law and facts, is unabridged"]
Barring reference to outside sources People v. Guzman (1975) 47 Cal.App.3d 380, 392 [newspaper and magazine
articles]; People v. Travis (1954) 129 Cal.App.2d 29, 37 [Time magazine and a
court opinion]; People v. Woodson (1964) 231 Cal.App.2d 10, 15 [newspaper
article]; but see People v. Williamson (1977) 71 Cal.App.3d 206, 216-217
[counsel not permitted to read Scientific American article on eyewitness
identification]
Improper Form
Addressing Jurors by Name People v. Freeman (1994) 8 Cal. 4th 450, 517-518; 75A American
Jurisprudence 2d Trial § 565;Neumann v. Bishop (1976) 63 Cal.2d 141, 144.
Attacking Counsel, Party, or a Witness People v. Chong (2000) 76 Cal.App.4th 232, 244; Tingley v. Times Mirror Co.
(1907) 151 Cal. 1, 20.
Misstating the Evidence California Practice Guide to Personal Injury, Chap. 9-F, 9:325; Rules of
Prof. Conduct, Rules 5-200, 5-220.
Instructing Jurors on the Law People v. Calpito (1970) 9 Cal.App.3d 212, 222; Regus v. Gladstone Holmes,
Inc. (1962) 207 Cal.App.2d 872, 858; California Civil Courtroom
Handbook & Desktop Reference, § 37:9 (2006).
Stressing Irrelevant Facts or Issues Evidence Code § 352; 88 Corpus Juris Secundum: Trial § 263;Loya v. Fong
(Arizona 1965) 1 Ariz.App. 482.
Misstating the Law Rules of Prof. Conduct, Rule 5-200(A); Gotcher v. Metcalf (1970) 6
Cal.App.3d 96, 100; People v. Sudduth (1966) 65 Cal.2d 543; California
Civil Courtroom Handbook & Desktop Reference, § 37:9 (2006)
Asserting Personal Belief re the evidence or Rules of Prof. Conduct, Rule 5-200(E); see below
credibility of witnesses [Vouching]
Prejudicial or Inflammatory Statements Taylor v. Aetna Life Ins. Co. (1933) 132 Cal.App. 434, 439; Stone v. Foster
(1980) 106 Cal.App.3d 334, 355; Las Palmas Associates v. Las Palmas Center
Associates (1991) 235 Cal.App.3d 1220, 1247.
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Communicating with a Juror California Civil Courtroom Handbook & Desktop Reference, § 32:36
(2006); California Judges Benchbook: Civ. Proceedings Before Trial.
(CJER 1995), §§ 8.47-8.48.
Communication with a Juror Rules of Prof. Conduct, Rule 5-320; Hasson v. Ford Motor Co. (1982) 32 Cal.
3d 388, 416.
Currying Jury Favor Augustus v. Shaffer (1959) 171 Cal.App.2d 160, 167
Cutting Off Witness’s Answers Estate of Dupont (1943) 60 Cal.App.2d 276, 289.
Displaying inadmissible Evidence to Jury Cote v. Rogers (1962) 201 Cal.App.2d 138, 142-145; People v. Hernandez
(1977) 70 Cal.App.3d 271, 281.
Disparaging of Counsel, Party, or Witness People v. Chong (2000) 76 Cal.App.4th 232, 244; Tingley v. Times Mirror Co.
(1907) 151 Cal. 1, 20.
Asserting facts that were not provable or Shaff v. Baldwin (1951) 107 Cal.App.2d 81, 86; Love v. Wolf (1964) 226
proven Cal.App.2d 378, 390
Failure to follow court instructions People v. Chojnacky (1973) 8 Cal.3d 759, 766; Hernandez v. Paicius (2003) 109
Cal.App.4th 452, 463-468
Habitual or Intentional Violation of Court’s People v. Chojnacky (1973) 8 Cal.3d 759, 766; C.C.P. § 1209
Rules
Inadmissible Matter Sought or Stated Shaff v. Baldwin (1951) 107 Cal.App.2d 81, 86; Love v. Wolf (1964) 226
Cal.App.2d 378, 390.
Misquoting Testimony or Evidence Rules of Prof. Conduct, Rules 5-200, 5-220; Cal. Practice Guide on
Personal Injury, Chap. 9-F, 9:325;
Objecting for Improper Purposes Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.
Stating a personal belief in the merits of the Rules of Prof. Conduct, Rule 5-200(E)
case or the credibility of a witness
Raising Prejudicial or Inflammatory Matters Taylor v. Aetna Life Ins. Co. (1933) 132 Cal.App. 434, 439; Stone v. Foster
(1980) 106 Cal.App.3d 334, 355; Las Palmas Associates v. Las Palmas center
Associates (1991) 235 Cal.App.3d 1220, 1247.
Self-Serving Speaking Objections Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.
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Prosecutorial Error
Lapse in Candor or Fairness Rules of Prof. Conduct, Rule 5-200(A).
Failure/refusal to follow court instructions People v. Chojnacky (1973) 8 Cal.3d 759, 766; Hernandez v. Paicius (2003) 109
Cal.App.4th 452, 463-468
Misstatements of the Law [note that while the People v. Sudduth (1966) 65 Cal.2d 543, 547-548; Beard v. Bryan (1966) 244
court must correct all misstatements, it’s Cal.App.2d 836, 842; People v. Pineiro (1982) 129 Cal.App.3d 915; People v.
misconduct only if in bad faith] Meneley (1972) 29 Cal.App.3d 41; People v. Calpito (1970) 9 Cal.App.3d 212,
222 [and cases cited therein]
Misquoting Testimony or Evidence Rules of Prof. Conduct, Rules 5-200, 5-220; Cal. Practice Guide on
Personal Injury, Chap. 9-F, 9:325;
Vouching for a Witness People v. Talle (1952) 111 Cal.App.2d 650, 673; People v. Prysock (1982) 127
Cal.App.3d 972; People v. Adcox (1988) 47 Cal.3d 207; People v. Hidalgo
(1947) 78 Cal.App.2d 926, 936; People v. Anderson (1990) 52 Cal.3d 453,
478- 479; Rules of Prof. Conduct, Rule 5-200(E)
Referring to matters not in evidence People v. Kirkes (1952) 32 Cal.2d 719, 724; People v. Hill (1998) 17 Cal.4th
800, 828; People v. Perry (1972) 7 Cal.3d 756, 790; People v. Perez (1962) 58
Cal.2d 229, 241; People v. Johnson (1968) 260 Cal. App.2d 343, 344; People v.
LoCigno (1961) 193 Cal. App.2d 360, 388; People v. Johnson (1981) 121
Cal.App.3d 94; People v. Hall (2000) 82 Cal.App.4th 813, 816 817; People v.
Dagget (1990) 225 Cal.App.3d 751; People v. Warren (1988) 45 Cal.3d 471,
481 482
Urging jurors to step into the victim’s shoes People v. Fields (1983) 35 Cal.3d 329, 362; People v. Pensinger (1991) 52
Cal.3d 1210, 1250; People v. Zurinaga (2007 148 Cal.App.4th 1248; People v.
Leonard (2007) 40 Cal.4th 1370, 1406; People v. Mendoza (2007) 42 Cal.4th
686
“Were they lying questions” United States v. Sanchez (9th Cir. 1999) 176 F.3d 1214; United States v. Richter
(2nd Cir. 1987) 826 F.2d 206, 208; Greenberg v. United States (1st Cir. 1960)
280 F.2d 472; United States v. Boyd (D.C. Cir. 1995) 54 F.3d 868, 871;
Compare People v. Chatman (2006) 38 Cal. 4th 344 [such questions are not
necessarily improper]
Objecting for Improper Purposes Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.
Cutting Off Witness’s Answers Estate of Dupont (1943) 60 Cal.App.2d 276, 289.
Displaying inadmissible or Un-admitted Cote v. Rogers (1962) 201 Cal.App.2d 138, 142-145; People v. Hernandez
Evidence to Jury (1977) 70 Cal.App.3d 271, 281.
Self-Serving Speaking Objections Continental Dairy Equip. Co. v. Lawrence (1971) 17 Cal.App.3d 378, 384.
Inadmissible Matter Sought or Stated Shaff v. Baldwin (1951) 107 Cal.App.2d 81, 86; Love v. Wolf (1964) 226
Cal.App.2d 378, 390.
Griffin Error [commenting upon defendant’s Griffin v. California (1965) 380 U.S. 609; People v. Vargas (1973) 9 Cal.3d 470,
decision not to testify] 474; In Re Rodriquez (1981) 119 Cal.App.3d 457, 460; In re Dalton (2002)
98 Cal.App.4th 958; People v. Medina (1995) 11 Cal.4th 694, 755-756; People
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Doyle Error [commenting upon defendant’s Doyle v. Ohio (1976) 426 U.S. 610, 619; People v. Galloway (1979) 100
invocation of the right to remain silent] Cal.App.3d 551, 556; People v. Earp (1999) 20 Cal.4th 826, 864
Commenting upon the defendant's failure to People v. Conover (1966) 243 Cal.App.3d 38, 49; People v. Whitehead (1957)
produce evidence 148 Cal.App.2d 701; People v. Earp (1999) 20 Cal.4th 826, 864
People v. Gaulden (1974) 36 Cal.App.3d 942, 955
Commenting upon the defendant’s exercise of People v. Keener (1983) 148 Cal. App.3d 73; People v. Wood (2002) 103
Fourth Amendment rights Cal.App.4th 803; People v. Redmond (1981) 29 Cal.3d 904, 911
Biblical References People v. Sandoval (1992) 4 Cal.4th 155, 192-194; People v. Wrest (1992) 3
Cal.4th 1088, 1107; People v. Wash (1993) 6 Cal.4th 215, 258-260; People v.
Pitts (1990) 223 Cal.App.3d 606, 699-700
Raising Prejudicial or Inflammatory Matters Taylor v. Aetna Life Ins. Co. (1933) 132 Cal.App. 434, 439; Stone v. Foster
(1980) 106 Cal.App.3d 334, 355; Las Palmas Associates v. Las Palmas Center
Associates (1991) 235 Cal.App.3d 1220, 1247.
Denigrating defense counsel People v. O'Farrell (1958) 161 Cal.App.2d 13, 19; People v. Podwys (1935) 6
Cal.App.2d 71, 73; People v. Herring (1993) 20 Cal.App.4th 1066, 1077;
Bruno v. Rushen (9th Cir. 1983) 721 F.2d 1193; People v. Jones (1997) 15
Cal.4th 119, 167 168; People v. Chatman (2006) 38 Cal. 4th 344; People v.
Seaton (2001) 26 Cal.4th 598; People v. Bell (1989) 49 Cal.3d 502; People v.
Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47; People v. Davis (1995) 10
Cal.4th 463, 539-540; People v. Hawthorne (1992) 4 Cal.4th 43; People v.
Chong (2000) 76 Cal.App.4th 232, 244; Tingley v. Times Mirror Co. (1907)
151 Cal. 1, 20.
Denigrating the defendant People v. Prysock (1982) 127 Cal.App.3d 972; People v. Boyette (2002) 29
Cal.4th 381; People v. Herring (1993) 20 Cal.App.4th 1066, 1074; People v.
Singh (1936) 20 Cal.App.2d 244, 255; People v. Patterson (1953) 118
Cal.App.2d 45, 48; People v. Patino (1979) 95 Cal.App.3d 11, 29 31
Communication with a Juror Rules of Prof. Conduct, Rule 5-320; Hasson v. Ford Motor Co. (1982) 32 Cal.
3d 388, 416.
Currying Jury Favor. Augustus v. Shaffer (1959) 171 Cal.App.2d 160, 167
Conduct of Judge
Mistakes or Misconduct - Generally Cal. Code of Judicial Ethics, Canon 3B(4); Lewis v. Bill Robertson & Sons,
Inc. (1984) 162 Cal.App.3d 650, 654.
Judicial Coercion - Generally Shippy v. Peninsula Rapid Transit Co. (1925) 197 Cal. 290, 295; Pratt v. Pratt
(1903) 141 Cal. 247, 250
Independent Investigation People v. Handcock (1983) 145 Cal.App.3d Supp 25; Brown v. Lynaugh (5th
Cir. 1988) 843 F.2d 849, 851 [judge as witness]
Intimidation to induce Plea Bargain Ryan v. Commission on Judicial Performance (1988) 45 Cal. 3d 518, 543;
In re Lewallen (1979) 23 Cal. 3d 274, 278 281
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Overzealous questioning of witnesses People v. Perkins (2003) 109 Cal.App.4th 1562; People v. Santana (2000) 80
Cal.App.4th 1194, 1206; People v. Rigney (1961) 55 Cal.2d 236; McCartney v.
Commission on Judicial Qualifications (1974) 12 Cal.3d 512, 533
Gestures or Facial Expressions Cal. Code of Judicial Ethics, Canon 3B(4); Spruance v. Commission on
Judicial Performance (1975) 13 Cal.3d 778, 797; Allen v. State, 644 A.2d 982,
983, fn.1 (Del. 1994); Veteto v. State, 8 S.W.3d 805, 816 817 (Tex. App.
2000); People v. Franklin (1976) 56 Cal.App.3d 18
Interference with Presentation of Case Cal Judges Benchbook: Civ. Proceedings-Tr. § 5.98; People v. Perkins
(2003) 109 Cal.App.4th 1562, 1566-1567; See Geiler v. Commission on Judicial
Qualifications (1973) 10 Cal.3d 270, 286
Disparaging Counsel or a Party California Code of Judicial Ethics, Canon 3B(4); People v. Cole (1952)
113 Cal.App.2d 253, 261; .Meeks v. U.S. (9th Cir. 1947) 163 F.2d 598, 601;
Bursten v. U.S. (5th Cir. 1968) 395 F.2d 976, 983 ["Juries are highly
sensitive to every utterance by the trial judge, the trial arbiter, and ...
some comments may be so highly prejudicial that even a strong
admonition by the judge to the jury ... will not cure the error"]; People v.
Fatone (1985) 165 Cal.App.3d 1164, 1180 -1181; People v. Chong (1999) 76
Cal.App.4th 232; Fletcher v. Comm’n on Judicial Performance (1998) 19
Cal.4th 865, 905; Offutt v. United States (1954) 348 U.S. 11, 17; California
Practice Guide: Civil Trial. & Evidence, Chap. 12-A, 12:56. See Geiler v.
Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 286
Disparaging a Witness or Testimony California Code of Judicial Ethics, Canon 3B(4); People v. Terry (1970) 2
Cal. 3d 362, 298; People v. Harris (2003) 37 Cal.4th 310, 347; People v.
Mahoney (1927) 201 Cal. 618, 627; Fletcher v. Comm’n on Judicial Performance
(1998) 19 Cal.4th 865, 905; California Practice Guide: Civil Trial. &
Evidence, Chap. 12-A, 12:56.
Limiting or Preventing Objections Gallagher v. Municipal Court (1948) 31 Cal.2d 784; Cooper v. Superior Court
(1961) 55 Cal.2d 291
Negative reaction to aggressive advocacy Lambert v. U.S. (5th Cir. 1939) 101 F.2d 960, 963; Bennett v. Superior Court
(1950) 99 Cal. App. 2d 585, 595
Restricting the scope of closing argument People v. Beivelman (1968) 70 Cal.3d 73, 76-77; People v. Polite (1965) 236
Cal.App.2d 85, 93 [both sides have broad discretion to argue the merits of the
case]; People v. Travis (1954) 129 Cal.App.2d 29 ["The right of discussing the
merits of the cause, both as to the law and facts, is unabridged"]
Commenting upon the Evidence or the People v. Mahoney (1927) 201 Cal. 618, 627; People v. Proctor (1992) 4 Cal.4th
Credibility of Witnesses [which is permissible so 499, 543; People v. Cook (1983) 33 Cal.3d 400; People v. Rodriguez (1986) 42
long as it’s not partisan] Cal.3d 730, 766; People v. Cummings (1993) 4 Cal. 4th 1233, 1305; Cal. Code
of Civ. Procedure § 608
Improper Ex Parte Communication with Ryan v. Commission on Judicial Performance (1988) 45 Cal.3d 518, 543;
Parties or Witnesses Rushen v. Spain (1983) 464 U.S. 114, 117 118; Guadaulpe A. v. Superior Court
(1991) 234 Cal.App.3d 100
Inappropriate Communication with Jurors U.S. v. Coke (2nd Cir. 1964) 339 F.2d 183, 186; People v. Alfaro (1976) 61
Cal.App.3d 414, 426; People v. Lazarus (1929) 207 Cal. 507; United States v.
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Miroyan (1978) 577 F.2d 489, 494; People v. Knighten (19890) 105 Cal.3 128
(1980).
Commenting to press re pending case Ryan v. Commission on Judicial Performance (1988) 45 Cal.3d 518, 543
Encouraging or permitting Spectator Arizona v. Gevrez (1944) 148 P.2d 829; Commonwealth v. Hoover (1910) 75 A.
Misconduct 1023; People v. Slocum (1975) 52 Cal.App.3d 867, 883
Telling counsel in front of the jury to take his People v. Alfaro (1976) 61 Cal.App.3d 414, 426
objection up with the appellate court
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Irrelevant §§ 350-351
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probative
Privilege §§ 930-1060
Evidence sought by the question was unlawfully 4th, 5th & 6th Amend.
obtained
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(b) Subject to Section 702, the court may admit conditionally the proffered evidence under
this section, subject to evidence of the preliminary fact being supplied later in the course of
the trial.
(c) If the court admits the proffered evidence under this section, the court:
May, and on request shall, instruct the jury to determine whether the preliminary
fact exists and to disregard the proffered evidence unless the jury finds that the preliminary
fact does exist.
Shall instruct the jury to disregard the proffered evidence if the court subsequently
determines that a jury could not reasonably find that the preliminary fact exists.@
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(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, to recollect, or to communicate any matter about
which he testifies.
(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 previously made 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) [Contradiction] 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.
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Note: Proposition 8 effected a pro tanto repeal of Evidence Code §§ 786, 787, & 790. (People v.
Harris (1989) 47 Cal.3d 1047, 1080-1085.)
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EVIDENCE CODE ' 1102: OPINION & REPUTATION TO PROVE DEFENDANT=S CHARACTER
AIn a criminal action, evidence of the defendant's character or a trait of his character in the
form of an opinion or evidence of his reputation is not made inadmissible by Section 1101 if
such evidence is:
(a) Offered by the defendant to prove his conduct in conformity with such character or trait
of character.
(b) Offered by the prosecution to rebut evidence adduced by the defendant under
subdivision (a).@
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hearsay rule if [1] the statement would have been admissible if made by him while testifying, the
statement [2] concerns a matter as to which the witness has insufficient present recollection to
enable him to testify fully and accurately, and the statement is [3] contained in a writing
which:
Was made at a time when the fact recorded in the writing actually occurred or was
fresh in the witness' memory;
Was made (i) by the witness himself or under his direction or (ii) by some other
person for the purpose of recording the witness' statement at the time it was
made;
Is offered after the witness testifies that the statement he made was a true
statement of such fact; and
Is offered after the writing is authenticated as an accurate record of the statement.
(b) The writing may be read into evidence, but the writing itself may not be received in
evidence unless offered by an adverse party.”
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EVIDENCE CODE ' 1250: EXISTING STATE OF MIND P a g e | 22
A(a) . . . evidence of a statement of the declarant's then existing state of mind, emotion, or
physical sensation (including a statement of. intent, plan, motive, design, mental feeling,
pain, or bodily health) is not made inadmissible by the hearsay rule when:
The evidence is offered to prove the declarant's state of mind, emotion, or physical
sensation at that time or at any other time when it is itself an issue in the action; or
The evidence is offered to prove or explain acts or conduct of the declarant.
(b) This section does not make admissible evidence of a statement of memory or belief to prove the
fact remembered or believed.@
1 Note that both sections 1250 and 1251 are subject to Evidence Code section 1252 which states: AEvidence of a
statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of
trustworthiness.@
BREEDEN
1:hi:te:tiilOti EVIDENCE
(California Distinctions are Italicized in Red )
PROPS CRIMINAL CE OF D: D must open door first, unless acts of prior
Prop 8 is part of the California Constitution. Under Prop 8, all sex assault or child molest. CA - prior acts of domestic violence
relevant evid is admissible in CA crim cases unless the evid admis. IfD offered CE ofV, P can offer evid ofD's same trait.
falls within an exemption. CA·· Narrower- {fD offered CE of V\ violent char, P may
EXEMPTION: CHOP SUR: Confrontation clause; Hearsay; rebut with D :5 violent chm: P can rebut pertinent CE ifD
Open the door; Privilege, Secondary evidence, Unfair prejudice,
opened the door. Direct Exam: only reputation and opinion.
Rape shield.
FORM Cross Exam: reputation, opinion, specific acts, but no extrinsic
evid CA · only reputation and opinion on direct or cross.
OBJECTIONS: Calls for narrative, Unresponsive, Leading Prop 8. every.111111• subject to balancing.
Questions, Assumes facts not in evid, Argumentative, CRIMINAL CE OF v: FRE _ Prosecutor can't first offer CE,
Compound. Objections must be timely and specific or objection unless homicide case where D alleges self defense, but p can
is waived. offer V's peacefulness. D can open door with CE ofV, and P
PURPOSE can rebut only with D's same character trait. Direct Exam:
LOGICAL RELEVANCE: if it has any tendency to make a material only reputation and opinion. Cross Exam: reputation, opinion,
fact of consequence more or less probable than it would be and specific acts, but no extrinsic evid. CA Prop 8: relevant CE
without the evidence. CA Evid Code ·· also requires thejc1ct of (�{ V admissible, subject to balance. Reputation/opinion, specific
consequence in dispute to be relevant. acts on direct or c1vss.
RAPE SHIELD: Crim - reputation and opinion not allowed for V
Similar Hapnenin2:s: typically irrelevant unless: used to show
Specific acts ok to show 3rd party source of physical evid or
causation; to show a pattern in fraudulent claims or a
prior consent btwn D and V Civil - reputation, opinion, and
preexisting condition; to prove intent; rebut defense of
specific acts only if probative value substantially outweighs
impossibility; to show comparable sales relevant to establish
unfair prejudice. If reputation, only ifV put rep at issue. CA
value; evid of habit; routine practice; industrial custom.
Prop 8 does not apply to rape shield.
LEGAL RELEVANCE: If the probative value of the evidence is
SPECIFIC ACTS: admissible to demonstrate MIMIC, subject to
outweighed by its prejudicial effect. - emotionally disturbing,
balancing. (Motive, Intent, Mistake (not), Identification,
e.g. gory photograph or evidence that is admissible for one
Common Scheme-'Plan)
purpose but inadmissible for another�
POLICY CONSIDERATIONS: PRES ENTATION
Liabilitv insurance: inadmissible to prove culpable conduct, e.g.
WITNESS COMPETENCY: Witness must have (1) P ersonal
negligence, or D's ability to pay.
knowledge: first hand sensory perception; (2) �
Subseauent remedial measures: safety measures or repairs after
Recollection; (3) Abilitv to communicate; and (4) Sincerity:
accident inadmissible to prove culpable conduct or, if products
make oath or affirmation to tell truth. CA: W mus/ understand
liability, defective product design . CA · ((strict prod liability
legal duty to tell truth. Ws who have been hypnotized to re.fiBsh
case, evid of remedial measures is admis to pmve defective
ft!colleclion att! incompetent, except Ws in crim case who have
design. Limitation only applies to 11,�/1, ,,,, ... theories.
been hy1111011=ed by police using pmcedures protecting against
Settlement offers: not admissible to prove liability or guilt if a
suggestion.
claim is asserted. Not severable from other statements. CA
also includes mediauon proceedings. DISQUALIFICATION: Only judges and jurors automatically
Offers to Pav Medical Exnenses: inadmissible to prove liability DQ'd. No DQ for insanity, religious belief or age, but may
or guilt, but may be severed from other statements. CA affect credibility.
admissions o.fjZ1ct also inadmis and stmts are not severable. IMPEACHMENT
Exnressions of Svmnathv (CA): civil action: expression of
CONTRADICTION;
c1ympathy to victim is inadmis, but severablejiwn other stmts.
Criminal Pleas: offers to plea, and related statements are PRIOR INCONSISTENT STMT: cross or extrinsic evid if not a
inadmissible to prove guilt. collateral matter and W is given opportunity to explain or deny.
Must be under oath. CA: doesn t need tu be under oath;
CHARACTER EVIDENCE
CIVIL: Inadmissible to prove conduct unless character is at BIAS/INTEREST/MOTIVE: Cross exam or extrinsic evid if not a
issue, e.g. defamation, negligent entrustrnent, child custody. collateral matter;
Opinion, reputation, and specific acts can be used. Fed Only - PRIOR CONVICTION: Fed - felonies and misdem involving false
Prior sexual assaults or child molestation are admissible to statements always ok unless over 10 yrs old. Felonies not
prove conduct. involving false statements ok subject to balancing;
BREEDEN
1:hi:te:tiilOti EVIDENCE
(California Distinctions are Italicized in Red)
misdemeanors not involving false statements NOT admissible. accept. CA - ct must take judicial notice of matters generally
f
If admissible, extrinsic evid can be used; CA ··· all.felonies re: known w/injx, regardless c whether requested
moral tu,y1iwde (lying, violence, the.fi, extreme reek, or sex
BURDENS OF PROOF: Crim - beyond a reasonable doubt. Civ -
misconduct, ok subj to balanc111g. Felomes not involving moral preponderance of evidence. Presumptions. Shifts burden to
tl/lJJ are inadmis, subj to P1vp 8 . Misdem inadmis, but under party against whom presumption is asserted.
Prop 8 misdem involving moral tw7;tt11de ok subj to balancing. HEARSAY
NON-CONVICTION ACTS: ok if involves lying, but no extrinsic Out of court statement offered to prove the truth of the matter
evid. CA: inadmis, but under Prop 8 misconduct re: moral turp asserted in the statement. Usually inadmissible.
ok subj to /, rlonn:;
EXEMPTIONS: admissible b/c not hearsay.
REPUTATION/OPINION RE: TRUTHFULNESS: extrinsic evid ok
or opinion ofW; FACTS OF INDEPENDENT LEGAL SIGNIFICANCE.
SENSORY DEFICIENCIES. EFFECT ON HEARER: knowledge or notice.
SPEAKER'S KNOWLEDGE OF FACTS.
DOCUMENT RELIABILITY
CIRCUMSTANTIAL EVID OF STATE OF MIND.
AUTHENTICATION: Signatures - admission, eyewitness ADMISSION BY PARTY OPPONENT: not subject to personal
testimony, expert opinion, lay opinion by someone familiar with knowledge req or the opinion rule.
sig, circumstantial evid, genuine exemplar (known sig VICARIOUS PARTY ADMISSION: Employee - if authorized
compared to sig admitted). spokesperson or w/in scope of employment and during
employment relationship. Auth can be express or implied. CA
SelfAuthenticating:: certified public docs, acknowledged docs, limited: only (fnt!Khgence t!.l"fJIJ.R'S employer to respomJ,,af
official pubs, newspapers, periodicals, FED only - business supen·or.
records, trade inscriptions.
ADOPTIVE ADMISSION: silence admission if: party heard and
Photos: must fairly and accurately depict what it is purporting to understood, was physically and mentally able to deny,
show at time of event. Non-unique items - chain of custody. reasonable person would have denied.
PRIOR INCONSISTENT STMT UNDER OATH. Used for
Best Evidence Rule (CA: SenindcJ') f,'vid Rule): Evidence is impeachment and substantive proof CA does not require •\,;i.
being offered to prove contents of a writing. Originals and PRIOR CONSISTENT STMT TO REBUT CHARGE OF LYING: if
duplicates ok. Testimony ok only if original was lost or made before bribe or inconsistent strnt as substantive proof or to
destroyed, unless bad faith by proponent of testimony. CA bolster credibility.
duplicate mcludes machine duplfl:ate and other written evid of PRIOR STMT OF ID: ID made after perceiving him.
contents.
EXCEPTIONS: hearsay but still admissible
OPINION TESTIMONY
EXCEPTIONS REQUIRING UNAVAILABILITY:
LAY OPINION: admissible if based on W's perceptions and
Requires privilege, death/illness, proponent cannot procure by
helpful to trier of fact. OK to show speed of auto, sanity, process or other reasonable means. Refusal to testify despite ct
intoxication, emotions, value of W's property. No legal or order, failure ofmemory. CA: re.fi1sal to testtfy out ojjea,; total
scientific opinions requiring specialized knowledge. memory loss.
EXPERT OPINION: Hot Ouiznos for Cold Pen1rnins. Req'ts: Former Testimonv: party against whom offered had opportunity
and motive to conduct exam. In civil case, party must have
Helpful to the jury; Qualified; supported by proper Factual
close privity-like relationship with earlier party, e.g. predecessor
basis; reasonable degree of Certainty; based on reliable in interest. CA - also appl,es (l W lives at least 150 miles.fi-om
Principles that were reliably applied - Fed/Daubert standard: ct. In civil case, no privily req r so long as opportunity and
Peer reviewed and published scientific journals; tested and motive are similat: OK tfojfered against person who originally
subject to retesting; low error rate; reasonable level of offered it into evid in the prior proceeding.
acceptance. C4 - Ki:/11:y-l• 1)"1: Standard: Based on principles Dvimz Declaration: only in civil and homicide cases by one
generally accep,t!d by experts in thefield. believing he is about to die and describing cause or
circumstance leading to injury. CA···· all cases ifdec/arant is
JUDICIAL NOTICE: Generally known in jx OR capable of actually dead.
accurate and ready determination by resort to sources whose Stmt a1Zainst interest: At time made, against pecuniary, penal or
accuracy cannot reasonably be questioned. Civil - judicial proprietary interest. If used to exculpate, must have
notice is conclusive. Crim - jury may but doesn't need to corroborating evid. CA· also tfug,linst social interest. No
corroborating evid req 'd.
BREEDEN
1:hi:te:tiilOti EVIDENCE
(California Distinctions are Italicized in Red )
Personal/Familv Historv: declarant must be family member or FEDERAL CATCH-ALL: Guarantees of trustworthiness; strictly
close associate. Requires personal knowledge. necessary; and notice given to adversary as to nature ofstrnt.
Stmt Offered Ai:minst Person Procurin2: Declarant Unavail: only CONSTITUTIONAL ISSUES: Even ifnot inadmissible b/c of
ifperson offered against engaged or acquiesced in intentional hearsay, Confrontation clause can make statement inadmissible
wrongdoing. against D in a crim case. Testimonial strnts are inadmissible
CA- Infliction or Threat of Phvsical Abuse: made ah1ear injury unless the declarant is unavailable AND the D had an
explaining it?fliction or threat. /11d11dt!.\ written or reconled opportunity to cross the declarant when the stmt was made.
stmts and stmts made to police/medical pn�l Only in crim cases and only when the prosecution is offering
the evid.
.CA: Past Phvsical/Mental Condition: only if at issue in case, PRIVILEGES
but does not need to be made for treatment purpo.11.:\.
ATTORNEY/CLIENT: Communication btw attorney and client, or
EXCEPTIONS - UNAVAILABILITY IMMATERIAL: (PAPERS PBJ) rep, intended by client to be confid and made to facilitate legal
services, is privileged, unless waived by client. Purpose must
Present Sense Imoression: While perceiving event or be to procure prof legal service. Cannot be made in presence of
immediately thereafter. CA stmt made to explain conduct 3rd party, unless unknown eavesdropper. Applies to comms
while enKaKed in it. from employee/agent ifcorp authorizes them to comm.
Ancient Docs: 20 years Privilege extends beyond client's death. Not applicable to
Past Phvsical Condition for Med Diaimosis: Ifmade to medical malpractice action. CA: comm. btwn c11111 n.r's mp/r,y 'I! and
professional to assist in diagnosis or treatment. Only statements atty only applies
f
[/'employee is natural pen·on to speak to atty
re: cause or source. CA only in child abuse or neglect cases on beha(f c co on that mafter OR (fempl,� I!<! did something for
when vicrim is under 12. which co may be liable. Atty can disclose (f'necessat)' ro
pre, I c,ime likely to result in death or serious bodily harm.
Excited Utterance: During or soon after startling event while
under stress ofexcitement ofevent. CA: aka !>pontaneous stmt. PSYCHO THERAPIST-SOCIAL WORKER /CLIENT: Comm btwn
Recorded R ecollection: W once had personal knowledge; doc patient and psych, intended by client to be confid, and made to
made by W under W's direction or adopted; Written or adopted facilitate rendition ofprofpsych services, is privileged, unless
when memory was fresh; accurate when made; W now doesn't waived by patient. CA: no privilege (f11e,:l.!ssary to prevent
remember crime that is likely to result in death or sr bodily harm.
State ofMind: Present mental, emotional, sensation or physical DR/PATIENT: doesn't apply ifpatient puts physical condition in
condition. Only ifstate ofmind is directly at issue and material issue, physician's services sought to aid in crime, or case alleges
or to establish intent (circumstantial evid that intent was carried breach ofduty arising out ofrelationship. CA - doesn r apply in
out) crim case or to i11fb doctor is required to report to public office.
Public R ecord: record describing activity ofoffice, describing SPOUSAL PRIVILEGE: Testimonial - in crim cases, W may
matter observed pursuant by duty imposed by law. Record refuse to testify against spouse. Can be waived by testifying
contains factual findings from investigation made pursuant to spouse. Doesn't apply in crim case where spouse is charged w/
authority granted by law. (Prosecution can't use). CA: crime against spouse or kids. Requires legal marriage at time of
prosecution may use if made by public employee, w/in scope of trial. CA: applies in both civ and crim and spouse doesn r have
employee.� duties, made near time of matter described, under to go on stand. Confidential Communication: protects all
ci1t:umstances md1 ·a1111g tmstwort/11111:.1,s. communications during marriage. Requires legal marriage at
Business Record: record ofevent, condition, opinion or time of communication. Both spouses hold and can prevent
diagnoses kept in regular course ofbusiness, made at or near testimony ofthe other.
time ofmatter described. C4: no opinions or diagnoses unless
simple.
Jud2:ment ofPrevious Conviction: Judgment offelony
conviction (e.g., copy ofjudgment ofconviction) admissible in
both civil and crim case to prove any fact essential to judgment,
but when offered by prosecution for purposes other than
impeachment, judgments against person other than the accused
are inadmissible. CA: civil only but includes pleas <�f'nolo
contendre. Prop 8 may apply in crim if moral t11rpit•1de
Learned treatises:std scientific treatise or authoritative work if
relied on by expert in direct or called to attn ofexpert on cross.
f
CA: narr<'II to point of uselessness -- only.facts <! general
notoriety.
Misc: vital stats, prop interest docs, , family records, market
reports. CA --judgment in prior civil case in tndl'lllnity.
BREEDEN
1:hi:te:tiilOti Evidence Charts
Speaker's Knowledge Statement proves the writer had knowledge of the No distinction.
of Facts facts and shows connection to the claim at issue
Admission by Party Statements of admission made by a party, or Considered hearsay, but falls under
Opponent someone attributable to a party, offered by a party exceptions.
opponent.
• Personal knowledge not required
• Opinion rule barring statements of legal
conclusions inadmissible
• Employees Considered hearsay, but falls under
• An authonzed spokesperson exceptions.
• Employee of a party concerning a matter
within the scope of his employment and Narrower w/r/t employees' statements
made during the employment relationship - only an admission where negligent
• Co-conspirators in furtherance of a conspiracy conduct of the speaker is the basis for
to commit a crime or civil wrong. an employer's liability in the case
• Partners made within the scope of partner�hip under respondeat superior
Adoptive Admission Silence may be an admission if: Considered hearsay, but falls under
• Party heard and understood exceptions.
• Party was physically and mentally capable of
denying
• Reasonable person would have denied the
accusation.
Prior Inconsistent Inconsistent statement must be made under oath at Considered hearsay, but falls under
Statement Given a prior proceeding or deposition and is admissible exceptions.
Under Oath for impeachment and as substantive proof
( distinguish between prior testimony requinng All prior inconsistent statements are
un_availabilitv) adnussible.
Prior Consistent A consistent statement is admissible if made Considered hearsay, but falls under
Statement Offered to before an alleged bribe or inconsistent statement exceptions.
Rebut Charge of W's and can be used as substantive proof or to bolster
Lying or E xaggeration credibility.
Prior Statement of Statements of identification made after perceiving Considered hearsay, but falls under
Identi fi cation him (does not require oath or formal proceeding). exceptions.
BREEDEN
1:hi:te:tiilOti Evidence Charts
Hearsay Exceptions
Requiring l nm ail,1hilit�
UNAVA.Il.ABillTY:
Privilege. Death or Illness, Proponent can't procure attendance by process or other reasonable means.
Federal California
• Refusal to testify despite court order (fed only) • Refusal to testify out of fear
• Failure of memory (fed only) • Total Memory Loss
Type Federal callfomla Distinction
Former Testimony • Party against whom testimony is now offered • Unavailability also extended to prior
had an opportunity to examine and similar deposition witness who lives 150 miles
motive to conduct the examination. from courthouse.
• In civil case, party against whom testimony is • In civil case, no predecessor in
now offered was not a party but has a close interest/privity requirement if opportunity
privity-like relationship with the earlier party and motive are similar
(predecessor in interest) • OK if offered against person who
originally offered it into evidence in the
prior proceeding
Dying Declaration • Admissible only in civil and homicide cases • Applies in all civil and criminal cases
• Made by one believing he is about to die • Requires declarant's dead
• Describing cause or circumstances leading to
impending death
Statement Against • At time made, against pecuniary, penal or • Includes statements against social interest
Interest proprietary interest • Does not require corroborating evidence
• If offered to exculpate accused, must have
corroborating evidence
Personal or Family • Concerning birth, marriage, chvorce, death, No distinction
History relationship, etc.
• Declarant must be family member or closely
associated
• Personal knowledge requ1red
Statement Offered Admissible if party against whom offered • Applies only inseriousjelonies.
Against Person engaged or acquiesced in intentional • Only if there is clear and convincing
Procuring Declarant's wrongdoing to procure unavailability. evidence that declarant was killed or
Unavailability kidnapped.
• Prior stmt must have been recorded by
law enforcement.
Infliction or Threat of Physical Abuse
• Made at or near time of injury or threat
• Describes or explains infliction or threat
• Written or recorded or made to police or
medical professional
• Trustworthy circumstances
Past Physical or Mental Condition
• Only if at issue in case
• Does not need to be made for medical
treatment (or even made to medical
professional)
BREEDEN
1:hi:te:tiilOti Evidence Charts
Ancient Documents Authenticated document over 20 years old • Authenticated document over 30
• Treated as accurate by someone who has a
reason to care.
Past Physical • Past bodily condition if made to medical V narrow - made by child abuse or neglect
Condition for personal to assist in diagnosing or treating victim under age 12
Medical Diagnosis/ • Cause or source ofcondition also admissible if
Treatment pertinent to diagnoses or treatment
Excited Utterance • During or soon after a startling event Called Spontaneous Statement
• Made under stress ofexcitement of event
• Concerning immediate facts of event
• EXCEPTION: where character is at issue in the case, all evidence (opinion, reputation, and specific acts) are admissible.
Cases to which this applies are:
o Defamation
o Negligent entrustment
o Child Custody
- --
Federal California �I
• EXCEPTION: prior acts ofsexual assault or child • No sexual assault or child molestation exception
molestation are admissible to prove conduct
�
Criminal Cases on Character Evidence of DEFENDANT
I
Federal California
• P cannot first offer CE. • P cannot first offer CE.
• EXCEPTION • EXCEPTION:
- Sexual assault or child molestation cases where - Sexual assault or child molestation cases where
prior acts of same are admissible. prior acts ofsame are admissible.
- Where D has offered character ofV, P can be - Where D has offered evidence ofV's violent
first character, P may only rebut with D's similar
to offer evidence ofD for the same trait. character ofviolence.
• D can offer CE to prove or disprove conduct - Domestic violence cases where prior acts ofsame
• P can rebut on pertinent character trait ofD. are admissible.
• On direct, only reputation and opinion. • CEC only allows reputation and opinion evidence on
• On cross, reputation, opinion or specific instances. But direct and cross.
no extrinsic evidence. • Prop 8: everything is admissible, subject to balance.
CriminAI Cases on Character Evidence.of VICTIM
Federal California
• P cannot first offer CE. • Prop 8: ifrelevant, V's character is admissible, subject to
• EXCEPTION: in homicide case, ifD alleges self balance.
defense, P may offer evidence ofV's character for • Reputation, opinion and specific instances are permitted
peacefulness. on direct and cross.
• D can offer CE ofV
• P can rebut, but only with D s same character trait.
• Prove by
- -
Impeachment by Evidence of Bias, Interest or Motive
- Cross Examination
- Extrinsic evidence (if not a collateral matter)
• W must be asked on cross about facts showing bias or interest before admission of extrinsic evidence. If admitted on
cross, admission of extrinsic evidence is at court's discretion.
!Impeachment bv Prior Convictions (if allowed, extrinsic evidence is admissible}
Federal California
• Crimes involvingfalse statements: • All felonies involving moral turpitude are admissible
- Felonies and misdemeanors involving false statements subject to balancing. Moral turpitude = lying, violence,
are always admissible to impeach. theft, extreme recklessness and sexual misconduct. NOT
- EXCEPT: if conviction or release from prison negligence or unintentional acts.
is over 10 years old, then subject to balancing
• Felonies not involving moral turpitude are inadmissible
• Crimes not involving false statements and not subject to Prop 8.
- Felonies are admissible, subject to balancing
- Misdemeanors are NOT admissible. • Under CEC, misdemeanors are inadmissible to impeach.
But, under Prop 8, misdemeanors involving moral
• If admissible, extrinsic evidence can be used. turpitude are admissible in a criminal case, subject to
balancing.
lmpeac.hment bv Non-Conviction Bad Acts
Federal California
I • Admissible in civil and criminal ifact involves lying. • Non-convicting bad acts are inadmissible under CEC.
1 • No extrinsic evidence.
• Under Prop 8, non conviction misconduct involving
moral turpitude is admissible in criminal cases using
cross or extrinsic evidence, subject to balancing.
tlmpeachment with Reputation and Opinion Resiardine Truthfulness
l&gjcal Relevance
Legal Relevance
Hearsay is an out-of-comt statement offered for the truth ofthe matter asserted. It is generally inadmissible because
the veracity of the witness at the time the statement was made cannot be tested.
HearsayExce1>tions
Although evidence may qualify as hearsay, there are certain exceptions to the hearsay rule for evidence that
bas its own indicia of reliability.
Here,Abigail's statement that Laurie was speeding was made at the scene of the accident, and therefore qualifies as
an out-of cou rtstatement. It is being offered to show that Laurie was indeed speeding, and therefore is being�
for irs truth. Consequently, it is hearsay.
Here, the plaintiff is attempting to introduce evidence of (Paul's prior conviction of vehicular man-
slaughter), which is a (prior bad act). Since this is a civil case, unless an exception applies, to the extent
that the evidence of the (conviction record) is introduced to show character for ______
(reckless driving), it is not admissible.
BREEDEN
1:hi:te:tiilOti
TRANSCRIPT OBJECTIONS
Ambiguous
An ambiguous question is one that could have more than one meaning.
Example: Did you get it?
11 11
(Get what? We have no idea how the speaker is using the word "it.")
Argumentative
An fl.r_gum,entative question is asked for the purpose of persuading the jmy or judge rather than to elicit
information (it som1ds like the attorney is making a point). It calls for no new facts by the witness but appears
to ask for inferences to be conceded from the question. It can be argumentative in content or TONE.
Example: "And it didn't occur to you to slow down at that point?"
(The attorney is arguing that the witness should bave slowed down).
(It hasn't been established that the witness ever used heroin)
Compound
A compound question is one that requires two answers.
Example: "Weren't you carrying a knife and some pepper spray?"
(Which is it? How would the witness answer if he or she was only carrying one of these?)
(Causation is an element of negligence and therefore it would be a legal conclusion in this case)
(The attorney is suggesting that Lola was too intoxicated to drive and the witness is led iuto answering
yes or no. The attorney should have asked the witness to discuss Lola's mental or physical state at the
time she entered the car.)
Mi5Jeading
A mjs)eading question misstates evidence or misquotes witnesses.
Example: You should be able to recognize this when you see it.
(The witness is basically admitting that he or she doesn't know the real price.)
Lacks Foundation
A question lacks foundation when, at the time it was asked, the foundation had not been laid that the witness had
the requisite knowledge to answer the question .
Example: "Where were you standing when you saw Alex shoot Elliot?"
(The foundation has not been laid that the witness saw Alex shoot Elliot, nor bas it been laid that Alex
shot Elliot at all.)
Non-Responsive
A non-responsive answer is one that goes outside the boundaries of the question or doesn't directly answer the
question (it� mean the witness just sits there like a bump on a log refusing to respond. In that situation, a
witness is hostile).
Example:
Question: "And what did you do with the money after you found it in
the drawer?"
(The attorney should move to strike everything after video games. Why the witness did what he or she
did with money is not responsive to the question, which was limited to what he or she did with it).